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Opinions Aug. 29, 2011

August 29, 2011
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7th Circuit Court of Appeals
William Padula, administrator of the estate of Jerome Clement v. Timothy Leimbach, et al.
10-3395
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen.
Civil. Affirms summary judgment for defendants, which include the City of East Chicago Police Department, on Padula’s suit for wrongful arrest, excessive force, failure to train officers, and condoning the use of excessive force, and the remand of state law claims to state court. The officers had probable cause to arrest Clement because they believed him to be intoxicated, the officers’ use of force was not excessive, and Padula’s claims of failure to adequately train and supervise officers and for condoning and ratifying excessive force fail.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Steve Reed and Lee Ann Reed v. City of Evansville and Evansville Sewer & Water Utility
82A05-1012-PL-768
Civil plenary. Reverses summary judgment for the City of Evansville and the Evansville Sewer & Water Utility. None of the city’s supplemental evidence needs to be stricken, a question of fact remains as to whether the Reeds provided timely notice of their tort claims, the city isn’t otherwise entitled to judgment as a matter of law on the Reeds’ claims, and the city’s motion to strike portions of the Reeds’ brief in opposition to summary judgment and supporting affidavits was properly denied. Remands for further proceedings.

Term. of Parent-Child Rel. of D.D., J.J., and K.J.; E.J. v. I.D.C.S.
10A04-1011-JT-748
Juvenile. Reverses involuntary termination of mother E.J.’s parental rights. The Clark County DCS failed to satisfy the six-month statutory mandate of Ind. Code. 31-35-2-4(b)(2)(A), and the trial court committed reversible error in granting CCDCS’ involuntary termination petitions. Remands for further proceedings.

Danny R. Kitchen, Jr. v. Rebecca Kitchen (deceased), Michael Lake and Shelly Lake

27A04-1101-DR-14
Domestic relation. Reverses order denying Kitchen’s motion for relief from judgment from the trial court’s order granting visitation to Michael and Shelly Lake, the maternal aunt and uncle of Danny’s minor child, K.K. Appellate court adheres to the limitation of statutes and caselaw conferring standing only to parents, grandparents, and step-parents. Remands for further proceedings.

Ronnie Q. Henderson v. State of Indiana

20A03-1102-PC-108
Post conviction. Affirms denial of petition for post-conviction relief. The search of Henderson’s vehicle was valid under New York v. Belton and the Indiana Supreme Court’s interpretation of Belton. Arizona v. Gant does not apply retroactively to Henderson’s case.

Lonnie T. Bonds v. State of Indiana (NFP)
49A02-1101-PC-124
Post conviction. Affirms denial of petition for post-conviction relief.

James A. Falk v. State of Indiana (NFP)
77A04-1102-CR-127
Criminal. Affirms sentence for Class B felony burglary and Class D felony theft.

Daniel J. Reed v Saint-Gobain Containers, Inc. (NFP)
38A02-1007-MI-845
Miscellaneous. Affirms order denying Reed’s motion to correct error.

T.L.M. v. V.M. (NFP)
49A02-1008-DR-930
Domestic relation. Affirms denial of father T.L.M.’s verified petition for modification of custody.

Randall E. Lesh v. State of Indiana (NFP)
35A02-1103-CR-282
Criminal. Affirms sentence for Class D felony resisting law enforcement.

Charles R. Sparks v. State of Indiana (NFP)

10A04-1012-CR-794
Criminal. Affirms convictions of six counts of Class A felony child molesting and one count of Class B felony sexual misconduct with a minor.

Jeffrey Brooks v. Henry and Iva McNeal (NFP)

45A03-1101-CT-25
Civil tort. Affirms summary judgment for the McNeals in Brooks’ suit following injuries he allegedly sustained after falling off a ladder on property owned by the McNeals.

Ricky C. Newman v. State of Indiana (NFP)
15A05-1102-CR-134
Criminal. Affirms sentence following guilty plea to Class C felony operating a vehicle while privileges are forfeited for life.

Terry L. Holmes, Jr. v. State of Indiana (NFP)
34A02-1103-PC-284
Post conviction. Affirms denial of petition for post-conviction relief.

Willie Sims v. State of Indiana (NFP)
20A04-1102-CR-123
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle while intoxicated.

Christopher Huston v. State of Indiana (NFP)
48A02-1101-CR-30
Criminal. Affirms convictions of and sentence for Class B misdemeanor criminal mischief and Class D felony pointing a firearm.

David Newton v. State of Indiana (NFP)
49A02-1101-CR-10
Criminal. Affirms denial of motion for expungement.

Arturo A. Ortiz v. State of Indiana (NFP)
90A04-1103-CR-114
Criminal. Affirms denial of motion for jail time credit.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court dismissed one case on petition for transfer for the week ending Aug. 26, 2011.
 

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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