Opinions Feb. 18, 2014

February 18, 2014
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Indiana Court of Appeals
Robert Durall v. Mark S. Weinberger, M.D., Mark Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC, and Nose and Sinus Center, LLC
Civil tort. Dismisses grant of partial summary judgment to Mark Weinberger and other defendants. This discretionary interlocutory appeal is untimely.

Tanner Piotrowski v. State of Indiana
Criminal. Affirms denial of Piotrowski’s motion to exclude any evidence or testimony from the state Department of Toxicology. After reviewing the relevant statutes, finds that the Legislature intended I.C. 10-20-2-7 to effectuate a transfer of control of the Department of Toxicology from the Indiana University School of Medicine to the state of Indiana. Although the Legislature transferred rulemaking authority to the state, it did not specifically require the state to promulgate a new set of rules regarding breath testing and gave the state discretion to rely upon the rules previously in existence. The court did not err when it denied Piotrowski’s motion to exclude.

In the Matter of the Adoption of J.L.J. and J.D.J., Minor Children; J.J. and T.H. v. D.E.
Adoption. Affirms order dispensing with father’s consent to the adoption of his children and denying grandmother T.H.’s petitions for guardianship and adoption of her grandchildren in favor of D.E. Sufficient evidence supports the trial court’s determination that father’s consent was not required based on his knowing failure to provide care and support for the twins despite an ability to do so. The trial court did not abuse its discretion in concluding that grandmother was not entitled to notice of the guardianship proceedings. Affirms it is in the best interest of the twins to remain with the guardian.

Segun Rasaki v. State of Indiana
Criminal. Dismisses Rasaki’s appeal following conviction of Class D felony sexual battery and Class B misdemeanor battery. Concludes, sua sponte, that the appeal is untimely.

State of Indiana v. Jeremy Ripperdan (NFP)
Criminal. Reverses suppression of the results of a search of property where Ripperdan had allegedly previously sold methamphetamine. Remands for further proceedings.

Jonathan "Slade" Taylor and Mark A. Casey v. Eric "Rico" Elmore and Fatheadz, Inc. (NFP)
Civil plenary. Reverses summary judgment for Elmore and Fatheadz on a complaint alleging fraud and other claims.

In the Matter of: R.C. v. K.P. (NFP)
Protective order. Affirms protective order against R.C.

In Re the Adoption of D.E.C.; B.C. v. P.L. (NFP)
Adoption. Affirms finding that father’s consent to stepfather’s adoption of D.E.C. was not necessary and that the adoption was in the child’s best interest.

In Re the Marriage of: Earika Fussner v. Clint Fussner (NFP)
Domestic relation. Affirms denial of wife’s motion for clarification and husband’s motion to dismiss.  

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana opinions by IL deadline.



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  1. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  2. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  3. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  4. I hope you dont mind but to answer my question. What amendment does this case pretain to?

  5. Research by William J Federer Chief Justice John Marshall commented May 9, 1833, on the pamphlet The Relation of Christianity to Civil Government in the United States written by Rev. Jasper Adams, President of the College of Charleston, South Carolina (The Papers of John Marshall, ed. Charles Hobson, Chapel Hill: Univ. of North Carolina Press, 2006, p, 278): "Reverend Sir, I am much indebted to you for the copy of your valuable sermon on the relation of Christianity to civil government preached before the convention of the Protestant Episcopal Church in Charleston, on the 13th of February last. I have read it with great attention and advantage. The documents annexed to the sermon certainly go far in sustaining the proposition which it is your purpose to establish. One great object of the colonial charters was avowedly the propagation of the Christian faith. Means have been employed to accomplish this object, and those means have been used by government..." John Marshall continued: "No person, I believe, questions the importance of religion to the happiness of man even during his existence in this world. It has at all times employed his most serious meditation, and had a decided influence on his conduct. The American population is entirely Christian, and with us, Christianity and Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations with it. Legislation on the subject is admitted to require great delicacy, because freedom of conscience and respect for our religion both claim our most serious regard. You have allowed their full influence to both. With very great respect, I am Sir, your Obedt., J. Marshall."