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Opinions July 16, 2013

July 16, 2013
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7th Circuit Court of Appeals
Hoosier Environmental Council and Citizens for Appropriate Rural Roads v. United States Army Corps of Engineers and Indiana Department of Transportation
12-3187
Civil/agency action. Affirms the U.S. Court for the Southern District of Indiana’s grant of summary judgment in favor of the Corps of Engineers, holding that the Corps evaluated all of the wetland-protection factors required in its approval of a Clean Water Act permit to construct a section of Interstate 69 about 25 miles south of Bloomington.  

Indiana Court of Appeals
Steven Weinreb v. Fannie Mae
49A04-1211-PL-587
Civil plenary. Affirms partial summary judgment to Fannie Mae for $1.81 million. Weinreb, a real estate investor who was held liable for the amount, appealed the summary judgment on the grounds that the implementation of the loan documents was ambiguous; the prepayment premium is unenforceable; and the guaranty along with the loan documents are unenforceable because of unconscionability. The COA finds no ambiguity in either the language or implementation of the documents. It also concludes the prepayment premium is enforceable as a matter of law because it fairly compensates Fannie Mae for lost interest. Finally, the court rules Weinreb was not in a position of weakness or unequal bargaining power when negotiating the loan so the guaranty and the loan documents are not unconscionable.   

Marshall Banter v. Joshua Sheets
34A05-1212-CT-629
Civil tort. Reverses and remands for a new trial in a claim arising from an automobile crash. The panel held that a jury that assigned 70 percent fault to Marshall Banter, a motorist rear-ended in an auto accident, was given incorrect instructions and misapplied the Indiana Comparative Fault Act. The panel further held that Joshua Sheets conceded liability and therefore the jury at a new trial shall only determine Banter’s damages.

The Cain Family Farm, L.P., and The Cain Family Farm, LLC, v. Schrader Real Estate & Auction Company, Inc., Charles O. Drerup, Antlers Ridge, LLC, and Candace J. Somerlott

57A03-1209-PL-394
Civil plenary. Affirms trial court ruling validating the purchase agreements on property sold at auction, agreeing with trial court rulings that there is no genuine issue of material fact regarding Candace Somerlot’s apparent authority to bind the LLC when she executed purchase agreements, and that the trial court correctly interpreted the Indiana Business Flexibility Act, I.C. 23-18-3-1.1(b).

William Chavers v. State of Indiana

49A04-1211-CR-580
Criminal. Affirms conviction for Class A misdemeanor invasion of privacy. Finds that Chavers failed to show he made an honest and reasonable mistake of fact that would have negated his culpability for violating a no-contact order. Concludes a “reasonable person” would have attempted to verify that both protective orders issued from Marion Superior Court 21 and Court 16 had been vacated before going to the victim’s residence. However, in his dissent, Judge John Baker argues the confusion over the two separate orders could have caused “an average person” to easily make a mistake regarding the status of the protective orders.

Jeramie Murdock v. State of Indiana (NFP)
48A02-1210-CR-880
Criminal. Affirms 20-year executed sentence and convictions of Class B felony dealing in methamphetamine, Class D felony possession of methamphetamine and Class D felony maintaining a common nuisance.

Jeffrey Nemcek v. State of Indiana (NFP)
45A04-1210-CR-549
Criminal.  Affirms conviction of Class C felony reckless homicide and Class B misdemeanor possession of a switchblade knife.

Scott Banfield v. State of Indiana (NFP)

02A04-1210-IF-536
Infraction. Affirms bench trial verdict against Scott Banfield and fine of $35.50 plus court costs for a speeding ticket.

Oscar Guillen, Sr. v. State of Indiana (NFP)
56A03-1204-CR-157
Criminal. Affirms convictions of two counts of Class D felony intimidation and adjudication as a habitual offender.

Patrick Wiese v. State of Indiana (NFP)

49A02-1207-CR-595
Criminal/rehearing. Reaffirms trial court denial of a motion to suppress evidence from a home search.

Eric M. Kyner v. State of Indiana (NFP)
49A02-1301-PC-124
Post-conviction. Affirms denial of petition for post-conviction relief from his designation as a sexually violent predator and placement on parole, which was revoked after a violation.

Christopher McCaster v. State of Indiana (NFP)

79A04-1212-CR-644
Criminal. Affirms habitual-offender sentence enhancement to a conviction of Class A felony conspiracy to deal in cocaine or a narcotic drug.

Romell Colvin v. State of Indiana (NFP)
82A01-1212-CR-576
Criminal. Affirms Class D felony conviction of dealing in marijuana.

Nicholas Joseph Bray v. State of Indiana (NFP)
45A05-1210-CR-548
Criminal. Affirms denial of motion to withdraw guilty plea to two counts of Class C felony child molesting.

Barbara Laskowski v. Amer Kazi, M.D. (NFP)
20A03-1205-PL-235
Civil plenary/medical malpractice. A majority of Judge Rudolph Pyle III and Chief Judge Margret Robb affirms summary judgment in favor of the defendant. Judge Melissa May dissents.

Jim A. Edsall v. Benson, Pantello, Morris, James & Logan (NFP)
02A05-1210-SC-508
Small claims. Affirms judgment against Jim Edsall for $981.31 in unpaid legal fees.

Kenneth Horton v. State of Indiana (NFP)
49A02-1212-CR-1036
Criminal. Affirms revocation of probation on the suspended portion of a sentence for Class B felony rape.

Delford W. Jones v. State of Indiana (NFP)
45A03-1209-CR-401
Criminal. Reverses convictions of Class C felony child molesting and Class D felony sexual battery and remands to the trial court to enter a conviction of Class B misdemeanor battery and resentence Jones accordingly.

Susan Berg v. Wanda Peters Rice a/k/a Wanda Coleman (NFP)
40A04-1210-SC-530
Small claims. Affirms judgment in favor of Wanda Peters Rice a/k/a Wanda Coleman in a land contract dispute.

Melvin Lee Hayes v. State of Indiana (NFP)
03A05-1212-CR-630
Criminal. Remands to the trial court to recalculate credit for time served on convictions of Class D felony counts of possession of a controlled substance, possession of methamphetamine and theft.

Indiana Supreme Court and Indiana Tax Court issued no opinions by IL deadline Tuesday.


 
 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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