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
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
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
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

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

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)
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)
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)

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)
Criminal. Affirms convictions of two counts of Class D felony intimidation and adjudication as a habitual offender.

Patrick Wiese v. State of Indiana (NFP)

Criminal/rehearing. Reaffirms trial court denial of a motion to suppress evidence from a home search.

Eric M. Kyner v. State of Indiana (NFP)
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)

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)
Criminal. Affirms Class D felony conviction of dealing in marijuana.

Nicholas Joseph Bray v. State of Indiana (NFP)
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)
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)
Small claims. Affirms judgment against Jim Edsall for $981.31 in unpaid legal fees.

Kenneth Horton v. State of Indiana (NFP)
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)
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)
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)
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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues