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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. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

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