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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. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  2. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  3. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  4. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  5. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

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