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Opinions July 22, 2014

July 22, 2014
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The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:

Connie J. Orton-Bell v. State of Indiana
13-1235
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses summary judgment for the state on Orton-Bell’s lawsuit alleging sex discriminating and hostile work environment claims after she was fired for having an affair with the major in charge of custody at the prison where they worked. There is evidence that she was similarly situated to the major, who was allowed to resign, keep his benefits, and return to work at the DOC through a contractor. Affirms judgment for the state on her retaliation claims.


Tuesday’s opinions
Indiana Supreme Court
Kenyatta Erkins v. State of Indiana
58S01-1309-CR-586
Criminal. Affirms conviction of Class A felony conspiracy to commit robbery resulting in serious bodily injury. Presents first impression issue of whether the state must establish the existence of serious bodily injury for Erkins’ conviction to stand. Because conspiracy is a crime consisting of intent to commit an underlying crime, an agreement between or among conspirators to commit the underlying crime, and an overt act by one of the conspirators in furtherance of the agreement, the state needed only to prove these elements beyond a reasonable doubt to support his conviction. Justice Rucker concurs in part and dissents in part to which Chief Justice Dickson joins.

Indiana Court of Appeals
Mark Rolley v. Melissa Rolley
87A01-1307-DR-330
Domestic relation. Affirms grant of Melissa Rolley’s petition to modify child support from $350 per week to $1,419 per week. Finds the trial court did not err in based on the appeals court’s analysis of the plain language of the child support modification statute, its recognition that the law governing child support agreements differs from that governing other contractual agreements, and its recognition that the ultimate concern is the child’s well-being.

City of Gary v. Review Board of the Indiana Department of Workforce Development and Guadalupe T. Franco
93A02-1312-EX-1016
Agency appeal. Affirms decision that Franco had been discharged but not for just cause and is entitled to unemployment benefits. The paperwork documenting the chain of custody of a urine sample of Franco was not completed properly, and the city could have produced more information to prove Franco’s sample did arrive at the facility intact.

Steven R. Perry v. State of Indiana
39A01-1312-CR-517
Criminal. Affirms denial of Perry’s motion for credit time for time spent on electronic monitoring as a drug court program participant. A participant in drug court is not awaiting trial or awaiting sentencing under I.C. 35-50-6-3, and the statutes governing electronic monitoring as a condition of probation are inapplicable to a person who voluntarily participates in a drug court program.

James K. Melton, Perdue Foods, LLC f/k/a Perdue Farms Incorporated and FPP Business Services, Inc., et al. v. Chad Stephens, Guardian of the Person and Estate of Stacy S. Stephens and Chad Stephens
14A01-1308-CT-356
Civil tort. Affirms findings of fact and conclusions thereon determining that the substantive laws of the state of Illinois apply to a motor vehicle collision which occurred in that state between residents of Indiana. The place of the tort is significant to the action.

Tender Loving Care Management, Inc., d/b/a TLC Management LLC, et al. v. Randall Sherls, as Personal Representative of the Estate of Birdie Sherls, Deceased
45A05-1311-CT-562
Civil tort. Reverses trial court finding that an arbitration agreement was unenforceable because of ambiguity because the extrinsic evidence resolves the ambiguity surrounding the identity of the parties to the agreement. Concludes Birdie Sherls’ son had the authority to enter the agreement and therefore had the authority to waive her right to a jury trial. Remands for further proceedings.

Robert L. Dixon v. State of Indiana
84A01-1307-CR-339
Criminal. Reverses denial of motion to suppress certain evidence which was discovered through a pat-down search following a traffic infraction. The trial court abused its discretion when it denied Dixon’s motion to suppress evidence located in violation of Dixon’s Fourth Amendment rights. Judge Bradford dissents.

Scott Greenier v. State of Indiana (NFP)
49A04-1312-CR-602
Criminal. Affirms conviction of Class B misdemeanor battery.

Jacob A. Phillips v. State of Indiana (NFP)
65A01-1312-CR-529
Criminal. Affirms sentence for three counts of Class B felony sexual misconduct with a minor.

In the Matter of the Termination of the Parent-Child Relationship of K.T., Minor Child, and K.S., Mother, K.S. v. Indiana Department of Child Services (NFP)
49A05-1312-JT-580
Juvenile. Affirms termination of parental rights.

The Indiana Tax Court posted no opinions by IL deadline.
 

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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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