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Opinions July 27, 201

July 27, 2012
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7th Circuit Court of Appeals
Leonard Lapsley, et al. v. Xtek Inc.
11-3313
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Joseph S. Van Bokkelen.
Civil. Affirms denial of Xtek’s Daubert motion that sought to bar Dr. Gary Hutter from offering his expert opinions, which were essential to Lapsley’s case that a design defect in Xtek’s equipment was the cause of his accident. In this case, the District Court’s stated analysis of the proposed testimony was brief, but it was also directly to the point and was sufficient to trigger deferential review on appeal. The District Court did not misapply Daubert.

The Indiana Supreme Court posted the following decisions Thursday after IL deadline
Indiana Dept. of Revenue v. Miller Brewing Co.

49S10-1203-TA-136
Tax appeal. Reverses Tax Court ruling that Miller owes no tax on certain sales to Indiana consumers, holding that the Tax Court clearly erred in determining that an example of the application of an administrative rule had the force of law.

Douglas Cottingham v. State of Indiana
06S01-1112-CR-703
Criminal. Finds the statutory amendment to Indiana Code 35-38-2.6-6 regarding good time credit for home detention retroactively does not apply to Cottingham. By using “is placed” in the statute, the Legislature intended for the amendment to apply only to people who are placed on home detention on or after the amendment’s effective date.

Robert Smith v. State of Indiana
49S02-1109-CR-529
Criminal. Affirms revocation of probation and placement in a community-corrections program and order Smith serve time in the Department of Correction. Rejects Smith’s argument that his due process right to confrontation in revocation hearings requires confrontation as defined in Crawford. Affirms finding that the state’s Exhibit 1 was substantially trustworthy, so his due process right to confrontation was not violated by its admission.

Indiana Court of Appeals
John Cherry v. State of Indiana
55A01-1112-CR-585
Criminal. Affirms trial court convictions and sentences for Class B felony aiding, inducing or causing dealing in heroin and Class D felony unlawful possession of a syringe, finding the trial court did not abuse its discretion.

Dale Brenon v. The 1st Advantage Corp, d/b/a Omega Insurance Services
93A02-1202-EX-108
Executive administrative/workers’ compensation. Reverses and remands to the Worker’s Compensation Board of Indiana dismissal of Brenon’s application for adjustment of claim. The court held that the decision is not sustainable under the doctrine of collateral estoppel, Wisconsin laws or Supreme Court precedent, and that the board’s decision gave no effect to the reservation of rights clauses contained in settlement agreements.

Phillip L. White v. State of Indiana
18A05-1201-PC-1
Criminal/post-conviction relief. Affirms trial court’s denial of post-conviction relief, holding that White cannot demonstrate that his appellate counsel’s performance was deficient.

Kathleen K. Peterink v. State of Indiana
57A03-1112-CR-586
Criminal. Reverses and remands, finding that the trial court’s sentence exceeded the statutory maximum for a Class A misdemeanor.

Andre Graham v. State of Indiana
10A01-1108-CR-440
Criminal. Affirms convictions of Class A felony dealing in cocaine, Class A felony possession of cocaine, Class B felony dealing in a schedule III controlled substance, and Class D felony possession of a controlled substance, holding that Graham’s constitutional rights were not violated during the traffic stop that resulted in his arrest.

Ronald Davis v. State of Indiana
49A05-1109-CR-459
Criminal. Affirms 245-year aggregate sentence resulting from a guilty plea to four counts of murder, one count of Class B felony conspiracy to commit robbery and one count of Class B felony unlawful possession of a firearm, ruling that the sentence was not inappropriate in light of Davis’s character and the nature of the crime.   

Damon Tyree Johnson v. State of Indiana (NFP)
29A02-1111-CR-1020
Criminal. Affirms conviction of Class B felony robbery.

The Carl Kaetzel Trust U/T/D December 10, 1977, The Roberta Kaetzel Trust U/T/D December 10, 1977 and Carl Kaetzel, Roberta Kaetzel, et al v. Jon Marc Kaetzel and Beverly Kaetzel (NFP)
74A01-1201-PL-36
Civil plenary/rescission of deed and constructive fraud. Affirms trial court determination that the plaintiffs were not entitled to the remedy of rescission and that judgment was properly entered for Jon and Beverly Kaetzel.

In Re the Term. of the Parent-Child Rel. of S.S.; D.S. v. Department of Child Services (NFP)
02A03-1112-JT-592
Juvenile/termination of parental rights. Affirms termination of parental rights.

Joshua A. Willey-Rumback v. State of Indiana (NFP)
48A05-1111-CR-638
Criminal. Affirms conviction of Class B felony robbery and revocation of probation.

Chad A. Jeffries v. State of Indiana (NFP)
73A04-1110-PC-574
Criminal. Affirms conviction of dealing in methamphetamine.

Craig Watts v. Betty (Watts) Lankford (NFP)
42A01-1111-DR-523
Domestic relations/child support. Affirms trial court order for father to pay child support arrearage and mother’s attorney fees.

Anthony Ramirez v. State of Indiana (NFP)
41A04-1109-CR-475
Criminal. Affirms conviction of battery with a deadly weapon and residential entry.
 
Michael S. Dornbusch v. State of Indiana (NFP)
87A01-1112-CR-604
Criminal. Affirms convictions of four counts of Class B felony burglary and a count of Class D felony attempted residential entry.
 
Tarrance Battle v. State of Indiana (NFP)
49A02-1110-CR-946
Criminal. Affirms sentence for Class A felony possession of cocaine.
 
The Indiana Tax Court posted no opinions prior to IL deadline
 
 

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  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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