Opinions March 20, 2012

March 20, 2012
Back to TopE-mailPrintBookmark and Share

7th Circuit Court of Appeals
Estate of Nicholas D. Rice, deceased, by Rick D. Rice and Diane J. Waldrop, co-personal representatives v. Correctional Medical Services, et al.
09-2804, 10-2389
U.S. District Court, Northern District of Indiana, South Bend Division, Judges Robert L. Miller Jr. and Rudy Lozano.
Civil. In No. 09-2804, affirms in part and reverse in part the District Court’s entry of summary judgment in favor of the defendants. A material dispute of fact precludes summary judgment on one of the estate’s Section 1983 claims. In No. 10-2389, reverses the District Court’s decision to dismiss the state claims on the basis of collateral estoppel. Remands both cases for further proceedings consistent with this opinion.

Indiana Supreme Court
Rebecca D. Kays v. State of Indiana
Criminal. Remands to determine Kays’ ability to pay restitution and a determination of her manner of payment. Finds nothing in 42 U.S.C. Section 407(a) to prohibit a trial court from considering a defendant’s Social Security income when determining the “amount the person can or will be able to pay” in restitution pursuant to Indiana Code 35-38-2-2.3(a)(5).

Henry L. Howard, et al. v. United States
Certified question. Under Indiana law, railbanking and interim trail use pursuant to 16 U.S.C. Section 1274(d) are not uses within the scope of the easements, and railbanking with interim trail use does not constitute a permissible shifting public use.

Harold J. Klinker v. First Merchants Bank, N.A.
Civil plenary. Reverses judgment on fraud and treble-damages claims because there are genuine issues of material fact as to whether Klinker acted with the requisite criminal intent. Remands for further proceedings.

Hannah Lakes v. Grange Mutual Casualty Company
Civil tort. Holds that the tortfeasor’s vehicle was underinsured under Indiana Code 27-7-5-4(b) because the amount actually paid to Hannah Lakes was less than the per-person limit of liability of the under-insurance endorsement. Remands for further proceedings.

Jerrell D. White v. State of Indiana
Criminal. Holds, under the circumstances of this case, that the defendant did not preserve the issue of whether the trial court properly allowed the habitual offender filing. Also holds that the authenticated and certified evidence was sufficient to uphold the jury’s determination that the defendant had two unrelated adult felony convictions. Justice Sullivan dissents, believing the Court of Appeals opinion to be correct.

Indiana Court of Appeals
Auto-Owners Insurance Company v. Cathy Benko and Gerald Ewing, as Executors of the Estate of Laverna Ewing, Deceased
Civil tort. Affirms denial of Auto-Owners’ motion to strike and summary judgment for Benko and Ewing in their underinsured motorist claim. Concludes that the plain language of the provision would lead an ordinary policyholder to believe that they were required to bring a bodily injury claim against the alleged tortfeasor within the applicable statute of limitations, which occurred in this case. Additionally, if the insurance company intended a different interpretation, it should have stated so in plain English so that their policyholders understand what is necessary to protect their interests and collect their benefits under the policy.

Luke Keys Carson v. State of Indiana
Criminal. Affirms convictions as guilty but mentally ill of two counts of battery by means of a deadly weapon, burglary, and resisting law enforcement. The evidence of Carson’s demeanor during and after the crime supports the determination that he was able to appreciate the wrongfulness of actions at the time of the crimes and therefore was guilty but mentally ill. There is also sufficient evidence to support the burglary conviction.

Curtis A. Bethea v. State of Indiana
Post conviction. Affirms denial of post-conviction relief. Based on Farmer v. State, 772 N.E.2d 1025 (Ind. Ct. App. 2002), and Roney v. State, 872 N.E.2d 192 (Ind. Ct. App. 2007), appellate counsel could have challenged the trial court’s use of one of the victim’s injuries as an aggravating factor because that was an element of the burglary charge that was dismissed pursuant to Bethea’s plea agreement. Concludes that Farmer and Roney misapplied the precedents on which they relied, and declines to follow those cases. Bethea’s remaining arguments concern minor mischaracterizations in the trial court’s findings which are not significant enough in light of the valid findings to warrant a downward revision. Judge May concurs in result; Judge Brown dissents.

Mitchell Preston v. State of Indiana (NFP)
Criminal. Affirms order Preston serve seven years of previously suspended sentence in the Department of Correction.

Jonathan R. Stephens v. State of Indiana (NFP)
Criminal. Affirms sentence following guilty plea to Class D felony theft.

Kevin Ferguson v. State of Indiana (NFP)
Criminal. Affirms conviction following guilty plea to Class B felony dealing in methamphetamine after trial court denied request to withdraw plea.  

James N. Hamilton v. State of Indiana (NFP)
Criminal. Affirms two convictions of Class D felony receiving stolen property.  

B.M. v. M.M. and M.R.M., b/n/f M.M. (NFP)
Juvenile. Affirms order awarding custody to father. Father is not entitled to appellate attorney fees.

Clarence A. Martin, Jr. v. State of Indiana (NFP)
Post conviction. Dismisses appeal of denial of petition for post-conviction relief.

Thomas Eaton, et al. v. City of Gary, et al. (NFP)
Miscellaneous. Affirms order denying Eaton and other appellants’ motion to correct error.

Rochelle M. Gibler v. Discover Bank (NFP)
Civil collection. Affirms summary judgment in favor of Discover Bank upon its breach of contract claim.

R.S. v. Review Board of the Indiana Dept. of Workforce Development and M.B. (NFP)
Agency appeal. Affirms denial of unemployment benefits.

Malinda Diaz v. State of Indiana (NFP)
Criminal. Affirms conviction of Class A misdemeanor domestic battery.

Earl R. England and Mary L. England v. Rob E. Hurford and Jennifer M. Hurford (NFP)
Civil. Affirms order granting a preliminary injunction to the Hurfords.

William Singleton v. State of Indiana (NFP)
Criminal. Affirms conviction of Class A felony attempted voluntary manslaughter and remands with instructions to vacate the Class B felony aggravated battery conviction and sentence.

Indiana Tax Court had posted no opinions at IL deadline.


Sponsored by
Subscribe to Indiana Lawyer
  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