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Opinions March 22, 2012

March 22, 2012
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The Indiana Supreme Court issued the following opinion after IL deadline on Wednesday:
Loparex, LLC v. MPI Release Technologies, LLC, Gerald Kerber, and Stephen Odders
94S00-1109-CQ-546
Certified question. Answers three questions certified from U.S. Judge Jane Magnus-Stinson in the Southern District of Indiana. Holds that Wabash Railroad Co. v. Young, 162 Ind. 102, 69 N.E. 1003 (1904), is no longer good law because it precludes individuals who’ve voluntarily left employment from pursuing a claim under Indiana’s Blacklisting Statute. The justices also held that attorney fees are not an element of compensatory damages under the Blacklisting Statute and that an employer’s suit against a former employee to protect trade secrets is not a basis for recovery under the statute.

Thursday’s opinions
7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.


Indiana Supreme Court
Sheila Perdue, et al. v. Michael A. Gargano, et al.
49S02-1107-PL-437
Civil plenary. Reverses in part Marion Superior Judge David Dreyer’s ruling on challenge to Indiana Family and Social Services Administration’s automated system of processing claims for Medicaid, food stamps, and temporary assistance. Holds that the FSSA’s denial notices are insufficiently explanatory but that the agency may deny an application when that person fails to cooperate in the eligibility determination process. Affirms in part the trial court’s grant of Sheila Perdue’s summary judgment motion on the grounds that she’s entitled to reasonable accommodations in applying for benefits but that does not necessarily require a caseworker or case management services.

Hunt Construction Group, Inc., and Mezzetta Construction, Inc. v. Shannon D. Garrett
49S02-1106-CT-365
Civil tort. Reverses decision by Marion Superior Judge David Shaheed in case involving the employee of a concrete subcontractor injured in the construction of Lucas Oil Stadium. Finds construction manager did not have a legal duty by contract terms or action, and holds that construction manager cannot be held liable for workplace negligence. Justice Brent Dickson dissents, believing that material issues of fact exist about the construction manager’s duty of care and summary judgment is precluded for both parties.

State Automobile Mutual Insurance Co. v. Flexdar, Inc. and RTS Realty
49S02-1104-PL-199
Civil plenary. Affirms Marion Superior Judge Michael Keele’s judgment in favor of Flexdar, holding that the language of a pollution exclusion in a general commercial liability policy is ambiguous and should be construed against State Automobile Insurance Co. and in favor of coverage. Justice Steven David concurs in result, and Justice Frank Sullivan and Chief Justice Randall Shepard dissent in a separate opinion.

Indiana Court of Appeals
New Albany Historic Preservation Commission and City of New Albany v. Bradford Realty, Inc.
22A01-1108-PL-365
Civil plenary. Affirms and reverses in part ruling by Special Judge Daniel Moore, finding that Bradford Realty was not entitled to actual notice of potential historic district designation and was required to obtain a certificate when it replaced the property’s original siding. Appellate judges reverse trial court’s grant of summary judgment for Bradford Realty and grant summary judgment to the historic preservation commission. Affirm the judge’s denial of summary judgment for Bradford Realty on inverse condemnation claim. Judge Ezra Friedlander dissents in separate opinion.

Lawane Chaney on Behalf of Himself and All Others Similarly Situated v. Clarian Health Partners, Inc.
49A05-0905-CV-263
Civil. Court issues rehearing on an order on a motion for appellate fees and costs, affirming its original holding but finding that it made two errors – that the record does not support the finding that Ron Weldy informed the trial court of the stay in his motion to compel, and that the record does not support the court’s prior statement that Weldy persisted on the theory that Clarian Health had agreed to provide discovery after the trial court vacated its motion to compel. The court found those errors are insignificant and do not change the outcome of the original order. The judges also denied Clarian’s request for additional fees and costs incurred in responding to the rehearing petition.

Donald L. Webb, III v. Sheriff Kenneth A. Murphy and Town of Brookville, Indiana; Terry Mitchum (NFP)
24A04-1104-CT-197
Civil tort. Affirms trial court’s ruling in favor of Franklin County Sheriff and Town of Brookville on claims of battery and intentional infliction of emotional distress, finding the fundamental error doctrine does not apply and the trial court did not abuse its discretion in exempting the defendants’ expert from a separation of witnesses order.

In Re: The Marriage of Lisa Mae Slayback Gillispie v. Danny Lee Gillispie (NFP)
15A01-1108-DR-364
Divorce. Affirms trial court’s division of martial property.

The Marriage of: Donald J. Shaughnessy, Jr. v. Lyn A. Shaughnessy (NFP)
06A01-1107-DR-347
Divorce. Affirms trial court’s decision to deny an order for equal division of a marital estate.

Demitrus L. Grant v. The Bank of New York (NFP)
49A02-1104-MF-485
Mortgage foreclosure. Dismisses Demitrus Grant’s appeal for lack of jurisdiction, finding that the trial court’s denial of motion to dismiss the complaint against Grant is not a final appealable order and Grant didn’t ask the trial court to certify the issue for interlocutory appeal.

Kenny Green v. State of Indiana (NFP)
49A02-1107-CR-611
Criminal. Affirms Class A felony rape and Class D felony auto theft convictions and aggregate 40-year sentence.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. 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!!!

  2. 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.

  3. 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.

  4. 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.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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