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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. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

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