Opinions March 22, 2012

March 22, 2012
Back to TopE-mailPrintBookmark and Share

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
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.
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
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
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.
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.
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)
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)
Divorce. Affirms trial court’s division of martial property.

The Marriage of: Donald J. Shaughnessy, Jr. v. Lyn A. Shaughnessy (NFP)
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)
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)
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.


Sponsored by
Subscribe to Indiana Lawyer
  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. 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.

  4. 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.

  5. 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.