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Opinions Nov. 23, 2010

November 23, 2010
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7th Circuit Court of Appeals
Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC
10-2327
U.S. District Court for the Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker
Civil. Affirms the judgment of the District Court that granted Anodyne’s request for an award of attorneys’ fees in the amount of $72,747. The award was based on 15 U.S.C. § 1117(a), which allows attorneys’ fees to be awarded to prevailing parties in Lanham Act suits, but only in “exceptional cases.” Nightingale contended no award of attorneys’ fees was justified because the case was not “exceptional.” Also grants Anodyne’s motion for fees and costs pursuant to Rule 38 of the appellate rules. Dismisses as moot Anodyne’s motion to strike Nightingale’s brief and appendix.

June Kimmel v. Western Reserve Life Assurance Company of Ohio
10-1336
U.S. District Court for the Northern District of Indiana, Hammond Division, Magistrate Judge Paul R. Cherry
Civil. Affirms District Court’s grant of summary judgment to Western Reserve Life Assurance Company of Ohio. The insurance company had neither accepted nor denied the life insurance application of June Kimmel’s late husband, Richard Kimmel, within a 60-day timeframe. Richard died in an automobile accident six weeks after the end of that 60-day period. The 7th Circuit concludes that  "although Western Reserve deserves criticism for its handling of Richard’s application for life insurance, its behavior is not actionable under Indiana tort law” because ”the relationship between an insured and an insurer is different enough from the relationship between an applicant and a prospective insurer.”

Indiana Supreme Court posted no opinions before IL deadline.

Indiana Court of Appeals
 
Deidre Carter v. Grace Whitney Properties
82A04-1003-SC-177
Civil. Reverses and remands findings of small claims court. Concludes Vanderburgh County Local Rules 1.23(C) and 1.05(E), as applied here, violate Article 1, Section 22 of the Indiana Constitution because they contemplate the use of contempt to enforce an obligation to pay money even where, as here, the debt does not involve child support or fraud.
 
Larry Cox v. State of Indiana
79A04-0912-CR-741
Criminal. Reverses and remands Cox’s convictions of 10 counts of Class A felony child molesting and five counts of Class C felony child molesting. Concludes the trial court improperly permitted the state to introduce a videotaped statement in lieu of live direct examination, and that that error was not harmless.

Gregory Owens v. State of Indiana
29A02-1002-CR-390
Criminal. Affirms Owens’ conviction of child molesting. Concludes the state did not infringe upon his Fifth Amendment privilege against self-incrimination by introducing evidence that he did not contact police. Also finds the prosecutor’s comment in closing argument was improper but did not rise to the level of fundamental error requiring reversal.
 
Erik E. Neal, Jr. v. State of Indiana (NFP)

71A03-1003-CR-214
Criminal. Affirms conviction of and sentence for felony murder.
 
Steven Thrash v. State of Indiana (NFP)
49A02-1005-CR-483
Criminal. Affirms conviction of aggravated battery, a Class B felony. Revises 10-year sentence to eight years with six years executed and two years suspended.

Tara K. Mateyko v. State of Indiana (NFP)
29A02-1002-CR-226
Criminal. Affirms conviction of theft, a Class D felony.
 
Kyle Sheets v. Kandie Sheets (NFP)
48A02-1004-DR-419
Civil. Affirms trial court’s grant of mother’s request for permission to move with the parties’ children to Oklahoma.

Indiana Tax Court posted no opinions before IL deadline.
 

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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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