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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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