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Opinions Nov. 26, 2013

November 26, 2013
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The following 7th Circuit Court of Appeals decision was handed down after IL deadline Tuesday:
Wanda Goodpaster, et al. v. City of Indianapolis, et al.
13-1629
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard Young.
Civil. Affirms District Court’s denial of the bar owners’ request for injunctive and declaratory relief against the enforcement of the smoking ban in Indianapolis. They cannot succeed on the merits of any of their myriad claims. The injunction the bar owners sought was thus unwarranted.

Tuesday’s opinions
Indiana Court of Appeals

Kelley L. Kelly v. Tiffany L. Kravec
02A05-1304-DR-158
Domestic relation. Affirms denial of Kelly’s motion to correct error following the entry of the post-dissolution order awarding $5,000 in attorney fees to Kelly’s ex-wife in a proceeding involving parenting time. The attorney fee issue was not barred by res judicata and the trial court did not abuse its discretion by ordering him to pay a portion of his ex-wife’s attorney fees.

Barbara J. Pohl v. Michael G. Pohl
32A04-1304-DR-163
Domestic relation. Affirms order denying Barbara Pohl’s petition to terminate post-dissolution spousal maintenance. Concludes that, in considering the evidence, the trial court could have refused to modify the agreement under a standard requiring a showing of fraud, duress, or mistake or a standard requiring a substantial and continuing change of circumstances.

International Business Machines Corporation v. ACS Human Services, LLC

49A02-1301-PL-49
Civil plenary. Affirms order that IBM pay more than $700,000 in costs related to discovery and production of documents incurred by ACS Human Services LLC, a nonparty to the lawsuits IBM and the State of Indiana filed against each other. Affirms sanctions of more than $425,000 against ACS in favor of IBM. The trial court did not abuse its discretion when it awarded ACS some, but not all, of the damages it requested as a result of its participation in discovery as a nonparty under Trial Rule 34. Nor did the trial court abuse its discretion when it awarded IBM some, but not all, of the attorney fees and other damages it incurred as a result of ACS’ failure to comply with the trial court’s discovery orders.

Sally Thompson, Widow of Dennis Thompson v. York Chrysler
93A02-1302-EX-153
Agency action. Reverses determination by the Indiana Worker’s Compensation Board that Dennis Thompson did not prove his injury was compensable. The board’s findings did not support its conclusion that his injuries did not arise out of or occur in the course of his employment. Sally Thompson demonstrated Dennis Thompson was entitled to benefits. Remands for determination of the benefits she should receive on his behalf.

Evan Leedy v. State of Indiana
49A04-1303-CR-102
Criminal. Affirms finding Leedy is incompetent to stand trial for four counts of operating while intoxicated stemming from an automobile accident that killed his girlfriend and seriously injured another motorist and the commitment to the Division of Mental Health and Addiction. The trial court followed statutory procedure and that statute does not run afoul of Leedy’s due process rights.

Keith Walker v. State of Indiana (NFP)
49A04-1301-PC-49
Post conviction. Affirms denial of petition for post-conviction relief.

Brian D. Hodges v. State of Indiana (NFP)
49A05-1302-CR-71
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle while intoxicated.

Georgia Amerson, et al., v. Review Board of the Department of Workforce Development and Durham D&M, LLC. (NFP)
93A02-1301-EX-67
Agency action. Affirms decision that employee bus drivers and monitors of various school systems were not eligible for unemployment compensation because they were on unpaid vacation without remuneration because of their employer’s regular vacation policy and practice pursuant to I.C. 22-4-3-5.

Deandre Watson v. State of Indiana (NFP)
46A03-1304-CR-136
Criminal. Affirms revocation of probation.

David Jessup and Diane Jessup v. Chicago Franchise Systems, Inc. and Jag's Dough Decor d/b/a Nancy's Pizza (NFP)
29A02-1302-PL-160
Civil plenary. Affirms in part, reverses in part and remands. The trial court properly declined to modify the arbitration award, and Chicago Franchise Systems cannot be characterized as a “prevailing party” for purposes of recovery of attorney fees. However, the trial court’s order should have included the additional amount the arbitrator awarded the Jessups “over and above the net award.”

Brandon A. Scott v. State of Indiana (NFP)
82A04-1303-CR-128
Criminal. Affirms conviction of Class C felony possession of cocaine.

Kenneth Galvin v. State of Indiana (NFP)
46A03-1305-CR-174
Criminal. Affirms revocation of probation and order Galvin serve his entire previously suspended sentence in the DOC with credit for time served.

Arturo Torres v. State of Indiana (NFP)
20A03-1301-PC-17
Post conviction. Affirms denial of petition for post-conviction relief.

In Re the Marriage of Scott Roll and Carol Roll, Carol Roll v. Scott Roll (NFP)
27A02-1303-DR-247
Domestic relation. Affirms in part, reverses in part and remands. The trial court considered husband’s VA disability benefits, and did not abuse its discretion when it included wife’s health savings account as marital property. However, the trial court did err when it did not attach specific values to the assets and debts awarded to each party in its unequal distribution.

James Handy v. State of Indiana (NFP)
49A04-1303-CR-132
Criminal. Affirms conviction of Class A felony child molesting and remands for correction to the abstract of judgment.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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