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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. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  2. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  3. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  4. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  5. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

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