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Opinions Nov. 4, 2013

November 4, 2013
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7th Circuit Court of Appeals
Christian Serino v. Alec Hensley and City of Oakland City, Indiana
13-1058
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard Young.
Civil. Affirms dismissal of Serino’s lawsuit for federal claims of false arrest and malicious prosecution and Indiana tort claims for false arrest, malicious prosecution and intentional infliction of emotional distress. Serino’s claims are time-barred; his federal malicious prosecution claim failed to state a constitutional violation independent of his time-barred false arrest claim, and his state law claims for malicious prosecution and IIED were barred by the defendants’ immunity under the Indiana Tort Claims Act.

Indiana Court of Appeals
Claire's Boutiques, Inc. v. Brownsburg Station Partners LLC
32A01-1209-CC-438
Civil collections. Reverses a ruling in favor of Brownsburg Station, holding that the trial court erred when it denied Claire’s motion for summary judgment. Claire’s was allowed under a co-tenancy provision of its lease to terminate the agreement if vacancy rates in certain buildings fell below 70 percent. The trial court erred when it determined that Claire’s violated the lease because the total amount of relevant space vacant was not below 70 percent. Remanded to the trial court with instructions to grant summary judgment in favor of Claire’s.

Gregory A. Harris v. State of Indiana
39A05-1205-CR-239
Criminal. On rehearing, affirms its prior ruling upholding the trial court’s denial of a motion to dismiss a charge of sexual misconduct with a minor on which a jury was hung based on the same facts constituting a rape charge on which Harris was acquitted. Also reaffirms the trial court’s denial of the state’s motion to amend the charging information against Harris. The court declined to find double-jeopardy violations as a result of the Indiana Supreme Court’s decision in Garrett v. State, 992 N.E.2d 710 (Ind. 2013).

Robert M. King v. State of Indiana (NFP)
20A03-1303-CR-105
Criminal. Affirms convictions of three counts of criminal confinement, Class B felonies.

The Indiana Supreme Court and the Indiana Tax Court released no opinions by IL deadline.
 

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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