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Opinions Oct. 31, 2013

October 31, 2013
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7th Circuit Court of Appeals
Mark Suesz, individually and on behalf of a class v. Med-1 Solutions LLC
13-1821
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms dismissal of Suesz’s complaint that Med-1 Solutions violated the Fair Debt Collection Practices Act after obtaining a favorable judgment against him in Marion County Small Claims Court in Pike Township because he neither lived nor signed the contract in that township. Small claim courts are not judicial districts for purposes of the FDCPA. Judge Posner dissents.

Katherine Cerajeski, guardian for Walter Cerajeski v. Greg Zoeller, Attorney General of the State of Indiana, et al.
12-3766
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Jane Magnus-Stinson. Reverses dismissal of lawsuit challenging the constitutionality of part of the Indiana Unclaimed Property Act on the ground it authorizes the state to confiscate private property without any compensation to the owner. Interest on a bank account is considered property the owner is entitled to claim.

Indiana Supreme Court
Robert Bowen v. State of Indiana
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/october/10311301per.pdf
08S02-1306-CR-423
Criminal. Grants rehearing for the limited purpose of modifying the remand instructions to expand them since the judge who originally sentenced Bowen is no longer on the bench. Denies Bowen’s request that the case be remanded for imposition of concurrent sentences.

Indiana Court of Appeals
Gary Tibbs v. State of Indiana
49A05-1210-CR-517
Criminal. Affirms convictions of two counts of Class A felony child molesting, three counts of Class B felony child molesting and one count each of Class D felonies intimidation and child solicitation. The prosecutor’s comments did not amount to fundamental error as the comment was merely one upon the evidence, which is permitted during closing argument.

Michael R. Houston v. State of Indiana
02A03-1303-CR-84
Criminal. Reverses conviction of Class D felony possession of cocaine due to insufficient evidence. The state did not prove Houston had constructive possession of the drug.

A.C. v. N.J.
20A04-1301-DR-37
Domestic relation. Reverses ruling that A.C. does not have standing to seek visitation of a child that her domestic partner gave birth to. Remands with instructions to reconsider A.C.’s request for visitation under the standard set forth in third-party visitation cases. Affirms denial of request for joint custody.


Richard Prancik, b/n/f, Renee Prancik v. Oak Hill United School Corporation
27A05-1302-CT-86
Civil tort. Affirms summary judgment to Oak Hill on Prancik’s claim that the school corporation breached a duty to him when a fellow student assaulted him. The teacher was acting in accordance with reasonable protocol for supervising students at the time of the incident, neither she nor the school were on any kind of notice that K.M. could be violent, either generally or towards Prancik specifically, and he and Prancik were left unsupervised at most for a mere matter of minutes.

Courtney Glenn v. State of Indiana
49A04-1302-CR-79
Criminal. Affirms convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct. Glenn’s feet-dragging and multiple attempts to pull away from the arresting officer were forcible resistance, and her actions were likely to result in serious bodily injury. Finds no double jeopardy violations.

David Wise v. State of Indiana
49A02-1301-CR-1
Criminal. Dismisses Wise’s interlocutory appeal of the order denying his pre-trial motion in limine to exclude evidence regarding video recordings of video files found on his mobile phone. The motion to certify was deemed denied by operation of Ind. Appellate Rule 14(B)(1)(e).

Tin Thang v. State of Indiana
49A04-1303-CR-110
Criminal. Reverses conviction of Class B misdemeanor public intoxication because the evidence is insufficient to establish that the intoxicated Thang alarmed another person within the meaning of the statute or endangered either his life or another person’s life.

George Small v. State of Indiana (NFP)
49A05-1304-CR-179
Criminal. Affirms conviction and sentence for Class D felony battery by bodily waste.

James Tinzley v. State of Indiana (NFP)
49A02-1303-CR-267
Criminal. Affirms conviction of Class A misdemeanor battery.

Gerald M. Joyce v. State of Indiana (NFP)
49A02-1302-CR-120
Criminal. Affirms convictions of Class C felony burglary and Class D felony theft.

In Re The Marriage of Brian C. Dickerson v. Shannon Dickerson (NFP)
32A04-1211-DR-579
Domestic relation. Affirms award of spousal maintenance to Shannon Dickerson; assignment of certain firearms to Shannon in the property division; finding that Brian Dickerson is in arrears in his child support obligation; conclusion that Shannon had not improperly diverted payments made pursuant to the provisional order; and conclusion that Brian’s military pension is not a marital asset. Remands with instructions to consider evidence and establish the amounts of Brian’s child support arrearage and the Lowe’s debt, the latter of which was assigned to Shannon.

In the Matter of A.G.(Minor Child), A Child Alleged to be a Child in Need of Services J.G.(Mother) v. Indiana Department of Child Services (NFP)
34A02-1306-JC-514
Juvenile. Dismisses appeal of CHINS finding as it is not a final appealable order.

Andre C. Greene v. State of Indiana (NFP)
02A03-1304-CR-161
Criminal. Affirms sentence following guilty plea to Class D felony domestic battery.

Bryce Leighton v. State of Indiana (NFP)
53A04-1303-CR-106
Criminal. Affirms sentence following guilty plea to Class B felony causing death when operating a motor vehicle with an ACE of 0.15 or more, Class D felony auto theft and Class D felony theft.

In the Matter of Custody of: L.T. and A.B., minor children, R.L. and P.L. v. A.B. and R.B. (NFP)
39A05-1305-MI-235
Miscellaneous. Affirms dismissal of the grandparents’ petition to modify custody.

Charles L. Hubbell v. State of Indiana (NFP)
20A04-1303-CR-145
Criminal. Affirms conviction of Class D felony failure to register as a sex offender.

Kevin James Porter v. State of Indiana (NFP)
71A03-1303-CR-94
Criminal. Affirms conviction of Class C felony burglary.

James Averitte v. State of Indiana (NFP)
49A04-1303-CR-119
Criminal. Affirms conviction of Class B misdemeanor harassment.

Steven Wilson v. State of Indiana (NFP)
33A04-1304-CR-189
Criminal. Affirms the seven-year habitual substance offender enhancement of Wilson’s two-and-a-half year sentence for Class D felony operating a vehicle while intoxicated.

In Re the Contempt of Dorothy Davis v. State of Indiana (NFP)
49A05-1307-CR-337
Criminal. Affirms imposition of 180-day sentence for indirect contempt after not appearing as a trial witness in court.

Sharon Jasinski v. Mirian Brown (NFP)
45A03-1212-SC-552
Small claim. Affirms $6,000 judgment in favor of Brown in a small claims action to recover property damages and loss of use damages after an auto accident.

Steven L. O'Bryant v. State of Indiana (NFP)
75A03-1301-CR-3
Criminal. Affirms convictions of four counts of Class A felony child molesting.

Jeffrey E. Howell v. State of Indiana (NFP)
33A01-1305-MI-245
Miscellaneous. The trial court had subject matter jurisdiction to consider Howell’s claims and therefore erred when it denied Howell’s motions on jurisdictional grounds. Moreover, the Sex Offender Management and Monitoring program’s requirements that Howell admit guilt and/or submit to a polygraph violate the Fifth Amendment. Remands with instructions to enter an order granting Howell’s renewed motion for restoration of credit time and class and to enter an order enjoining the DOC from requiring Howell to incriminate himself as part of the SOMM program.

Lyle B. Steele v. Asbury Glen Homes (NFP)
48A02-1209-SC-768
Small claim. Affirms judgment in favor of Asbury Glen Homes on its claim for damages and against Steele on his counterclaim for damages.

George Abel v. State of Indiana (NFP)
49A02-1206-PC-487
Post conviction. Affirms denial of petition for post-conviction relief.

The Indiana Tax Court posted no opinions by IL deadline.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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