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Opinions Sept. 15, 2011

September 15, 2011
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7th Circuit Court of Appeals
Cheryl A. Burns v. Orthoteck Inc. Employees’ Pension Plan and Trust, et al.
10-1521
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Affirms finding that Cheryl Burns’ consent to designate her husband’s three sons as beneficiaries was valid and affirms the denial of her claim for benefits. The unusual circumstances of the case lead to the conclusion that the pension plan was within its discretion to find that Dr. Burns, as plan representative, verified the authenticity of his wife’s signature on the written consent form and this satisfied 29 U.S.C. 1055’s witness requirement. The plan was also within its discretion to deny Burns’ claim for benefits.

Indiana Supreme Court
Mary Beth Lucas and Perry Lucas v. U.S. Bank, N.A., as Trustee for the C-Bass Mortgage Loan Asset-Backed Certificates, Series 2006-MH-1
28S01-1102-CV-78
Civil. Affirms denial of the Lucases’ request for a jury trial on their defenses and claims in a foreclosure action. The borrowers’ claims and defenses shall be tried in equity because the core legal questions presented by the borrowers’ defenses and claims are significantly intertwined with the subject matter of the foreclosure. Justices Dickson and Rucker dissent.

Indiana Court of Appeals
Frederick R. Lucas v. Darrin McDonald
63A04-1010-PL-644
Civil plenary. Affirms denial of verified petition for relief from lifetime sex-offender registration requirement. Lucas did not meet his burden of proving that the trial court’s decision is against the logic and effect of all the facts and circumstances of his case.

Board of Works of the City of Lake Station, Indiana, et al. v. I.A.E., Inc., Consulting Engineers
45A03-1007-CP-369
Civil plenary. Affirms jury verdict and the trial court’s rulings in favor of I.A.E. Consulting Engineering in its suit seeking payment from Lake Station on money owed for work completed. There is sufficient evidence to support the conclusion that I.A.E. didn’t make a business decision in 1994 to quit working on the project.  Remands with instructions for the trial court to recalculate the prejudgment interest award, using simple interest from the date of I.A.E.’s demand.

City of Jeffersonville, Indiana and City of Jeffersonville Sanitary Sewer Board v. Environmental Management Corporation
10A01-1005-PL-217
Civil plenary. Affirms in part and reverses in part regarding EMC’s complaint stemming from Jeffersonville’s attempt to take over the sewer system. The city did not provide sufficient notice to EMC 90 days before terminating the contract. Reverses summary judgment for EMC on its Open Door claims because EMC should have known that the letters in question were not authorized at a public meeting. Affirms the finding that the city is in contempt of the agreed entry. Remands with instructions to modify the award of attorney fees to reflect only the amount EMC incurred in relation to its contempt complaint and the award of costs to only reflect EMC’s filing fees and statutory witness fees. Affirms reducing EMC’s corporate support expenses from its losses during the calculation of EMC’s damages.

National Wine & Spirits, Inc., National Wine & Spirits Corporation, NWS Michigan, Inc., and NWS, LLC v. Ernst & Young, LLP
49A02-1012-CT-1289
Civil tort. Reverses grant of Ernst & Young’s second motion for summary judgment on National Wine and Spirits’ action for fraud and deception. The successive motion was proper, but there are genuine issues of material fact and res judicata doesn’t bar National Wine and Spirits’ claims.

Kathryn M. Richardson v. Todd E. Richardson (NFP)
49A05-1101-DR-28
Domestic relation. Affirms grant of Todd Richardson’s post-dissolution petition to enforce a settlement agreement and the denial of Kathryn Richardson’s motion to correct error.

Linzy C. Motton v. State of Indiana (NFP)
79A02-1012-CR-1440
Criminal. Affirms conviction of Class D felony theft.

Term. of Parent-Child Rel. of N.S. and A.S.; A.L. v. IDCS (NFP)
49A02-1102-JT-206
Juvenile. Affirms termination of parental rights.

Cordaro Clark v. State of Indiana (NFP)
34A02-1012-CR-1410
Criminal. Affirms conviction of and sentence for dealing in cocaine as a Class B felony.

Every Meadows LLC v. McKnight Excavating Inc., and Chad McKnight (NFP)
30A01-1012-PL-650
Civil plenary. Affirms denial of Every Meadows’ motion to correct error.

Addison Pijnapples v. State of Indiana (NFP)
38A05-1008-CR-510
Criminal. Affirms conviction of felony murder.

Term. of Parent-Child Rel. of K.T.; K.K.T. v. IDCS (NFP)
71A02-1103-JT-313
Juvenile. Affirms termination of parental rights.

Ronnie Harness v. State of Indiana (NFP)
82A04-1012-CR-770
Criminal. Affirms convictions of and sentences for Class A felony and Class C felony child molesting.

Brent Turner v. Jody (Turner) Bruce (NFP)
30A01-1102-DR-61
Domestic relation. Reverses order finding Brent Turner’s son partially emancipated. Affirms holding Turner in contempt for nonpayment of child support, and that he pay attorney fees to Jody Turner Bruce.

Torrien Jefferson v. State of Indiana (NFP)
49A02-1012-CR-1300
Criminal. Affirms conviction of Class D felony possession of cocaine.

Michael J. Stohler v. Mary Anne Stohler (NFP)
48A04-1101-DR-51
Domestic relation. Affirms determination of Michael Stohler’s income and the apportioning of daughter’s educational expenses. Reverses the apportioning liability for son’s college expenses and educational tax credits received by Mary Anne Stohler. Remands with instructions.  

Timothy L. Hahn v. State of Indiana (NFP)

18A04-1103-PC-176
Post conviction. Reverses summary dismissal of petition for post-conviction relief.

Mitchell Lynn v. Janet S. Greer and James L. Greer (NFP)
45A05-1102-PL-83
Civil plenary. Affirms grant of the Greers’ motion for judgment on the evidence.

Term. of Parent-Child Rel. of A.M. and M.M.; T.H. & A.A.M., Sr. v. IDCS (NFP)
02A03-1101-JT-67
Juvenile. Affirms termination of parental rights.

Adrian F. Cole v. State of Indiana (NFP)
49A02-1103-PC-348
Post conviction. Affirms denial of petition for post-conviction relief.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. 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

  3. 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!

  4. 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.

  5. 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.

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