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Opinions Sept. 19, 2011

September 19, 2011
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7th Circuit Court of Appeals had posted no opinions from Indiana courts at IL deadline.

Indiana Supreme Court had posted no opinions at IL deadline.


Indiana Court of Appeals
John Haegert v. Margaret McMullan
82A04-1008-CT-470
Civil tort. Affirms summary judgment for Margaret McMullan in John Haegert’s action alleging defamation, tortious breach of his employment contract, and intentional infliction of emotional distress. Haegert failed to show how he was injured by the contents of McMullan’s file as his termination was based only upon an incident involving McMullan. There is not properly designated evidence in the record that McMullan intended to cause Haegert emotional distress.

John Haegert v. University of Evansville
82A01-1008-PL-369
Civil plenary. Reverses summary judgment for the University of Evansville in John Haegert’s action alleging that the school’s decision to fire him for violation of its sexual harassment policy was a breach of his tenure contract. The university did not satisfy the burden of proof prior to terminating Haegert’s employment that he had committed sexual harassment in the form of hostile work environment. Remands for further proceedings. Judge Vaidik dissents.  

A.J. v. Logansport State Hospital
66A05-1012-MH-805
Mental health. Affirms finding that A.J. is mentally ill and dangerous and the grant of the commitment petition. Logansport State Hospital may be considered a community mental health center for the purpose of satisfying the statutory report requirement; the state’s Exhibit 1 was admissible as it constituted both a statement made for purposes of medical diagnosis and a report made in the course of a regularly conducted business activity; there was sufficient evidence that A.J. is dangerous; and the trial court’s consideration of competency restoration services and the probability that he will attain competency did not violate his due process rights. Judge Mathias concurs with separate opinion.

John M. Brewer and Susan B. Brewer v. Indiana Alcohol and Tobacco Commission
49A02-1011-CT-1276
Civil tort. Affirms jury verdict ruling against the Brewers on their action for false arrest and excessive force allegedly used against John Brewer during a routine inspection of their bar by the Indiana Alcohol and Tobacco Commission. Brewer wasn’t prejudiced by the exclusion of his purported expert’s testimony. The excise police had probable cause to arrest Brewer and the trial court acted within its discretion in giving Final Instruction No. 15 to the jury.

Michael R. Flanders v. State of Indiana
48A02-1009-PC-1019
Post conviction. Affirms denial of petition for post-conviction relief in part. Flanders’ trial and appellate counsel were not ineffective. Reveres denial of petition regarding Flanders’ sexually violent predator status. The 2007 amendment that eliminated his eligibility to petition the court for termination of his SVP status is an ex post facto law that is unconstitutional as applied to him. This violation can be remedied by reinstating his eligibility to petition for a change in status after his initial 10-year requirement to register has passed.

Judy Fratter, et al. v. Stanley Rice, Larry Ratts, M.D.

53A04-1101-CT-10
Civil tort. Affirms jury verdict in favor of Rice and Dr. Ratts in a medical malpractice and negligence complaint. Judy Fratter is not entitled to a new trial. The trial court properly read the relatively new Indiana Model Civil Jury Instruction that defines “responsible cause” to the jury, rather than the Indiana Pattern Jury Instruction regarding proximate cause.

Bruce Stansberry v. State of Indiana
49A04-1102-CR-75
Criminal. Reverses conviction of Class A misdemeanor attempted resisting law enforcement and remands with instructions. Stansberry’s conviction lacked a finding of proof on the element of resistance, obstruction, or interference. Because the decision to revoke his probation and placement in community corrections was predicated upon this conviction, this ruling must also be reversed.

Vaughn Reeves, Sr. v. State of Indiana
77A01-1012-CR-646
Criminal. Affirms convictions and sentences for nine counts of Class C felony aiding, inducing, or causing securities fraud. Concludes that for all nine counts for which Reeves was convicted, evidence of transactions prior to June 30, 2004, was admissible under the common scheme or plan exception to Rule 404(b).

DMS Real Estate, LLC v. Board of Zoning Appeals of the City of Terre Haute, Indiana (NFP)
84A04-1009-PL-617
Civil plenary. Affirms summary judgment for the Terre Haute BZA on DMS Real Estate’s petition for writ of certiorari and the denial by the BZA of DMS Real Estate’s special use approval petition.

Dwayne E. Gray v. Safeguard Real Estate Properties (NFP)
49A02-1102-PL-185
Civil plenary. Affirms summary judgment for Safeguard Real Estate Properties in Gray’s suit alleging damages to his property by a third party after Safeguard hired them to winterize the vacant property.

J.M. v. Review Board of the Indiana Department of Workforce Development and T.C. (NFP)
93A02-1102-EX-146
Agency appeal. Reverses Review Board’s reversal of the grant of benefits to J.M.

Macklin Brown v. State of Indiana (NFP)
49A02-1103-PC-331
Post conviction. Affirms denial of petition for post-conviction relief.

Marcus D. Brown v. State of Indiana (NFP)
48A04-1103-CR-93
Criminal. Affirms revocation of probation.

Hunter O. Learning v. State of Indiana (NFP)
54A04-1102-CR-74
Criminal. Affirms revocation of probation.

Evan J. Erickson v. State of Indiana (NFP)
89A05-1104-CR-212
Criminal. Affirms sentence following guilty plea to Class C felony operating a vehicle while intoxicated, enhanced by Erickson’s admission that he is a habitual substance offender.

Jeffrey Dean Washington v. State of Indiana (NFP)
65A05-1101-PC-65
Post conviction. Affirms denial of petition for post-conviction relief.

Vernon D. Scott v. David Merchant (NFP)
10A01-1012-CT-639
Civil tort. Affirms summary judgment in favor of police officer Merchant in Scott’s suit alleging negligence following a car accident.

Kyle J. Bonebright v. Lori A. Bonebright (NFP)
86A03-1104-DR-153
Domestic relation. Affirms interpretation of settlement agreement as transferring to Lori Bonebright the entirety of Kyle Bonebright’s deferred compensation account as of Nov. 4, 2011.

Indiana Tax Court had posted no opinions at IL deadline.

 

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  1. 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.

  2. 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?

  3. 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

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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