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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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