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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. 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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