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Opinions Oct. 1, 2010

October 1, 2010
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The following opinions were posted after IL deadline Thursday.
Indiana Supreme Court
Caesars Riverboat Casino, LLC v. Genevieve M. Kephart
31S01-0909-CV-403
Civil. Reverses trial court denial of Caesar’s motion to dismiss Kephart’s counterclaim under Trial Rule 12 (B)(6) for failure to state a claim upon which relief can be granted. Holds that no common law right exists for patrons to recover damages for casino gambling losses. Justice Boehm concurs in result and Justice Dickson dissents.

Sheehan Construction Co., Inc., et al. v. Continental Casualty Co., et al.
49S02-1001-CV-32
Civil. Reverses trial court grant of summary judgment in favor of the insurers on grounds that there was no damage to the property and thus there was no “occurrence” or “property damage” and remands for further proceedings. Faulty workmanship may constitute an accident and thus an occurrence depending on the facts under a standard commercial general liability insurance policy. Chief Justice Shepard and Justice Sullivan dissent.

State of Indiana v. James S. Hobbs, IV
19S01-1001-CR-10
Criminal. Reverses trial court finding that the search violated the Fourth Amendment and Article I, Section 11 of the Indiana Constitution and the consequent suppression of the fruits of the search. Hobbs’ car was an operational vehicle in a public place, the dog sniff wasn’t conducted under circumstances where Hobbs was unconstitutionally seized and the dog  sniff provided probable cause that the car contained evidence of a crime. Justice Sullivan dissents in which Justice Rucker joins.

Thomas P. Donovan v. Grant Victoria Casino & Resort, L.P.
49S02-1003-CV-124
Civil. Affirms summary judgment for the casino on Donovan’s breach-of-contract claim and declaratory judgment that the casino can’t exclude him for counting cards. The long-standing common law right of private property owners extends to the operator of a riverboat casino that wishes to exclude a patron for employing strategies designed to give the patron a statistical advantage over the casino. The Riverboat Gambling Act, which gives the Indiana Gaming Commission exclusive authority to set the rules of licensed casino games, does not abrogate this common law right. Justice Dickson dissents.

Today’s opinions
7th Circuit Court of Appeals
Annex Books, Inc., et al. v. City of Indianapolis, Ind.
09-4156
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms preliminary injunction of ordinance requiring adult bookstores to be closed certain hours. The single article introduced by Indianapolis didn’t support its argument and the evidence of arrest data near the plaintiffs’ store appears to support the plaintiffs.

United States of America v. Charles Suggs
09-2700
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge David F. Hamilton.
Criminal.  Affirms District Court’s application at sentencing of a four-level increase for using or possessing a firearm in connection with another felony offense after Suggs pleaded guilty to being a felon in possession of a firearm. The District Court could reasonably conclude that Suggs grasped the handgun while resisting officers, ignored their orders, and that his grasp on the handgun without telling officers about his gun implied an intent to bring it forth and use it in some manner.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Lawrence Terrell Davis v. State of Indiana
45A04-1002-CR-97
Criminal. Affirms sentence for Class C felony auto theft, Class D felony resisting law enforcement, Class A misdemeanor resisting law enforcement, and for being a habitual offender. Davis failed to show that the trial court failed to give him the required advisement that by waiving his right to a jury trial on the underlying offenses that he also waived his right to a jury trial in the habitual offender phase. Remands with instructions to enter a habitual offender enhancement that is consistent with the opinion.

Gary S. Moore v. State of Indiana (NFP)
47A01-1001-CR-31
Criminal. Affirms sentence following guilty plea to Class B felony dealing in methamphetamine.

Cory A. Waltmire v. State of Indiana (NFP)
44A03-1002-CR-103
Criminal. Affirms sentences following guilty plea to two counts of Class C felony reckless homicide.

Daniel L. Lannen v. State of Indiana (NFP)
57A03-1004-CR-221
Criminal. Affirms sentence following guilty plea to Class B felony manufacturing methamphetamine.

Corey Stewart v. State of Indiana (NFP)
49A05-1003-CR-139
Criminal. Affirms conviction of Class A misdemeanor carrying a handgun without a license.

Indiana Tax Court had posted no opinions at IL deadline.

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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