In first impression ruling, COA reverses trial court on illegal search
The Indiana Court of Appeals has ruled that a police officer went one step too far when he opened a pill bottle he found in a man’s pocket.
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Governor names new general counsel
Gov. Mitch Daniels announced Friday that Anita Kolkmeier Samuel, assistant general counsel and policy director for the governor, has been named general counsel. Samuel replaces David Pippen, who has resigned to accept a position with Indianapolis law firm Bose McKinney & Evans.
63 claimants will accept settlement in State Fair stage collapse
The Office of the Indiana Attorney General has heard from all 65 claimants who were offered settlements stemming from the stage collapse at the Indiana State Fair in August, and 63 will accept the settlements.
Opinions Dec. 15, 2011 ILD
Indiana Court of Appeals
P.J. v. Review Board of the Indiana Dept. of Workforce Development, and Indianapolis Public Schools (NFP)
93A02-1102-EX-64
Agency appeal. Affirms determination that P.J. voluntarily left his employment without good cause and was ineligible for unemployment compensation.
Donald S. Forker v. State of Indiana (NFP)
28A04-1106-CR-364
Criminal. Affirms sentence following guilty plea to Class B felony dealing in a controlled substance.
Robert D. Spangler v. State of Indiana (NFP)
26A01-1106-CR-284
Criminal. Affirms sentence imposed after Spangler pleaded guilty but mentally ill to murder.
Brad A. Morcombe v. Kim D. Morcombe (NFP)
50A03-1104-DR-172
Domestic relation. Affirms division of assets.
Clara Combs v. State of Indiana (NFP)
72A05-1104-CR-148
Criminal. Affirms sentence for dealing in a schedule II controlled substance as a Class B felony.
Good Host, LLC v. Advanced Interventional Pain Center, LLC (NFP)
49A05-1105-PL-217
Civil plenary. Affirms finding that Good Host failed to state a claim for breach of contract under the theory of an assignment of the lease. Reverses dismissal of Good Host’s equitable assignment claim and remands for further proceedings.
P. Bryan Lilly, D.O. v. Tammy Meserve, as Natural Guardian of Samantha Jo Aders, Darien Aders, and Mason James Aders, minors (NFP)
19A04-1104-CT-193
Civil tort. Affirms in part and reverses in part judgment in favor of Meserve on her complaint alleging Dr. Lilly’s negligence resulted in Chad Aders’ death. Any error in the admission of Exhibit 4 or the expert testimony relating the content of the autopsy report did not affect Lilly’s substantial rights and was harmless. The trial court improperly denied Meserve’s request for attorney fees. Remands for the calculation of such.
In Re: (Supervised) Estate of Robert E. Bradley, Decedent; Phyllis C. Bradley v. Martha T. Starkey (NFP)
49A02-1103-EU-245
Estate, unsupervised. Affirms probate court’s order on the emergency petition to recover estate assets filed by Starkey.
Joshua Hudson v. State of Indiana (NFP)
87A05-1105-PC-280
Post conviction. Affirms denial of petition for post-conviction relief.
Najee Sabree Q. Blackman v. Samantha Maddox, et al. (NFP)
34A05-1106-CT-379
Civil tort. Affirms dismissal of Blackman’s complaint for damages.
R.D. v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP)
93A02-1103-EX-210
Agency appeal. Reverses denial of unemployment benefits.
Theresa L. Trensey and Louis L. Roth, Sr. v. Garland D. Anderson, M.D., Parkview Medical Group, and Unnamed Hospital, Inc. d/b/a Unnamed Hospital (NFP)
02A05-1104-CT-222
Civil tort. Affirms summary judgment in favor of Dr. Anderson, Parkview Medical Group and the unnamed hospital on the parents’ complaint for damages alleging medical malpractice.
Indiana Tax Court had posted no opinions at IL deadline.
Opinions Dec. 15, 2011
7th Circuit Court of Appeals
Adrianna Brown, et al. v. Columbia Sussex Corp., et al.
10-3849
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of 53 of the 224 plaintiffs who had their civil rights and breach of contract claims dismissed because they continually missed both formal and informal deadlines. Holds that, in the context of a multi-party or multi-claim suit, a premature notice of appeal from the dismissal of a party or claim will ripen upon the entry of a belated Rule 54(b) judgment under Rule 4(a)(2) and FirsTier. The District Court was within its discretion to find that the appellants acted willfully, in bad faith, or with fault.
Justices rule man not disenfranchised under the Infamous Crimes Clause
The Indiana Supreme Court hesitantly answered Thursday a certified question from the federal court as to whether misdemeanor battery is an “infamous crime” under Article II, Section 8 of the Indiana Constitution.
IJA honors colleague and journalist
An Allen Superior judge and a Louisville journalist received the Community Relations Committee awards this year from the Indiana Judges Association.
7th Circuit affirms dismissal of plaintiffs
Before the 7th Circuit Court of Appeals could rule on the dismissal of multiple plaintiffs from a civil rights and breach of contract lawsuit, the appellate court had to determine if it had jurisdiction to rule on the plaintiffs’ appeal.
Opinions Dec. 14, 2011 ILD
Indiana Court of Appeals
The Jefferson County Board of Zoning Appeals v. Harry and Eva Elburg (NFP)
39A01-1012-CC-664
Civil collection. Reverses denial of the board of zoning appeals’ motion to dismiss the Elburgs’ petition for writ of certiorari as it related to a conditional use and affirms the denial of the BZA’s motion to dismiss the Elburgs’ petition for writ of certiorari with regard to the variance issue. Remands for further proceedings.
Lawrence Ray Holley II v. State of Indiana (NFP)
79A02-1005-PC-652
Post conviction. Grants rehearing to expand upon the mailbox rule and affirms original decision to affirm the denial of Holley’s petition for post-conviction relief.
Douglas Norman and Theresa Norman v. State of Indiana (NFP)
15A01-1102-CR-74
Criminal. Affirms the Normans’ convictions of Class D felony money laundering as well as Doug’s convictions of Class C felony corrupt business influence, Class C felony forgery and Class A misdemeanor intimidation.
Quintin D. Holmes v. State of Indiana (NFP)
02A03-1104-CR-161
Criminal. Affirms convictions of and sentence for Class A felony dealing in cocaine, Class A misdemeanor resisting law enforcement and Class A misdemeanor possession of marijuana.
Alvareze Isom v. State of Indiana (NFP)
18A04-1106-CR-316
Criminal. Affirms sentence following guilty plea to Class C felony robbery.
Darrell Stephens v. State of Indiana (NFP)
30A04-1105-PC-232
Post conviction. Affirms denial of petition for post-conviction relief.
Clark County Board of Aviation Commissioners v. Margaret A. Dreyer (NFP)
10A01-1012-PL-659
Civil plenary. Affirms order by Clark Circuit Court that the aviation board pay Dreyer $865,000 in compensation for land that was taken by the board through the use of eminent domain.
Maria J. Villarreal v. State of Indiana (NFP)
57A05-1104-CR-209
Criminal. Affirms sentence for Class C felony forgery.
The Indiana Supreme Court and Indiana Court of Appeals had posted no opinions at IL deadline.
Opinions Dec. 14, 2011
7th Circuit Court of Appeals
Susan Kellar v. Summit Seating Inc.
11-1221
U.S. District Court, Northern District of Indiana, South Bend Division, Magistrate Judge Christopher A. Nuechterlein
Civil. Affirms summary judgment for Summit Seating on Kellar’s lawsuit that she is entitled to overtime under the Fair Labor Standards Act for work performed before the official start of her work shift. Concludes that Summit did not know or have reason to know that Kellar was working before her shift.
Grand jury indicts 2 attorneys, real estate broker
A grand jury in South Bend has returned a 14-count criminal indictment against two attorneys and a real estate broker from central Indiana over a state lease deal in Elkhart.
Woman loses appeal for overtime pay
A sewing manager who sued her former employer to obtain overtime pay for work she did before her shift started lost her appeal because the employer didn’t know that she was working prior to her shift, the 7th Circuit Court of Appeals ruled Wednesday.
Evidence properly admitted under independent source doctrine
The 7th Circuit Court of Appeals found no plain error in a District Court’s decision to admit evidence of a telephone number on a defendant’s cell phone in 2007 at the man’s trial several years later.
Judges reverse termination of parents’ rights
In a case filled with several errors and discrepancies, the Indiana Court of Appeals has reversed the termination of parental rights of a mother and two fathers because the Department of Child Services failed to meet the burden of proving that termination is in the best interest of the children.
New St. Joe magistrate judge to begin duties Jan. 2
Elizabeth C. Hurley has been selected as the newest magistrate judge in St. Joseph Circuit Court. She replaces Magistrate Judge David T. Ready, who is retiring from the bench.
Judge won’t allow auto-dialer statute enforcement during appeal
Balancing free speech rights with the public interest in preventing automated political calls from out-of-state entities, U.S. Judge William Lawrence in Indianapolis denied the state’s request to continue enforcing Indiana’s auto-dialer statute while a higher court is considering his ruling from two months ago that blocked enforcement.
Opinions Dec. 13, 2011 ILD
7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.
Indiana Court of Appeals
Robert E. Posey v. State of Indiana (NFP)
84A01-1103-CR-97
Criminal. Affirms conviction of Class A felony child molesting.
Donald Hurm v. State of Indiana (NFP)
82A01-1101-CR-21
Criminal. Affirms convictions of two counts of Class A felony child molesting and one count of Class C felony child molesting and remands with instructions to revise Hurm’s sentence. Judge Kirsch dissents in part.
The Huntington National Bank v. George P. Broadbent (NFP)
49A05-1012-CC-759
Civil collection. Reverses denial of Huntington’s motion for summary judgment and remands with instructions to enter summary judgment in favor of the bank and conduct a hearing to determine reasonable attorney fees.
Clifton J. Savage v. State of Indiana (NFP)
49A05-1104-CR-196
Criminal. Vacates Class D felony theft conviction and remands to the trial court to enter judgment accordingly. Affirms convictions of Class B felony burglary, Class C felony battery and Class A misdemeanor battery.
Nicholas Ryan v. State of Indiana (NFP)
49A02-1103-CR-230
Criminal. Reverses five convictions of Class B felony criminal confinement, but affirms five other convictions of Class B felony criminal confinement and eight Class B felony robbery convictions. Affirms sentence and remands to the trial court to amend its sentencing order and abstract of judgment.
M. Dale Palmer v. Kay Palmer (NFP)
32A01-1103-DR-108
Domestic relation. Affirms trial court’s property division in dissolution proceedings.
Edna Kelly v. Johnny Conway, d/b/a Conway Service (NFP)
49A02-1008-PL-1029
Civil plenary. Affirms judgment for Conway in suit alleging breach of contract.
Almaz M. Whyte v. Sam Christie (NFP)
45A05-1010-SC-749
Small claim. Affirms judgment in favor of Christie and against Whyte for $5,250 for the balance due on a verbal loan agreement made between the parties.
Indiana Tax Court had posted no opinions at IL deadline.
Opinions Dec. 13, 2011
Indiana Supreme Court
Steven Spangler and Heidi Brown v. Barbara Bechtel, Expectations Women's Health and
Childbearing Center, and St. Vincent Randolph Hospital
49S05-1012-CV-703
Civil. Reverses summary judgment in favor of Bechtel and the health and childbearing center. The parents’ separate actions seeking damages for emotional distress from experiencing the stillbirth of their child are not barred by the Indiana Child Wrongful Death Act or the Indiana Medical Malpractice Act. Remands for further proceedings.
Justices: emotional distress actions not barred
The Indiana Supreme Court held Tuesday that separate actions by parents seeking damages for emotional distress from experiencing the stillbirth of their child are not barred by the Indiana Child Wrongful Death Act or the Indiana Medical Malpractice Act.
COA rules on right of first refusal issue
The Indiana Court of Appeals concluded that the right of first refusal set forth in a purchase agreement of land between neighbors could only be exercised between the two neighbors and didn’t apply to the sale of land by an estate.