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Opinions Aug. 29, 2011 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Steve Reed and Lee Ann Reed v. City of Evansville and Evansville Sewer & Water Utility
82A05-1012-PL-768
Civil plenary. Reverses summary judgment for the City of Evansville and the Evansville Sewer & Water Utility. None of the city’s supplemental evidence needs to be stricken, a question of fact remains as to whether the Reeds provided timely notice of their tort claims, the city isn’t otherwise entitled to judgment as a matter of law on the Reeds’ claims, and the city’s motion to strike portions of the Reeds’ brief in opposition to summary judgment and supporting affidavits was properly denied. Remands for further proceedings.

Term. of Parent-Child Rel. of D.D., J.J., and K.J.; E.J. v. I.D.C.S.
10A04-1011-JT-748
Juvenile. Reverses involuntary termination of mother E.J.’s parental rights. The Clark County DCS failed to satisfy the six-month statutory mandate of Ind. Code. 31-35-2-4(b)(2)(A), and the trial court committed reversible error in granting CCDCS’ involuntary termination petitions. Remands for further proceedings.

Ronnie Q. Henderson v. State of Indiana
20A03-1102-PC-108
Post conviction. Affirms denial of petition for post-conviction relief. The search of Henderson’s vehicle was valid under New York v. Belton and the Indiana Supreme Court’s interpretation of Belton. Arizona v. Gant does not apply retroactively to Henderson’s case.

Lonnie T. Bonds v. State of Indiana (NFP)
49A02-1101-PC-124
Post conviction. Affirms denial of petition for post-conviction relief.

James A. Falk v. State of Indiana (NFP)
77A04-1102-CR-127
Criminal. Affirms sentence for Class B felony burglary and Class D felony theft.

Daniel J. Reed v Saint-Gobain Containers, Inc. (NFP)
38A02-1007-MI-845
Miscellaneous. Affirms order denying Reed’s motion to correct error.

T.L.M. v. V.M. (NFP)
49A02-1008-DR-930
Domestic relation. Affirms denial of father T.L.M.’s verified petition for modification of custody.

Randall E. Lesh v. State of Indiana (NFP)
35A02-1103-CR-282
Criminal. Affirms sentence for Class D felony resisting law enforcement.

Charles R. Sparks v. State of Indiana (NFP)
10A04-1012-CR-794
Criminal. Affirms convictions of six counts of Class A felony child molesting and one count of Class B felony sexual misconduct with a minor.

Jeffrey Brooks v. Henry and Iva McNeal (NFP)
45A03-1101-CT-25
Civil tort. Affirms summary judgment for the McNeals in Brooks’ suit following injuries he allegedly sustained after falling off a ladder on property owned by the McNeals.

Ricky C. Newman v. State of Indiana (NFP)
15A05-1102-CR-134
Criminal. Affirms sentence following guilty plea to Class C felony operating a vehicle while privileges are forfeited for life.

Terry L. Holmes, Jr. v. State of Indiana (NFP)
34A02-1103-PC-284
Post conviction. Affirms denial of petition for post-conviction relief.

Willie Sims v. State of Indiana (NFP)
20A04-1102-CR-123
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle while intoxicated.

Christopher Huston v. State of Indiana (NFP)
48A02-1101-CR-30
Criminal. Affirms convictions of and sentence for Class B misdemeanor criminal mischief and Class D felony pointing a firearm.

David Newton v. State of Indiana (NFP)
49A02-1101-CR-10
Criminal. Affirms denial of motion for expungement.

Arturo A. Ortiz v. State of Indiana (NFP)
90A04-1103-CR-114
Criminal. Affirms denial of motion for jail time credit.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court dismissed one case on petition for transfer for the week ending Aug. 26, 2011.
 

Opinions Aug. 29, 2011

7th Circuit Court of Appeals
William Padula, administrator of the estate of Jerome Clement v. Timothy Leimbach, et al.
10-3395
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen.
Civil. Affirms summary judgment for defendants, which include the City of East Chicago Police Department, on Padula’s suit for wrongful arrest, excessive force, failure to train officers, and condoning the use of excessive force, and the remand of state law claims to state court. The officers had probable cause to arrest Clement because they believed him to be intoxicated, the officers’ use of force was not excessive, and Padula’s claims of failure to adequately train and supervise officers and for condoning and ratifying excessive force fail.

Defense attorneys lose appeal for compensation

Two private defense lawyers in Marion County failed to convince the Indiana Court of Appeals that they should be retroactively appointed by the Marion County Public Defender Agency and compensated for their legal work on a case that has an intricate maze of attorney representation over the course of five years.

3 counties join Odyssey

Cass, Shelby, and Union counties are the latest additions to the statewide case management system known as Odyssey.

3 counties join Odyssey

Cass, Shelby, and Union counties are the latest additions to the statewide case management system known as Odyssey.

Bar foundation receives pledge for civics education

A third law firm has signed on as a visionary sponsor for the Indiana Bar Foundation’s We the People civics education program. Evansville firm Bamberger Foreman Oswald & Hahn has pledged $10,000 in support of the program, the foundation announced Friday, joining Barnes & Thornburg and Taft Stettinius & Hollister as top-level sponsors.

Opinions Aug. 26, 2011 ILD

7th Circuit Court of Appeals
Victoria Serednyj v. Beverly Healthcare, LLC.
10-2201
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Robert L. Miller, Jr.
Civil. Affirms District Court’s grant of summary judgment in favor of Serednyj’s former employer, Beverly Healthcare, holding the employer did not violate the law in firing her, because she was unable to perform all the functions of her job due to pregnancy complications.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Jeremy A. Lane v. State of Indiana
48A02-1010-CR-1156
Criminal. Affirms conviction of and sentence for Class D felony attempted theft, holding that due to Lane’s record, the sentence is appropriate, and that his counsel did not render ineffective assistance.

Timothy-Patrick Treacy v. State of Indiana
49A02-1010-CR-1254
Criminal. Dismisses appeal from attorneys, holding that the appeal does not involve the named appellant, but rather is an attempt to collect attorney fees from the Marion County Public Defender Agency. Judge Melissa May dissented, stating that despite counsel’s motivation for filing the appeal, Treacy was denied his constitutional right to trial counsel at public expense.

Eric D. Smith v. D. Patton, Scott Fitch, Larry Bynum, Correctional Medical Services (NFP)
33A01-1012-PL-681
Civil plenary. Affirms trial court’s grant of summary judgment in favor of appellees-defendants.

Sean W. Clover v. State of Indiana (NFP)
03A04-1010-CR-675
Criminal. Affirms convictions of and sentences for two counts of Class A felony dealing in cocaine.

In Re: The Marriage of Jimmy Hovey v. Jennifer Hovey (NFP)
45A05-1102-DR-123
Domestic relation. Affirms trial court’s determination of amount of father’s arrearage and award of attorney fees to mother.

Kevin Godfrey v. State of Indiana (NFP)
42A04-1101-CR-40
Criminal. Affirms conviction of Class B felony burglary.

Charles F. Newby v. State of Indiana (NFP)
36A04-1012-CR-814
Criminal. Affirms aggregate sentence for Class A misdemeanors driving while suspended and resisting law enforcement.

Mark Singer v. State of Indiana (NFP)
49A02-1102-CR-90
Criminal. Affirms convictions of five counts Class C felony theft.  

Brandon D. Williams v. State of Indiana (NFP)
71A05-1103-CR-180
Criminal. Affirms sentence for Class D felony receiving stolen property.

Joel Rowley v. State of Indiana (NFP)
49A04-1102-CR-34
Criminal. Affirms conviction of felony murder.

In Re The Marriage of: R.B. v. M.B. (NFP)
18A02-1010-DR-1163
Domestic relation. Affirms trial court’s division of marital property and custody determination.

S.G. v. Review Board of the Indiana Department of Workforce Development and T.C. (NFP)
93A02-1011-EX-1241
Civil. Affirms determination by administrative law judge, which was affirmed by the Indiana Department of Workforce Development’s review board, that S.G. was ineligible for unemployment benefits.

Aaron Isby v. Edwin Buss, Indiana Parole Board, et al. (NFP)
77A01-1104-PL-181
Civil plenary. Holds that while Isby’s case was properly transferred to Sullivan County, it was improperly dismissed. Remands with instructions to the court to consider Isby’s motion for change of judge.  

Indiana Tax Court had posted no opinions at IL deadline.

Opinions Aug. 26, 2011

7th Circuit Court of Appeals
Victoria Serednyj v. Beverly Healthcare, LLC.
10-2201
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Robert L. Miller, Jr.
Civil. Affirms District Court’s grant of summary judgment in favor of Serednyj’s former employer, Beverly Healthcare, holding the employer did not violate the law in firing her, because she was unable to perform all the functions of her job due to pregnancy complications.

Governor appoints new ALJ

Gov. Mitch Daniels announced Friday the appointment of Aaron Raff as chief administrative law judge for the State Employees’ Appeals Commission. He succeeds Judge William “Tim” Rider, who has accepted a position at the Indiana Education Employment Relations Board.

Opinions Aug. 25, 2011 ILD

The following opinion was posted after IL deadline Wednesday:
7th Circuit Court of Appeals
United States of America v. Ernest R. Snow
10-2031
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry McKinney.
Criminal. Affirms denial of motion to suppress evidence of gun found on Snow after he was pulled over on suspicion of a burglary attempt and ordered out of his car for a protective pat down. Concludes that police do not require additional information suggesting that a suspect might be armed before they may conduct a protective frisk of someone they reasonably suspect of being a burglar.

Today’s opinions
7th Circuit Court of Appeals
Michael H. Haury v. Bruce Lemmon, et al.
11-2148
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L Miller Jr.
Civil. Reverses denial by District Court to proceed as a pauper on the ground that he had accumulated three strikes for the dismissal of three prior lawsuits. Only two of the cases named by the District Court warrant strikes under 28 U.S. C. Section 1915(g). Grants Haury’s motion and remands for further proceedings.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Margarita Aguirre v. State of Indiana
49A05-1101-CR-36
Criminal. Reverses conviction of Class A misdemeanor resisting law enforcement. The state did not present any evidence that Aguirre used force or “made threatening or violent actions” to contribute to the struggle with the police officer. Judge Baker dissents.

John Fiederlein, M.D. v. Alex Boutselis, M.D. and Steve Jones, M.D.
79A04-1010-PL-632
Civil plenary. Affirms in part and reverses in part. Affirms summary judgment for the defendants as to Fiederlein’s claims of breach of contract, fraudulent interference with employment relationship, promissory estoppel and unjust enrichment. The trial court properly concluded that there was no evidence to support Fiederlein’s contention that his negotiations would have been conducted differently if a letter hadn’t been sent. The trial court erred when it denied Fiederlein’s motion for summary judgment as to the defendants’ counterclaim for the repayment of $814,935 distribution due to unjust enrichment. The trial court erred when it denied the defendants’ motion for summary judgment as to Fiederlein’s claim of unjust enrichment regarding the capital account refunds.

Michael D. Slaton v. State of Indiana (NFP)
45A05-1012-CR-766
Criminal. Affirms convictions of and sentence for two counts of Class B felony robbery and two counts of Class B felony criminal confinement.

Term. of Parent-Child Rel. of K.W., et al.; A.W. v. IDCS (NFP)
54A01-1102-JT-77
Juvenile. Affirms termination of parental rights.

Jatun Combs v. State of Indiana (NFP)
46A03-1006-CR-403
Criminal. Affirms convictions of Class B felony dealing in cocaine and Class B felony possession with intent to deliver cocaine.

Employers Mutual Casualty Co. v. Governmental Interinsurance Exchange (NFP)
66A04-1101-PL-35
Civil plenary. Affirms summary judgment in favor of Governmental Interinsurance Exchange on the issue of notice.

Ibad U. Ansari v. Home Bank S.B. (NFP)
55A01-1012-CC-641
Civil collections. Affirms summary judgment in favor of Home Bank on a suit alleging default on promissory notes.

Jeremy K. Hiday v. State of Indiana (NFP)
35A04-1102-CR-80
Criminal. Affirms conviction of Class A felony child molesting.

Linda S. Wetzel v. John E. Wetzel (NFP)
29A02-1008-DR-968
Domestic relation. Affirms order modifying the weekly child support obligation of John Wetzel to $0.
 
Keith Nemer v. State of Indiana (NFP)
82A05-1012-CR-800
Criminal. Affirms convictions of two counts of Class A felony dealing in methamphetamine.

O&F Properties, Inc. v. Timothy A. Mills, et al. (NFP)
82A01-1101-PL-11
Civil plenary. Affirms summary judgment to defendant Orson Oliver in O & F’s breach of contract suit.

Jerome Wilkins v. State of Indiana (NFP)
82A04-1101-CR-47
Criminal. Affirms sentence for Class D felony resisting law enforcement, Class A misdemeanor resisting law enforcement, and Class B misdemeanor reckless driving.

Indiana Tax Court had posted no opinions at IL deadline.

Opinions Aug. 25, 2011

7th Circuit Court of Appeals
Michael H. Haury v. Bruce Lemmon, et al.
11-2148
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L Miller Jr.
Civil. Reverses denial by District Court to proceed as a pauper on the ground that Haury had accumulated three strikes for the dismissal of three prior lawsuits. Only two of the cases named by the District Court warrant strikes under 28 U.S.C. Section 1915(g). Grants Haury’s motion and remands for further proceedings.

COA: Insurance policy covers deputy killed while directing traffic

The Monroe County Sheriff’s deputy that was killed while directing traffic was using her car at the time of the accident and was entitled to coverage under the county’s policy under the uninsured/underinsured motorist endorsement, the Indiana Court of Appeals affirmed.

7th Circuit examines 3-strike rule on prisoner suits

The 7th Circuit Court of Appeals has followed in the footsteps of some of its sister Circuits, holding that a pro se prisoner suit should proceed because an Indiana federal judge wrongly determined the frequent suit-filing inmate had three strikes rather than two in terms of frivolous claims.

Judge hears arguments on bar exam application suit

How far the Indiana Board of Law Examiners can go in asking potential lawyers about their mental-health history was the subject of a federal court hearing Wednesday, where attorneys explored the scope of the Americans with Disabilities Act and what might be reasonable in determining someone’s potential fitness to practice law.

Lawmakers discuss Barnes police entry ruling

An Indiana summer study committee met for the second time Wednesday to discuss a state Supreme Court ruling from earlier this year involving the right to resist police entry into one’s home.

7th Circuit to hold memorial for Judge Evans

The 7th Circuit Court of Appeals and the United States District Court for the Eastern District of Wisconsin will hold a joint memorial ceremony for Senior Judge Terence Evans at 4 p.m. Sept. 23 at the Ceremonial Courtroom of the Milwaukee Federal Courthouse.