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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.

New IPAC leader named

Longtime prosecutor David N. Powell from Greene County is the newest leader of the Indiana Prosecuting Attorneys Council.

Man entitled to warning that conduct may waive right to counsel

The Indiana Court of Appeals has reversed the finding that a man charged with murder is no longer indigent and that his difficult behavior caused him to waive or forfeit his right to appointed counsel. The appellate court concluded that the judge considered the defendant’s conduct, not his ability to pay, when finding him no longer indigent.

COA splits on whether Dreaded decision requires judgment for insurer

In a dispute over whether an insurer was required to pay pre-notice costs for environmental cleanup, the Indiana Court of Appeals was divided over whether the Indiana Supreme Court ruling Dreaded v. St. Paul Guardian Insurance was distinguishable from the instant case.

Opinons Aug. 24, 2011 ILD

7th Circuit Court of Appeals
Arboleda Ortiz v. Thomas Webster, Doctor
10-2012
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry McKinney.
Civil. Vacates summary judgment for Dr. Webster and remands with instructions that the case proceed to trial. This is the second time the case has come on appeal and the first time, the 7th Circuit reversed summary judgment for the doctor on the ground that Ortiz had established fact disputes on the seriousness of his eye condition and the constitutionally of Webster’s delayed response. The record had changed very little on remand yet the District Court granted summary judgment for the doctor.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Jesus A. Villagrana v. State of Indiana
08A05-1101-CR-21
Criminal. Reverses conviction of Class D felony neglect of a dependent. Villagrana was negligent, but the child neglect statute requires intent beyond negligence.

Kerwin Masten and Heather Masten v. AMCO Insurance Company
49A02-1009-CT-998
Civil tort. Reverses summary judgment for AMCO Insurance Co. The trial court erred in concluding as a matter of law that no underinsured motorist coverage is available to the Mastens. Remands for further proceedings.

S.G. v. State of Indiana
49A05-1011-JV-736
Juvenile. Affirms in part and reverses in part S.G.’s adjudication as a delinquent child for committing what would be Class D felony receiving stolen property if committed by an adult. The facts of this case do not satisfy the requirements of a custodial interrogation and S.G.’s statements did not violate Article I, Section 14 of the Indiana Constitution. The trial court abused its discretion in imposing a restitution order in an amount allegedly greater than the victim’s actual loss. Orders a new restitution hearing held if the state desires.

Carrie Chapman v. Irrevocable Trust of Stephen Chapman
02A03-1012-TR-624
Trust. Affirms trial court’s decision with regard to its exercise of jurisdiction over the trust proceedings. Carrie has not established that the trial court could not or should not have exercised jurisdiction over the trust as the subject matter of the trust reformation and the Chapmans’ divorce proceedings is not the same or substantially the same. The trial court erred when it determined the trustees weren’t required to establish that the dissolution was unforeseeable. Because the trustees failed to prove that the dissolution at the time of distribution was unforeseen or not anticipated as required, reverses modification of trust that delayed distribution to Stephen until after the dissolution is final or any appeal therefrom.

Dalmas Maurice Otieno Anyango, et al. v. Rolls Royce Corp., et al.
49A04-1011-CT-679
Civil tort. Affirms grant of Rolls Royce and other appellees’ motion to dismiss on the grounds of forum non conveniens the Anyanagos’ complaint for strict liability and wrongful death. Even if the trial court had not granted the motion to dismiss, the law of British Columbia would apply in Indiana, and the trial court did not err in granting the motion to dismiss based on forum non conveniens.

Matthew Erin Koch v. State of Indiana
82A01-1004-CR-154
Criminal. Affirms kidnapping, robbery, and battery convictions because evidence of probative value was presented at trial from which a jury could find Koch kidnapped Le in Indiana and that the robbery and battery offenses were integrally related. Vacates Koch’s convictions of two counts of Class B felonies because of double jeopardy. Reverses 45-year aggregate sentence and remands with instructions to impose an aggregate sentence of 30 years. Judge Riley dissents regarding the sentence revision.

James R. Sapp v. Flagstar Bank, FSB
49A02-1101-PL-4
Civil plenary. Affirms in part and reverses in part the denial of Sapp’s motion to correct error, which challenged a summary judgment order upon the claims of Flagstar Bank against Sapp for breach of contract, theft, and unjust enrichment. A genuine issue of material fact remains as to whether or not the bank’s loss of the check and two-month acquiescence was a failure to exercise ordinary care regarding the breach of contract claim. Sapp is entitled to summary judgment on the theft claim because Flagstar didn’t show that Sapp’s control was without authorization such that he could have been found to have criminally stolen the funds. He is also entitled to summary judgment on the unjust enrichment claim. Reverses award of attorney fees for Flagstar. Remands for trial only on the contract claim.

Larry D. Smith v. State of Indiana (NFP)
57A03-1102-CR-89
Criminal. Affirms sentence following guilty plea to Class C felony aiding in burglary.

Anthony W. Taylor v. Mark Sevier (NFP)
52A02-1010-MI-1252
Miscellaneous. Affirms dismissal of Taylor’s petition for writ of habeas corpus.

Troy T. Hardesty v. State of Indiana (NFP)
71A04-1012-CR-819
Criminal. Affirms conviction of Class C felony burglary.

D.R., Alleged to be CHINS; E.D. v. IDCS and Child Advocates (NFP)
49A02-1012-JC-1416
Juvenile. Affirms determination that D.R. was a child in need of services.

Terrell B. Wofford v. State of Indiana (NFP)
45A03-1011-CR-572
Criminal. Affirms conviction of and sentence for Class A felony battery.
 
Sanchez M. Ellis v. State of Indiana (NFP)
02A03-1012-CR-673
Criminal. Affirms convictions of Class C felony battery, Class D felony battery, and Class D felony resisting law enforcement.

James J. Duchene v. State of Indiana (NFP)
84A01-1012-CR-679
Criminal. Affirms order revoking probation and imposition of 18 months of previously suspended sentence.

Peter Johnson v. Keith Sove (NFP)
06A01-1102-SC-73
Small claims. Affirms denial of Johnson’s motion to correct error following the denial of his motion to set aside a default judgment in favor of Sove.

William Sebastian, Jr.v. State of Indiana (NFP)
14A01-1012-CR-655
Criminal. Affirms denial of jail credit time.

State of Indiana v. Steven Hollin (NFP)
69A05-1101-PC-113
Post conviction. Reverses grant of Hollin’s petition for post-conviction review. Remands with instructions to deny the petition for post-conviction relief.

Brian E. Crist, Jr. v. State of Indiana (NFP)
27A02-1011-CR-1285
Criminal. Affirms conviction of Class C felony battery.

Thomas E. Curtis v. State of Indiana (NFP)
18A05-1101-CR-48
Criminal. Reverses conviction of felony murder and remands with instructions.

Indiana Tax Court had posted no opinions at IL deadline.