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7th Circuit senior judge dies

7th Circuit Court of Appeals Senior Judge Terence Thomas Evans has died. The Milwaukee Journal Sentinel reports the judge died at the University of Chicago Medical Center after suffering from a sudden serious illness.

Judge: Students’ off-campus Internet photos protected by First Amendment

A federal judge has ruled that a northern Indiana school district shouldn’t have disciplined two high school girls who posted racy online photos of themselves posing with phallic lollipops and simulating sexual acts because the pictures were outside of school and are protected by the First Amendment.

Indiana AG sues Florida foreclosure firm owned by lawyer

Indiana Attorney General Greg Zoeller has filed a complaint against a for-profit Florida foreclosure consultant company that Zoeller claims operated illegally in 15 Indiana counties and failed to provide refunds to customers after services were not provided.

Opinions Aug. 11, 2011 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Shepherd Properties Co. v. International Union of Painters and Allied Trades, District Council 91
49A04-1010-PL-676
Civil plenary. Grants rehearing for the limited purpose of expanding upon the discussion of the issue presented on appeal concerning the propriety of an award of attorney fees under the Indiana Access to Public Records Act. The appellate court doesn’t disagree with the union’s contention, or prior observations from the court, that APRA does not include language explicitly precluding attorney fees from a third party. Conversely, APRA does not include language providing for payment of attorney fees by an intervenor, and the judges declined to write into the statute such a provision.

Karl Driver v. State of Indiana
71A05-1012-PC-795
Post conviction. Affirms denial of Driver’s verified motion to vacate judgment. Driver gained actual knowledge of the judgment when the trial court sent him a copy Sept. 7, 2010, but he did not file his motion until Oct. 29, 2010, which was outside the 30-day deadline for filing a notice of appeal.

Bradley A. Hole v. State of Indiana (NFP)
89A01-1012-CR-680
Criminal. Affirms denial of motion for pre-trial jail credit time.

James Clint Lawson v. State of Indiana (NFP)
31A01-1012-CR-627
Criminal. Affirms sentence following guilty plea to Class B felony possession of a firearm by a serious violent felon, Class D felony strangulation, Class A misdemeanor domestic battery, and Class A felony dealing in methamphetamine.

Indiana Tax Court had posted no opinions at IL deadline.

Opinions Aug. 11, 2011

Indiana Court of Appeals
Westville Correctional Facility, et al. v. George Finney
49A05-1103-PL-92
Civil plenary. Affirms grant of Finney’s verified petition for judicial review. Westville has not shown that the reviewing court committed reversible error. It is clear from the record that the agency’s action was without evidentiary foundation, let alone substantial evidence as required by Ind. Code 4-21.5-5-14(d)(5).

Appeals court affirms sending employee appeal back to agency

The Indiana Court of Appeals affirmed the grant of a fired Department of Correction employee’s petition for judicial review, finding that it was clear on the record that an administrative agency’s action was without evidentiary foundation. The appellate court noted the difficulty the judge had in conducting the judicial review due to deficiencies in recording testimony.

Volunteers needed for pilot program

The United States District Court, Southern District of Indiana is looking for law offices and firms to volunteer for an electronic civil case opening pilot program. Electronic civil case opening lets attorneys file new civil and miscellaneous cases via the Case Management/Electronic Case Filing (CM/ECF) system instead of in paper form at the clerk’s office.

ISBA Young Lawyers Section wins 2 ABA awards

The Indiana State Bar Association’s Young Lawyers Section recently was recognized for its work with two awards at the American Bar Association Young Lawyers Division annual conference Aug. 6 in Toronto.

Attorney named as new Julian Center leader

The Julian Center, a nonprofit providing counseling and other services to victims of domestic violence, sexual assault, and other life crises, has announced that Melissa Pershing will be the center’s new executive director.

Opinions Aug. 10, 2011 ILD

7th Circuit Court of Appeals
Gregory K. Weatherbee v. Michael J. Astrue, Commissioner of the Social Security Administration
10-3736
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Affirms denial of application for Social Security disability insurance benefits and supplemental security income payments after plaintiff suffered serious injuries in a motorcycle crash. The decision to deny his application was supported by substantial evidence.

Indiana Court of Appeals
Thomas Kornelik v. Mittal Steel USA, Inc., et al.
45A03-1011-CT-583
Civil tort. Reverses the trial court’s decision to not reduce Kornelik’s lien arising under the Indiana Worker’s Compensation Act by attorney fees and pro rata costs, but affirms the refusal to reduce the lien in the same proportion that Kornelik’s full recovery was reduced. Based on the circumstances of the case, Lafarge, Kornelik’s employer, was not fully protected, so the trial court did not err in failing to reduce the lien in the same proportion that his full recovery was reduced. Remands with instructions for the trial court to reduce the lien by attorney fees and a pro rata share of the costs.

Jose Lozano v. State of Indiana (NFP)
49A02-1010-CR-1129
Criminal. Affirms denial of motion to suppress pretrial identification evidence drawn from an allegedly impermissibly suggestive photo array and the trial court ruling that a hearsay statement concerning an unnamed third party’s purported confession to the crimes with which Lozano has been charged was inadmissible.

Freddie McKnight v. Curtis T. Hill, Jr., et al. (NFP)
20A03-1005-CT-277
Civil tort. Affirms that Hill and Wargo are entitled to absolute immunity for McKnight’s negligence claim and McKnight’s federal constitutional claims are barred by the doctrine of res judicata.

R.J.C. v. State of Indiana (NFP)
28A01-1102-JV-69
Juvenile. Affirms dispositional order placing R.J.C. with the Indiana Department of Correction.

Christopher Richmond v. State of Indiana (NFP)
45A04-1101-CR-9
Criminal. Affirms sentence for Class D felony theft.

Yasmin Wilson v. State of Indiana (NFP)
49A05-1012-CR-761
Criminal. Affirms conviction of Class A misdemeanor carrying a handgun without a license.

Javier Soto v. Monaco Coach Corp. (NFP)
93A02-1102-EX-204
Agency appeal. Reverses in part the denial of Soto’s application for adjustment of claim. Remands to the Full Worker’s Compensation Board of Indiana to vacate paragraph 27 of the hearing member’s decision, as adopted by the board, and any other portions of the decision related to the issue of Soto’s permanent and total disability. Permits the parties to present evidence and argument on this issue at a further hearing.

Tradell Marzette v. State of Indiana (NFP)
79A04-1004-CR-346
Criminal. Affirms convictions of and sentences for Class B felony conspiracy to commit robbery and four counts of Class B felony criminal confinement. Remands with instructions to vacate his conviction and sentence for Class B felony attempted robbery.

D.R., Alleged to be C.H.I.N.S.; J.R. v. I.D.C.S. & Child Advocates (NFP)
49A02-1012-JC-1450
Juvenile. Affirms determination that D.R. is a child in need of services.

Indiana Tax Court had posted no opinions at IL deadline.

 
 

Opinions Aug. 10, 2011

7th Circuit Court of Appeals
Gregory K. Weatherbee v. Michael J. Astrue, Commissioner of the Social Security Administration
10-3736
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Affirms denial of application for Social Security disability insurance benefits and supplemental security income payments after plaintiff suffered serious injuries in a motorcycle crash. The decision to deny his application was supported by substantial evidence.

Judges split over order property owner pay for construction of drainage-ditch arm

The Indiana Court of Appeals was divided in its ruling on whether a man whose land sits higher and isn’t prone to flooding should have to pay for the reconstruction of an arm of a nearby drainage ditch. The dissenting judge wrote that Wednesday’s decision will promote “water wars” between neighbors.

COA allows for admission of vehicle photo in personal injury action

The Indiana Court of Appeals addressed for the first time the issue of whether a photograph admitted at trial showing little damage to a truck involved in an accident is inadmissible on the grounds that it’s irrelevant to any determination of bodily injury.

COA: Suit against sewer district isn’t a public lawsuit

The Spencer Circuit Court erred in finding a lawsuit filed by property owners challenging the requirement they connect to a new sewer system is a public lawsuit and the property owners must pay $9 million in bond to proceed with the suit, the Indiana Court of Appeals ruled Tuesday.

Court rules on duty of care for healthy trees in residential areas

The Indiana Court of Appeals has reiterated its stance that urban or residential area landowners have a duty to take reasonable precautions regarding their own trees, healthy or otherwise, and make sure they don’t harm a neighbor’s property based on the size and where they are planted.

Opinions Aug. 9, 2011 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Brian Haehl v. David Montgomery and Phyliss Crumbo
22A01-1007-TR-319
Trust. Affirms trial court’s denial of attorney fees and additional compensation in favor of Haehl, reverses the court’s award of attorney fees in favor of the appellees, and remands for the court to revise its 2010 order consistent with the COA opinion. Holds that the court’s award of attorney fees under Ind. Code Section 30-4-3-22(e) was erroneous.

Bethany Quiring, Linda Ann Johnston f/k/a Linda Ann Lougher, et al. v. Geico General Insurance Company
52A02-1012-CT-1434
Civil tort. Affirms trial court’s denial of Quiring’s motion to dismiss or stay, finding she was not a resident of her mother’s household when she sought underinsured motorist benefits under a GEICO insurance policy issued to her mother.

Joseph A. Kelley v. Jagdish Patel, Jayandra Patel, d/b/a Economy Inn and Indiana Insurance
79A02-1010-CT-1212
Civil tort. Affirms trial court’s entry of summary judgment in favor of Indiana Insurance on the estate’s claim of spoliation of evidence, holding that a cause of action is not available under the facts of the case.

Michael Johnson v. State of Indiana (NFP)
61A01-1101-CR-23
Criminal. Affirms revocation of probation.

Ronald Miller v. State of Indiana (NFP)
49A02-1101-CR-3
Criminal. Affirms convictions of Class A misdemeanor invasion of privacy and resisting law enforcement.

Michelle Hager v. Robert and Sue Faris (NFP)
32A01-1103-CT-89
Civil tort. Affirms trial court’s order granting summary judgment in favor of appellees.

Gabriel L. Hill v. Jana E. Hill (NFP)
49A02-1009-DR-1193
Domestic relation. Affirms trial court’s award of attorney fees to wife and finds the amount appropriate. Affirms division of marital estate and child support order.

Term. of Parent-Child Rel. of C.K., et al.; D.A. v. I.D.C.S. (NFP)
29A02-1101-JT-51
Juvenile. Affirms termination of parental rights

Jennifer Curts v. David Curts (NFP)
29A02-1010-DR-1138
Domestic relation. Affirms trial court’s judgment in divorce, stating appellant failed to present a cogent argument on any claims on appeal.

Jeremy Klakamp v. State of Indiana (NFP)
73A01-1003-CR-189
Criminal. Affirms conviction of and sentence for murder.

Tommy D. Ford v. State of Indiana (NFP)
45A05-1009-PC-610
Post conviction. Affirms denial of post-conviction relief.

Term. of Parent-Child Rel. of T.D., et al.; J.D. v. I.D.C.S. (NFP)
03A01-1102-JT-46
Juvenile. Affirms juvenile termination of parental rights.

Danielle L. Green v. State of Indiana (NFP)
49A02-1101-CR-16
Criminal. Affirms convictions of two counts of Class D felony neglect of a dependent.

The Matter of the 2008 Hancock County Tax Sale (NFP)
30A01-1102-PL-56
Civil plenary. Reverses trial court’s order, holding that the court committed prima facie error in finding it lacked jurisdiction to determine the merits of appellant’s claim. Remands to the trial court with instructions to address appellant’s petition for payment of redemption interest.

Gary Moody v. State of Indiana (NFP)
41A01-1012-CR-649
Criminal. Affirms conviction of disorderly conduct.

J.G. v. State of Indiana (NFP)
71A03-1101-JD-27
Juvenile. Affirms juvenile court’s placement of J.G. with the Department of Correction.

Beverly A. Fussner v. State of Indiana (NFP)
19A05-1012-CR-812
Criminal. Affirms trial court’s decision to allow the state to reopen its case after the state had rested.

James Hunter v. State of Indiana (NFP)
17A03-1102-CR-106
Criminal. Affirms sentence for Class B felony dealing in methamphetamine.

I.M. v. State of Indiana (NFP)
49A04-1101-JV-41
Juvenile. Reverses trial court’s order that I.M. pay restitution, holding there is no evidence that the court engaged in inquiry sufficient to determine whether I.M. would be able to pay restitution. Remands for new restitution hearing.

Andre L. Gorman v. State of Indiana (NFP)
02A04-1010-CR-640
Criminal. Affirms conviction of Class B felony dealing in cocaine or narcotic drug and related charges.

Robert Holland III v. Country Wide Home Loans, Inc. (NFP)
45A03-1008-MF-487
Mortgage foreclosure. Affirms trial court’s denial of motion set aside judgment, finding no allegations justifying relief under Indiana Trial Rule 60(B). Denies appellee’s request for attorney fees, finding Holland did not pursue his claim in bad faith.  

Terry T. Miles, Sr. v. State of Indiana (NFP)
18A04-1103-CR-117
Criminal. Affirms trial court’s determination that Miles violated the terms of his home detention.

Dean C. Williams v. State of Indiana (NFP)
29A02-1011-PC-1361
Post conviction. Affirms denial of post-conviction relief.

Aaron Davidson v. State of Indiana (NFP)
71A03-1005-CR-298
Criminal. Affirms conviction of Class B felony dealing in methamphetamine.

Indiana Tax Court had posted no opinions at IL deadline.