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Opinions Aug. 20, 2010

7th Circuit Court of Appeals

Torrey
Bauer, David Certo, and Indiana Right to Life, Inc. v. Randall T. Shepard, et al.
09-2963
U.S. District Court, Northern District of Indiana, Fort Wayne Division. Judge Theresa L. Springmann.
Civil. Affirms District court’s ruling that the state’s judicial canons are constitutional regarding whether
judges can make public statements regarding controversial issues. The opinion recognizes a split among Circuits throughout
the country on the issue. Also finds that a portion of the challenge involving the pre-2009 conduct code is unripe, rather
than moot as the District court had found.

COA addresses inverse condemnation issues

Inverse condemnation was the issue of the day for two Indiana Court of Appeals panels, with one case raising issues regarding
fraudulent concealment and the statute of limitations.

Professor to study India’s legal system

Over the next three years, a professor at an Indiana law school will be working on a study of India’s trial courts as
part of a $261,000 grant from the Ford Foundation to a non-governmental association based in India.

AG encourages whistleblower lawsuits to fight fraud

The Indiana Attorney General’s Office wants health care and pharmaceutical industry workers to know that they have the ability
to file lawsuits and get protection as whistleblowers, and that could mean getting a portion of any settlement or damages
that results from the suit.

COA: attorney’s statement binding

The Indiana Court of Appeals affirmed partial summary judgment for Noble Roman’s Inc. in-store franchisees’ claim
for constructive fraud because the franchisees’ then-attorney admitted that they were only pleading actual fraud against
the company and that admission is binding.

Opinions Aug. 19, 2010 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Jacqueline
Babbitt v. Indiana State Police Trooper Officer E. Lamar Helmuth, in his official capacity (NFP)
71A05-0911-CV-646
Civil. Affirms dismissal of Babbitt’s complaint pursuant to Indiana Trial Rule 12(B)(6).

Grante
Ficklin v. State of Indiana (NFP)
49A02-1001-CR-18
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Denise
Diggins v. State of Indiana (NFP)
71A03-1001-CR-119
Criminal. Affirms conviction of Class D felony battery.


Midwest Psychological Center, Inc., and Dr. Shelvy Keglar v. Sylvia Funk, et al. (NFP)
49A05-0910-CV-586
Civil. Affirms summary judgment in favor of Funk and other employees or agents of the Indiana State Department of Administration
and/or the Division of Disability, Aging, and Rehabilitative Services, Disability Determination Bureau in Midwest’s
complaint after not being selected for a bid for a state psychological service contract.

Leroy
N. Jones v. State of Indiana (NFP)
27A04-1002-CR-79
Criminal. Affirms convictions of Class A felony murder, Class B felony conspiracy to commit arson, two counts of Class B
felony arson, Class C felony battery by means of a deadly weapon, and Class D felony intimidation.

TBS
Development LLC, et al. v. Central Bank & Trust Co. (NFP)
15A01-0911-CV-540
Civil. Affirms finding TBS and other defendants committed fraud, fraud on a financial institution, conversion, and breach
of contract, and award of treble damages and attorney’s fees.

Darby
Hape v. State of Indiana (NFP)
19A05-1003-CR-163
Criminal. Affirms denial of petition for jail-time credit.

Taron
Raphael Momon v. State of Indiana (NFP)
82A01-0912-CR-598
Criminal. Affirms sentence following guilty plea to Class B felony burglary and Class D felony theft.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions Aug. 19, 2010

Indiana Court of Appeals
Kari
Heyser, et al. v. Noble Roman's, Inc., et al.
29A04-1002-PL-71
Civil plenary. Affirms partial summary judgment for Noble Roman’s Inc. and other defendants on Heyser and other franchisees’
claim for constructive fraud. The admission by the franchisees’ attorney that their fraud claims against the banks were
based solely on allegedly fraudulent representations by Noble Roman’s, with whom the banks allegedly acted in conspiracy;
and the franchisees were alleging actual fraud, not constructive fraud.

Opinions Aug. 18, 2010 ILD

Indiana Court of Appeals
Meridian
Security Ins. Co., et al. v. Stefo Gubic, et al.
45A03-0911-CV-538
Civil. Affirms summary judgment in favor of Hoffman Adjustment Co. and Joe Hoffman in Meridian’s third-party complaint
that Hoffman breached the terms of the Gubics’ insurance policy, failed to act in good faith, engaged in spoliation
of evidence and fraud, committed unauthorized practice of law, and tortiously interfered with Meridian’s business and
contractual relationships with the Gubics. Meridian’s claims aren’t actionable under Indiana law because Hoffman
had no contractual relationship with Meridian in his capacity as a public adjuster and the Gubics’ agent.

David
D. Hauk v. State of Indiana (NFP)
20A05-1003-CR-161
Criminal. Affirms aggregate 10-year sentence for operating while intoxicated as a Class D felony and for being a habitual
substance offender.

Timothy
and Sonia Platt v. Wachovia Dealer Services (NFP)
49A05-1002-PL-148
Civil plenary. Affirms dismissal of the Platts’ complaint against Wachovia regarding modification of their credit agreement
with Wachovia.

Wardel
Brown, III v. State of Indiana (NFP)
48A05-1001-CR-2
Criminal. Affirms revocation of probation and sentence imposed.

Alvino
Pizano v. State of Indiana (NFP)
45A04-1003-PC-220
Post conviction. Affirms calculation and assignment of credit time earned.

Linda
Montalvo v. State of Indiana (NFP)
12A02-0909-CR-931
Criminal. Affirms 25-year sentence following guilty plea to Class A felony dealing in cocaine.

Terry
L. Duckworth v. State of Indiana (NFP)
48A02-1001-CR-84
Criminal. Affirms revocation of probation and execution of Duckworth’s previously suspended sentence.

Term.
of Parent-Child Rel. of T.H.C.; T.C. & C.P. v. I.D.C.S. (NFP)
71A04-1001-JT-104
Juvenile. Affirms involuntary termination of parental rights.

Clyde
Edward Pryor v. State of Indiana (NFP)
71A04-0912-CR-748
Criminal. Affirms conviction of and sentence for Class D felony attempted residential entry.

Term.
of Parent-Child Rel. of K.N. and D.N.; J.P.N. v. Crawford County DCS (NFP)
13A04-1002-JT-88
Juvenile. Affirms involuntary termination of parental rights.

Carlee
Smith v. State of Indiana (NFP)
71A04-1002-CR-53
Criminal. Affirms conviction of Class C felony burglary.

William
P. Ruel v. State of Indiana (NFP)
45A03-0911-CR-515
Criminal. Affirms sentence following guilty plea to Class D felony failure to return to lawful detention.

Adoption
of N.W.; J.R. & L.R. v. I.D.C.S. (NFP)
79A04-1003-AD-180
Adoption. Affirms denial of petition for adoption of N.W.

Ryan
Hade v. State of Indiana (NFP)
02A05-1002-CR-102
Criminal. Affirms sentence following guilty plea to Class B felonies robbery, unlawful possession of a firearm by a serious
violent felon, resisting law enforcement, and three counts of criminal confinement.

William
Sebastian, Jr. v. State of Indiana (NFP)
14A01-1001-CR-20
Criminal. Affirms revocation of probation and remands for clarification.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions Aug. 18, 2010

7th Circuit Court of Appeals
United
States of America v. Anna LaFaive, also known as Phyllis Click
09-2344
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Criminal. Affirms conviction of and sentence for two counts of bank fraud and two counts of aggravated identity theft. 18
U.S.C. Section1028A criminalizes the use of both a living or deceased person’s identification. The District Court did
not plainly err in calculating or imposing her sentence.

COA panels divided on attorney’s fees under AWDA

Nearly a month after an Indiana Court of Appeals panel ruled attorney’s fees aren’t recoverable under the Adult Wrongful
Death Act in a matter of first impression, another panel unanimously ruled they are recoverable.

Class action suit challenges voter-removal statute

State officials are prohibiting people convicted and incarcerated for misdemeanor offenses from voting while they are behind
bars, but that could change if a federal suit is successful.

Opinions Aug. 17, 2010 ILD

 

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Cullen
Davis Walker v. State of Indiana
71A03-1003-CR-115
Criminal. Affirms Walker’s convictions of burglary, robbery, criminal confinement – all as Class B felonies,
and possession of cocaine as a Class C felony. Also affirms his sentence of 56 years. Walker argued his burglary and criminal
confinement convictions should be vacated pursuant to the continuing crime doctrine because his offenses of were all part
of the same continuing crime since they occurred in a short period of time and facilitated his sole purpose of taking things
from people at one house. The court ruled each offense was a distinct chargeable crime. Remands with instructions to correct
clerical errors in the amended judgment and chronological case summary.

Paternity
of M.B., N.B. v. J.W. (NFP)
45A03-0911-PL-536
Civil. Affirms in part, reverses in part, and remands. Rules the trial court did not abuse its discretion by sua sponte modifying
the prior child-support order to reflect the mother was not providing overnight parenting time; remands for the court to adjust
its order modifying the amount of support owed by Mother so that it is prospective in nature only. Also rules the trial court
did not abuse its discretion by failing to enforce parenting time because it used its discretionary authority to threaten
M.B. and his father with sanctions if M.B. failed to participate in parenting time. It also didn’t abuse its discretion
by designating a mid-point for the mother and M.B. to meet for parenting time and by ordering mother to pay dental bills incurred
because of her authorization of dental work not covered by M.B.’s insurance.

Mark
Stearns v. Amy Taylor-Stearns (NFP)
45A03-0908-CV-380
Civil. Affirms order to strike husband’s motions he filed after court-ordered deadline, and dissolution court did not
abuse its discretion finding husband in contempt and imposing sanction for willful breach of settlement agreement.

In
re the Guardianship of C.J.; T.J. v. K.M. (NFP)
27A02-1002-GU-150
Guardianship. Affirms grant of mother K.M.’s petition to terminate stepmother’s guardianship of son, C.J., after
the father’s death.

Terry
D. McClinton, Jr. v. State of Indiana (NFP)
45A04-0912-CR-712
Criminal. Affirms aggregate sentence of 28 years for two counts of Class B felony robbery and one count of Class B felony
dealing in cocaine.

Breondon
D. Pinkson v. State of Indiana (NFP)
02A05-1002-CR-146
Criminal. Affirms revocation of probation, noting Pinkson was properly notified.

Golden
Cummings v. State of Indiana (NFP)
49A02-0912-CR-1252
Criminal. Affirms conviction of Class C felony battery.

Isidro
Lopez-Ruiz v. State of Indiana (NFP)
20A04-0912-CR-707
Criminal. Affirms 48-year sentence for convictions of two counts of Class A felony dealing in cocaine.

Earl
Lee Russelburg v. State of Indiana (NFP)
82A01-1002-CR-113
Criminal. Affirms denial of petition for leave to file a belated notice of appeal.

Kenneth
Ramey v. State of Indiana (NFP)
49A04-1001-CR-5
Criminal. Affirms conviction of Class A felony dealing in cocaine.

Indiana Tax Court had posted no opinions at IL deadline.

 

Opinions Aug. 17, 2010

Indiana Court of Appeals
Cullen
Davis Walker v. State of Indiana
71A03-1003-CR-115
Criminal. Affirms Walker’s convictions of burglary, robbery, criminal confinement – all as Class B felonies,
and possession of cocaine as a Class C felony. Also affirms his sentence of 56 years. Walker argued his burglary and criminal
confinement convictions should be vacated pursuant to the continuing crime doctrine because his offenses of were all part
of the same continuing crime since they occurred in a short period of time and facilitated his sole purpose of taking things
from people at one house. The court ruled each offense was a distinct chargeable crime. Remands with instructions to correct
clerical errors in the amended judgment and chronological case summary.

IBA creates PAC option for judicial campaign donors

After a landmark ruling from the nation’s highest court, the Indianapolis Bar Association has adopted an alternative
to direct judicial campaign contributions for those interested in donating to candidates vying for the Marion County bench.

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DTCI: Attention & Kudos

DTCI is seeking ideas and authors for articles for Volume 7, No. 2 of the Indiana Civil Litigation Review.