Opinions

Indiana Court of Appeals
In Re: The Marriage of K.Z. and M.H.
43A05-1107-DR-436
Domestic relation. Affirms trial court’s order modifying dissolution decree to reflect that a child of the marriage between K.Z. and M.H. had been born after their divorce. Citing mother’s statement in the original dissolution decree, holds that no question of paternity exists, and therefore, the court did not abuse its discretion in modifying the dissolution decree at the father’s request.

Indiana Court of Appeals
Bloomington Magazine, Inc. v. Mark Kiang d/b/a Mikado Restaurant, Sunbeam Corp., and Truffles 56 Degrees Incorporated
53A05-1012-SC-790
Civil. Reverses trial court’s order denying a motion to set aside judgment in favor of Mikado Restaurant Sunbeam Corp. and Truffles 56 Degrees. Finds that the trial court abused its discretion in denying a motion for the judge’s recusal and request for a special judge in light of one of the attorney’s past involvement as the judge’s 2008 election campaign chair. Remands the case for proceedings consistent with this appellate decision.

Indiana Court of Appeals
Commissioner of the Indiana Dept. of Insurance v. Tim Black, as Husband and Personal Rep. of Kay Black, Deceased
64A05-1104-CT-240
Civil tort. Reverses trial court’s denial of commissioner’s motion to dismiss but agrees with Black that because additional documentation had accompanied the commissioner’s motion, it should be treated as a motion for summary judgment, pursuant to Trial Rule 56. Holds that Black did not provide sufficient evidence of an agreement and a genuine issue of material fact exists. Remands for further proceedings. 

7th Circuit Court of Appeals
Sammie L. Booker-El v. Superintendent, Indiana State Prison and all agents
10-1490
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms District Court’s dismissal of Booker-El’s complaint that prison officials misappropriated funds intended by statute to be used for the inmates’ benefit without due process of law. Booker-El has no property interest in the inmates’ recreation fund.

Indiana Court of Appeals
Bei Bei Shuai v. State of Indiana
49A02-1106-CR-486
Criminal. Reverses trial courts’ denial of Shuai’s request to be released on bail. The defense presented sufficient evidence to rebut the presumption that Shuai is guilty of murder of her child. Remands for a determination of bail. Declines to adopt Shuai’s argument that the murder statute is ambiguous as applied to her. Affirms denial of her motion to dismiss. Judge Riley concurs in part and dissents in part.

7th Circuit Court of Appeals
Roy Wirtz, et al. v. City of South Bend
11-3811
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms dismissal of the city’s motion to appeal a case arising under the First Amendment’s establishment clause. Although the city is challenging two appealable orders, the challenge is untimely. The appeal is also moot.

Indiana Court of Appeals
Continental Electric Co., Inc. v. Gary Community School Corporation (NFP)
45A05-1105-PL-247
Civil plenary. Affirms denial of Continental Electric’s request for a preliminary injunction.

7th Circuit Court of Appeals
Larry Davis v. Kris Ockomon, et al.
10-2589
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms finding that the position of senior humane officer for the city of Anderson was a policymaking position and therefore Davis could be dismissed for political reasons. City ordinances authorized the senior humane officer to exercise policymaking discretion.

7th Circuit Court of Appeals
Emergency Services Billing Corp. Inc., individually (and as agent for) agent of Westville Volunteer Fire Department v. Allstate Insurance Co., et al.
11-2381
U.S. District Court, Northern District of Indiana, Hammond Division at Lafayette, Judge John E. DeGuilio.
Civil. Affirms dismissal of ESBC’s suit seeking individuals involved in car accidents are responsible for the clean-up costs of hazardous substances released after accidents. A motor vehicle owned for personal use is a “consumer product in consumer use” under the Comprehensive Environmental Response, Compensation and Liability Act, and thus owners/operators of personal motor vehicles are exempt from CERCLA’s response-cost provisions.

Indiana Court of Appeals
Mitchell & Stark Construction Company, Inc. v. Strand Associates, Inc., as successor In interest to Sieco, Inc. (NFP)
36A04-1103-CT-79
Civil tort. Affirms trial court’s grant of summary judgment in favor of Strand Associates.

7th Circuit Court of Appeals
Dale J. Atkins v. Michael Zenk
11-1891
Civil. Affirms U.S. District Court’s denial of habeas corpus petition, holding Atkins did not prove his claim that he was deprived of his Sixth Amendment right to effective assistance of trial counsel.

Indiana Court of Appeals
State of Indiana v. Johnnie S. McCaa
56A04-1107-CR-341
Criminal. Reverses trial court’s grant of McCaa’s motion to suppress evidence, holding that due to the unusual circumstances of an initial traffic stop, police did not err in asking McCaa to drive his truck to another location, where he ultimately failed field sobriety tests.

Indiana Court of Appeals
Robert Holland, A Concerned Citizen for the Redevelopment of Gary v. Richard Steele, Barbara Steele, First Midwest Bank, As Successor Trustee By Way of Merger to Bank Calumet, N.A., et al.
45A03-1102-PL-84
Civil plenary. Affirms the trial court’s determination that Holland was not entitled to summary judgment on his quiet title claim, and grant of summary judgment to the bank on its trespass and slander of title claims. The trial court properly found that Holland had filed a frivolous lawsuit and awarded appropriate attorney fees. On cross-appeal, the appellate court denied the bank’s request for appellate attorney fees.

Indiana Court of Appeals
Jeff Reeves v. Citizens Financial Services
93A02-1107-EX-604
Agency appeal. Affirms Worker’s Compensation Board’s decision that Reeves had reached maximum medical improvement, had a permanent partial impairment of five percent and wasn’t entitled to ongoing palliative care. Reeves failed to identify what type of care he should receive and the undisputed evidence does not show that palliative care limits the extent of his impairment.

Indiana Court of Appeals
Timothy Long v. State of Indiana
49A02-1105-CR-381
Criminal. Affirms sentence for Class A misdemeanor operating a vehicle while intoxicated and being a habitual substance offender. Because the master commissioner presided at Long’s guilty plea hearing, and not at a criminal trial, she did not have the authority to enter a final judgment on Long’s sentence. Marion Superior Judge Linda Brown did not err by rejecting the master commissioner’s sentence and imposing her own sentence.

Indiana Supreme Court
Antoine Hill v. State of Indiana
45S03-1105-PC-283
Post conviction. Holds that the appropriate standard for judging the performance of Post-Conviction Rule 2 counsel is the standard set forth in Baum v. State. Further holds that Post-Conviction Rule 2 counsel in this case did not violate Baum because she represented the defendant in a procedurally fair setting which resulted in a judgment of the court. Justice Sullivan concurs with separate opinion; Justice Rucker dissents.

Indiana Supreme Court
Indiana Dept. of Insurance, Indiana Patient's Compensation Fund v. Robin Everhart, Personal Rep. of the Estate of James K. Everhart, Jr.
84S01-1105-CV-282
Civil. Affirms award of statutory maximum of $1 million in excess damages from the Indiana Patient’s Compensation Fund to Robin Everhart. Does not see any grounds on which to reduce the trial court’s award of $1 million in excess damages, so deciding whether to extend or halt Cahoon’s advance would seem unnecessary at best. The fund was not entitled to a set-off.

Indiana Supreme Court
Chrysler Group, LLC v. Review Board of the Indiana Dept. of Workforce Development and T.A., et al.
93S02-1109-EX-565
Agency appeal. Affirms award of benefits to Chrysler employees offered a buyout. By Chrysler’s own words — to Congress and its own employees — Enhanced Voluntary Termination of Employment Program was part of a company-wide effort intended to avert twenty-nine manufacturing plant closures, twenty-two parts depot closures, and 53,000 layoffs. The board’s conclusion on this issue of ultimate fact was reasonable.

Indiana Supreme Court
A.T. v. State of Indiana
49S02-1201-JV-26
Juvenile. Reverses trial court’s dispositional order and remands with instructions to vacate that portion of its order committing A.T. to the Department of Correction until his 18th birthday. Because A.T. does not meet the criteria of Indiana Code 31-37-19-9(b), a determinate commitment under that section may not be imposed.

7th Circuit Court of Appeals
Lebamoff Enterprises v. Alex Hurley, in his official capacity as chairman of the Indiana Alcohol and Tobacco Commission
11-1362
Southern District of Indiana, Indianapolis Division
U.S. Judge Jane Magnus-Stinson
Civil. Affirms District judge’s grant of summary judgment for the state defendants, ruling against a Fort Wayne area wine retailer’s constitutional challenge to a state law that prevents retailers from shipping wine to consumers via a motor carrier. The appellate panel found that the state statute is not preempted by federal law. Judge David Hamilton issued a separate concurring opinion.