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 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.

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 grounds 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. Judge Kanne dissents.

Indiana Court of Appeals
Brian Roberts v. State of Indiana
24A04-1011-PC-726
Post conviction. Affirms denial of Roberts’ petition for post-conviction relief. Roberts’ plea was entered knowingly, intelligently, and voluntarily and Roberts can’t establish prejudice due to his trial counsel’s deficient performance.

Indiana Court of Appeals
Smith Barney, et al. v. StoneMor Operating LLC, et al.
41A04-1103-MF-96
Mortgage foreclosure. Affirms denial of Barney’s motion to compel arbitration. As a matter of law, Independence Trust was not a “successor in interest” to either of the prior trustees and therefore isn’t bound by the arbitration clause in the account agreements. Consequently, there is no basis for compelling StoneMor to arbitrate its claims.

Indiana Court of Appeals
George A. Feuston v. State of Indiana
38A02-1011-CR-1175
Criminal. Affirms denial of Feuston’s motion for discharge of his Class D felony theft charge in Jay County. He caused the delay in the case by absconding and failing to appear at his pretrial conference. Chief Judge Robb concurs in a separate opinion.

Indiana Court of Appeals
The Kroger Company, et al. v. Plan Commission of the Town of Plainfield, Indiana
32A04-1012-MI-751
Miscellaneous. Reverses trial court’s grant of summary judgment in favor of the Plan Commission of the Town of Plainfield and remands for further proceedings, holding the plan commission must provide specific reasons for denying Kroger’s development petition.

7th Circuit Court of Appeals
Lisa Hicks v. Avery Drei, LLC and Chance Felling
10-2744
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Civil. Affirms grant of Avery Drei and Felling’s motion for judgment as a matter of law on Hicks’ vacation pay claim and a portion of their similar motion on her overtime pay claim. Evidence shows that Hicks and Felling had an agreement that Hicks would not earn vacation pay until after being employed for one year; her employment ended before she reached her one-year anniversary. The District Court did not abuse its discretion in denying Hicks’ motion in limine. Affirms in all other respects.

7th Circuit Court of Appeals
Lady Di’s, Inc. v. Enhanced Services Billing, Inc., and ILD Telecomunications, doing business as ILD Teleservices, Inc.
10-3903
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms District Court’s denial of plaintiff’s request for class certification and grant of the defendants’ motions for summary judgment on the unjust enrichment and statutory deception claims, holding Indiana “anti-cramming” regulation does not apply to the defendants because they are not telephone companies and did not act in this case as billing agents for telephone companies.

Indiana Court of Appeals
T.W. v. State of Indiana
54A01-1103-JV-125
Juvenile. Affirms order that T.W. must register as a sex offender for 10 years. In the absence of any constitutional constraints, it was entirely the General Assembly’s prerogative to grant Indiana courts the subject matter jurisdiction to enter orders requiring certain juveniles to register as sex offenders. The trial court did not abuse its discretion in overruling T.W.’s objections to the testimony of two court-appointed psychologists.

LaDon Moore v. Review Board and Whitington Homes and Services
93A02-1005-EX-529
Civil. Affirms finding that Moore was discharged by her employer for just cause. Finds that publishing the names of the parties involved in cases with the Review Board of the Indiana Department of Workforce Development is essential to eliminate confusion and to increase efficiency.

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).

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
Steven Buse, Kathleen Payne, et al. v. Trustees of the Luce Township Regional Sewer District
74A05-1009-PL-590
Civil plenary. Reverses trial court’s conclusion that four counts of the property owners’ complaint constitute a public lawsuit against the Luce Township Regional Sewer District, pursuant to Indiana Code 34-6-2-124. Remands for further proceedings.

7th Circuit Court of Appeals
United States of America v. Wanda Joshua, et al.
10-2140, 10-2181, 10-2182
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Philip Simon.
Criminal. Affirms convictions of two counts of mail fraud. Although the evidence of the mailing element of mail fraud was thin, it was enough to send the case to the jury. Finds the defendants arguments that Skilling v. United States requires the court to set aside their convictions, and that the District Court improperly instructed the jury regarding their advice-of-counsel defense have no merit.

7th Circuit Court of Appeals
Jayne A. Mathews-Sheets v. Michael J. Astrue, Commissioner of Social Security
10-3746
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses denial of request for $25,200 in attorney fees after prevailing in a suit for Social Security disability benefits. On remand the plaintiff’s lawyer will have to show that without a cost-of-living increase that would bring the fee award up to $170 per hour, a lawyer capable of competently handling the challenge that his client mounted to the denial of Social Security disability benefits could not be found in the relevant geographical area to handle such a case.

Indiana Court of Appeals
Terrence Williams v. State of Indiana
49A02-1101-CR-9
Criminal. Reverses denial of Williams’ petition that a handgun seized by police be released to his counsel. Williams asked the gun be returned after his carrying a handgun without a license charge was dismissed. Williams’ inability to lawfully possess a handgun, without more, doesn’t prevent the return of the gun to his counsel.

Indiana Court of Appeals
T.W. v. Review Board
93A02-1011-EX-1223
Agency action. Reverses finding that T.W. was ineligible to receive unemployment benefits as a result of his failure to disclose self-employment. There is no statutory or evidentiary basis for a finding that T.W.’s failure to disclose his relationship with Professional Labor Services would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits. Remands for further proceedings.

Indiana Court of Appeals
Bryan Johnson v. State of Indiana
45A05-1012-CR-816
Criminal. Affirms court’s denial of motion to suppress, citing a “good faith” exception to the admissibility of a search warrant. Holds that the detective believed a court employee had taken care of all the steps necessary to properly file a search warrant. 

7th Circuit Court of Appeals
Joshua Resendez v. Wendy Knight
11-1121
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Judge Kenneth Ripple grants Resendez’s application for certificate of appealability. The application set forth a substantial showing of the denial of a constitutional right.

Indiana Court of Appeals
Don Harley v. State of Indiana
20A03-1012-PC-630
Post conviction. Reverses denial of petition for post-conviction relief and remands for a new trial. Harley’s trial attorney was ineffective when she failed to inform the trial court that Harley’s only income consisted of Supplemental Security Income.