Thursday, March 06, 2008
Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)
For publication opinions today (2):
In Jerry and Becky French v. State Farm Fire & Casualty Co. and Jane Hodson, a 16-page opinion, Judge Najam writes:
Jerry and Becky French (the “Frenches”) appeal from the trial court’s order granting summary judgment in favor of Jane Hodson on the Frenches’ claim of negligent advice and procurement of insurance. The Frenches raise three issues for our review, which we restate as whether the trial court erred in granting summary judgment in favor of Hodson. We affirm. * * *In Larry Keesling, Vivian Keesling and Heritage Land Co. v. T.E.K. Partners, LLC., et al., a 9-page opinion, Judge Najam writes:Although we have serious misgivings as to whether Hodson exercised reasonable skill, care, and diligence in the procurement of more than $200,000 in homeowner’s coverage for a $76,000 manufactured home, we need not address that issue. Assuming Hodson acted negligently, the Frenches have not suffered an injury proximately caused by her purported negligence. * * * Here, if Hodson was negligent, it was because she sold a policy to the Frenches with limits beyond that which they could reasonably expect to recover, thereby rendering the excess coverage illusory. Accordingly, the Frenches were damaged by having to pay a higher premium than they would have paid had Hodson procured the proper policy with the appropriate limits. The measure of the Frenches’ damages is the difference between those two premiums.
Further, it cannot be said that the Frenches’ costs in rebuilding their home is the appropriate measure of damages here. Before the Frenches began construction on their new home, State Farm informed them that it would only pay the replacement cost of the Manufactured Home, or about $80,000. Nonetheless, the Frenches chose to proceed with the construction of their new home, incurring approximately $185,000 in costs. Thus, the Frenches did not rely on Hodson’s conduct when, knowing that there was a coverage dispute, they chose to proceed with construction of the stick-built home. * * *
In sum, again, there are a number of reasons to question whether Hodson took the steps necessary to satisfy her duty to exercise reasonable skill, care, and diligence in the procurement of the Policy for the Frenches. But regardless of the alleged negligence, it cannot be said that such negligence was the proximate cause of an injury to the Frenches. And the Frenches did not rely on Hodson when they decided to proceed with construction of the stick-built home. We express no opinion on the ultimate resolution of the Frenches’ claims against State Farm for breach of contract. Rather, we hold only that the trial court did not err in granting summary judgment to Hodson.
Larry Keesling and Vivian Keesling (“the Keeslings”) and Heritage Land Company (“Heritage Land”) appeal from the trial court’s in rem judgment in favor of T.E.K. Partners, L.L.C. (“T.E.K.”) on T.E.K.’s complaint on a 1999 installment promissory note (the “original note”) and to foreclose mortgages against the Keeslings and Heritage Land. The Keeslings and Heritage Land present three issues for our review:NFP civil opinions today (2):
1. Whether the trial court erred when it entered a final in rem judgment in the amount of $181,331.78.
2. Whether the trial court erred when it did not release a thirty-six-acre tract as collateral after the Keeslings and Heritage Land were discharged as sureties from their personal liability on the original note.
3. Whether the trial court erred when it ordered that the thirty-six-acre tract be sold first to satisfy the judgment.
We affirm in part, reverse in part, and remand with instructions.
In the Matter of H.P., a Child Alleged to be in Need of Services, Nathanial R. & Desiree P. v. Franklin Co. Office of Family and Children (NFP) - "H.P. was adjudged to be a child in need of services by the Franklin Circuit Court. H.P.’s parents appeal the adjudication arguing that it is not supported by sufficient evidence. Concluding that the evidence is insufficient to support the CHINS adjudication, we reverse and remand for proceedings consistent with this opinion."
Invol. Term. of Parent-Child Rel. of B.S.; Dawn Lewis and Joe Smart v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - "Concluding that the evidence was sufficient, that termination does not violate the parents’ constitutional rights, and that termination was in accordance with the purpose of Title 31, we affirm."
NFP criminal opinions today (0):
Posted by Marcia Oddi on March 6, 2008 12:20 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - Cookie scandal hits Allen County Clerk's office; becomes national story
"National Public Radio's Morning Edition picks up Allen County court cookie story" is the headline to this item today in Mitch Harper's blog, Fort Wayne Observed.
Posted by Marcia Oddi on March 6, 2008 09:20 AM
Posted to Indiana Courts
Ind. Decisions - More on: Court has denied transfer in Home Place annexation case
Updating yesterday's entry, a story by Francesca Jarosz of the Indianapolis Star reports:
Lawyers for Home Place residents say the Indiana Supreme Court's denying to review their fight against annexation by Carmel mean the city has won half the battle.See also this story today by John Tuohy and Francesca Jarosz, headed "Fishers, Home Place likely heading to court: Failure of anti-annexation legislation could lead to drawn-out battle."
The residents hope to win the war by returning the case to Hamilton Superior Court 3 to seek a ruling by Judge William Hughes on whether the community is self-sufficient. * * *The Supreme Court notified Carmel and Home Place representatives this week that it would not review the case.
But Stephen Buschmann, Home Place's lawyer, said his side has another shot.
While Carmel's ability to afford to annex Home Place has been upheld, he said the city cannot annex Home Place if the area can prove several criteria, including its ability to get services such as fire and police without the city, and that the annexation would have a negative financial impact.
In 1999, the state legislature changed the law, allowing remonstrators to stop annexation by proving their ability to survive without city services. Even if a city's fiscal plan is upheld, it cannot annex an area involuntarily for four years if remonstrators successfully make that case.
Judge Hughes will make those determinations in Home Place using facts presented at the original trial in 2005.
Buschmann said he's optimistic about the outcome based on Hughes' evaluation of those criteria in Carmel's efforts to annex 8.3 square miles in southwest Clay Township.
Posted by Marcia Oddi on March 6, 2008 08:28 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - More on challenges to St. Joe County's merit selection of judges
Updating this ILB entry from Feb. 28th, much of which dealt with efforts in the past two legislative sessions to change the way judges are selected in St. Joseph County, Pablo Ros has a story today in the South Bend Tribune headed "Judges defend selection by merit: They must be free to make unpopular calls, local judge says." Some quotes:
SOUTH BEND -- In an effort to educate people on an issue he feels strongly about, a St. Joseph Superior Court judge last week tacked a couple of news stories to the bulletin board showing daily court schedules at the courthouse.The Feb. 24th Parade Magazine article by Justice O'Connor is available here; a Jan. 29th NYT column by Adam Liptak headed "Looking Anew at Campaign Cash and Elected Judges" is available here.Visitors glancing at the calendar of morning hearings may now also read highlighted portions of two media articles that warn against the pitfalls of an elected judiciary. One is an opinion piece by former U.S. Supreme Court Justice Sandra Day O'Connor published in Parade Magazine; the other is a column by New York Times journalist Adam Liptak.
The appearance of the postings on the first floor of the courthouse coincides with the failure last week of an amendment to a bill in the Indiana General Assembly that would have required St. Joseph County's eight Superior Court judges to stand for election. The amendment, supported by county Prosecutor Michael Dvorak, was a source of ill feeling among the judges, who were not consulted on the issue.
Judge Michael P. Scopelitis said Tuesday he posted the articles last week in a modest attempt to inform the public of the complexity of the issue. He also said he favors the county's system of merit selection because it allows judges to be fair and impartial.
"I did it because people in this county have judges who are merit selected," Scopelitis said, "... and merit selection is under attack."
Scopelitis said an elected judiciary may risk losing sight of its constitutional role, strictly to apply the law to the facts of a case to protect the individual against the will of the majority.
"It seems that if you don't like a judge's decision, the first visceral reaction is, 'Let's get rid of the judges,' instead of looking into whether or not the decision is the correct one or was made with the discretion allowed by the law," he said. * * *
Asked if he had been prompted to post those articles in the courthouse because he felt local media coverage had failed to present both sides of the issue, Scopelitis said that he had not.
But in reply to the same question, Chief Judge John M. Marnocha said "because the media deals with whatever issue is hot at the moment," it may fail to give the public "an adequate picture of what's going on."
Marnocha agreed with Scopelitis in opposing an elected judiciary for St. Joseph County.
Though supporters of the amendment that failed last week talked about judges' lack of accountability to the public, Scopelitis said judges are accountable to the public because they are appointed by the governor, who is elected, and because they must be periodically retained by vote.
Scopelitis also said the public may voice its complaints of judges to a commission on judicial qualifications for St. Joseph Superior Court or to the Indiana Supreme Court disciplinary commission.
Posted by Marcia Oddi on March 6, 2008 08:10 AM
Posted to Indiana Courts
Environment - New Energy Corp. apparently protests South Bend's pretreatment permit requirements
Jamie Loo reports today in the South Bend Tribune:
New Energy Corp. has asked a judge for relief from a new, more stringent, city water discharge permit for its ethanol plant.The company claims the city issued the new permit, which it considers inconsistent and arbitrary, in January without a proper hearing. New Energy asks St. Joseph Circuit Judge Michael Gotsch for a declaratory judgment to find the city's hearing process insufficient and void the permit.
New Energy and the city were negotiating an administrative order last summer, which led to an order New Energy claims it tried to appeal. An administrative order is a pretreatment program that asks an industry to treat a pollutant before discharging it into public waters.
The administrative order requires New Energy to pre-treat its wastewater, and to install meters and other equipment to test its wastewater discharge. It also asks New Energy to submit to a hydrogen sulfide management plan to lessen the alleged impact on the city's pipes downstream and the odors that come from it. Hydrogen sulfide is one of the causes of sewer odor.
The suit filed by New Energy says that after contacting the city to review and appeal the order in early September, the company received no other contact from the city until the water discharge permit was issued. The permit contains all of the elements New Energy objected to in the administrative order.
The organic waste from New Energy discharged into the sewers has been considered one of the causes of the noxious odors.
Posted by Marcia Oddi on March 6, 2008 08:04 AM
Posted to Environment
Wednesday, March 05, 2008
Ind. Courts - "Tinder joins the big leagues with seat on 7th Circuit"
Maria Kantzavelos has this article in the March 5th Chicago Lawyer. A few quotes from the lengthy article:
After 20 years on the federal bench in Indianapolis, in December [John Daniel] Tinder went from being the next in line for the position of chief judge of the district to becoming the “tail of the dog” as the most junior of the judges on the 7th U.S. Circuit Court of Appeals.“It’s an exciting time for me, personally, to go through this,” Tinder said recently from a vacant office in the Dirksen Federal Courthouse. “Here I am at 57, approaching 58. Starting a whole new phase of a career is really energizing. It’s something that’s hard to stop smiling about.
“There’s no particular magic to it, but you can imagine after doing something for 20 years and being very comfortable in doing that and enjoying that, and to walk away from that and do something that might even be more interesting and more enjoyable — it’s a great opportunity.” * * *
Lawyers familiar with his work describe an expansive body of written opinions and scholarship that is meticulous and thorough. They said practitioners who appear before an appellate panel that includes Tinder can expect respectful, but pertinent questions from him.
“He’s not going to bully lawyers at oral arguments,” said Kathleen DeLaney, managing partner of the Indianapolis litigation firm DeLaney & DeLaney who tried three cases before Tinder in district court.
She offered this advice to practitioners appearing before him: “Don’t run from his questions.”
“If he asks a question, he wants to know the answer,” DeLaney said. “He won’t ask questions for the purpose of interrupting a lawyer’s flow or sending him off on a red herring. He will be asking questions designed to illicit [ILB - sic] information he thinks is important for the ultimate decision.”
Posted by Marcia Oddi on March 5, 2008 03:19 PM
Posted to Indiana Courts
Ind. Decisions - 7th Circuit issues one Indiana decision
In United Rental Technologies v. Indiana Constructors (SD Ind., Judge Barker), a 14-page opinion, Judge Posner writes:
Anyone who travels on the interstate system in northern states understands the force of the dictum that on the interstate highways in those states there are only two seasons: winter and construction.Road work in Indiana is done almost entirely by contractors who belong to a trade association called Indiana Constructors, which has for many years negotiated collective bargaining agreements for its members with the Laborers International Union (actually with its locals, but we can ignore that detail). In 2004, the collective bargaining agreement then in force was modified to forbid the association’s members to subcontract work at a construction site to a firm that had not signed a collective bargaining agreement with the Laborers Union. The union had pushed for the modification because it wanted as much work at construction sites as possible to be done by its members. This was a blow to United Rentals because it had a collective bargaining agreement with another union (also it didn’t want to bargain with the Laborers Union when that agreement expired); and so it filed a charge with the National Labor Relations Board that Indiana Constructors and the Laborers Union were violating the National Labor Relations Act’s “hot cargo” provision. NLRA § 8(e), 29 U.S.C. § 158(e). The provision forbids a union and employer to agree that the employer will refuse to deal with another employer (in this case a subcontractor), as Indiana Constructors has agreed with the Laborers Union to do with respect to United Rentals and any other subcontractor that does not have a collective bargaining agreement with that union.
But there is an exception to the hot cargo provision for “an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work,” id., including highways. * * * On the basis of the exception, the Board’s General Counsel declined to file a complaint against Indiana Constructors or the Laborers Union.
The company then filed this suit, which charges the contractors’ association and the union with conspiring to exclude United Rentals from the traffic control market in Indiana, in violation of section 1 of the Sherman Act, 15 U.S.C. § 1. * * *
The district court granted summary judgment in favor of the defendants on all counts, and United Rentals appeals. So we have an antitrust claim and a hot cargo claim to consider. We’ll start with the latter because the former is partly derivative from it. * * *
Given the absence of traditional antitrust concerns, a decision in United Rentals’ favor would be tantamount to holding that all hot cargo clauses in the construction industry violate the Sherman Act. A type of agreement affirmatively sanctioned by Congress cannot be deemed a per se violation of the Sherman Act. * * * To rule otherwise would be to make the Sherman Act, enacted in 1890, repeal a statutory provision enacted in 1959, reversing the arrow of time. AFFIRMED.
Posted by Marcia Oddi on March 5, 2008 02:37 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Gov. - Gov. Daniels issues statement about the death of attorney and State Senator David Ford
From the release:
“I knew Dave Ford as a fellow student early in life, as a legislator the last three years, and as a kind and thoughtful friend in between. I haven’t met a more insightful or harder working member of the General Assembly. I’m not sure a person like Dave Ford can be replaced.”Governor Daniels will order flags at the State House to be flown at half-staff through the day of funeral services. Flags in Senate District 19 are to be flown at half-staff on the day of the funeral.
Posted by Marcia Oddi on March 5, 2008 11:43 AM
Posted to Indiana Government
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Bryan Pierce v. Walter Martin , a 10-page opinion, Judge Sharpnack writes:
Bryan Pierce appeals the denial of his petition for writ of habeas corpus filed against Walter Martin, Superintendent of the Miami Correctional Facility (“Superintendent”). Pierce raises four issues, which we consolidate and restate as whether the post-conviction court’s summary disposition of Pierce’s petition for writ of habeas corpus is clearly erroneous. We reverse and remand. * * *In Leonard Titone v. State of Indiana , a 6-page opinion, Judge Vaidik writes:The pleadings here do not show that the Superintendent is entitled to judgment as a matter of law. Even though Pierce may have only a remote chance of establishing his claim, we conclude that his petition should not have been disposed of by way of summary disposition. Consequently, we reverse the post-conviction court’s grant of summary disposition and remand for further proceedings.
Leonard Titone appeals his conviction for attempted obstruction of justice contending that the evidence is insufficient to support it. We conclude that Titone has waived this issue for review because he did not request a transcript of all the evidence from his entire jury trial. Given the nature of a sufficiency of the evidence challenge, Indiana Appellate Rule 9(F)(4) requires a defendant to request all the evidence from the entire trial. We therefore dismiss this appeal. * * *NFP civil opinions today (0):It would be dangerous indeed to allow a defendant challenging the sufficiency of the evidence to select the portions of the trial testimony to be transcribed. As such, we hold that when a defendant challenges the sufficiency of the evidence, the defendant must request the transcript of all the evidence in the Notice of Appeal. And despite Titone’s suggestion on appeal, the State does not have an obligation to present the rest of the evidence. It is true that Appellate Rule 9(G) provides a mechanism whereby any party to an appeal may file a request for additional portions of the transcript. However, Appellate Rule 9(G) speaks in terms of “may,” while Appellate Rule 9(F)(4) speaks in terms of “must.” Titone has not met his obligation of presenting a sufficient record for us to fairly decide his sufficiency of the evidence challenge. Because Titone has waived this issue for review, we dismiss his appeal. Dismissed.
NFP criminal opinions today (6):
Steven Harrington Embry v. State of Indiana (NFP)
Kyle J. Lewis v. State of Indiana (NFP)
Troy Earlywine v. State of Indiana (NFP)
D.B. v. State of Indiana (NFP)
David A. Palen v. State of Indiana (NFP)
Neftalie Alva v. State of Indiana (NFP)
Posted by Marcia Oddi on March 5, 2008 11:34 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Court has denied transfer in Home Place annexation case
The Indianapolis Star is reporting:
An Indiana Supreme Court decision essentially gives Carmel the ability to annex the Home Place community.The ILB has not received notice of the transfer denial, but a check of the Clerk's docket shows that by a 5-0 order dated 2/28/08, the Supreme Court denied transfer in the case of CITY OF CARMEL,IN -v- CERTAIN HOMEPLACE ANNEXATION TERRITORY (29 A 04 - 0510 - CV - 00578).
The high court rejected 5-0 a request by Home Place residents to review the Indiana Court of Appeals' October ruling allowing Carmel to annex the 1.6-square-mile area of homes and businesses just north of Indianapolis.Representatives from both sides received word Tuesday.
This order was not listed on the Feb. 29, 2008 transfer list, posted here.
The ILB summary of the Oct. 17, 2007 COA opinion in the case is available here.
Posted by Marcia Oddi on March 5, 2008 10:47 AM
Posted to Indiana Transfer Lists
Law - "Legal Aid Society of Evansville, and other members of the association offered their services as busboys, servers and dishwashers"
Kate Braser of the Evansville C&P reports:
A group of about 30 attorneys participated in the event, which kicked off the Legal Aid Society's yearlong 50th anniversary celebration.The Legal Aid Society is a not-for-profit agency funded by the city of Evansville, Vanderburgh County, the state of Indiana and United Way of Southwestern Indiana. It was created in 1958 and serves low-income residents in civil cases.
On Tuesday, attorneys from the group paid for and prepared a lunch that included barbecued chicken, tossed salad, mashed potatoes, green beans, carrots, corn and rolls for at least 250 people. Four large cakes decorated with the seals of the city, county, United Way and Evansville Bar Association were served for dessert. * * *
The Rev. Mike Ballard, executive director of The Potters Wheel, said although community groups regularly donate money or food for the meals, Tuesday's lunch marked the first time a community group actually cooked the meal.
Posted by Marcia Oddi on March 5, 2008 10:16 AM
Posted to General Law Related
Environment - "Indiana-made trailers in health tests"
"Trailers flow from Indiana to Gulf Coast" is the heading of a story quoted in this Sept. 28, 2005 ILB entry. See additional entries here.
Today Ted Evanoff of the Indianapolis Star reports:
A pair of congressional committees have opened inquiries into the high formaldehyde levels measured inside some of the travel trailers and mobile homes made expressly for more than 100,000 Louisiana and Mississippi residents displaced by the 2005 storm.Indiana trailer makers, including Coachmen, Gulf Stream and Pilgrim, have until Friday afternoon to produce documents ordered by the House Oversight and Government Procurement Committee. The committee, chaired by Rep. Henry Waxman, D-Calif., is looking into the Federal Emergency Management Agency's response to reports that formaldehyde, a chemical used in wood adhesives and found in nature, was sickening trailer residents.
FEMA, a federal agency that provides disaster assistance, ordered 56,000 trailers and turned them over primarily to Katrina victims in 2005 and 2006 as temporary housing until their homes were restored.
On Monday, the Centers for Disease Control and Prevention identified eight manufacturers at the center of the formaldehyde controversy. Six have extensive operations in Indiana, where about 23,000 workers form the center of the nation's manufactured housing industry.
Posted by Marcia Oddi on March 5, 2008 10:07 AM
Posted to Environment
Courts - More on: "Supreme Court Considers Protecting Drug Makers From Lawsuits"
Updating this ILB entry from Feb. 26 about the case of Warner-Lambert v. Kent, Linda Greenhouse reported yesterday, March 4, in the NY Times:
WASHINGTON — A 4-to-4 vote on Monday left the Supreme Court unable to decide a pharmaceutical pre-emption case that was argued a week ago.The tie vote, with Chief Justice John G. Roberts Jr. not participating, will permit a lawsuit to proceed against the Warner-Lambert Company, the maker of a diabetes drug, Rezulin. The plaintiffs are 27 diabetes patients from Michigan who suffered liver damage while taking the drug. Rezulin was approved by the Food and Drug Administration in 1997 and withdrawn from the market three years later at the agency’s request.
A tie vote at the Supreme Court automatically affirms the lower court’s judgment. In this case, the federal appeals court in New York had rejected the company’s argument that the reasoning of a seven-year-old Supreme Court precedent barred individual damage suits that are based on the claim that a drug manufacturer obtained F.D.A. approval through fraud. Affirmance by a tie vote resolves only the particular dispute, without setting a precedent for other cases. * * *
This case, Warner-Lambert Co. v. Kent, presented a narrow slice of the broad pre-emption issue that the court will take up in its next term. In that new case, Wyeth v. Levine, the question is whether the Food and Drug Administration’s approval of a drug’s label precludes individual damage suits based on the claim that the label failed to include sufficient information or adequate warnings.
In essence, if the answer is yes, most individual lawsuits for damages caused by approved drugs would be pre-empted. Last month, in Riegel v. Medtronic Inc., the court interpreted a federal law, the Medical Device Amendments, as barring most individual lawsuits against manufacturers of approved medical devices.
The Warner-Lambert case, by contrast, specifically questioned the status of lawsuits alleging that F.D.A. approval was obtained by withholding or misrepresenting crucial information — in other words, by fraud. A 2001 Supreme Court decision, Buckman v. Plaintiffs’ Legal Committee, barred general claims of fraud.
But the lawsuit by the Rezulin patients was brought under the specific provisions of a Michigan law that, while prohibiting product liability suits against makers of approved drugs, specifically permits claims that the manufacturer withheld or misrepresented information that was important to the approval process. The question was whether the existence of the state law placed the lawsuit on a different footing for the purpose of pre-emption analysis.
Posted by Marcia Oddi on March 5, 2008 09:55 AM
Posted to Courts in general
Tuesday, March 04, 2008
Ind. Courts - Federal Judge Theresa Lazar Springmann is the 2008 recipient of the Nancy A. Maloley Outstanding Public Servant Award
From a press release issued by the Indiana Republican Party:
Federal Judge Theresa Lazar Springmann is the 2008 recipient of the Nancy A. Maloley Outstanding Public Servant Award presented each year by the Richard G. Lugar Excellence in Public Service Series. * * *Theresa Lazar Springmann serves as Judge, United States District Court for the Northern District of Indiana. Judge Springmann was born in Gary, Indiana, as the third of four children and the granddaughter of immigrants from Ireland and Russia. In 1977, she graduated summa cum laude from Indiana University Northwest and graduated from the University of Notre Dame Law School in 1980.
Following graduation from law school, Judge Springmann served as a law clerk to Judge James T. Moody, U.S. District Court for the Northern District of Indiana (1980-1983). She practiced law as an associate with Spangler, Jennings, Spangler & Dougherty in Merrillville from 1984-1992 and was a partner in that firm from 1993-1995.
In recognition of her legal expertise and experience, Judge Springmann was appointed as the United States Magistrate Judge, United States District Court for the Northern District of Indiana from 1995-2003. Distinguished in her role as Magistrate, she was confirmed as the United States District Court Judge of the District Court for the Northern District of Indiana (Fort Wayne Division) in 2003, the position in which she currently serves.
Posted by Marcia Oddi on March 4, 2008 04:57 PM
Posted to Indiana Courts
Ind. Decisions - 7th Circuit decides Illnois case re litigious softball parents
Read about it here in Robert Loblaw's Decision of the Day.
Posted by Marcia Oddi on March 4, 2008 04:53 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - Adams Circuit Court Judge Fred A. Schurger suffers heart attack
From the Decatur Daily Democrat:
Adams Circuit Court Judge Fred A. Schurger, who suffered a "moderate" heart attack last week and had two stents placed in arteries over the weekend at Lutheran Hospital in Fort Wayne, is recovering well and may come home today for further recuperation.Schurger, 61, was diagnosed last Friday as having had a heart attack a few days before without realizing it, his court administrator, Vickie Hammond, said on Monday.
She said the stents inserted in the judge's arteries corrected two major blockages: one of 85 percent and the other of 95 percent.
Local attorneys are taking turns serving as judge while Schurger is recovering.
Posted by Marcia Oddi on March 4, 2008 04:47 PM
Posted to Indiana Courts
Ind. Decisions - Order vacating prior order granting transfer
Per this Feb. 25th ILB entry (3rd item), last week, on Feb. 27th, the Supreme Court held oral arguments in the case of Darrell Maymon v. State of Indiana. One may listen to the oral arguments here.
Today the Court has posted this order, which is actually dated Feb. 29th:
By order dated January 18, 2008, the Court granted a petition seeking transfer of jurisdiction over this appeal from the Court of Appeals to this Court. After further review, including oral argument, the Court has determined that transfer was improvidently granted. Accordingly, the order granting transfer is VACATED and transfer is DENIED. The Court of Appeals opinion reported as Mayman v. State, 875 N.E.2d 375 (Ind. Ct. App. 2007), is no longer vacated under Appellate Rule 58(A) and is REINSTATED as Court of Appeals precedent.Pursuant to Appellate Rule 58(B), this appeal is at an end. The Court DIRECTS the Clerk to certify this order as final and to send copies of this order to the Hon. Thomas Newman, Jr., Judge, Madison Superior Court; Hon. John G. Baker, Chief Judge, Indiana Court of Appeals; Steve Lancaster, Court of Appeals Administrator; and all counsel of record.
Posted by Marcia Oddi on March 4, 2008 02:29 PM
Posted to Ind. Sup.Ct. Decisions | Indiana Transfer Lists
Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)
For publication opinions today (2):
In William E. Wright v. State of Indiana , a 13-page opinion, Judge Riley writes:
Appellant-Petitioner, William E. Wright (Wright), appeals the post-conviction court’s denial of his petition for post-conviction relief. We reverse and remand.In Village Commons, LLC. et al v. Marion County Prosecutors Office [MCPO], a 17-page opinion, Judge Riley writes:Wright raises two issues, one of which we find dispositive: Whether Wright’s trial and appellate counsel were ineffective for failing to challenge the enhancement of Wright’s sentence due to his status as a repeat sexual offender as defined by Ind. Code § 35-50-2-14. * * *
MAY, J., concurs.
KIRSCH, J., concurs with separate opinion. Stare decisis requires that we follow our Supreme Court’s decisions in Crawford v. State, 755 N.E.2d 565 (Ind. 2001) and Ellis v. State, 736 N.E.2d 731 (Ind. 2000).[2] If attempted murder is not a crime of violence, notwithstanding the fact that a victim is shot in the throat (Crawford) or in the face or hand (Ellis), I suppose attempted rape is not a sex offense. Accordingly, I concur, albeit reluctantly.
_____
[2] Following our Supreme Court’s decision in Ellis, the General Assembly amended Ind. Code § 35-50-1-2 to include attempted murder in the list of crimes of violence. Crawford, however, which relied on Ellis, was decided after the amending legislation.
Issues. Landlord raises three issues for our review, which we restate as:NFP civil opinions today (6):
(1) Whether the exclusive-remedy provision of the lease between Landlord and the MCPO barred the MCPO from asserting that it was evicted by acts or omissions of the Landlord;
(2) Whether the trial court’s findings that the MCPO was both actually evicted and constructively evicted were clearly erroneous; and
(3) Whether a provision limiting the MCPO’s time to sue barred the MCPO’s defenses and counterclaims. * * *For the foregoing reasons we conclude that (1) the exclusive-remedy provision of the Lease did not bar the MCPO from asserting a wrongful eviction defense; (2) the trial court’s findings that the MCPO had been both constructively evicted and actually evicted were not clearly erroneous; and (3) the provision of the Lease defining the MCPO’s time to sue did not bar the MCPO from asserting wrongful eviction as a defense or bringing counterclaims when the Landlord initiated the action. Affirmed.
Daniel V. Briles v. Maurice D. Cooper and Musselman Hotels, LLC (NFP) - "[W]e must conclude that there remain genuine issues of material fact relevant to a determination of respondeat superior that preclude summary judgment in Musselman’s favor. We therefore reverse and remand for further proceedings consistent with this opinion."
Timothy and Gloria Briesacher v. Specialized Restoration and Construction, Inc., et al (NFP)
Michael E. Wetzel v. Judith Ann Ferguson (NFP) - "Wetzel’s brief fails to present cogent arguments with supporting legal authority to establish trial court error. Therefore, Wetzel has failed to carry his appellate burden."
Charles Michael Myer v. Dee Dee (Myer) Franklin (NFP) - "Issue. Whether the trial court erred by ordering Father to pay for college expenses incurred by the parties’ daughter, Emily Myer."
Patricia and Ronald Skibins v. Joshua Cummings and Tammy Harlan (NFP) - "Patricia Skibins and Ronald Skibins, as co-personal representatives of the Estate of Kenneth Skibins (“Skibins”) (collectively, “the Estate”), appeal the trial court’s entry of summary judgment for Joshua Cummings on the Estate’s wrongful death claim and for Tammy Harlan on the Estate’s negligent entrustment claim. We reverse and remand.
"Issue. Does a genuine issue of material fact exist regarding whether Skibins was driving Harlan’s truck at the time of the accident that claimed his life?"
Toby J. Seiler v. Mark Dillman, et al (NFP) - "Seiler purports to raise several issues on appeal. However, because he has failed to provide any cogent argument, as required by Indiana Appellate Rule 46(A)(8)(a), he has waived all issues on appeal."
NFP criminal opinions today (5):
Michael Bell v.State of Indiana (NFP)
Donald E. Jones, Jr. v. State of Indiana (NFP)
Elliott Cunningham v. State of Indiana (NFP)
David L. Martin v. State of Indiana (NFP)
William Cass v. State of Indiana (NFP)
Posted by Marcia Oddi on March 4, 2008 02:02 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Transfer list for week ending February 29, 2008
Here is the Indiana Supreme Court's transfer list for the week ending February 29, 2008. Be sure to view all 3 pages.
Nearing four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Posted by Marcia Oddi on March 4, 2008 09:32 AM
Posted to Indiana Transfer Lists
Monday, March 03, 2008
Ind. Decisions - 7th Circuit decides one Indiana case today
In USA v. Martinez (SD Ind., Judge Barker), a 10-page opinion, Judge Rovner writes:The jury was not asked to make a specific finding as to drug quantity but instead was told, apparently without objection from the defendants, that in order to convict on either count it had to find that the government proved the amount alleged in the indictment. Later at sentencing the district court concluded that the precise quantity equaled 1,407 kilograms, and used that figure in applying the sentencing guidelines. The court sentenced Martinez to 126 months’ imprisonment, but assessed Cardenaz three extra offense levels as a manager or supervisor of the conspiracy and sentenced him to 210 months. On appeal Martinez and Cardenaz contend that their convictions must be set aside because no rational jury could have found beyond a reasonable doubt that the charged offenses involved at least 1,000 kilograms of marijuana. Both appellants also contend that the jury, rather than the district court, should have decided the drug quantity used in applying the sentencing guidelines, and that the district court overstated the relevant amount. Finally, Cardenaz objects to the upward adjustment in offense level for his leadership role. For the reasons that follow, we affirm the convictions and sentences of both appellants.
Posted by Marcia Oddi on March 3, 2008 11:25 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Jenean Roland and Carl J. Roland v. Kristen Shelton, a 14-page opinion, the inssue was whether the federal law pre-emplted state law claims re seatbelt design. Sr. Judge Hoffman writes:
In support of their view that FMVSS 208 is a minimum safety standard that may be augmented by state common law, the Rolands cite a 1980 letter sent to General Motors and other automobile manufacturers by Joan Claybrook, then administrator of NHTSA, in which she encouraged manufacturers to install lap/shoulder belts and air bags and described federal safety standards as “minimum standards.” Appellants’ App. at 311, 585. We conclude that a letter from a single NHTSA administrator, written nine years before the version of FMVSS 208 at issue here, is not indicative of NHTSA’s regulatory scheme as that scheme is set forth in Geier and various regulations.In Tom Shetler, Sr. and Suzan Nicholson v. Linda K. Durham, a 6-page opinion, the issue, as stated by Sr. Judge Hoffman, was "Whether the trial court erred as a matter of law by interpreting Ind. Code § 5-4-1-9 to allow an elected official to secure her bond after the date she was scheduled to take office.." The holding:We hold that the Rolands’ common law tort action is pre-empted on the narrow grounds that it conflicts with the deliberate and comprehensive regulatory scheme set forth in FMVSS 208. We do not join the above-cited courts in finding pre-emption based upon the broader grounds that any regulation which affords a choice to a manufacturer pre-empts the state action.
[W]e hold that the trial court was correct in determining that Ind. Code § 5-4-1-9 does not require Durham, the choice of the people for Knight Township Trustee, to forfeit her office absent evidence of fault on her part. Furthermore, because the Board does not argue or the record indicate the existence of such fault, the trial court’s determination must stand. Affirmed.
NFP civil opinions today (3):
Cheryl Koopmans-Clark v. Kenneth J. Clark (NFP) - "According to the unambiguous language of the prenuptial agreement, Wife agreed to sign a waiver of her rights to Husband’s retirement and pension plans, and—given the dissolution proceedings—the time has now come for her to do so. Accordingly, the trial court properly determined that the plans are Husband’s individual property and ordered Wife to execute the necessary paperwork waiving her rights in them. We affirm."
Janet Wilke v. Erie Insurance, Fink & Co., Inc., and Last Chance Wrecker & Sales (NFP) - "Wilke is correct that Fink’s motion to set aside the default judgment did not specifically mention a meritorious defense. However, at the time he filed the motion to set aside, Fink had already filed an answer to Wilke’s complaint, which denied liability. Therefore, the trial court had before it filings which advised it that Fink had a meritorious defense."
In the Matter of R.W. and M.W.; and D.W. v. Lake County Dept. of Child Services (NFP) - "On appeal, Mother claims she was denied her constitutional right to due process when the termination hearing was held in her absence and without the benefit of counsel. Mother further asserts that the juvenile court’s judgment terminating her parental rights to her children was not supported by clear and convincing evidence. Concluding that Mother’s constitutional right to due process was not violated and that the juvenile court’s judgment was supported by clear and convincing evidence, we affirm."
NFP criminal opinions today (3):
Douglas Pirtle v. State of Indiana (NFP)
Ryan J. Howell v. State of Indiana (NFP)
Aaron Williams v. State of Indiana (NFP)
Posted by Marcia Oddi on March 3, 2008 10:39 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
None scheduled.
This week's oral arguments before the Court of Appeals that will be webcast:
This Monday, March 3rd:
2:00 PM - Jeffrey Kochis vs. City of Hammond, et al - When the newly-elected mayor of the City of Hammond appointed a new Fire Chief and Deputy Fire Chief, the former Deputy Fire Chief was transferred to the Assistant Fire Chief/Drillmaster position which had been held by Kochis. Kochis was then demoted to his previous position of Captain. Kochis' lawsuit argues the demotion cannot stand because the City of Hammond failed to provide him the due process required by statute. The Scheduled Panel Members are: Chief Judge Baker, Judges Darden and Bradford. [Where: Indiana Supreme Court Courtroom]
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will NOT be webcast:
None scheduled.
Posted by Marcia Oddi on March 3, 2008 09:49 AM
Posted to Upcoming Oral Arguments
Friday, February 29, 2008
Ind. Decisions - 7th Circuit decides one Indiana case today
In Duncan v. Fleetwood Motor Homes (ND Ind., Mag. Judge Cosbey), a Per Curiam panel ruled in a 13-page opinion:
Barry Duncan worked at Fleetwood Motor Homes of Indiana for 20 years, 15 of them as a material handler. In 2004, when Duncan was 51, Fleetwood told him he could no longer work as a material handler. The company offered Duncan several less desirable jobs in the following months, and eventually he accepted a position as an assembler. Duncan sued, claiming that Fleetwood violated the Age Discrimination in Employment Act by forcing him to give up his job as a material handler. A magistrate judge, presiding by consent, granted 2 No. 07-1284 summary judgment for Fleetwood. Because we conclude that questions of fact remain concerning the legitimacy of Fleetwood’s explanation for its action, we vacate the judgment and remand for further proceedings.
Posted by Marcia Oddi on February 29, 2008 11:04 AM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 3 today (and 14 NFP)
For publication opinions today (3):
Charles D. Trigg v. Erin Leigh Al-Khazali
NFP civil opinions today (2):
Helen Marks v. Raymond C. Marks (NFP)
NFP criminal opinions today (12):
Shauna L. Davis v. State of Indiana (NFP)
Armando Cordero v. State of Indiana (NFP)
Glenn Evans v. State of Indiana (NFP)
Jose Tinder v. State of Indiana (NFP)
Gary Mitchell v. State of Indiana (NFP)
James F. Miller v. State of Indiana (NFP)
James M. Johnston v. State of Indiana (NFP)
Michael R. Flanders v. State of Indiana (NFP)
Demonn Carter v. State of Indiana (NFP)
Leroy Howard v. State of Indiana (NFP)
Michael Jordan, Jr. v. State of Indiana (NFP)
John D. Randall v. State of Indiana (NFP)
Posted by Marcia Oddi on February 29, 2008 11:04 AM
Posted to Ind. App.Ct. Decisions
Law - NYT reporter Linda Greenhouse may move on
The AP reported yesterday:
Linda Greenhouse, who has covered the Supreme Court for The New York Times for 30 years, said Wednesday that she has accepted a buyout package from the newspaper.Say it isn't so, Linda.Greenhouse joined the Times in 1968 and started covering the court in 1978, making her career there longer than any of the current justices except John Paul Stevens, who came on in 1975. * * *
Greenhouse, 61, said in a phone interview that she had been planning to retire in a few years anyway and that the buyout offers, which were announced by the newspaper last week, came along at an opportune time.
"I don't feel like I'm leaving anything undone after 30 years on this beat," she said. * * *
Greenhouse said she had various academic writing and speaking commitments that went well into next year, adding that she plans to remain "actively engaged in thinking and writing about the court."
Posted by Marcia Oddi on February 29, 2008 06:38 AM
Posted to General Law Related
Thursday, February 28, 2008
Ind. Decisions - Supreme Court issues awaited insurance decisions
In State Farm Mutual Automobile Ins. Co. v. Patricia Jakupko, et al, a 14-page, 5-0 opinion, Justice Sullivan writes:
Richard Jakupko suffered severe injuries and his wife and children emotional distress in an automobile accident caused by an underinsured motorist. Their insurance company contends that their underinsured motorist insurance policy subjects any amount the wife and children can recover for their emotional distress to the per person liability cap applicable to Richard. Such a limitation would violate the requirements of Indiana’s underinsured motorist insurance statute and be void; the wife and children are each entitled to their own per person liability limit.In Austin J. Elliott, et al v. Allstate Insurance Co., a 4-page, 5-0 opinion, Justice Sullivan writes that the judgment of the trial court is reversed.
The policy language at issue here is slightly different than that in Jakupko. However, both cases present us with precisely the same issues to decide:In State Farm Mutual Automobile Ins. v. D.L.B., Deana H. Brake , a 5-page, 3-2 opinion, Justice Sullivan writes:(1) whether “bodily injury” as defined in the policy at issue in this case includes the emotional distress Amber and Austin suffered; and, if so,
(2) whether the fact that the policy provides that the coverage limit for bodily injury suffered by Amanda “includ[es] damages sustained by anyone else as a result of that bodily injury” precludes Amber and Austin from having their own independent limits on liability.
Our decision today in Jakupko resolves these issues. In it we hold that “bodily injury” as defined in the policy at issue in that case includes emotional distress. For the same reasons, we reach the same result here.
We grant transfer here today, because like Jakupko, this case requires us to decide whether “bodily injury” as defined in the policy at issue in this case includes the emotional distress D.L.B. suffered.In Jakupko, we hold that “bodily injury,” as defined in the policy at issue in that case, includes emotional distress. ... However, we note in Jakupko that the term “bodily injury” does not include emotional damage unless it arises from a bodily touching. * * *
D.L.B. argues that although he did not suffer a direct impact, his emotional distress was accompanied by physical manifestations. As Judge Darden observes in his dissent, however, these physical manifestations were not the result of an impact, force, or harm to D.L.B.’s body and so do not fall with the ambit of Wayne Township; rather, this case is controlled by Armstrong.
Because D.L.B. did not suffer “bodily injury” within the meaning of the policy, he was not entitled to collect damages under Wallace’s State Farm policy. The judgment of the trial court is reversed.
Shepard, C.J., and Boehm, J., concur.
Dickson, J., dissents with a separate opinion in which Rucker, J., concurs. [J. Dickson's dissent concludes] Because I prefer not to affirm the summary judgment for State Farm on an issue not raised and on which D.L.B. has not had an opportunity to respond, I would reverse the trial court's grant of summary judgment for State Farm.
Posted by Marcia Oddi on February 28, 2008 05:38 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Two today from 7th Circuit
In Schleicher, Steve v. Salvation Army (SD Ind., Judge Young), an 11-page opinion, Judge Posner writes:
The Schleichers brought suit against their former employer, the Salvation Army, charging violations of the minimum-wage and overtime provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. Invoking the “ministerial exception” (better termed the “ministers exception,” to avoid the misleading connotation of “ministerial”—better still, as we’ll see, to call it the “internal affairs” doctrine) to federal employment statutes, see, e.g., Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (2003), the district judge dismissed the suit—though only after an evidentiary hearing—for want of federal jurisdiction. Fed. R. Civ. P. 12(b)(1). * * *But it is entirely proper in a case like this for a defendant who is invoking the presumption that ministers’ compensation is not subject to the Fair Labor Standards Act to move to dismiss an FLSA case under Rule 12(c) (judgment on the pleadings). If the plaintiff presents evidence to rebut the presumption, then, as the rule states, the defendant’s motion for judgment on the pleadings is treated as a motion for summary judgment under Rule 56. It does not matter in this case, however, what rule the judge acted under, since he granted an evidentiary hearing at which the plaintiffs could have tried to present evidence that would have rebutted the presumption, but did not. We therefore modify the judgment to base it on the lack of merits of the plaintiffs’ claim rather than on any want of federal jurisdiction, and as so modified the judgment is affirmed.
In USA v. Choiniere, Bruno (ND Ind., Judge Sharp), a 13-page opinion, Judge Williams writes:
Chiropractor Bruno Choiniere developed what he terms a back “brace” and the government deems a back “belt,” and he billed Medicare, Medicaid, and private insurance companies over $1000 each time he prescribed it. The government maintained it was worth about $50, and a jury convicted Choiniere of health care fraud, fraudulent concealment of health care benefits, and money laundering. On appeal, Choiniere argues that the district court committed reversible error when it refused to give two of the proposed intent to defraud jury instructions that he tendered. Because the instructions the jury received already conveyed the theories in Choiniere’s proposed instructions, and the failure to give the instructions did not deny him a fair trial, we find no error in the decision not to give the jury the two instructions. We also affirm the sentencing enhancement Choiniere received for using minors in furtherance of his scheme, as the district court was entitled to credit the testimony of the minors’ mother and grandmother that Choiniere had solicited the minors’ assistance. Therefore, as we discuss in more detail below, we affirm the judgment of the district court.
Posted by Marcia Oddi on February 28, 2008 05:10 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Courts - "Governor appoints Bluffton City Judge"
A press release this afternoon reports:
INDIANAPOLIS (February 28, 2008) – Governor Mitch Daniels today announced the appointment of Robert J. Bate as judge of the Bluffton City Court. He succeeds Judge Gary Markley who resigned on January 15.Mr. Bate is not licensed to practice law in Indiana. His predecessor, Judge Gary Markley, however, is listed in the Supreme Court database.Currently retired, Bate served as owner and president of Bob Bate Chevrolet, Inc. in Ossian from 1979 through 2000. A longtime public servant, he was elected five times to the Bluffton City Council between 1987 and 2007. Bate has been an active member of the Wells County Foundation Board, National Auto Dealers Association, Ossian Lions and the Gideons.
His appointment is effective immediately.
Posted by Marcia Oddi on February 28, 2008 04:07 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)
For publication opinions today (3):
In Noah Bailey v. State Farm Mutual Automobile Insurance Company, a 17-page opinion, Judge Robb writes:
Noah Bailey appeals following a jury trial at which the jury found for the defendant below, State Farm Mutual Automobile Insurance Company (“State Farm”). Bailey raises two issues, which we restate as whether the trial court abused its discretion in denying Bailey’s Motion to Conform Pleadings to the Evidence and in refusing to give Bailey’s tendered instruction regarding a theory of negligent entrustment. Concluding that the trial court did not abuse its discretion in either regard, we affirm.In Shawn E. Norris v. State of Indiana, a 16-page opinion, Judge Robb writes:
Shawn Norris appeals from the trial court’s summary disposition of his petition for post-conviction relief. Norris raises the sole issue of whether the trial court improperly granted summary disposition. Concluding that issues of material fact preclude summary disposition, we reverse and remand with instructions that the trial court conduct a hearing on Norris’s petition.In Gary Gerlach v. Larry Gene Woodke , a 10-page opinion, Judge Robb writes:
Gary Gerlach appeals the decision of the Full Worker’s Compensation Board (the “Board”) affirming the decision of a hearing member, who concluded Gerlach’s employee, Larry Woodke, was eligible for worker’s compensation benefits. On appeal, Gerlach raises one issue, which we restate as whether the hearing member properly found that Woodke was not a farm or agricultural employee within the meaning of Indiana Code section 22-3-2-9(a). We affirm, concluding the evidence presented to the hearing member establishes that at the time of his injury, Woodke was not working as a farm or agricultural employee.NFP civil opinions today (3):
Invol. Term. of the Parent/Child Rel. of M.H.1,M.H.2,M.H.3,M.H.4, minor children, and their father Thaddeus Harris v. Marion Cnty. Dept. of Child Services, and Child Advocates, Inc. (NFP) - Termination, affirmed.
George Reid, Personal Representative of the Estate of Mary Reid, Deceased v. Jamie Black a/k/a Jamie Black McDaniel (NFP) - "The Estate raises three issues, but we find one issue dispositive; whether genuine issues of material fact existed making the trial court’s grant of summary judgment improper. Concluding a genuine issue of material fact exists as to whether the statute of limitations has run, we reverse and remand for further proceedings." Note this is a 2-1 opinion.
Chicago Title Insurance Company v. Juanita A. Gresh, Individually and as a representative of a class of persons similarly situated (NFP) - "Chicago Title Insurance Company (“Chicago Title”) challenges by interlocutory appeal a trial court order granting class certification. We reverse and remand. The dispositive issue is whether the trial court abused its discretion in finding that common issues would predominate over issues affecting individual class members."
NFP criminal opinions today (4):
William Owen v. State of Indiana (NFP)
William Caudill v. State of Indiana (NFP)
Sarah Ping v. State of Indiana (NFP)
Jonathan E. Sapp v. State of Indiana (NFP)
Posted by Marcia Oddi on February 28, 2008 11:57 AM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - "Third John Doe denied by judge"
So reads the headline to this story today by Lafayette Journal and Courier reporter Sophia Voravang. Some quotes:
A convicted sex offender from Lafayette who challenged Indiana's residency restriction will not be able to return home because he has no rights to the property, a Tippecanoe County judge ruled.See also this ILB entry from Feb. 27th.The man filed a civil complaint in August, under the alias John B. Doe, fighting a recent state law that prohibits sex offenders against children from living within 1,000 feet of a school, public park or youth program center.
Doe and his attorney, Earl McCoy, argued that the statute violated Doe's rights by punishing him again, six years after he was released from probation for child seduction. * * *
John B. Doe's lawsuit was one of three complaints filed in Tippecanoe County questioning the law that forced 28 offenders here to move or be charged with a Class D felony.
All three complaints have now been shot down by judges in some capacity.
In an order that Judge Thomas Busch of Tippecanoe Superior Court 2 filed Tuesday, he ruled that John B. Doe's property rights were not violated because the home is owned by his wife. His new residence also does not affect his employment.
Busch also cited similar challenges in other states, including a decision by the Eighth Circuit Court of Appeals that determined a statute in Iowa did not violate ex post facto standards even though the offender's crime, conviction and sentence came before enactment of the law.
Indiana's law took effect on July 1, 2006.
"Under the circumstances, the court finds that injunctive relief forbidding the prosecutor and sheriff from enforcing this law in this case is not in the public interest," Busch wrote in his 11-page ruling.
"His ability to reside in the location is not a property right that can be 'taken' by the government."
See also this Nov. 29, 2007 ILB entry headed "More on: Georgia's top court overturned a state law Wednesday that banned registered sex offenders from living within 1,000 feet of schools, churches and other areas where children congregate."
Posted by Marcia Oddi on February 28, 2008 08:56 AM
Posted to Ind. Trial Ct. Decisions
Ind. Decisions - Still more on: Court of Appeals rules on closing of Fort Wayne Disabilities Center
Updating yesterday's ILB entry, Niki Kelly of the Fort Wayne Journal Gazette reports today:
The Indiana Supreme Court this week dismissed as moot an appeal by the Family and Social Services Administration related to the closing of the Fort Wayne State Developmental Center.But the court first accepted the case, which vacates the Indiana Court of Appeals opinion that found the administration violated state bidding procedures when it gave Liberty Healthcare a contract in May 2005 to manage the facility.
Later that year, the state and Liberty negotiated a long-term contract to fully privatize the center, including overseeing its closure in April 2007.
There was no public bidding for either contract.
Even though the Indiana Supreme Court didn’t rule on the merits of the case, FSSA Secretary Mitch Roob considers it a victory.
“It should end this discussion,” he said. “What it means is the trial court opinion stands, and the trial court ruled we acted inside our legal authority, so in that respect we’re very pleased.”
It’s unclear how the Indiana Supreme Court’s action affects a separate pending class-action lawsuit filed in Marion Superior Court in December by former center employees seeking monetary damages related to the privatization.
Posted by Marcia Oddi on February 28, 2008 08:52 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - More on: Unslated candidates withdraw from Marion County judges race; and more [See Update]
Updating this ILB entry from Feb. 26th, the Indianapolis Star has an editorial titled "When judicial candidates don't have to court voters." It could also be headed "Our So-Called Election." The editorial concludes:
In short, we have a system of electing judges that requires virtually no competition for the public's approval, only an audition before the party bosses. The parties, rather than fight it out to show who's best for the bench, will simply sit back and accept their eight gifts each. * * *This ILB entry from March 1, 2007 quotes a South Bend Tribune story:By eliminating even the minimal amount of choice voters used to have in general elections, the legislature has given us the worst of two worlds.
A merit selection process for judges would be removed from direct public review, but would offer the advantage of impartial professionalism over insider politics. Now, we have a putative elective process, but with pre-selection based not on judicial qualifications but on political loyalties.
State and local bar associations, along with Indiana Supreme Court Chief Justice Randall Shepard, have urged the creation of a nonpartisan merit selection system for judges. The General Assembly should either enact that or open up the elective process, so that voters could pick as many Democrats or Republicans -- or others -- as they saw fit.
Neither remedy is likely, any more than abolishment of the antiquated elective posts of coroner and township assessor are good bets. All these moves would make for sound governance, but they would violate the bipartisan spirit of sharing that binds the political parties and their fellow vested interests.
A bill that would change how St. Joseph County selects its judges has died in committee, but it could resurface this legislative session, its author said Wednesday.But the effort to change the selection of St. Joe judges was made again this year. On Feb. 26th the ILB posted this entry quoting a SB Tribune story that Rep. Dvorack would offer a second reading amendment to "set up non-partisan elections for judges who right now are appointed by the governor." The amendment (here is the text) failed, 45 ayes to 49 nays.Meanwhile, lawyers are making a forceful argument to retain the status quo.
State Rep. Craig Fry's bill to repeal "merit selection" of the county's Superior Court judges, as well as a similar measure authored by Lake County Democrat Charlie Brown, has died in committee for lack of a hearing. But Fry said he believes another lawmaker, one he declined to name, might incorporate the language as an amendment to another bill.
St. Joseph and Lake counties are the only two in Indiana where [trial] judges are chosen through merit selection instead of being elected directly by voters. Under merit selection, a committee -- comprised of local lawyers, governor-appointed citizens and a state Supreme Court justice -- interviews and selects applicants for openings on the bench. [emphasis by ILB]
Once judges are appointed, they stand for a retention vote every six years. No judge has ever been removed in a retention vote since St. Joseph County adopted the system under a state law enacted in 1973. * * *
Fry said he introduced his bill to "send a message" to judges.
"Those folks are not accountable to anybody once they're appointed," he said. "I feel everybody should be elected. That way if they do something the public doesn't like, they can be discarded."
But local lawyers say they feel fortunate to have merit selection. The St. Joseph County Bar Association's board of governors recently unanimously passed a resolution "strongly opposing" the changes Fry seeks.
[More] The ILB has now found a story from the SB Tribune on the vote. Some quotes:
Dvorak's measure would have provided for nonpartisan elections among Superior Court judges in St. Joseph County. Currently, those judges are appointed by the governor. Residents can vote to retain Superior Court judges but do not choose judges for open seats.[Update at 9:10 AM] I'm told by a reader that although the SBT story reports "No judge has ever been removed in a retention vote since St. Joseph County adopted the system under a state law enacted in 1973," that has not been the case in Lake County, the other county following this system. According to the reader, at least two Lake County judges over the years have failed a retention vote by the voters."The issue, I don't think, is going to go away as one that's important to my constituents," Dvorak said.
Rep. Dvorak is the son of Prosecutor Michael Dvorak, a vocal proponent of electing Superior Court judges. But Ryan Dvorak said Tuesday he's been hearing complaints from constituents who feel judges are going easy on criminals.
The amendment was attached to Senate Bill 329, which deals with judges' pensions. And in a way, Ryan Dvorak's amendment might have been hurt by timing.
Republicans have been calling in recent days for stricter enforcement of House rules, including one that requires amendments to be related to bills.
Some Republicans, including Rep. Ralph Foley, R-Martinsville, objected to the amendment because they said it had no relation to judges' pensions, and allowing it to go forward would make House rules "elastic."
"At some point in time the elastic breaks, loses its snap and has no meaning. I think that this is that time," Foley said. "We must rein in and have some rule rather than a chamber without any rule."
The amendment had support from almost the entire St. Joseph County delegation, including Republican Reps. Jackie Walorski of Lakeville and Tim Neese of Elkhart, whose 48th District stretches into the northeast part of the county.
"In St. Joseph County, we have a problem with judges who are not accountable to anybody. Nobody," said Rep. Craig Fry, D-Mishawaka.
Posted by Marcia Oddi on February 28, 2008 08:22 AM
Posted to Indiana Courts
Wednesday, February 27, 2008
Ind. Decisions - Two more Supreme Court opinions today
In Linda Keesling, Harold Lephart, et al v. Frederick Beegle, III, John Bucholtz, et al, an 11-page, 3-2 opinion, Justice Sullivan writes:
Both Congress and the Indiana General Assembly have passed statutes called “RICO Acts” to combat “racketeer influenced and corrupt organizations.” There is a conflict between opinions of the Court of Appeals as to whether liability under the Indiana RICO Act extends only to persons who direct racketeering activity (the rule under the Federal RICO Act) or extends below the managerial or supervisory level to a racketeering enterprise’s “foot soldiers” as well. Because the Indiana Act uses language significantly broader than that of the Federal Act, we conclude that it imposes RICO liability both on persons at and below a racketeering enterprise’s managerial or supervisory level. * * *In In the Matter of Daniel Cueller, an attorney disciplinary matter, the Court issues a unanimous Per Curiam opinion that begins:Conclusion We vacate the trial court’s grant of summary judgment in favor of defendants Baugher, Florida Underwriting, and Jones with respect to the plaintiffs’ Indiana RICO Act allegations. In all other respects, we summarily affirm the opinion of the Court of Appeals. We remand to the trial court for further proceedings in accordance with this opinion and that of the Court of Appeals.
Shepard, C.J., and Boehm, J., concur.
Dickson, J., dissents with separate opinion in which Rucker, J., concurs. [The dissent begins] The Court today construes Indiana’s RICO Act to impose liability beyond those who substantially participate in the enterprise, to persons below the managerial or supervisory level, based upon linguistic variation between the Federal RICO statute and the Indiana Act. I disagree, finding the modest language differences to be insignificant and inconclusive.
This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. We find that Respondent, Daniel Cueller, engaged in attorney misconduct by failing to hold property of clients properly in trust, failing to maintain a ledger with separate records for each client with funds deposited in a trust account, and knowingly making false statements of material fact to the Disciplinary Commission in connection with this disciplinary matter.
Posted by Marcia Oddi on February 27, 2008 04:23 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - Court of Appeals issues 1 today (and 11 NFP)
For publication opinions today (1):
Ramifications of problems in the Clerk's Office continue. In Lake Cnty. Election Board & Registration, Myrna Maldonado, Richard Medina & Juda Parks v. Anthony Copeland, a 7-page opinion, Judge Vaidik writes:
Lake County Board of Elections and Registration (“Election Board”) and Myrna Maldonado, Richard Medina, and Juda Parks (“Challengers”) (collectively “Appellants”) appeal the trial court’s order requiring the Election Board to place Anthony Copeland’s name on the ballot for the November 6, 2007, General Election for an At-Large seat on the City of East Chicago Common Council as an Independent. Although this case had an expedited briefing schedule so that the issues could be resolved before the November 2007 General Election, for reasons not entirely clear the case was not transmitted to this Court until January 2008, well after the election. Because Copeland lost and Challengers won in that election, the issues are now moot. We therefore dismiss this appeal. * * *Some readers may recall the COA decision from Oct. 16, 2007, which contained this footnote:According to the briefing schedule, Copeland’s brief was due approximately two weeks before the November 6, 2007, General Election. * * *
What happened from this point on is not entirely clear. What we do know is that Appellants’ briefs are filestamped October 24, 2007, while Copeland’s briefs were not initially filestamped at all.[3] The Clerk of the Courts Online Docket shows that both sets of briefs were submitted either before or on their respective due dates. However, due to some alleged defects, the briefs were either filestamped after their due date (in the case of Appellants) or were not initially filestamped at all (in the case of Copeland). In any event, despite the extremely expedited nature of this appeal, this case lingered for unknown reasons in the Clerk’s Office until January 2008—well after the November 2007 General Election—at which point it was finally transmitted to this Court. * * *
___________
[3] When this matter was recently brought to the attention of the Clerk’s Office, Copeland’s briefs were back-filestamped October 24, 2007.
[1] This case was eligible for transmission to the Indiana Court of Appeals on December 15, 2006. By oversight, it was not transmitted from the Clerk’s Office to this court until September 21, 2007.These incidents bring to mind the Jan. 23, 2008 ILB entry quoting Chief Judge Baker, that concluded: "The good news, says Judge Baker, is that according to Clerk Smith, everything should be caught up by mid-February." Also this note the ILB received from an appellate practitioner the same day.
NFP civil opinions today (3):
Richard Alan Starr v. Crystal F. Peters (NFP) - "Richard A. Starr (“Starr”) appeals a negative judgment upon his small claims complaint against Crystal F. Peters (“Peters”). We dismiss. We raise a single, dispositive issue sua sponte: whether Starr followed the appellate rules."
Dale Englehardt v. Lana Clark (NFP) - Small claims court decision affirmed.
In Hawk Development Corp. v. Craig Van Prooyen and White Hawk Country Club Home Owners Assn., Inc. (NFP), a 29-page opinion, Judge Sharpnack writes:
Hawk Development Corp. (“Hawk”) appeals the trial court’s grant of a motion by White Hawk Country Club Home Owners Association Inc. (“HOA”) and Craig Van Prooyen for a preliminary injunction against Hawk. Hawk raises five issues, which we revise and restate as: I. Whether the HOA and Van Prooyen have standing; II. Whether the trial court’s grant of a preliminary injunction was clearly erroneous; and III. Whether the trial court abused its discretion by granting the preliminary injunction without requiring the HOA and Van Prooyen to post a security bond pursuant to Ind. Trial Rule 65(C). We affirm.NFP criminal opinions today (8):
Matter of J.R. v. State of Indiana (NFP)
Dennis C. Fox, II v. State of Indiana (NFP)
James R. Stephens v. State of Indiana (NFP)
Juanelo Martinez-Garcia v. State of Indiana (NFP)
Thomas Aguilar v. State of Indiana (NFP)
Rodney Williamson v. State of Indiana (NFP)
Robert S. Pickett v. State of Indiana (NFP)
Louis Richard Harris, Jr. v. State of Indiana (NFP)
Posted by Marcia Oddi on February 27, 2008 12:12 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Supreme Court decides one today
In Henley v. State of Indiana, a 19-page, 5-0 opinion, Justice Rucker writes:
When a trial court summarily denies a pro se defendant’s request that standby counsel deliver closing argument, the denial is not per se reversible error. Rather, the inquiry is whether the trial court abused its discretion in denying the request for counsel. * * *The post-conviction court concluded that appellate counsel did not render ineffective assistance concerning Henley’s claim of insufficient evidence to support the attempted murder conviction. We disagree and reverse the post-conviction court on this issue. This cause is remanded with instructions to vacate Henley’s conviction for attempted murder and the sentence imposed thereon. In all other respects the judgment of the post-conviction court is affirmed.
Posted by Marcia Oddi on February 27, 2008 10:06 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - More on: Court of Appeals rules on closing of Fort Wayne Disabilities Center; finds associational standing [Updated]
The ILB has received notice that the Supreme Court acted yesterday on the July 16, 2007 Court of Appeals decision in Anita Stuller, et al v. Mitchell Daniels, Jr., et al . The brief notation reads: "Transfer grant and dismissed by order."
Unfortunately I can't give you more right now because the Clerk's Docket's latest entry currently is dated 12/05/07 - i.e. the Order has not been posted. Here are the identifiers: Case Number: 02 A 05 - 0601 - CV - 00022; STULLER, ANITA ET AL. -V- DANIELS, MITCHELL E. JR. ET AL.; Interlocutory.
Update: The Order is now available, but contains little additional information:
Four justices have voted to grant transfer and dismiss this appeal as moot.The ILB has posted a number of entries on this case, access the list here.Accordingly, the Court grants transfer, thus vacating the Court of Appeals opinion ..... Having accepted jurisdiction, the Court now dismisses this appeal as moot.
All justices concur except Boehm, J., who votes to deny transfer.
Posted by Marcia Oddi on February 27, 2008 09:50 AM
Posted to Ind. Sup.Ct. Decisions
Ind. Courts - Yet more on "Marion Superior Court judges plan to start cracking down on prospective jurors who don't show up on the days they're assigned"
Updating several ILB entries from the beginning of this year on the low turnout of prospective jurors in Marion County, Jon Murray of the Indianapolis Star reports on the subject again today. The story was partially prompted by the fact that Gov. Daniels was called for jury duty yesterday.
Posted by Marcia Oddi on February 27, 2008 09:41 AM
Posted to Indiana Courts
Ind. Decisions - More on: A convicted sex offender in White County is challenging new state law
On Aug. 4, 2007, Sophia Voravong of the Lafayette Journal Courier reported:
MONTICELLO -- A convicted sex offender in White County is challenging a new state law that is forcing him to move from the home he chose so his children could be near their school.Today she reports:
MONTICELLO - A man identified only as John Doe in court documents has not even gotten a parking ticket since his release from prison 19 years ago for child molesting, according to his attorney.For more on the two rulings last week, see this ILB entry from Feb. 20th and this one from Feb. 22nd.But a judge this month denied the man's petition to no longer be considered a threat to children and to be taken off Indiana's Sex and Violent Offender Registry. * * *
John Doe was forced to move last summer under a new Indiana law that prohibits sex offenders convicted of crimes against children from living within 1,000 feet of a school, youth program center or public park.
Doe, who had lived in his home for 15 years, was the only offender in violation in White County.
He filed a request last summer to have a judge determine whether he is still considered an offender against children. This was done under a law that took effect July 1, 2007, which exempts certain offenders provided that it was been 10 years since their release from prison.
Also at issue was whether Doe was being punished again, years after his release from prison.
But in a two-page order issued Feb. 20, Judge Robert Thacker of White Circuit Court ruled that the safety of the community's children trumps John Doe's objections.
"Where individuals in a group, such as convicted sex offenders, have distinguishing characteristics relevant to the concern of the state of Indiana's protection of children," Thacker wrote, "the state has the authority to implement laws reasonably related to the protection of children."
John Doe was convicted of Class B felony child molestation in 1982 in Howard County. He served seven years in prison. * * *
Two Tippecanoe County judges also ruled last week against sex offenders who filed civil complaints challenging the residency law. Another case is still being considered by Tippecanoe Superior Court 2 Judge Thomas Busch.
Posted by Marcia Oddi on February 27, 2008 08:20 AM
Posted to Ind. Trial Ct. Decisions
Tuesday, February 26, 2008
Law - Metadata, can you get it, can you use it?
Marcia Coyle of The National Law Journal reported an interesting story on metadata last week. Some quotes from the long survey article:
All of the state bars to address the metadata issue agree that a sending lawyer has a duty to protect confidential or privileged information from being disclosed, but they split on the duty of a receiving attorney.This ILB entry from Feb. 12, 2007 links to a Res Gestae article by Donald R. Lundberg, titled "Mining for Metadata: Ethics Questions Surrounding Inadvertently Sent Embedded Data."The New York State Bar Association in 2001 determined that lawyers may not "intentional[ly] use ... computer technology to surreptitiously obtain privileged or other confidential information" of an opposing party.
Florida, Alabama and most recently Arizona have joined New York in holding that the recipient lawyer has a duty not to "mine" the document for metadata or otherwise engage in conduct that amounts to an unjustified intrusion into the client-lawyer relationship that exists between the opposing party and his or her counsel.
Florida states that a lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information's receipt.
The District of Columbia holds that a receiving lawyer is prohibited from reviewing metadata sent by an adversary only when he or she has actual knowledge that the metadata was sent inadvertently. If the recipient lawyer has actual knowledge, he or she may not review the metadata without first consulting with the sending lawyer.
Maryland and the American Bar Association have concluded that their ethical rules do not prohibit the mining of metadata. * * *
At the federal level, the metadata situation is not much clearer, although the new rules on electronic discovery have raised the profile of metadata, noted Mighell.
"They allow the requesting party to ask for documents in a format of their choice," he said.
"I don't know if you can ask for metadata, but my recommendation would be to ask for a document in its native file, with metadata intact. Then the lawyers have to go and squabble over whether they really do want the metadata."
The ILB entry also mentions "a state agency using the possibility of the existence of metadata as a reason to resist providing digital copies of public documents." Subsequently, the ILB requested and received a public access counselor opinion on this issue.
Posted by Marcia Oddi on February 26, 2008 06:31 PM
Posted to General Law Related
Law - WSJ Law Blog interviews Sampson's lawyer
Dan Slater of the WSJ Law Blog has posted an entry this afternoon titled "A Q&A With Mike Glazer: The NCAA Defender to the Stars."
Meanwhile, the Jacksonville Florida Times-Union scored an exclusive interview with former IU President Adam Herbert.
Posted by Marcia Oddi on February 26, 2008 03:56 PM
Posted to General Law Related
Ind. Courts - "Magistrate Najjar withdraws from Hamilton Circuit Court race"
From the Noblesville Daily Times:
Noblesville Magistrate David Najjar has withdrawn his name from the Republican ballot for Hamilton County Circuit Court Judge.The Circuit Court position became a contested race after current Circuit Court Judge Judith Proffitt announced she would not seek re-election. * * *
Najjar’s departure leaves two candidates for the position, Republicans Hamilton County Prosecutor Sonia Leerkamp and Carmel City Court Judge Paul Felix.
Posted by Marcia Oddi on February 26, 2008 03:53 PM
Posted to Indiana Courts
Courts - "Supreme Court Considers Protecting Drug Makers From Lawsuits"
Updating this ILB entry from Feb. 21st, referencing the SCOTUS decision in Riegel v. Medtronic, Gardiner Harris of the NY Times reports today:
WASHINGTON — Less than a week after issuing a sweeping ruling that bars most lawsuits against medical device makers, the Supreme Court heard arguments Monday in the first of two cases that could determine whether drug makers receive similar protection.For more, see this ILB entry from Sept. 27, 2007, headed "Supreme Court to Address Pharmaceutical Companies' Protection From State Suits," on the case, Warner-Lambert v. Kent.
Posted by Marcia Oddi on February 26, 2008 03:17 PM
Posted to Courts in general
Ind. Decisions - Court of Appeals issues 5 today (and 16 NFP)
For publication opinions today (5):
In John L. Richardson v. Susan E. Hansrote , an 18-page opinion, Judge Najam writes:
John L. Richardson (“Father”) appeals the trial court’s order denying his post-dissolution motion for rule to show cause why Susan E. Hansrote (“Mother”) should not be held in contempt. Father asserts three issues on appeal, which we restate as: 1. Whether the trial court erred when it determined that Father has a child support arrearage. 2. Whether errors by the clerk of the court, who mistakenly applied two of Father’s child support payments to the wrong account, are attributable to Father. 3. Whether the trial court erred when it determined that a child support obligation paid by an income withholding order is not paid until it is received in the clerk’s office where Mother had agreed to an income withholding order. We reverse and remand with instructions.In Midwest Minerals v. Board of Zoning Appeals of the Area Plan Dept./Commission of Vigo County , an 11-page opinion, Judge Bradford concludes:
Given the special discretion afforded to zoning boards in such determination, we conclude that the BZA was within its discretion to deny Midwest’s application for a special permit based upon its finding that Midwest failed to meet its burden of proving that the proposed use would not be injurious to the public health, safety, or general welfare of the community. Furthermore, we conclude that the trial court did not err by affirming the BZA’s denial of Midwest’s request for a special exception on this ground. Because we affirm the trial court’s order on this ground, we conclude that it is unnecessary to consider whether Midwest presented substantial evidence to prove that the proposed use would not adversely affect the use or value of the other property in the immediate area in a substantially adverse manner or that the proposed use would be consistent with the general character of the zoning district and the Vigo County Comprehensive Plan. The judgment of the trial court is affirmed.In Roderick Lee v. State of Indiana , a 17-page opinion (including a concurring opinion), Judge Robb writes:
Roderick Lee appeals the denial of his petition for post-conviction relief. On appeal, Lee raises two issues, which we restate as whether the post-conviction court properly denied Lee relief on his claims of ineffective assistance of trial and appellate counsel. We affirm, concluding the post-conviction court properly denied Lee relief with respect to both of his claims. * * *In Cricket Ridge, LLC v. Joseph Richard Wright, a 13-page opinion, Judge Bradford concludes:Because cases decided after Lee was sentenced did not substantially alter Indiana’s double jeopardy jurisprudence, we conclude Lee has failed to establish that appellate counsel was deficient for the same reasons we concluded Lee failed to establish that trial counsel was deficient. See supra, Part Part II.A.; see also Burnside, 858 N.E.2d at 238 (stating that the same standard of review applies to claims of ineffective assistance of trial counsel and claims of ineffective assistance of appellate counsel). Thus, it follows Lee did not receive ineffective assistance of counsel based on counsel’s failure to raise the double jeopardy issue of direct appeal.
We conclude that the comprehensive settlement between Cricket Ridge and Wright constituted a single contract, such that Cricket Ridge’s breach of one subpart relieved Wright of his duty to perform the others. It follows, then, that Cricket Ridge’s counterclaim that Wright is required to allow it to exercise an option on parcel F must fail. Moreover, we conclude that the trial court properly assessed interest on money Cricket Ridge deposited with the Johnson County Clerk, as it did not represent a proper tender to Wright. Finally, we conclude that the trial court erred in calculating damages based on a sale price of $89,962 for parcel D. We remand with instructions to recalculate Wright’s damages based on a sale price of $78,354 for parcel D. In all other respects, the judgment of the trial court is affirmed.In Rainbow Community Inc. v. Town of Burns Harbor , an 18-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the trial court erred in ordering Rainbow to perform a CCTV test on its permanent sewer line without first hearing all of Rainbow’s evidence in opposition and that this issue is not moot. We therefore reverse.NFP civil opinions today (4):
John and Dorothy Beaty v. Joe R. Walters, Cheryl J. Walters, Brad McElheny, et al (NFP) - "The trial court properly did not assess any damages to the defaulted Russell. A damage award is not clearly supported by the evidence because contradicting witness testimony and unclear repair work existed. The trial court’s judgment denying any relief to the Beatys for the claims against McElheny and the Walters is sound and can be supported by valid legal theories. We affirm."
Invol. Term. of Parent-Child Rel. of A.S., H.S., and T.S.; and Kelly and Andrew Stacy (NFP) - "The DCS established by clear and convincing evidence the requisite elements to support the termination of Andrew’s and Kelly’s parental rights to the Children."
State of Indiana v. Renda Hall (NFP) - "Moreover, the purpose of an investigatory stop is not to establish reasonable suspicion, but to briefly detain a person when reasonable suspicion already exists. Here, by his own testimony, Trooper Burgess detained Hall in an effort to establish reasonable suspicion. This detention violated Hall’s Fourth Amendment rights. The State has not established that the trial court’s ruling was contrary to law. The trial court properly granted Hall’s motion to suppress."
Scottrade, Inc. v. Greg Rentschler (NFP) - "Greg Rentschler filed a claim against Scottrade, Inc., alleging he suffered a financial loss because of errors by Scottrade in handling his brokerage account. Scottrade appeals from the trial court’s entry of default judgment against it, raising the issue of whether the trial court erred in denying its motion to set aside the default judgment. Concluding that Scottrade demonstrated excusable neglect and made a prima facie showing of a meritorious defense, we reverse."
NFP criminal opinions today (12):
Charles Walker v. State of Indiana (NFP)
Delno Dalton v. State of Indiana (NFP)
Timothy L. Potter v. State of Indiana (NFP)
A.W. v. State of Indiana (NFP)
Walter Duggins v. State of Indiana (NFP)
Al Crittenden v. State of Indiana (NFP)
Susan R. Morris v. State of Indiana (NFP)
Jeffrey A. Arthur v. State of Indiana (NFP)
Marijane Stuck v. State of Indiana (NFP)
Charles Terrell v. State of Indiana (NFP)
Isaias Cadena v. State of Indiana (NFP)
James Maxwell Cart v. State of Indiana (NFP)
Posted by Marcia Oddi on February 26, 2008 12:41 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "St. Joseph County judges would be elected under amendment"
So reads the headline to a story posted late this morning by Ed Roncop of the South Bend Tribune. Some quotes:
Superior Court judges in St. Joseph County would be elected under an amendment to a judges’ pension bill expected to be offered later today by Rep. Ryan Dvorak, D-South Bend.The amendment to Senate Bill 329 would set up non-partisan elections for judges who right now are appointed by the governor. Voters currently decide whether to retain the county’s eight Superior Court judges, but don’t have a say in choosing judges for open seats.
St. Joseph County Prosecutor Mike Dvorak, the father of Rep. Ryan Dvorak, is a proponent of electing Superior Court judges, but Ryan Dvorak said he has heard about the issue from constituents.
Posted by Marcia Oddi on February 26, 2008 11:57 AM
Posted to Indiana Courts
Ind. Courts - Unslated candidates withdraw from Marion County judges race [Updated]
Jon Murray reported at mid-morning that:
Republican incumbent judges Kenneth H. Johnson and Gary L. Miller, who had filed for candidacy last week, were not on the Indiana secretary of state's revised list Monday. Both had been overlooked at the party's slating convention in favor of newcomers and had intended to challenge the slate in the primary.See also these ILB entries from Feb. 21st and Feb. 17th.On the Democratic side, attorney Angela Davis withdrew her name, according to the revised candidate list. That leaves Kimberly J. Brown as the sole challenger to the Democratic slate.
Another Democrat, attorney Barbara A. Wyly, was mistakenly listed initially by the secretary of state's office among Marion Superior Court candidates. Her candidacy was moved to Dearborn County Superior Court on Monday.
Each party has been allotted eight Marion Superior Court judgeships in this year's election, with the outcome likely determined by the primary because of changes in state law designed to maintain party parity on the court.
Gary Welsh of Advance Indiana had a long post on the Republican withdrawals and the Marion County slating system earlier today.
[Updated 2/27/08] A brief story today in the Star reports:
Republican voters in Marion County's May primary won't need to choose among Superior Court judges after the withdrawal of two incumbents.
Judges Kenneth H. Johnson and Gary L. Miller had filed for candidacy last week despite losing the county party's endorsement. But both were no longer on the Indiana secretary of state's revised candidate list Monday, the deadline to withdraw."Under the circumstances, my family and I simply do not want to spend the next 10 weeks on an intense political campaign to the exclusion of all else," Miller said.
That leaves eight Republicans on the ballot for the eight judgeships allotted to the party.
Democrats also have eight judgeships at stake, with nine candidates remaining. A 10th, attorney Angela Davis, has withdrawn her name.
Kimberly J. Brown, now the Washington Township Small Claims Court judge, is the sole challenger to the slate endorsed by county Democrats.
The outcome of the Marion Superior Court judicial race will be determined by the primary, unless third-party candidates file to run in the general election. A separate race for Marion Circuit Court judge will be decided by voters in November.
Posted by Marcia Oddi on February 26, 2008 11:39 AM
Posted to Indiana Courts
Monday, February 25, 2008
Ind. Gov't. - Text of Sampson / IU "separation agreement" available
The Indianapolis Star has posted a copy of the 11-page Sampson / IU "separation agreement" - access it here. and here is the Star's accompanying story, written by Mark Alesia.
Posted by Marcia Oddi on February 25, 2008 02:02 PM
Posted to Indiana Government
Ind. Courts - "LaPorte Judge Wants To Start Re-entry Court"
Laurie Wink reports today in the Michigan City News-Dispatch via a story that begins:
A chance encounter with a woman gave Superior Court 1 Judge Kathleen Lang the impetus to pursue a new approach to criminal justice in La Porte County.Lang wants to establish a re-entry court for repeat offenders. The re-entry court would take a more personalized, problem-solving approach to help offenders integrate back into the community after serving a sentence.
More than two-thirds of inmates who return to their communities are arrested again within three years, according to Lang.
"Repeat offenders increase the rate of crime in our community, become a burden on the taxpayer and make it even more difficult for the offender to become a productive member of society," Lang said.
Lang met the woman, a repeat offender with drug-related convictions, at a 5th Ward neighborhood party. The woman had been recently released from the Indiana Department of Correction when Lang met her. She was carrying bags of pillows she made to sell for extra money. The woman had just started a job but couldn't afford a NIPSCO deposit to establish service to her apartment.
Lang said she realized the woman was doing the best she could to re-establish her life but faced tremendous obstacles. The judge talked to the ex-offender's probation officer, who was able to get her assistance for the utility deposit. That story personalized the re-entry issue for Lang.
"When you have multiple convictions, it's difficult to get a job," Lang said. "Without help, re-entering offenders fall back into the old behaviors that landed them in prison." * * *
A re-entry court monitors returning ex-offenders and sets up a support system tailored to each person's needs. They regularly appear before the judge to review their problems and progress.
Lang sees a philosophical shifting away from the view that courts exist to process offenders through the system, toward one that sees courts as vehicles for social change. She recently attended a White House summit on prisoner re-entry and met with the Indiana Judicial Center's problem-solving courts team.
"Courts are experimenting with a variety of innovative programs," Lang said.
She sees Michigan City's strong faith-based community as key to a re-entry program and has met with several leaders who want to be involved in a re-entry court. * * *
Lang says Indiana is in the forefront of establishing problem-solving courts, with five already set up. She wants to get one off the ground in La Porte County as soon as possible.
"It could reduce the amount of future criminal activity," Lang said.
Posted by Marcia Oddi on February 25, 2008 01:50 PM
Posted to Indiana Courts
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Kevin Book v. State of Indiana , a 23-page opinion, Chief Judge Baker writes:
In this case, we explore the delicate balance between a trial judge’s authority to efficiently control the court proceedings and a defendant’s right to confer with counsel before deciding whether and when to testify at trial. Appellant-defendant Kevin Book appeals his conviction for Murder, a felony. Specifically, Book argues that the trial court violated his Fifth and Sixth Amendment rights under the United States Constitution when he was allegedly compelled to make a decision whether to testify at a particular time during the trial. In essence, Book claims that the trial court improperly foreclosed his counsel from determining when—or if—he should testify on his own behalf.In Stan Klotz v. Hoyt and Kornmann , a 14-page opinion, Chief Judge Baker wrties:Book also claims that the trial court abused its discretion and violated Indiana Evidence Rule 404(b) in permitting a ten-year-old witness to testify against him, that the evidence is insufficient to support the conviction, and that the sixty-year sentence is inappropriate. We conclude that the trial court did not unfairly impinge on Book’s right to counsel or improperly preclude him from testifying. And finding no other error, we affirm the judgment of the trial court.
Tenant-landlord disputes are all too common. Here, two tenants undisputedly stopped paying rent after the first one and one-half months of their lease, did a substantial amount of damage to the inside of the residence, and abandoned the residence without informing the landlord or leaving their respective forwarding addresses. The tenants are contractually obligated, by virtue of their valid and binding lease, to repay the back due rent and late fees notwithstanding the landlord’s compliance with statutory requirements governing the handling of security deposits. And, in any event, we find that the landlord herein did comply with all relevant statutes.NFP civil opinions today (1):Appellant-plaintiff Stan Klotz appeals the trial court’s dismissal of his complaint for breach of lease against appellees-defendants Sarah Hoyt and Chrissy Kornmann. Klotz contends that the trial court erroneously concluded that he was not entitled to rent and damages because he allegedly failed to provide an itemized list of damages to Hoyt and Kornmann within the forty-five-day statutory timeframe. Finding that Klotz was not required to comply with the forty-five-day timeframe to be entitled to back due rent payments and that, for the purpose of damages and the security deposit, he did comply with the relevant statutes, we reverse the judgment of the trial court and remand with instructions to enter judgment in Klotz’s favor in the amount of $6,000. * * *
FRIEDLANDER, J., concurs.
ROBB, J., concurs in result with opinion. [that begins] I concur in the result reached by the majority because I agree that the lease agreement was terminated on February 20, 2007, and that Klotz provided an itemized list of damages within forty-five days of this termination. However, I am concerned that allowing a landlord to provide this notice on the day of a hearing contravenes the purpose of the notice requirement, which is “to inform the tenant that the landlord is keeping the security and for what reason, as well as to allow that tenant an opportunity to challenge the costs for which the deposit is being used.”
Martha Sue Miller v. Eric Williams (NFP) - "The land at issue here was farmland. Miller farmed the land. Whether this use of the land was sufficient to establish the element of control was a question of fact for a fact finder and is not appropriate for summary judgment.
"Williams has not established as a matter of law that Miller cannot prove the elements of adverse possession. The factual questions associated with this case preclude the grant of summary judgment."
NFP criminal opinions today (5):
Mark A. Chandler v. State of Indiana (NFP)
Betty Ann Taylor v. State of Indiana (NFP)
Santiago Valdez v. State of Indiana (NFP)
Willie Dumes v. State of Indiana (NFP)
Christopher Swartz v. State of Indiana (NFP)
Posted by Marcia Oddi on February 25, 2008 01:25 PM
Posted to Ind. App.Ct. Decisions
Ind. Decisions - Upcoming oral arguments this week
This week's oral arguments before the Supreme Court:
This Wednesday, Feb. 27th:
9:00 AM - Ronald Mayes v. Second Injury Fund - The Worker's Compensation Board denied Mayes disability benefits from the Second Injury Fund after concluding that Mayes's settlement of his claim against third-party tortfeasors precluded such benefits. The Court of Appeals affirmed. Mayes v. Second Injury Fund, 873 N.E.2d 136 (Ind. Ct. App. Sept. 11, 2007). [See ILB summary here, 2nd case.] Mayes has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorney for Mayes; Randall Klezmerof Indianapolis, IN. Attorneys for Second Injury Fund; Steve Carter and Frances Barrow both of Indianapolis, IN.
9:45 AM - Technisand, Inc. v. Melton - After Patty Melton died of leukemia, her husband, as personal representative of her estate, filed a complaint against Technisand, among others, alleging that exposure to chemicals manufactured and sold by Technisand caused or contributed to Patty's death. Technisand raised a statute of limitations defense and moved for summary judgment. The trial court denied the motion and the Court of Appeals affirmed, holding that although the statute of limitations had run with respect to a wrongful death claim against Technisand, the claim was timely filed against Technisand with respect to the Products Liability Act. Technisand, Inc. v. Melton, No. 30A01-0608-CV-334. (Ind. Ct. App. July 11, 2007) (mem. not for publ.), not for publication, vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney Technisand, Inc.; Raymond Faustof Indianapolis, IN. Attorney for Melton; Michael Sobierayof Carmel, IN.
10:30 AM - Darrel Maymon v. State - After being convicted of four counts of burglary in a single trial, Maymon petitioned for post-conviction relief asserting that trial counsel had rendered ineffective assistance by not seeking severance of the charges. The Madison Superior Court denied relief, but the Court of Appeals reversed in Mayman v. State, 875 N.E.2d 375 (Ind. Ct. App. July 24, 2007), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorney for Maymon; James Acklin of Indianapolis, IN. Atttorney for the State; Cynthia Ploughe of Indianapolis, IN.
This Thursday, Feb. 28th:
9:00 AM - Norman Carlson v. John Sweeney - The LaPorte Circuit Court granted defendants, a law firm, summary judgment on a legal malpractice claim filed by beneficiaries of a trust that, according to the beneficiaries, was negligently drafted and subjected trust property to federal estate tax. The Court of Appeals reversed. Carlson v. Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, 868 N.E.2d 4 (Ind. Ct. App. June 7, 2007), vacated. [See ILB summaries here and here.] The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. Attorneys for Carlson, et al.: Scott A. Weathers, Indianapolis, IN. Attorneys for Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos: Robert G. Devetski, South Bend, IN.
Webcasts will be available here.
This week's oral arguments before the Court of Appeals that will be webcast:
None scheduled.
This week's oral arguments before the Court of Appeals that will NOT be webcast:
This Tuesday, Feb. 2th
3:00 PM - H. D., et al, vs. BHC Meadows Hospital, Inc., et al - Whether the trial court correctly dismissed the state court action without prejudice for lack of subject matter jurisdiction, finding the claims to be grounded in medical malpractice and covered by the medical malpractice act. The Scheduled Panel Members are: Judges Riley, Kirsch and May. [Where: Wabash College, Crawfordsville, Indiana]
_________
Note: The ILB has noted some discrepancies in this week's and last week's Court of Appeals calendars. The ILB accesses and reports on the upcoming week's calendar as it has been posted by the COA early Monday morning of each week.
Posted by Marcia Oddi on February 25, 2008 06:38 AM
Posted to Upcoming Oral Arguments
Ind. Decisions - More on: Indiana wine shipping case to be argued today before the 7th Circuit
The oral arguments in Baude v. Heath, the wine shipping case., were held Friday, Feb. 22, before a three judge panel. Two of the judges were Easterbrook and Posner.
Listen to the oral arguments here, but not if you are faint of heart. They are pretty eye-opening in-so-far as what it can be like to appear before a panel that includes Easterbrook and Posner.
Posted by Marcia Oddi on February 25, 2008 06:04 AM
Posted to Ind. (7th Cir.) Decisions
Sunday, February 24, 2008
Courts - Justice Dept. no-bid contracts with John Ashcroft and the Indiana twist
This NYT story from Jan. 10, 2008, reported by Philip Shenon, first brought the Zimmer settlement connection to my attention:
WASHINGTON — When the top federal prosecutor in New Jersey needed to find an outside lawyer to monitor a large corporation willing to settle criminal charges out of court last fall, he turned to former Attorney General John Ashcroft, his onetime boss. With no public notice and no bidding, the company awarded Mr. Ashcroft an 18-month contract worth $28 million to $52 million.A Times story Friday, Feb. 23rd reported:That contract, which Justice Department officials in Washington learned about only several weeks ago, has prompted an internal inquiry into the department’s procedures for selecting outside monitors to police settlements with large companies.
The contract between Mr. Ashcroft’s consulting firm, the Ashcroft Group, and Zimmer Holdings, a medical supply company in Indiana, has also drawn the attention of Congressional investigators.
The House Judiciary Committee disclosed Friday that it was considering subpoenaing former Attorney General John Ashcroft to testify about a contract worth at least $28 million that was steered to his consulting firm by the Justice Department. * * *Today Stephanie Salter of the Terre Haute Tribune Star has a column titled "What’s John Ashcroft doing in Indiana? Making millions." The long column begins:Democratic lawmakers are investigating the circumstances of the no-bid, 18-month monitoring contract, worth $28 million to $52 million, that was awarded to Mr. Ashcroft’s consulting firm to oversee a settlement between the Justice Department and Zimmer Holdings, a large medical supply company in Indiana. The settlement resolved criminal charges that had been brought by the United States attorney in New Jersey, Christopher J. Christie.
TERRE HAUTE — Until the past year, an august northern Indiana company, Zimmer Holdings, was pretty much going about business as usual: manufacturing a broad array of medical devices, such as hip and knee replacement implants, expanding operations in the United States and 25 nations, and racking up annual sales of nearly $4 billion.Then Zimmer, with headquarters in Warsaw, got into some hot water with the federal government.
After a two-year investigation of the orthopedic implant industry, a criminal complaint was filed in U.S. District Court in New Jersey, where Zimmer does business. The complaint charged Zimmer and four other companies (two more from Warsaw) with “conspiracy to commit violations of the federal anti-kickback statute.”
Specifically, the feds said the companies provided what a U.S. attorney called “exorbitant” fees to doctors and other health-care consultants to exclusively choose, use or endorse their products for their patients.
Posted by Marcia Oddi on February 24, 2008 09:48 AM
Posted to Courts in general
Ind. Law - Last Week in Review at the Indiana General Assembly
The Evansville Courier & Press' Bryan Corbin's review this Sunday of the past week in the General Assembly is headlined "Illegal immigration on Senate agenda." Today's story, detailing legislative maneuvering , begins:
INDIANAPOLIS - A debate over illegal immigration that sparked a partisan meltdown in the Indiana House will likely produce more fireworks this week when state lawmakers return Monday.The three-strikes immigration bill and competing versions of Gov. Mitch Daniels' property-tax relief plan are provoking a lot of attention at the Indiana General Assembly. The House faces a deadline this week to pass Senate bills and vice versa, meaning long late nights are ahead for lawmakers.
Posted by Marcia Oddi on February 24, 2008 09:39 AM
Posted to Indiana Law
Ind. Courts - Reports on bills of interest to the Judiciary that were discussed last week
Last Friday, Feb. 22nd, the Indiana Judicial Center posted the eighth installment of its very useful reports for 2008 on bills of interest to the judiciary. Access them here. Friday's report begins:
The committee hearing process has now ended for this session. As a reminder, the last day for third readings in the House is Wednesday, February 27th, and Thursday, February 28th in the Senate.
Posted by Marcia Oddi on February 24, 2008 09:37 AM
Posted to Indiana Courts
Ind. Courts - "Three hopefuls eyeing Vanderburgh judgeship"
From today's Evansville C&P, a story that begins:
Voters will have three choices when they select the next Vanderburgh Superior Court Judge.This week, Vanderburgh County Deputy Prosecutor Michael Perry became the third candidate to file in the race for retiring Vanderburgh Superior Court Judge Scott R. Bowers' seat.
Perry, 45, is vying against Vanderburgh Circuit Court Magistrate David Kiely and Superior Court Magistrate Jill R. Marcrum for the post.
Posted by Marcia Oddi on February 24, 2008 09:26 AM
Posted to Indiana Courts
Saturday, February 23, 2008
Ind. Gov't. - Still no reliable and permanent online record of Governors' actions on legislation available
The 2008 Bill Watch page of Governor Daniels is currently available here. Accessing it, you can follow the bills received by the Governor's Office from the 2008 General Assembly, and the Governor's actions thereon.
The 2007 page is also available.
There is no similar information available for Governor Daniels' first two years in office. And online information that previously was available from Gov. Kernan's and O'Bannon's administrations apparently has not been preserved.
The ILB has posted a number of entries on this important issue, the most recent being this one from May 5, 2007 that concluded: A Suggestion. How about some concerted state effort at preserving this history in a consistent manner and making it readily accessible?
Posted by Marcia Oddi on February 23, 2008 03:53 PM
Posted to Indiana Government
Ind. Decisions - "Ruling goes against St. Joseph juvenile court"
The Feb. 19th COA opinion in the case of KLN v. State of Indiana (see ILB summary here, 4th case) is the subject of a long report today by Pablo Ros of the South Bend Tribune. Some quotes:
SOUTH BEND -- A St. Joseph County court should not have held a teen in contempt of court for violating the rules of the Juvenile Justice Center or lengthened his term of confinement at the facility, an Indiana court of appeals ruled this week.The juvenile court added 77 days of confinement to a juvenile's detention at the JJC after holding him in indirect civil contempt of court for violating the rules of the facility. The court told the juvenile that if he changed his behavior, he wouldn't have to serve the additional term, but the court of appeals found that the juvenile court had overstepped its authority and imposed a form of punishment that was too harsh.
The juvenile was serving a sentence of 120 days for burglary, the maximum term allowed under Indiana law for that offense. Magistrate Harold E. Brueseke held the juvenile in indirect civil contempt of court after the juvenile violated the rules of the JJC nine times. Brueseke also added 77 days (the length of time the juvenile had yet to serve) to the juvenile's term of detention, telling him that if he behaved appropriately he wouldn't have to serve it.
But in a decision that could set precedent in Indiana for being the first of its kind, the court of appeals, differentiating between remedial and punitive sanctions, said that the juvenile court did not have the legal authority to act punitively in a civil offense, and that nowhere in Indiana law "has the legislature vested the juvenile court with authority to ... 'micro-manage' the detention of a juvenile delinquent." The court of appeals judges added that "this course of action is neither a prudent use of scarce judicial resources nor a fair way to treat juveniles."
The juvenile already had been punished by JJC officials by being placed on room restriction and losing privileges such as phone calls or visits. He was not criminally charged for his misconduct.
Brueseke and Judge Peter J. Nemeth of St. Joseph County Probate Court voiced concern this week after the court of appeal's decision.
"How are we going to be able to really enforce some of the rules and behavior of children?" Brueseke said. "I believe there is a need for the court to be able to hold children accountable for their conduct, whether in school or at home or at the Juvenile Justice Center."
Posted by Marcia Oddi on February 23, 2008 03:42 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - More on Delaware County judicial races
Updating two earlier entries about the Delaware County judicial races (2/20/08 and 2/12/08), here is a story in today's Muncie Star-Press, reported by Rick Yencer, headlined "No shortage of candidates for Delaware County judge." The lengthy story begins:
MUNCIE -- The retirement of one judge and another's acknowledgment that he is under criminal investigation has contributed to the largest assemblage of Delaware County judicial candidates in recent decades, if not ever.Eleven candidates -- two incumbent judges, a city court judge, four deputy prosecutors and four other local attorneys -- are seeking election to the benches of Delaware Circuit courts 3, 4 or 5.
Four of those candidates entered their races in the final 24 hours of the filing period, which ended at noon Friday.
Posted by Marcia Oddi on February 23, 2008 03:33 PM
Posted to Indiana Courts
Ind. Courts - Focus on party slates for Marion County judicial primary
Updating this ILB entry for Feb. 17, Jon Murray of the Indianapolis Star today reports under the headline "Judicial primary is all-important: Changes to state law mean all who make it to general election will likely end up on bench." A side-bar to the story presents this information on candidates for judgeships:
The Marion County Republican and Democratic parties on Feb. 16 each picked a slate of eight candidates for the Superior Court and one to run for Circuit Court judge, which will be decided in the fall election.[More] See also this entry today from Gary Welsh's Advance Indiana.There are 16 Superior Court judgeships up for election, split evenly between the parties, with the outcome likely determined by the primary.
Marion Circuit Court
Democrat: Louis Rosenberg.
Republican: James A. Joven.Marion Superior Court
Democratic slate: Annie Christ-Garcia (I), David J. Dreyer (I), Garland E. Graves, Patrick L. McCarty (I), James B. Osborn, Tanya Walton Pratt (I), David Shaheed (I) and Gerald S. Zore (I).Also running: Kimberly J. Brown, Angela Davis and Barbara A. Wyly.
Republican slate: Cynthia Jane Ayers (I), Dave Certo (I), Kurt Eisgruber, Robyn L. Moberly (I), Marilyn A. Moores (I), Timothy W. Oakes, Marc T. Rothenberg and Ted Sosin.
Also running: Kenneth H. Johnson (I) and Gary L. Miller (I).
Posted by Marcia Oddi on February 23, 2008 08:00 AM
Posted to Indiana Courts
Friday, February 22, 2008
Ind. Decisions - Transfer list for week ending February 22, 2008
Here is the Indiana Supreme Court's transfer list for the week ending February 22, 2008.
Be sure to view all three pages.One case, Hughes v. State, was granted transfer with opinion 2/21/08 - see opinion here.
The ILB has also received notice that David Ohm v. State was granted transfer and remand by order on 2/21/08, but it does not appear on the list.
Over four years of Transfer Lists: For other weekly transfer lists (going back to Feb. 2, 2004), check "Indiana Transfer Lists" under "Categories" below, or in the right column.
Posted by Marcia Oddi on February 22, 2008 04:09 PM
Posted to Indiana Transfer Lists
Ind. Decisions - Court of Appeals issues 4 today (and 10 NFP)
For publication opinions today (4):
Ronnie Manigault v. State of Indiana - "We find no abuse of discretion in admitting the cocaine where 1) Manigault’s initial detention was valid under both the federal and state constitutions; 2) Trooper Smith subsequently had probable cause to arrest Manigault; and 3) Trooper Smith discovered the cocaine during a search incident to Manigault’s lawful arrest.
"Nothing in the record indicates that Manigault was prevented from asserting a defense. Thus, we find no violation under either the Sixth Amendment or the Indiana Constitution. Affirmed."
Anthony Brown v. State of Indiana - "Anthony Brown appeals the post-conviction court’s denial of his petition for post-conviction relief. Brown raises two issues for our review, which we consolidate and restate as whether his appellate counsel on direct appeal provided ineffective assistance. We affirm."
In Christi J. Hoeing v. Jean I. Williams, a 10-page opinion, Judge Crone concludes:
Constitutional considerations aside, we note that our legislature has specifically granted custodial parents the authority to “determine the child’s upbringing, including the child’s education, health care, and religious training.” Ind. Code § 31-17-2-17(a). Such authority may be limited “after motion by a noncustodial parent” only if the trial court finds that the child’s “physical health would be endangered” or “emotional development would be significantly impaired.” Ind. Code § 31-17-2-17(b) (emphasis added). In short, a child’s grandparent has no statutory authority to ask the court to limit the custodial parent’s right to raise that child as the parent sees fit.In Dave Galloway, in his capacity as Hendricks Co. Sheriff v. David Hadley d/b/a D & D Bonding, an 18-page opinion, Judge Najam writes:In light of the foregoing, we agree with Hoeing that the trial court’s visitation order impermissibly interferes with her fundamental right to control S.W.’s upbringing and religious training. Therefore, we reverse.
Hendricks County Sheriff Dave Galloway brings this interlocutory appeal from the trial court’s Order Granting David Hadley’s Complaint for Preliminary Injunction (“Injunctive Order”). Sheriff Galloway raises four issues for our review, which we restate as follows: 1. Whether Indiana Code Section 27-10-3-18 (the “Equal Access Law”) creates a private cause of action. 2. Whether the trial court abused its discretion in entering the preliminary injunction. We affirm. * * *NFP civil opinions today (4):In sum, we hold that the Equal Access Law creates a private cause of action and that the IDOI’s jurisdiction is not implicated here. We also hold that the trial court did not abuse its discretion in granting Hadley’s request for a preliminary injunction against Sheriff Galloway’s use of the Preferred Agent List. Finally, Hadley’s complaint is not barred by the doctrine of unclean hands. Affirmed.
NFP criminal opinions today (6):
Donald Webb v. State of Indiana (NFP)
David Dolch v. State of Indiana (NFP)
Herbert Johnson v. State of Indiana (NFP)
Robert Stogsdill v. State of Indiana (NFP)
James L. Forthenberry, Jr. v. State of Indiana (NFP)
James McClain v. State of Indiana (NFP)
Posted by Marcia Oddi on February 22, 2008 01:04 PM
Posted to Ind. App.Ct. Decisions
Courts - Still more on: The plot of John Grisham's latest novel may have already come to life in W. Va.
Updating this ILB entry from Feb. 19th: The third West Virginia justice under fire in the Massey Energy case, Justice Brent Benjamin, announced yesterday that he would not recuse himself. For details see this WSJ Law Blog entry headed "Justice Benjamin in Massey Energy: I’m Not Going Anywhere."
Posted by Marcia Oddi on February 22, 2008 12:59 PM
Posted to Courts in general
Ind. Decisions - Updating again: Do the changes to the sex offender law mean longtime homeowners must move?
This ILB entry from Feb. 20th quoted the Lafayette paper's report that two decisions had been handed down:
Two Tippecanoe County judges ruled Tuesday that the safety of the community's children trumps objections raised by two sex offenders -- upset that they had to move.Here is a copy of Judge Don Daniel's six-page ruling.
The ILB also hopes to post Tippecanoe Superior Court 1 Judge Don Johnson's ruling in the second case. Check back here.
Posted by Marcia Oddi on February 22, 2008 12:37 PM
Posted to Indiana Decisions
Ind. Courts - Patmore declares for Spencer Circuit Court
Kevin R. Patmore of Santa Claus has declared his candidacy in the Republican primary for the elected position of Spencer Circuit Court Judge.
Posted by Marcia Oddi on February 22, 2008 12:32 PM
Posted to Indiana Courts
Ind. Courts - Filings for Monroe judicial seats
Two stories today in the Bloomington Herald-Times about Monroe judicial seats.
"Haseman files for judge" is the headline to a story ($$) that begins:
Monroe Circuit Judge Christine Talley Haseman filed Thursday to run for election to retain her seat. Haseman presides over Monroe Circuit Court VIII and hears family law, protective order and small claims cases. * * *"Graham is running for judge" is the headline to this story ($$) that begins:In November, Gov. Mitch Daniels appointed Haseman for a one-year term to the county’s newest court.
Bloomington attorney Roy Graham said Thursday he is a Democratic candidate for Monroe Circuit Judge Division VIII in the primary election.
Posted by Marcia Oddi on February 22, 2008 12:22 PM
Posted to Indiana Courts
Ind. Courts - "Restoring the Allen County Courthouse to its original magnificence"
From today's Fort Wayne Journal Gazette, a story that begins:
Restoring the Allen County Courthouse to its original magnificence was an eight-year effort, but the task of restoring its original accouterments continues. Preservation officials are sounding a call to anyone who might have furniture or other items that once graced the proud building.Two significant items are back in place: a counsel table returned to the Superior Court I courtroom and a desk now used by Circuit Court Judge Thomas Felts. Both were returned after years in the care of area families with special connections to the 105-year-old building.
Attorney Tom Gallmeyer was among those offering contributions. The desk he used in his private practice was handed down from his grandfather, Clarence R. McNabb, who had first used it when he was Allen Circuit Court judge in the 1930s. When Gallmeyer learned that the Courthouse Preservation Trust board was seeking items original to the building as part of the renovation project, he donated the desk, which originally belonged to Circuit Court Judge Sol A. Wood, for whom the county’s juvenile confinement center was named.
“It’s a massive piece,” Gallmeyer said. “When it was moved, it had to be moved on top of the elevators because it wouldn’t fit through doors.”
Posted by Marcia Oddi on February 22, 2008 12:19 PM
Posted to Indiana Courts
Ind. Decisions - Indiana wine shipping case to be argued today before the 7th Circuit
Today at 9:30 AM (Chicago time) the 7th Circuit will hear oral arguments in the case of Baude v. Heath, the wine shipping case.
Here is the ILB summary and link to the 71-page opinion issued by Judge John D. Tinder the end of August , 2007.
Here are links to the briefs, including a number of amicus briefs, filed with the 7th Circuit in this case.
Here is a list of earlier ILB entries on this case.
Oral arguments will be available online later today via this page - the case number is 07-3323.
[Updated] Here is the direct link to the oral argument.
Posted by Marcia Oddi on February 22, 2008 06:13 AM
Posted to Ind Fed D.Ct. Decisions
Thursday, February 21, 2008
Ind. Courts - Judge Miller to run in Marion County primary
Updating the ILB entry for Feb. 17, headed "Ind. Courts - Focus on party slates for Marion County judicial primary," the ILB has just received a press release headed "Judge Gary Miller To Run In The Primary." It begins:
Judge Gary L. Miller, Judge of the Marion Superior Court, for more than 17 years, has filed his paperwork with the Indiana Secretary of State to run for re-election in the May primary election. Although endorsed by the Marion County GOP in 1990, 1996 and 2002, Judge Miller was not slated at the party convention on February 16.
Posted by Marcia Oddi on February 21, 2008 06:27 PM
Posted to Indiana Courts
Ind. Decisions - Supreme Court decides three today
In State of Indiana v. Universal Outdoor Inc., a 5-page, 5-0 opinion, Justice Dickson writes:
In this eminent domain proceeding initiated by the State of Indiana against Universal Outdoor, Inc., owner of a billboard leasehold interest, the trial court entered an order of appropriation, and the appointed appraisers concluded that Universal sustained damages of $243,800 from the appropriation. The trial court, finding that neither party filed exceptions during the statutory exceptions period, granted judgment for Universal in the amount of the appraisers' award. The State appeals, asserting that its exceptions were timely filed. The Court of Appeals reversed. * * *In Demond Hughes v. State of Indiana, a 3-page, 5-0 opinion, Justice Dickson concludes:The parties dispute the proper application of conflicting statutory provisions. Pursuant to Indiana Code § 32-24-1-11, after the appraisers file their report, either party may file exceptions to the appraisal. But the provisions prescribing the time limitations for filing these exceptions appear to be inconsistent * * *
For these reasons, we hold that the exception filing period commences with the filing of the appraisers' report, in accordance with subsection (a), and ends twenty days after the court clerk's mailing of notice of filing of the report to the parties, as prescribed in subsection (c).
We reverse the judgment of the trial court and remand for further proceedings on the parties' filed exceptions.
Because the defendant may not by belated appeal relitigate his sentence challenge previ-ously presented in his post-conviction relief petition, we find his claim barred by procedural de-fault. We affirm the sentence imposed by the trial court following the defendant's post-conviction relief proceeding.In Chi Yun Ho, M.D. v. Loretta M. Frye, a 13-page, 5-0 opinion, Justice Dickson writes:
In this medical negligence case arising from the alleged failure to remove all of the surgical sponges following abdominal surgery, the trial court denied the plaintiffs' motion for partial summary judgment, the jury returned a verdict in favor of the surgeon, and the trial court thereafter granted a new trial. The Court of Appeals reversed the denial of partial summary judgment, found for the plaintiffs on liability as a matter of law, and remanded for a determination of damages. Ho v. Frye, 865 N.E.2d 632 (Ind. Ct. App. 2007). We granted transfer, thereby automatically vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A). We affirm the denial of summary judgment, reverse the order granting a new trial, and reinstate the jury verdict.
Posted by Marcia Oddi on February 21, 2008 04:45 PM
Posted to Ind. Sup.Ct. Decisions
Ind. Decisions - 7th Circuit decides one Indiana case today
In Tubergen v. St. Vincent Hospital (SD Ind., Judge Tinder), an 11-page opinion involving a 65 year-old physician suing on the basis of age discrimination, Judge Flaum concludes:
In this restructuring context, St. Vincent was required to provide its older employees with the same placement opportunities as it provided its younger employees who were subject to the RIF. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 615 (7th Cir. 2000). Crucially, if the older employee fails to take advantage of those opportunities, they foreclose any claim of discrimination. Torry v. Northrup Grumman Corp., 399 F.3d 876, 879 (7th Cir. 2005).Because Tubergen also did not put forth evidence that his failure to apply was caused by a discriminatory practice, St. Vincent is not required to offer a legitimate reason for its actions. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 738-39 (7th Cir. 2006). Even so, St. Vincent does provide such a explanation: it sought to eliminate the entire Service Line structure in order to streamline its operations. Tubergen provides no reason to doubt the veracity of this claim, and it would be difficult for him to do so knowing that over 300 young and old employees were eliminated and many young and old employees were retained. He tries to argue that the strategy did not cut costs, but this Court’s role is not to measure the success of a given strategy. We must simply ascertain whether St. Vincent believed that its restructuring efforts would attain its stated goals, and we see no reason to doubt that here.
Posted by Marcia Oddi on February 21, 2008 01:41 PM
Posted to Ind. (7th Cir.) Decisions
Ind. Decisions - Court of Appeals issues 0 today (and 7 NFP)
For publication opinions today (0):
NFP civil opinions today (1):
In Kenneth McClanahan v. Tammy Mason (NFP), a 10-page opinion, Judge Mathias writes:
Kenneth McClanahan (“McClanahan”) sued Tammy Mason (“Mason”) in Floyd Circuit Court for damages he allegedly sustained in an automobile accident involving Mason. The jury returned a verdict in favor of Mason and McClanahan appeals.NFP criminal opinions today (6):He raises three issues, which we consolidate and restate as: I. Whether the trial court abused its discretion when it admitted evidence of prior and subsequent automobile accidents involving McClanahan; and, II. Whether the jury’s verdict was against the weight of the evidence.
Concluding that the admission of evidence of the prior and subsequent automobile accidents was harmless error, and that the jury’s verdict was not against the weight of the evidence, we affirm..
Cedric Price v. State of Indiana (NFP)
Richard Bruce Strong v. State of Indiana (NFP)
Lakesha Boler v. State of Indiana (NFP)
Victor Barnes v. State of Indiana (NFP)
Billy Long v. State of Indiana (NFP)
James W. Nicholson v. State of Indiana (NFP)
Posted by Marcia Oddi on February 21, 2008 01:34 PM
Posted to Ind. App.Ct. Decisions
Ind. Courts - "Courthouse elevator repair plan stuck"
Andy Grimm reports in the Gary Post Tribune:
CROWN POINT -- Plans to repair the perpetually malfunctioning elevators at Lake County's Gary courthouse remain stuck in the basement after a county Board of Commissioners meeting Wednesday.Readers will recall the 2004 SCOTUS decision in Tennessee v. Lane. Here is a Business Week story from May 27, 2004.Commissioners and members of the County Council will meet to discuss how to invest upward of $550,000 in elevator repairs to meet specifications from the council, without breaching a contract the commissioners signed with Long Elevator.
At the request of the council, commissioners put out bids to fix the aging elevators, which regularly stall and trap courthouse visitors and require frequent, piecemeal repairs.
"They asked us to do one thing, and now they asking for something different," said Commissioner Gerry Scheub, noting that attorneys representing Gary-based Long Elevator were in the audience at Wednesday's meeting.
"I'm just trying to get done what needs to be done without getting in a lawsuit," Scheub said.
County Council members, conferring with an energy-efficiency consultant, said Long is unable to provide the needed upgrades and that repairs should be paid for with energy-savings bonds.
The county also could face complaints under the Americans With Disabilities Act, said Scheub, who takes the stairs whenever he visits the Gary courthouse.
"They are breaking down all the time. They're used up," he said.
Scheub is not alone in the Gary stairwells. Judge Gerald Svetanoff, who has had a courtroom in Gary for 26 years, has avoided the elevators for well over a decade.
"It keeps me fit ... but it's obviously a matter that requires attention," Svetanoff said. "It's not that they're malfunctioning during the day, every day, but it is an issue the commissioners need to deal with."
Posted by Marcia Oddi on February 21, 2008 10:45 AM
Posted to Indiana Courts
Courts - SCOTUS favors federal pre-emption in three cases yesterday
The Legal Times Tony Mauro reports today:
In three key business rulings handed down Wednesday, the Supreme Court continued its trend toward freeing companies from the conflicting regulation of 50 different states in favor of one federal regime.The Court favored federal pre-emption over state laws and state court remedies in the areas of medical device regulation, interstate shipping of tobacco and arbitration of contract disputes.
In announcing one of the cases from the bench, Justice Antonin Scalia said the day's decisions made it clear that "we consider it part of our business" to sort out the balance between federal and state law. * * *
Of Wednesday's pre-emption cases, Riegel v. Medtronic may have the broadest impact. The Court ruled against the estate of Charles Riegel, who died after a catheter made by Medtronic malfunctioned during heart surgery.
Riegel sued in federal court, invoking New York state common law to argue for liability and damages. Like lower courts, the Supreme Court ruled that the federal Medical Device Amendments of 1976 specifically preclude states from imposing their own requirements on the makers of federally regulated medical devices. * * *
• Rowe v. New Hampshire Motor Transport Association, in which the Court said the state of Maine could not impose its own legal requirements on delivery companies aimed at preventing the shipment of tobacco products to minors. Justice Stephen Breyer wrote the decision for a unanimous Court, asserting that to allow Maine to regulate tobacco shipment would "severely undermine" federal regulation.
• Preston v. Ferrer, resolving a dispute between Alex Ferrer, who goes by the name "Judge Alex" on a syndicated television show, and Arnold Preston, an entertainment industry lawyer. The issue before the high court was whether a contract dispute between the two should be governed by state law or the Federal Arbitration Act.
Posted by Marcia Oddi on February 21, 2008 09:38 AM
Posted to Courts in general
Ind. Courts - Judge Carr Darden of the Indiana Court of Appeals featured
Indianapolis WTHR (channel 13) Eyewitness News last evening had a feature by Sandra Chapman headed "Judge devotes career to protecting rights of the most vulnerable." You may view it or read it here. The story begins:
There's often an over-looked segment of African-American males in the criminal justice system: Those who take an oath to uphold the law.As mentioned at the end of this ILB entry from Feb. 14th, Judge Darden is the only one of the 15 members of the Court of Appeals up for retention this year.Indiana's Honorable Judge Carr Darden has spent almost 40 years protecting the rights of those who needed it most.
Taking his stand, Indiana Court of Appeals Justice Carr Darden is living a dream. Judge Darden's contagious smile stretched across his face as he waved to the audience in the House Chambers of the Indiana Statehouse.
"I have the greatest job in the world bar none and I work around some great people," Justice Darden said of his high accomplishments.
Behind the prestigious drapings is a legal mind that took shape when African-Americans lived in resistance to robes and racism.
"Coming from a segregated society in the 40's and 50's I'm sure it was instilled in me very early that you had to fight. You had to be prepared," he recalled. "The law was what was going to make it right for us."
Posted by Marcia Oddi on February 21, 2008 09:28 AM
Posted to Indiana Courts
Wednesday, February 20, 2008
Environment - Governor signs Great Lakes Compact
A news release this afternoon from the Governor Daniels' office provides:
INDIANAPOLIS (February 20, 2008) – Governor Mitch Daniels today signed the Great Lakes compact, SEA 45, making Indiana the first state to implement the added protections the interstate agreement provides.For background, start with this ILB entry yesterday on concerns about Ohio and Wisconsin.The Great Lakes-St. Lawrence River Basin Water Resources Compact was developed over five years with representatives of business, industry, agriculture, environmental and other interests, as well as state officials. Governors of eight states – New York, Illinois, Pennsylvania, Michigan, Minnesota, Ohio, Wisconsin and Indiana – reached agreement on the compact late in 2005. The eight states also reached a similar agreement with Ontario and Quebec in 2005.
“Today, we celebrate an achievement that groups who don’t always see eye-to-eye came together to support. With this action, we’re renewing our commitment to put in place new protections for one of our greatest resources,” said Daniels.
Daniels said Senator Bev Gard, R-Greenfield, and Representative Scott Pelath, D-Michigan City, provided leadership that led to overwhelming support from legislators in both houses.
The compact ensures that authority over Great Lakes water uses stays in the region; that economic development will be fostered through sustainable use and responsible management of the waters; that states will development regional goals and objectives for water conservation and efficiency and collect and share technical data to improve decision-making; and continues a strong commitment to public involvement in implementation of the compact.
The state legislatures in each state must approve the compact and enact implementation language, and the Congress also must give its consent. Indiana is the first state to ratify and sign the compact with implementation language. Minnesota and Illinois signed the compact into law in 2007 but still need implementation language, the New York legislature recently approved the compact and it is awaiting signature, and bills are pending in Michigan, Ohio and Pennsylvania. Introduction of the legislation is expected in Wisconsin soon.
Posted by Marcia Oddi on February 20, 2008 04:12 PM
Posted to Environment
Ind. Decisions - 7th Circuit "on the warpath today"
Fortunately no Indiana cases were decided today, but see these two entries from Robert Loblaw's Decision of the Day.
The first is a posting titled "Seventh Trashes Prominent Finance Professor", which begins:
The Seventh Circuit is well-known for trashing the reputation of lawyers who have the temerity to make the same minor technical errors that most other attorneys get away with on a daily basis. But sloppy lawyers aren’t the only targets for the Seventh’s venom.And the second entry today, headed "The Seventh is on the Warpath Today . . .", begins:Here’s what Judge Posner has to say about expert witness Stephen Buser, who also happens to be the Chair of the Department of Finance at Ohio State University.
Fresh on the heels of this Posner decision comes an equally vitriolic Easterbrook decision.
Posted by Marcia Oddi on February 20, 2008 03:08 PM
Posted to Ind. (7th Cir.) Decisions
