Justices take 3 cases
The Indiana Supreme Court accepted transfer of three cases last week, including a case in which the Indiana Court of Appeals lengthened a man’s sentence.
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Articles
Masters named in traffic judge’s misconduct case
The Indiana Supreme Court has appointed the three masters in the case of Marion Superior Judge William Young.
Justices: BMV can require names to match SSA records
The trial court was correct to find that the public interest in preventing fraudulent use of driver’s licenses trumps some people’s desire to have their commonly used names on their licenses, the Indiana Supreme Court ruled today.
Opinions Sept. 10, 2010 ILD
Indiana Court of Appeals
Crown Coin Meter Company, et al. v. Park P, LLC
34A02-1002-PL-185
Civil plenary. Reverses summary judgment in favor of Park P in its complaint to quiet title and seeking a declaratory judgment that the lease between Crown Coin and the prior owner of the apartment building is void as to Park P. There is a genuine issue of material fact as to whether Park P had actual implied notice of Crown Coin’s outstanding rights at the time Park P purchased the property and whether Park P was a bona fide purchaser. Remands for further proceedings.
Eclipse Consulting, Inc. v. Community Bank (NFP)
29A05-0912-CV-696
Civil. Affirms grant of partial summary judgment in favor of Community Bank in Eclipse’s suit alleging breach of contract, fraud, conversion and bad faith. Remands for proceedings.
David L. Howard v. State of Indiana (NFP)
46A03-0907-CR-299
Criminal. Affirms conviction of and 65-year sentence with five years suspended to probation for murder.
Jeanette Haggard v. Brent Boyd (NFP)
32A04-1001-DR-33
Domestic relation. Affirms granting the dependent tax exemption to Boyd. Reverses calculation of the amount of child support Boyd has overpaid since he filed his petition to modify and remands with instructions to amend its order on father’s petition to modify custody and support accordingly.
D.L.S. v. J.S. (NFP)
85A02-0910-CV-985
Civil. Affirms order granting physical custody of D.S.’s children to mother J.S.
Edna Taylor Living Trust v. Kokomo/Howard County Plan Comm. (NFP)
80A05-1004-PL-289
Civil plenary. Affirms summary judgment in favor of the commission on the Taylor Trust’s complaint for mandate.
Chance Ross Carper v. State of Indiana (NFP)
48A05-1002-CR-96
Criminal. Affirms revocation of probation.
Indiana Tax Court had posted no opinions at IL deadline.
Opinions Sept. 10, 2010
7th Circuit Court of Appeals
Joseph Finch, David E. Hensley, and Peter W. Mungovan v. Bart Peterson, individually and in his official capacity, et al.
09-2676
U.S. District Court, Southern District of Indiana, Indianapolis Division, Magistrate Judge Debra McVicker Lynch.
Civil. Affirms denial of the city officials’ motion for judgment on the pleadings in a suit filed by three white officers alleging discrimination in promotions. The 1978 consent decree between the Indianapolis Police Department and the U.S. Department of Justice does not operate to confer qualified immunity on city officials who were involved in making the challenged promotions. Nothing in the decree required them to take race into consideration when making promotions.
Attenuation doctrine doesn’t apply under Indiana Constitution
The attenuation doctrine has no application under the state’s constitution, the Indiana Court of Appeals ruled today in a case alleging an unconstitutional search.
No qualified immunity for city in racially motivated promotions
The 7th Circuit Court of Appeals upheld the denial of the motion of qualified immunity filed by the City of Indianapolis and several officials in a suit filed by three white police officers who claim they were passed over for promotions because of their race.
Justices to hear arguments at Bloomington law school
The Indiana Supreme Court travels to Bloomington Monday to hear arguments in the case of a teenage girl who was injured by a golf ball while driving the beverage cart at a golf outing.
COA: Judge could raise affirmative defense on behalf of pro se defendant
A small-claims court may decide a case based upon the statute of limitations even if a defendant didn’t raise or mention it at trial but the issue was discussed during trial, the Indiana Court of Appeals ruled in an issue of first impression.
Opinions Sept. 9, 2010 ILD
Indiana Court of Appeals
Mark Kinsel v. Robert and Dolores Schoen
25A05-0910-CV-615
Civil. Affirms denial of Kinsel’s motion to correct error following a judgment in favor of Schoens for damages and injunctive relief against Kinsel for negligence, nuisance, and trespass. The trial court correctly determined the common enemy doctrine doesn’t apply and Kinsel may be held liable for his leaking pond.
Thomas C. Temperly v. State of Indiana
49A02-1001-CR-52
Criminal. Remands with instructions to vacate the Class A misdemeanor conviction and sentence for operating a vehicle while intoxicated and enter judgment and an appropriate sentence for Class A misdemeanor operating with a blood alcohol content of 0.15 or more. There was insufficient evidence Temperly operated his vehicle while intoxicated in a manner that endangered a person. Finds the consensual chemical test was reasonable under the state and federal constitutions. The BAC evidence was validly obtained pursuant to Indiana Code Section 9-30-7-3, complied with the requirements of I.C. Section 9-30-6-2, and was admissible in Temperly’s prosecution under Chapter 9-30-5
Steve Brown v. State of Indiana (NFP)
49A02-1002-PC-227
Post conviction. Affirms denial of petition for post-conviction relief.
Wilfred V. Rhea, III v. State of Indiana (NFP)
82A01-0910-CR-485
Criminal. Vacates conviction of operating a vehicle with a BAC of at least 0.08 but less than 0.15 as a Class C misdemeanor. Remands for further proceedings.
M.S., Alleged to be C.H.I.N.S.; J.F. v. I.D.C.S. (NFP)
42A01-1001-JC-32
Juvenile. Affirms adjudication of M.S. as a child in need of services.
Ricardo A. Telfer v. State of Indiana (NFP)
20A05-1001-CR-106
Criminal. Affirms conviction of and sentence for Class B felony dealing in cocaine.
David D. Lewis v. State of Indiana (NFP)
49A02-1002-CR-139
Criminal. Affirms the search warrant issued justified the search that turned up the drugs and affirms convictions of Class A felony dealing in cocaine and Class A misdemeanor possession of marijuana. Reverses conviction of Class C felony possession of cocaine and a firearm and remands to the trial court with instructions to vacate it and the sentence.
Fred Mott v. Ed Buss, et al. (NFP)
46A04-1003-SC-170
Small claim. Affirms dismissal of Mott’s small-claims action.
State of Indiana v. Charles Boyle (NFP)
49A05-0911-PC-627
Post conviction. Reverses order granting Boyle’s petition to modify his conviction of operating a motor vehicle while a habitual traffic violator as a Class D felony to a Class A misdemeanor.
Courtney E. Terhune v. State of Indiana (NFP)
49A02-1003-CR-228
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft.
Kevin D. Duncan v. State of Indiana (NFP)
49A02-1003-CR-244
Criminal. Affirms conviction of Class B felony burglary.
Indiana Tax Court had posted no opinions at IL deadline.
Opinions Sept. 9, 2010
Indiana Supreme Court
Matter of the Estate of Harry L. Rickert
18S04-1002-CV-118
Civil. Reverses judgment in favor of Taylor, who was Rickert’s power of attorney, that she receive the money from accounts in which she was a joint holder. The presumption is that Taylor’s use of her power of attorney to benefit herself made those accounts invalid, and she failed to overcome that presumption to allow her to inherit the money. Remands with direction to order restoration to the estate of bank accounts owned of record by Rickert and Taylor that were created through use of Taylor’s power of attorney from Rickert and lacking any support documentation indicating participation by Rickert.
Justices rule against POA on joint-account funds issue
The Indiana Supreme Court ruled against a woman who was made power of attorney by the man she worked for as a caretaker and opened bank accounts in both their names. The presumption is that the woman’s use of her power of attorney to benefit herself made those accounts invalid, and she failed to overcome that presumption to allow her to inherit the money from those accounts.
COA dismisses appeal as untimely under T.R. 53.3(A)
The Indiana Court of Appeals dismissed a man’s appeal from the denial of his motion to correct error because he didn’t file his notice within 30 days of when the motion was deemed denied, which happened before the trial court actually ruled on the motion.
Judges split on district’s need to pay for new water main
The Indiana Court of Appeals split today on whether a school district was required to pay for the installation of a new water main as opposed to privately putting in its own water service line to connect to a new school.
AG to co-chair national consumer-protection committee
Indiana Attorney General Greg Zoeller has been appointed to co-chair the National Association of Attorneys General Consumer Protection Committee, his office announced today.
Opinions Sept. 8, 2010 ILD
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Gregory Carter v. State of Indiana
32A01-0911-CR-539
Criminal. Affirms conviction of robbery resulting in bodily injury as a Class B felony but reverses conviction of theft as a Class D felony due to double jeopardy. The trial court did not abuse its discretion when excluding Wal-Mart’s loss-prevention policy and there was no prosecutorial misconduct during voir dire.
James Ricketts v. First Horizon Home Loans, et al. (NFP)
49A02-0911-CV-1083
Civil. Affirms denial of motion to correct errors and motion for final judgment.
Robert J. Egierski v. Caterina M. Sergio-Sniadecki (NFP)
71A03-1002-DR-149
Domestic relation. Affirms denial of Egierski’s motion to modify the joint legal custody of his son to sole legal custody to father.
Jack M. Estes, II v. State of Indiana (NFP)
29A02-1003-CR-320
Criminal. Affirms conviction of dealing in a Schedule III controlled substance as a Class B felony.
Timothy P. Treacy v. State of Indiana (NFP)
49A02-0910-CR-1031
Criminal. Affirms convictions of operating while intoxicated as a Class D felony and public intoxication as a Class B misdemeanor.
Steven Griggs v. Steve Querry (NFP)
34A02-1003-SC-287
Small claim. Affirms judgment in favor of Querry for $3,970.31 in damages suffered by Querry.
Michael Powell v. State of Indiana (NFP)
84A03-0912-CR-589
Criminal. Affirms revocation of probation.
Lambert C. Genetos, et al. v. Andrew J. Kopko (NFP)
64A05-0912-CV-680
Civil. Reverses judgment entered on the arbitrators’ original award rather than their amended award and remands.
Gerald M. Mitchell v. State of Indiana (NFP)
49A02-1003-CR-376
Criminal. Affirms denial of motion to remove sexually violent predator status.
Joseph M. Sipe v. Laurie L. Sipe (NFP)
32A01-1001-DR-83
Domestic relation. Affirms recalculation of the depreciation of Joseph’s business equipment for purposes of his 2006 income for child support purposes. Affirms valuation and assignment of the cattle and Laurie’s property. Reverses decision to exclude the value of the three horses from the marital estate. Remands for further proceedings.
Indiana Tax Court had posted no opinions at IL deadline.
7th Circuit affirms firing for non-compliance with FMLA leave policy
The 7th Circuit Court of Appeals affirmed summary judgment dismissing a woman’s Family and Medical Leave Act claim against the company that fired her because she didn’t give proper notice for an extension of leave and failed to return to work as expected.
Opinions Sept. 8, 2010
7th Circuit Court of Appeals
Letecia D. Brown v. Automotive Components Holdings, LLC and Ford Motor Co.
09-1641
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. Affirms summary judgment dismissing Brown’s FMLA claim following her termination from Ford. The undisputed facts show Brown was absent without leave after failing to give proper FMLA notice for an extension of a previously requested leave period.
Opinions Sept. 7, 2010 ILD
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
David Hatter, et al. v. Pierce Manufacturing, Inc.
49A02-0907-CV-659
Civil. Affirms jury trial and verdict in favor of Pierce Manufacturing in the Hatters’ product liability action. Hatter failed to exhaust one of his peremptory challenges and has not shown both of his challenges for cause were improperly denied. The trial court did not abuse its discretion in the giving of jury instructions or in excluding evidence and did not err by denying Hatter’s partial motion for judgment on the evidence.
Larry Rodts v. Heart City Automotive, Inc.
20A04-1004-CT-249
Civil tort. Affirms summary judgment for Heart City in Rodt’s breach of contract and wage payment claims. There are no genuine issues of material fact, Rodts’ oral contract is unenforceable, and his deferred compensation was not a wage.
Gregory Johnson v. State of Indiana
49A02-1003-CR-375
Criminal. Affirms conviction of Class C misdemeanor refusal to identify self. The state presented sufficient evidence to support the conviction.
Haneef S. Jackson-Bey v. State of Indiana (NFP)
45A03-1001-CR-36
Criminal. Affirms sentence following guilty plea to Class B felony burglary.
Umarex Sportwaffen GMBH, et al. v. Toyriffic, LLC d/b/a Hobbytron.com (NFP)
29A05-1001-PL-28
Civil plenary. Affirms order setting aside default on Umarex and other plaintiffs’ claim against Toyriffic for trademark infringement, trademark dilution, false advertising and trade dress infringement, unfair competition, conversion, forgery, counterfeiting, and deception.
Theodore Ebeyer v. State of Indiana (NFP)
41A05-0911-CR-674
Criminal. Affirms conviction of Class C felony possession of cocaine.
Mark Hendrickson, et al. v. Joseph Potetz, et al. (NFP)
87A01-1002-CT-111
Civil tort. Affirms summary judgment for Coinmach Holdings in a wrongful death complaint.
Phillip J. Camp v. State of Indiana (NFP)
29A02-1002-CR-210
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.
Dewan D. Burnett v. State of Indiana (NFP)
45A03-1002-CR-61
Criminal. Affirms sentence following guilty plea to Class B felony dealing in cocaine.
John Chupp v. State of Indiana (NFP)
49A05-0912-PC-683
Post conviction. Affirms in part and reverses in part denial of petition for post-conviction relief. Remands to the post-conviction court the issue of Chupp’s robbery conviction and directs the court to enter judgment of conviction as a Class C felony and sentence accordingly.
James D. Schregardus v. OH Retail, LL, LLC (NFP)
49A05-1002-PL-156
Civil plenary. Dismisses Schregardus’ appeal for lack of subject matter jurisdiction. Declines to award damages under Appellate Rule 66(E).
Salaheddin A. Alfaqeer d/b/a Tobacco Zone v. LOR Corp. (NFP)
49A04-1003-CC-213
Civil collection. Reverses denial of Alfaqeer’s motion to set aside judgment. Remands for further proceedings.
Term. of Parent-Child Rel. of D.M.; A.M. v. I.D.C.S. and Child Advocates (NFP)
49A04-1001-JT-116
Juvenile. Affirms involuntary termination of parental rights.
Indiana Tax Court had posted no opinions at IL deadline.
The Indiana Supreme Court granted 3 transfers and denied transfer to 18 cases for the week ending Sept. 3.
Opinions Sept. 7, 2010
Indiana Court of Appeals
David Hatter, et al. v. Pierce Manufacturing, Inc.
49A02-0907-CV-659
Civil. Affirms jury trial and verdict in favor of Pierce Manufacturing in the Hatters’ product liability action. Hatter failed to exhaust one of his peremptory challenges and has not shown both of his challenges for cause were improperly denied. The trial court did not abuse its discretion in the giving of jury instructions or in excluding evidence and did not err by denying Hatter’s partial motion for judgment on the evidence.