Opinions

Indiana Supreme Court
David J. Markey v. Estate of Frances S. Markey, Deceased; Stephen L. Routson, Personal Representative Under the Last Will and Testament of Frances S. Markey, Deceased et al
89S05-1412-ES-749
Estate. Reverses summary judgment in favor of the defendants. Agrees with David Markey that his claim for breach of contract to make and not revoke mutual wills is a claim governed by the probate code. Remands to determine if Markey was a “creditor” who was “known or reasonably ascertainable” and therefore timely filed his claim.  

7th Circuit Court of Appeals
Louise Milan v. Billy Bolin, in his individual capacity as Evansville Police Department Chief, et al.
15-1207
Appeal from the U.S. District Court, Southern District of Indiana, Evansville Division
Judge William Lawrence
Civil. Affirms denial of summary judgment in favor of the Evansville police defendants on Louise Milan’s claim of excessive use of force resulting from a SWAT team raid on her house initiated with the use of flash-bang grenades. Denial of the defendants’ motion for summary judgment is reasonable considering the use of flash bangs, the skimpy basis for the search and its prematurity, and the failure to conduct a more extensive investigation.

Indiana Supreme Court
The following opinion was posted after IL deadline Thursday
In Re the Visitation of L-A.D.W., R.W. v. M.D. and W.D.
82S01-1507-DR-452
Domestic. Affirms trial court grant of grandparent visitation, finding visitation in the child’s best interests and that the trial court did not abuse its discretion in setting a schedule it deemed occasional and temporary. Justice Steven David wrote the majority opinion joined by Justices Brent Dickson and Mark Massa. Chief Justice Loretta Rush concurred, but wrote separately to caution that a reliance upon deference to the trial court insufficiently protects a parent’s constitutional right to guide a child’s upbringing, but in this case, the visitation order did not unduly infringe on father’s parental rights. Justice Robert Rucker joined Rush’s concurring opinion.

Indiana Supreme Court
Wellpoint, Inc. (F/K/A Anthem, Inc.) and Anthem Insurance Companies, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA, AIG Europe (U.K.) Limited, et al
49S05-1404-PL-244
Civil plenary. Grants petition for rehearing to modify the Supreme Court’s previous opinion. Finds its reversal should be clarified to grant summary judgment in favor of Anthem but only on the issues raised in Continental’s motion of summary judgment. Holds Continental did not waive its unasserted defenses.

7th Circuit Court of Appeals
United States of America v. Robert L. Lee
14-2010
Appeal from the U.S. District Court for the Northern District of Indiana, South Bend Division.
Judge Robert L. Miller
Affirms revocation of supervised release for violation of terms due to commission of a crime. Rejects Lee’s argument that due process under the Fifth Amendment and Federal Rule of Criminal Procedure 32.1 requires citation to a specific statute to provide written notice of the alleged violation.

7th Circuit Court of Appeals
Grant E. Bentrud v. Bowman Heintz Boscia & Vician, P.C.
14-2384
Appeal from the U.S. District Court, Southern District of Indiana, Indianapolis Division
Judge William Lawrence.
Civil. Affirms grant of summary judgment in favor of Bowman Heintz. Finds Bowman Heintz did not violate the Federal Debt Collections Practices Act for filing a second motion for summary judgment after the 30-day deadline to initiate arbitration had passed.

7th Circuit Court of Appeals
The following opinion was issued after IL deadline Friday
Katherine Cerajeski, Guardian for Walter Cerajeski v. Greg Zoeller, Attorney General of the State of Indiana, et al.
15-1313
Appeal from the United States District Court for the Southern District of Indiana.
Judge Jane Magnus-Stinson
Civil. Reverses dismissal of Cerajeski’s claim as moot, holding that she is entitled to legal fees because the suit led to a change in state law that enabled her to obtain damages sought in the litigation. Remands for a determination of reasonable legal fees, expressing a tentative view that the amount sought for the prior appeal –  $258,462.50 for 375.75 hours – is excessive.

Indiana Court of Appeals
Antyon Buford v. State of Indiana
20A05-1408-CR-392
Criminal. Reverses convictions of Class A felony dealing cocaine, Class B felony unlawful possession of a firearm by a serious violent felon, and Class D felony maintaining a common nuisance. A warrant on which the search of Buford’s residence was premised was not supported by probable cause. Remands for proceedings.

7th  Circuit Court of Appeals
The following opinion was issued after IL deadline Wednesday.
United States of America v. Joseph B. Miller
14-2779
Appeal from the United States District Court for the Northern District of Indiana.
Judge James T. Moody.
Criminal. Affirms bank robbery conviction, holding that neither an FBI agent’s alleged misstatements nor defense counsel’s purported errors in failing to suppress certain evidence affected the outcome of the trial.

7th Circuit Court of Appeals
The following opinions were issued after IL deadline Tuesday.
United States of America v. Michael B. McClellan
14-2449
Appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division; Chief Judge Philip P. Simon.
Criminal. Affirms convictions of harboring an illegal alien, three counts of mail fraud, and one count of engaging in a monetary transaction involving criminally derived property. The evidence presented to the jury was sufficient for the convictions, and jury instructions concerning the harboring count did not constitute plain error.

Indiana Supreme Court
In the Matter of: Steven J. Ouellette
02S00-1502-DI-107
Attorney discipline. Disbars Steven J. Ouellette for converting $8,725 in client funds and failing to cooperate with the disciplinary process. Ouellette, who currently was suspended indefinitely in a separate disciplinary matter, violated Rules of Professional Conduct 1.15(a), 8.1(b), 8.4(b) and 8.4(c). Respectively, those rules violations are for failing to hold client property in trust; failing to respond to disciplinary authorities; committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness; and conduct involving dishonesty, fraud, deceit or misrepresentation.

Indiana Court of Appeals
Charles R. Ferguson v. The Estate of Lera V. Ferguson
34A02-1411-ES-793
Estate. Reverses on interlocutory appeal an order that Charles R. Ferguson post a bond in excess of $1.1 million, representing the amount of his claim against the estate plus administrative costs in order to stay the sale of the family farm. Finding the trial court abused its discretion in ordering a bond in the amount of a claim against the estate plus costs, the panel remands with instructions that bond be posted at $60,000, the amount of administrative costs.

Indiana Tax Court
Richard D. Foster v. Indiana Department of State Revenue (mem. dec.)
49T10-1504-TA-17
Tax. Grants Indiana Department of State Revenue’s motion to dismiss. Foster appealed the revenue department’s seizure of his tax refunds and vehicles after he pled guilty to possession of marijuana. However, the Tax Court concluded it lacked subject matter jurisdiction since Foster had not taken his appeal from a final determination of the revenue department.

Indiana Tax Court
Indianapolis Public Transportation Corporation v. Department of Local Government Finance
49T10-1203-TA-19
Tax. Denies Department of Local Government Finance’s motion for judgment on the pleadings. Indianapolis Public Transportation Corp. (IndyGo) has standing to appeal the DLGF’s adjustment of its budget because under the facts of the case an “appeal” could not have contemplated adjustments made to the budget that are at issue in the case.

Indiana Court of Appeals
Robert Seal v. State of Indiana
48A02-1410-CR-775
Criminal. Affirms convictions of two counts of Class A felony child molesting; two counts of Class B felony incest; and one count of Class B sexual misconduct with a minor. Finds police’s failure to capture the audio on the recordings of the victims’ interviews does not violate Seal’s due process rights. Rules trial court did not abuse its discretion in instructing the jury that time is not an element of the offenses. Concludes the continuous crime doctrine does not apply.

Indiana Court of Appeals
Parkview Hospital, Inc. v. John J. Wernert, in his official capacity as Secretary of the Indiana Family and Social Services Administration, and The Methodist Hospitals, Inc.
02A03-1408-PL-296
Civil plenary. Affirms trial court ruling in favor of Indiana Family and Social Service Administration’s denial of Medicaid disproportionate share payments to Parkview Hospital. The decision of the FSSA secretary was not arbitrary, capricious, or unsupported by substantial evidence, and there was no contract or agreement of material terms and conditions regarding disproportionate share hospital payments supporting a forfeiture claim.

7th Circuit Court of Appeals
United States of America v. Joshua R. Mackin
14-3602
U.S. District Court, Northern District of Indiana, Fort Wayne Division;
Judge Theresa Springmann
Criminal. Vacates conviction of being a felon in possession of a firearm and remands for further proceedings. Finds the government’s failure to produce the correct and complete continuity slip until mid-trial violated Federal Rule of Criminal Procedure 16. Agrees with defense that the incomplete slip presented during discovery was the basis of the defendant’s trial strategy and his decision not to seek a plea agreement.

Indiana Supreme Court
In the Matter of: Tenneil E. Selner
71S00-1402-DI-96
Attorney discipline. Suspends Tenneil E. Selner for three years without automatic reinstatement for her federal conviction of distribution of pseudoephedrine to participants in a methamphetamine ring. Justices approved the conditional agreement for discipline by a 4-1 vote, with Justice Dickson dissenting, believing Selner’s conduct demonstrated unfitness.

7th Circuit Court of Appeals
The following opinion was posted Wednesday after IL deadline
Carlene M. Craig, et al. v. FedEx Ground Package System, Inc.
10-3115
Appeal from U.S. District Court, Northern District of Indiana, South Bend Division;
Judge Robert L. Miller, Jr.
Civil. Reverses multi-district litigation court’s grant of summary judgment to FedEx and remands with instructions to enter summary judgment in favor of plaintiffs, the Kansas drivers. The drivers are employees of FedEx rather than independent contractors under the Kansas Wage Payment Act, the court ruled. Proceedings may include remand to the Kansas District Court for a determination of damages.