Opinions

Indiana Supreme Court
State of Indiana v. Economic Freedom Fund, FreeEats.com, Inc., Meridian Pacific, Inc., and John Does 3-10
07S00-1008-MI-411
Miscellaneous. Reverses trial court’s grant of preliminary injunction in favor of FreeEats, holding that the court erred in finding FreeEats had a reasonable likelihood of success on its claim that the live-operator provision of the Indiana Autodialer Law violates Article 1, Section 9 of the Indiana Constitution. Remands for further proceedings. Justice Frank Sullivan dissented, writing that the application of the live-operator requirement in the present case imposes a material burden on political speech in violation of Art. I, Section 9 of the Indiana Constitution, and that the application of this requirement violates the First Amendment to the United States Constitution.

7th Circuit Court of Appeals
United States of America v. George Pabey
11-2046
U.S. District Court, Northern District of Indiana, Hammond Division, Judge James T. Moody.
Criminal. Affirms Pabey’s convictions of conspiring to embezzle government funds and embezzling government funds and sentence of 60 months in prison, along with a $60,000 fine, $14,000 in restitution, and three years of supervised release. The District Court did not abuse its discretion by permitting the jury to receive the conscious avoidance instruction. The sentence enhancements were appropriate and the District Court provided adequate support for its upward departure of his sentence.

7th Circuit Court of Appeals
ATA Airlines Inc. v. Federal Express Corp.
11-1382, 11-1492
U.S. District Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young
Civil. Reverses $66 million jury award in favor of ATA against FedEx for breach of contract. ATA’s breach of contract claim should never have been permitted to go to trial because the letter agreement between the two parties was not an enforceable contract. In addition, ATA’s expert’s testimony on regression analysis never should have been allowed to be put before a jury.

7th Circuit Court of Appeals
M.B., by his parents and next friends, Damian Berns and Amy Berns v. Hamilton Southeastern Schools and Hamilton-Boone-Madison Special Services
10-3096
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment in favor of the schools on the Berns’ suit that the schools violated the Individuals with Disabilities Education Act and the provisions relating to special education in the Indiana Administrative Code by failing to provide M.B. with a free appropriate public education. There was nothing unreasonable about the determination by the hearing officer, the Board of Special Education Appeals, and the District Court in finding that M.B. was making progress under his individualized education program. The Berns are also not entitled to reimbursement for the costs to place M.B. in a learning center or for attorney fees.

Indiana Court of Appeals
Hans Maldonado v. State of Indiana (NFP)
29A05-1104-CR-231
Criminal. Affirms conviction of Class C misdemeanor operating a vehicle while intoxicated.

Indiana Court of Appeals
Christopher A. Bryant v. State of Indiana
45A03-1101-CR-11
Criminal. Affirms convictions of and sentences for two counts of Class A felony dealing in a narcotic drug, Class A misdemeanor resisting law enforcement, Class A misdemeanor marijuana possession and Bryant’s admission that he is a habitual substance offender, holding that his extensive arrest record renders harmless any error the trial court may have made.

Indiana Court of Appeals
Capitol Construction Services, Inc. v. Amy Gray, as Personal Rep. of the Estateof Clinton Gray and All One, Inc.
49A04-1005-CT-289
Civil tort. Affirms trial court’s grant of partial summary judgment in favor of Gray’s estate, holding that per terms of the contract, Capitol Construction was obligated to provide fall protection for all subcontractors.

Indiana Court of Appeals
Justin M. Corwin v. State of Indiana
79A04-1005-CR-296
Criminal. Reverses conviction of Class C felony possession of a controlled substance, holding that a police officer exceeded the limits of a search as defined by Terry v. Ohio, 392 U.S. 1, 30 (1968), and therefore, the evidence he obtained in the search should not have been admitted at trial.

7th Circuit Court of Appeals
Adrianna Brown, et al. v. Columbia Sussex Corp., et al.
10-3849
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of 53 of the 224 plaintiffs who had their civil rights and breach of contract claims dismissed because they continually missed both formal and informal deadlines. Holds that, in the context of a multi-party or multi-claim suit, a premature notice of appeal from the dismissal of a party or claim will ripen upon the entry of a belated Rule 54(b) judgment under Rule 4(a)(2) and FirsTier. The District Court was within its discretion to find that the appellants acted willfully, in bad faith, or with fault.

7th Circuit Court of Appeals
Susan Kellar v. Summit Seating Inc.
11-1221
U.S. District Court, Northern District of Indiana, South Bend Division, Magistrate Judge Christopher A. Nuechterlein
Civil. Affirms summary judgment for Summit Seating on Kellar’s lawsuit that she is entitled to overtime under the Fair Labor Standards Act for work performed before the official start of her work shift. Concludes that Summit did not know or have reason to know that Kellar was working before her shift.

Indiana Supreme Court
Steven Spangler and Heidi Brown v. Barbara Bechtel, Expectations Women's Health and
Childbearing Center, and St. Vincent Randolph Hospital
49S05-1012-CV-703
Civil. Reverses summary judgment in favor of Bechtel and the health and childbearing center. The parents’ separate actions seeking damages for emotional distress from experiencing the stillbirth of their child are not barred by the Indiana Child Wrongful Death Act or the Indiana Medical Malpractice Act. Remands for further proceedings.

Indiana Court of Appeals
Douglas Garwood v. State of Indiana (NFP)
35A02-1106-CR-588
Criminal. Affirms conviction of and sentence for Class B felony dealing in methamphetamine and reverses conviction of Class D felony possession of precursors with intent to manufacture methamphetamine.

Indiana Court of Appeals
Scott Pattison v. State of Indiana
85A02-1101-CR-88
Criminal. Affirms conviction of felony murder. The circumstantial evidence is sufficient to establish beyond a reasonable doubt that Pattison killed his wife. Affirms in all other respects.

Indiana Court of Appeals
Term. of Parent-Child Rel. of C.M., G.M., and R.M.; A.M. (Mother) and C.M. (Father) v. Indiana Dept. of Child Services, Dearborn County Office
15A01-1104-JT-204
Juvenile. Reverses termination of mother A.M.’s parental rights. The Department of Child Services did not establish by clear and convincing evidence the requisite statutory elements to support the termination. Judge Darden concurs in result.

Indiana Court of Appeals
In the Matter of the Estate of Melissa K. Patrick: Yvonne Griffith v. Jason Patrick
17A03-1104-ES-190
Estate, supervised. Affirms denial of the estate’s motion to dismiss a petition for survivor’s allowance filed by Melissa Patrick’s surviving spouse, Jason. The trial court did not commit clear error in determining that Ind. Code 29-1-2-14 did not divest Patrick of a survivor’s share of the estate with his late wife.

Indiana Court of Appeals
A.A.Q. v. State of Indiana
71A03-1105-JV-239
Juvenile. Affirms judgment of juvenile court finding A.A.Q. a juvenile delinquent for committing an act that would have been Class A misdemeanor trespass if committed by an adult. Holds that A.A.Q. and his parents waived the right to counsel.

Indiana Court of Appeals
Linzy C. Clark v. State of Indiana
48A04-1104-CR-249
Criminal. Reverses trial court’s denial of Clark’s motion to dismiss the notice of probation violation. After the probation was transferred from Madison County to Tippecanoe County, the Tippecanoe County court held supervisory authority. It received notice of the probation violation, but Madison County – the sentencing court – did not, nor did it file the notice of probation violation within 45 days of receiving the notice of violation.

Indiana Court of Appeals
Billy Jack Steele v. State of Indiana (NFP)
15A01-1104-CR-194
Criminal. Affirms eight-year sentence for Class C felony robbery.

7th Circuit Court of Appeals
Bridgett Stevens v. Housing Authority of South Bend, Indiana, et al. and State of Indiana
10-2724
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Rudy Lozano.
Civil. Affirms summary judgment for defendants on Stevens’ federal claims alleging violations of the Fair Housing Act and the 14th Amendment and the decline by the court to exercise jurisdiction over the remaining state law claims, dismissing them without prejudice. Injunctive relief is no longer available to Stevens because she voluntarily left her public housing apartment after receiving two additional notices indicating that she must leave due to violating housing policy. The first notice was therefore lawfully issued, and Stevens has no claim for emotional distress caused by a wholly lawful action.

Indiana Supreme Court
Christopher Jewell v. State of Indiana
32S04-1104-CR-200
Criminal. Affirms denial of Jewell’s motion to suppress recorded phone conversations between him and his former stepdaughter and finds his sentence is appropriate for six counts relating to child molesting, sexual misconduct with a minor, and child seduction. Holds that under the broader protections of Article 1, Section 13 of the Indiana Constitution, the right to counsel is violated only where the different offense is inextricably intertwined with the charge on which counsel is already representing the defendant.