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Friday, March 10, 2017

Ind. Decisions - 7th Circuit decides one Indiana case today

In Henry C. Wedemeyer v. CSX Transportation, Inc. (SD Ind., McKinney), a 15-page opinion, Judge Flaum writes:

In 1989, CSX Transportation successfully petitioned the Interstate Commerce Commission (the “ICC”) to end CSX’s obligation to provide common-carrier rail service on a portion of track in Putnam County, Indiana. The following year, CSX notified the ICC that it had abandoned that segment. Shortly thereafter, CSX leased a portion of its track, including the abandoned segment, for use by a grain-shipping company.

The Wedemeyers own property adjoining the abandoned track segment. They sued CSX seeking removal of the tracks and possession of the real property underlying the rail line. CSX moved for summary judgment, and the district court granted its motion, finding that the Wedemeyers’ claims were preempted under the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. § 10501(b). We affirm.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (3):

In James E. Manley v. Keith Butts , a 9-page opinion, Judge Pyle writes:

James E. Manley (“Manley”), pro se, appeals the Henry Circuit Court’s order dismissing his petition for writ of state habeas corpus as an unauthorized successive petition for post-conviction relief. Manley contends that his petition was not an unauthorized successive petition for post-conviction relief and that, even if it were, the Henry Circuit Court should have transferred it to his court of conviction in Monroe County. Because Manley’s habeas petition is challenging the validity of his convictions and sentence and because Indiana PostConviction Rule 1(1)(c) requires that, under such circumstances, a trial court is required to transfer the petition to the court where the petitioner was convicted, we reverse the Henry Circuit Court’s dismissal of Manley’s petition and instruct the trial court to transfer the petition to Manley’s conviction court, the Monroe Circuit Court, where it shall be treated as a post-conviction petition. * * *

It seems that the State is putting the cart before the horse. The plain language of Post-Conviction Rule 1(1)(c) rule provides that a trial court, upon receiving a habeas petition challenging a conviction or sentence, “shall transfer the cause to the court in which the conviction took place[.]” P-C.R. 1(1)(c). Thereafter, when the conviction court receives the petition, that court “shall treat it as a petition for relief under [Post-Conviction Rule 1].” Id. Thus, it is up to the conviction court—not the habeas court—to apply Post-Conviction Rule 1(12) to the petition and make a determination of its applicability. See Martin, 901 N.E.2d at 647 n.2 (noting that, where the petitioner’s habeas petition indicated that he had already filed a post-conviction petition, “the court where [the petitioner] was convicted and sentenced may ultimately determine that Ind. Post-Conviction Rule 1(12), which governs successive petitions for postconviction relief, is applicable”). Accordingly, we reverse the Henry Circuit Court and remand with instructions to transfer Manley’s petition to the Monroe Circuit Court.

In The Estate of Robert Curtis, Sr., by its Personal Representative Theresa Brady v. Geico Geneeral Insurance Company , an 11-page opinion, Judge Baker writes:
Drake Matovich and Robert Curtis engaged in a physical altercation in a grocery store parking lot. Curtis was severely injured and eventually died, allegedly as a result of the altercation. Matovich and Curtis’s estate entered into an agreed judgment, pursuant to which Matovich admitted liability and assigned his claims against his automobile insurer, GEICO General Insurance Company (GEICO), to Curtis. GEICO filed a declaratory judgment action against Curtis, seeking a declaration that the altercation was not covered under GEICO’s insurance policy with Matovich because Matovich was not “using” the covered vehicle at the time of the incident. The trial court granted GEICO’s summary judgment motion. On appeal, both parties make multiple arguments, but we find one dispositive—whether this altercation was covered by the policy as a matter of law. Finding that it was not, we affirm. * * *

Here, in contrast [to Argonaut], when Matovich exited his vehicle to confront Curtis, engaging in a protracted and physical confrontation with the other man, he no longer had an active relationship with his vehicle. His vehicle no longer played a role in the incident; instead, it was merely an altercation between the two men. Furthermore, we cannot conclude that the reasonable expectations of the parties at the time they entered into the Policy would have included coverage for a physical altercation that merely happened to occur near the covered vehicle. As a result, we find that the trial court properly granted summary judgment in favor of GEICO based on a conclusion that, as a matter of law, Matovich was not “using” his vehicle at the time of the altercation with Curtis. Because no coverage exists under the Policy, Curtis is not entitled to relief.

In Imre L. Falatovics v. Amy L. Falatovics, a 5-page opinion, Judge Crone writes:
For the third time, this matter comes before us for review. Imre L. Falatovics (“Husband”) and Amy L. Falatovics (“Wife”) were divorced. Following the issuance of the dissolution decree, Wife filed an appeal and Husband filed an Indiana Trial Rule 60(B) motion (“Trial Rule 60(B) Motion”) to set aside the dissolution decree. After this Court reversed a portion of the dissolution decree and remanded, another appeal ensued. Once this Court’s opinion was certified, Wife moved to dismiss Husband’s Trial Rule 60(B) Motion and his addendum to his Trial Rule 60(B) Motion (“Addendum”) (sometimes collectively referred to as “Trial Rule 60(B) Motions”). The trial court granted Wife’s motion and dismissed Husband’s Trial Rule 60(B) Motions.

Husband now appeals the dismissal of his Trial Rule 60(B) Motions. He argues that the trial court erred in finding that he failed to follow the proper procedure for bringing his Trial Rule 60(B) Motions. He also asserts that Wife is barred by the doctrines of laches and/or invited error from arguing that he failed to follow the proper procedure. Finally, he also contends that his constitutional rights were violated because he did not receive an evidentiary hearing on his motions. Wife contends that Husband’s appeal is frivolous and in bad faith and

We conclude that trial court did not err in finding that Husband failed to follow the proper procedure. We further conclude that neither laches nor invited error applies and that Husband was not deprived of his constitutional rights. We affirm the judgment and deny Wife’s request for attorney’s fees.

NFP civil decisions today (0):

NFP juvenile and criminal decisions today (6):

Scott A. Estep v. State of Indiana (mem. dec.)

Charles Carlos Chatman v. State of Indiana (mem. dec.)

Gerald Donaldson v. State of Indiana (mem. dec.)

Jeremy Perry v. State of Indiana (mem. dec.)

Darren Dwayne Langdon v. State of Indiana

Lacie K. Hall v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Ind. App.Ct. Decisions

Courts - Challenge to Odyssey case management software fails hurdle in Calif.

The ILB has had several posts on this isssue:

Courts - "Calif. court officials blame software for wrongful arrests, other legal mishaps"

That is the headline to this Dec. 20th Washington Post story reported by Karen Turner. It begins:Wrongful arrests, delayed prison releases and other legal mishaps have been caused by inaccurate records processed by a new court management software system installed...

Posted in The Indiana Law Blog on December 26, 2016 11:26 AM

Courts - "New court software is so awful it’s getting people wrongly arrested: Problematic Odyssey Case Manager software package is used nationwide"

That is the headline to a story today by Cyrus Farivar of ArsTechnica. The lengthy story begins:OAKLAND, Calif.—Most pieces of software don’t have the power to get someone arrested—but Tyler Technologies’ Odyssey Case Manager does. This is the case management...

Posted in The Indiana Law Blog on December 2, 2016 09:40 AM

Today Cyrus Farivar of ArsTechnia has a new story, headed: Judge won't halt court software that still causes mistaken arrests: 'Clerical errors… will occur regardless of the case management system used by the court.'" Some quotes from today's story:
OAKLAND, Calif.—A local judge has ruled against the Alameda County Public Defender’s demands to revise, and possibly even halt, usage of a flawed case management software that is in use here and in many other counties nationwide.
As Ars reported in December 2016, the Alameda County Superior Court switched from a decades-old courtroom management software to a much more modern one on August 1, 2016. Known as Odyssey Court Manager, the new management software is made by Tyler Technologies.

However, since then, the public defender’s office has filed approximately 2,000 motions informing the court that, due to its buggy software, many of its clients have been forced to serve unnecessary jail time, be improperly arrested, or even wrongly registered as sex offenders. As recently as this month, the Portland Press Herald reported on similar difficulties in Maine.

In a 13-page ruling issued last week, which Ars was only made aware of on Thursday, Judge Morris Jacobson denied the public defender’s office's insistence that the court provide accurate records within 24 hours and accurately mark, by the end of the business day, whether someone should be arrested. If the court was unable to meet those requirements, Public Defender Brendon Woods argued, it should halt its use of Odyssey entirely and return to its old system.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Courts in general

Courts - "U.S' House GOP quietly advances key elements of tort reform"

Kimberly Kindy's story today in the Washington Post - a few quotes from the long story:

House Republicans are advancing a series of bills that would make changes to the civil justice system long sought by doctors and U.S. corporations, including a cap on some medical malpractice awards and new roadblocks for classes of people seeking to sue jointly to address harm.

The U.S. Chamber of Commerce and other business groups are promoting the measures, arguing that courts have grown overly tolerant of frivolous and fraudulent claims. Civil rights and consumer groups oppose the measures, saying they would severely limit the ability of average Americans to pursue legal remedies from powerful institutions. * * *

Most Democrats oppose the measures, arguing that they would slam shut the courthouse doors to deserving plaintiffs. Many also complained that GOP leaders were moving the bills through the Capitol at breakneck speed, without the close analysis and public debate typically afforded major legislation.

None of the four proposals has been aired in a congressional hearing. The House Judiciary Committee quietly voted along party lines to approve them over the past several weeks.

House leaders “are turning the legislative process into a kind of subterranean operation,” said Rep. Jamie B. Raskin (D-Md.), a leading opponent of the bills. “While the populace is spellbound by [Trump], the conservatives in Congress are dismantling access to justice and our tort civil liability system.”

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Courts in general

Ind. Courts - "Judges sue Lake to raise pay for court employees"

Bill Dolan reports this morning in the NWI Times:

CROWN POINT — Local judges are suing Lake County to win salary increases for their court employees.

Some 14 Superior Court judges on Feb. 21 filed an "Order for Mandate of Funds" seeking thousands of dollars in raises for each of more than 350 secretaries, bailiffs, office managers, stenographers and other court administrators listed on their payroll.

They are suing the Lake County Council, which would have to find the money from tax revenues. * * *

Indianapolis attorney William J. Barkimer, who represents the judges, referred all comment to fellow attorney Jeffrey McDermott, also of Indianapolis, who couldn't be reached for comment.

The attorneys state in court papers that the 14 judges have lost valuable employees and have trouble replacing them because of county government's low pay scale, which ranges from less than $28,000 for secretaries to less than $62,000 for the Superior Court administrator. The courts' annual payroll exceeds $6.3 million.

The judges argue Lake County pays below the state average, according to a 2015 statewide judicial branch salary analysis, including courts in Porter County, Indianapolis, Fort Wayne, South Bend and Lafayette, Indiana.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decided one Indiana case Thursday

In Telamon Corporation v. Charter Oak Fire Insurance Co (SD Ind., Young), a 13-page opinion, Chief Judge Wood writes:

Underlying this insurance dispute is a regrettably common tale of greed and dishonesty. Telamon, an Indiana telecommunications firm, engaged Juanita Berry to work for it from 2005 to 2011 as its Vice President of Major Accounts. Berry used that position to steal over $5 million from the firm. Upon discovering this loss, Telamon then turned to two insurance policies in an effort to recover its money: a crime insurance policy with Travelers Casualty & Surety (Travelers), and a commercial property policy with Charter Oak Fire Insurance (Charter Oak). At that point, Telamon crashed into a brick wall. Travelers denied coverage because Berry was not, legally speaking, an employee. And Charter Oak refused to pay because, in practice, she was.

Telamon cried foul and filed a lawsuit in which it argued that Berry’s actions were covered under both policies and that the insurers had breached their duty of good faith. At the eleventh hour, it tried to add St. Paul Fire and Marine Insurance (St. Paul) as a defendant. The court rejected the amendment, at which point Telamon filed a new action against St. Paul and Charter Oak. That case promptly found its way back to the same court and was dismissed as an impermissible effort to split the claim. Telamon appealed (case 16-1205). Later the court granted summary judgment in favor of the defendants in the original case. Again, Telamon appealed (case 16-1815). We consolidated the appeals for disposition. Finding no error in either of the district court’s decisions, we affirm. * * *

Berry’s theft was not covered under either the Travelers or the Charter Oak policy. In addition, Telamon has not stated a claim for a breach of the duty of good faith. Finally, it was not entitled to bring a new lawsuit that did no more than add a few additional insurers and policies to its basic case. The judgments of the district court are AFFIRMED.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Ind. (7th Cir.) Decisions

Law - "How Big Is Your House? That Depends"

That is the headline to an interesting $$ WSJ story today, subheaded "There is no national standard when calculating a home’s square footage. That means buyers may not know exactly what they’re getting for their money." Co9mplete with diagrams, the long story begins:

Two properties go on the market, each measuring 2,500 square feet, according to the real-estate listings.

The first property is a two-story, single-family house. The measurements in the listing, however, don’t include a 1,200-square-foot finished basement. So the house actually has 3,700 square feet of living space.

The second property is a 2,500-square-foot condominium. But these measurements include 500 square feet of terrace and garage space. So the house actually has only 2,000 feet of living space.

The 1,700-square-foot discrepancy between the single-family home and the condo apartment is substantial.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to General Law Related

Ind. Gov't. - Still more on "Bill to reduce regulations on livestock operations raising concerns"

Complementing Niki Kelly's story from yesterday (ILB post here), the Fort Wayne Journal Gazette editorializes today: "CAFO confusion: 'Bad legislation' is best left to die in the Senate." The long opinion piece begins:

Indiana doesn’t need to make it easier to start or expand a controlled animal feeding operation. The state has about 2,000 such farms, where cattle, hogs, sheep or poultry are raised in close quarters. If not managed carefully, the enormous amounts of waste that those operations generate can cause significant air and water pollution and make life nearly unbearable for people living nearby.

So it’s good news that Indiana Senate President Pro Tem David Long has sidelined a bill that environmentalists say could undermine the public’s ability to have a say in the expansion of CAFOs. The Fort Wayne Republican told The Journal Gazette’s Niki Kelly this week that House Bill 1494 is “just bad legislation” and may remain parked in the Senate’s Rules and Legislative Procedure Committee for the rest of the legislative session.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Indiana Government

Ind. Courts - Justice Rucker holds court yesterday in hometown Gary

From the Gary Post-Tribune, a report by Javonte Anderson. Some quotes from the long story:

Nearly 50 years after crossing the stage as a high school graduate, Robert Rucker returned to Roosevelt High School, but this time as a member of the Indiana Supreme Court. Instead of wearing a cap and gown and carrying a diploma, he wore his judicial robe and carried a gavel.

Sitting on the stage in the Gary high school's auditorium with his colleagues, looking out in the audience replete with judges and high school students from across Northwest Indiana, Rucker had to get something off of his chest. "Go Panthers!" Rucker said paying tribute to his alma mater's mascot.

For Rucker, 70, the event at Roosevelt – the justices heard oral arguments in a case – had special meaning.

Rucker is a part of Roosevelt's laundry list of notable alumni, which ranges from members of The Jackson 5 to several former professional athletes to Mayor Karen Freeman-Wilson. * * *

Rucker spent nearly 15 years as a deputy prosecutor and a city attorney for Gary before becoming the first African-American judge to be appointed to the Indiana Court of Appeals.

In 1999, Rucker became only the second African-American appointed to the Indiana Supreme Court.

"In some ways I had to pinch myself," Rucker said, referring to when he first heard about his selection to the Supreme Court. "There's absolutely nothing in my background that could've anticipated that result. I was from a family that had no political clout. There were no professionals in my family."

But it was Rucker's legal career and childhood, when he began working at age 11 selling fruits and vegetables out of the back of a truck, that prepared him for the unforgiving work ethic that is required to sit on the bench of state's highest court, he said.

"There's no such thing as a 9-to-5 day," Rucker said. "As my grandmother would say, 'We work from can to can't, which means we work from the time you can see in the morning to when you can't see at night.'"

Throughout his storied career, Rucker's ability to influence those around him transcended the courtroom.

"Justice Rucker is one of the great figures in the history of the state of Indiana," Justice Mark Massa said. "I think it really needs to be said. Particularly after we celebrated our bicentennial. You think about what he's accomplished, from where he came, he's one of the great figures in the 200-year history."

"Lake County pays homage to native son" is the heading to this story today in the NWI Times, reported by Carmen McCollum. The story begins:
GARY — High school students from public and private schools across Lake County peppered retiring Indiana Supreme Court Justice Robert Rucker with questions about his life, his career and fond memories of his alma mater, Gary Roosevelt High School.

The Indiana Supreme Court traveled to Roosevelt Thursday to hear oral arguments in the case of Danny Sims v. Andrew Pappas and Melissa Pappas. The justices did not issue a decision but said the case would be taken under advisement and a legal opinion will be forthcoming.

About 300 high school students from nine high schools had an opportunity to hear the case. * * *

Schererville attorney Cordell Funk said he came to hear Rucker, and has previously practiced with Rucker and assisted when Rucker was on the Appellate Court.

"I'm here to pay homage to him," Funk said. "I think all of the people are here to pay homage to him. He's from Lake County and well respected in Lake County. We all knew him when he practiced here."

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Indiana Courts | Vacancy on Supreme Court - 2017