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Opinions Dec. 13, 2012

December 13, 2012
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The following Indiana Supreme Court opinions were posted after IL deadline Wednesday.

Margaret Kosarko v. William A. Padula, Administrator of the Estate of Daniel L. Herndobler, Deceased
45S03-1206-CT-310
Civil tort. Reverses denial of motion for prejudgment interest following a jury verdict awarding Kosarko monetary damages. Holds the Tort Prejudgment Interest Statute abrogates and supplants the common law prejudgment interest rules in cases covered by the statute. Remands for a prejudgment interest determination consistent with this opinion.

Jacqueline Wisner, M.D. and The South Bend Clinic, L.L.P. v. Archie L. Laney
71S03-1201-CT-7
Civil tort. Affirms denial of defendants’ motion for a new trial and the decision to deny the discretionary award of prejudgment interest. The trial court determined that the conduct of counsel did not prevent the jury from rendering a fair and just verdict. The awarding of prejudgment interest is not mandatory and is left to the discretion of the trial court.

Hassan Alsheik v. Alice Guerrero, Individually and as Administratrix of the Estate of I.A., Deceased
45S04-1212-CT-675
Civil tort. Reverses decision to deny Guerrero prejudgment interest based upon a defective settlement letter as the letter did comply with Indiana Code 34-51-4-6. Remands with instructions to determine whether Guerrero should be entitled to prejudgment interest. Affirms the Court of Appeals opinions relating to the second autopsy, the expert witness and the admission of photographs.

Kathy Inman v. State Farm Mutual Automobile Insurance Company
41S01-1108-CT-515
Civil tort. Holds the Tort Prejudgment Interest Statute applies to underinsured motorist coverage disputes because they are properly considered “civil actions arising out of tortious conduct” as required by I.C. 34-51-4-1. Also holds that because prejudgment interest is a collateral litigation expense, it can be awarded in excess of an insured’s UIM policy limits. Affirms finding that Inman is not entitled to prejudgment interest because the trial court acted within its discretion when it denied her request for prejudgment interest.

Today’s opinions
7th Circuit Court of Appeals

Estate of Rudy Escobedo (deceased) (Raquel Hanic, Personal Representative of Estate) v. Officer Brian Martin, et al.
11-2426
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms jury verdict in favor of the defendants on the estate’s excessive force claim against the police and the city of Fort Wayne and grant of judgment as a matter of laws on qualified immunity grounds, as well as summary judgment in favor of officers Martin and Brown on the excessive force claim. Finds among other things, that the District Court did not improperly admit evidence unknown to the officers at the time they used force against Escobedo, that the court committed a harmless error when it prohibited the estate from introducing evidence at trial of Escobedo’s death for purposes of calculating damages, and the court did not err when it granted summary judgment in favor of officers Martin and Brown on the estate’s excessive force claim for shooting Escobedo.

Indiana Court of Appeals
Byram E. Dickes, Ruth E. Logar, Christopher S. Spiritoso, Gregory Spiritoso, Lindsey E. Dickes, Dickes Development Co., LLC, et al. v. Ronald D. Felger, and Shambaugh, Kast, Beck & Williams, LLP
02A03-1206-PL-302
Civil plenary. Affirms summary judgment in favor of Felger and the law firm on the plaintiffs’ legal malpractice claim. The claim is barred by the statute of limitations.

Scott J. Lunsford v. State of Indiana (NFP)
34A02-1206-CR-501
Criminal. Reverses time the trial court calculated as the time remaining on Lunsford’s sentence at the time his probation was revoked and remands with instructions to resentence him to 673 days.

Uriah S. Swelfer v. State of Indiana (NFP)
45A05-1205-CR-260
Criminal. Affirms sentence for two counts of Class C felony battery and one count of Class D felony criminal mischief.

Decarlos Connell v. State of Indiana (NFP)
48A05-1203-CR-141
Criminal. Affirms conviction of Class B misdemeanor visiting a common nuisance.

Kerry Wagner and Wagner Trucking, Inc. v. Rugged Enterprises, LLC (NFP)
26A05-1206-CC-333
Civil collection. Affirms denial of relief from default judgment rendered in favor of Rugged Enterprises in its action against Wagner and Wagner Trucking for repayment of money mistakenly paid to Wagner Trucking by Rugged, which Wagner refused to refund.

Joseph Majors v. State of Indiana (NFP)
49A02-1205-CR-433
Criminal. Affirms convictions of attempted murder and carrying a handgun without a license. Reverses sentencing enhancement and orders it vacated, but affirms 45-year aggregate sentence imposed.

Roseann Kwak v. Kimberly Overmyer and Marshall-Starke Development Center, Inc., West Bend Mutual Ins. Company (NFP)
75A03-1203-CT-104
Civil tort. Affirms order denying Kwak’s motion to correct error from the trial court order granting summary judgment to West Bend Mutual, the garnishee-defendant, in proceedings supplement initiated by Kwak.

Daniel A. Sage v. State of Indiana (NFP)
20A03-1206-PC-266
Post conviction. Affirms denial of post-conviction relief.

Tyler P. Hogue v. State of Indiana (NFP)
29A02-1203-CR-217
Criminal. Affirms sentence after Hogue admitted to violating his probation.

Jaconiah Fields v. State of Indiana (NFP)
89A01-1205-PC-232
Post conviction. Affirms denial of petition for post-conviction relief.

Melissa L. Freyberger v. Duane L. Freyberger (NFP)
71A03-1206-MI-252
Miscellaneous. Dismisses Melissa Freyberger’s appeal of the modification of Duane Freyberger’s parenting time rights, allowing him to take the children on a six-week vacation in Europe. Denies her request for appellate attorney fees.
 

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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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