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
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
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
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
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.
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
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)
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)
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)
Criminal. Affirms conviction of Class B misdemeanor visiting a common nuisance.

Kerry Wagner and Wagner Trucking, Inc. v. Rugged Enterprises, LLC (NFP)
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)
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)
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)
Post conviction. Affirms denial of post-conviction relief.

Tyler P. Hogue v. State of Indiana (NFP)
Criminal. Affirms sentence after Hogue admitted to violating his probation.

Jaconiah Fields v. State of Indiana (NFP)
Post conviction. Affirms denial of petition for post-conviction relief.

Melissa L. Freyberger v. Duane L. Freyberger (NFP)
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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues