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Opinions Nov. 27, 2013

November 27, 2013
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Indiana Supreme Court
Released Nov. 26 after IL deadline:

F.D., G.D., and T.D. b/n/f J.D. and M.D.; and J.D. and M.D., individually v. Indiana Dept. of Child Services, Evansville Police Dept., and Vanderburgh County Prosecutor's Office
82S01-1301-CT-19
Civil tort. Affirms in part and reverses in part grant of summary judgment in favor of Department of Child Services, Evansville Police Department, and Vanderburgh County Prosecutor’s office. In a 3-2 opinion, affirms grant of summary judgment for the police and prosecutor’s office, but reverses grant of summary judgment on the basis of statutory immunity in favor of DCS, holding that DCS did not have immunity under the Tort Claims Act or the child abuse reporting statute for failing to notify the parents of a child whose molestation had resulted in another child’s adjudication as a delinquent. Chief Justice Brent Dickson wrote the majority opinion joined by justices Steven David and Robert Rucker. Justice Loretta Rush wrote a dissent joined by Mark Massa that would have affirmed summary judgment on the immunity basis.

Nov. 27, 2013
Indiana Court of Appeals
Diane S. Brown Bell, on behalf of herself and all others similarly situated v. The Bryant Company, Inc.
49A04-1305-PL-210
Civil plenary. Reverses dismissal of a suit seeking class action against a property management company that kept late fees paid by renters and asserted a right to do so. The court found the plaintiff likely entitled to recovery of the fees, and that at minimum the trial court erred in granting Bryant’s motion for judgment on the pleadings. Remands for proceedings, including whether class certification is appropriate.

Glenn Hatmaker v. Betty Hatmaker
49A05-1305-DR-253
Domestic relation. Reverses and remands denial of motions for unsupervised parenting time and modification of support. The trial court abused its discretion in denying the petitions, finding that an order allowing modification of visitation by agreement of the parties is contrary to law, and that the court disregarded evidence that the mother’s income had increased while the father’s income declined. Because the father could not afford the costs associated with supervised parenting time, the court ruled mother may be able to contribute to costs of supervision.

Debra A. Roop v. Dean A. Buchanan
88A01-1304-DR-171
Domestic relation. Affirms trial court’s order that Roop pay the accrued child support obligation to oldest emancipated child to cover Buchanan’s funeral expenses. Reverses the order awarding the remainder of the child support arrearage to the adult children.

Anonymous Physician v. Diana Wininger, Stephen Robertson, Commissioner, Indiana Department of Insurance, and Douglass J. Hill, Panel Chair
59A04-1303-MI-103
Miscellaneous. Reverses denial of physician’s summary judgment motion. Rules Wininger’s complaint for medical malpractice was not timely filed. Although Wininger argues she did not know something may have gone wrong with her foot surgery until she got a second opinion in April 2009, the COA found she knew she should see another doctor in October 2007.  
 
Joseph Everroad v. State of Indiana
55A01-1303-CR-107
Criminal. Affirms conviction of robbery, rejecting an appeal that claimed a ruling limiting the cross-examination of an expert witness’s testimony regarding the location of a cell phone call violated the Sixth Amendment right to confront witnesses.

Peter A. Roberts v. State of Indiana
10A05-1301-CR-35
Criminal. Reverses trial court’s assignment of 305 days actual time served and remands for sentencing. Affirms not awarding Roberts good-time credit for the time he spent on pre-trial home detention.

Indiana Patient's Compensation Fund v. Judy Holcomb, Personal Representative of the Estate of Mable Louis Cochran, Deceased
49A05-1207-CC-340
Civil collection. Reverses and remands for further proceedings. The trial court’s award of attorney fees in an adult wrongful death case involving the Medical Malpractice Act does not accurately reflect either the proper amount of attorney fees or proper allocation of money awarded from the Indiana Patient Compensation Fund. Under the facts the parties have placed before the court, including an agreement regarding the fund’s liability that purported to include no attorney fees as damages, it is impossible to reach a result that is fair to the estate and to its counsel, yet consistent with the statutory 15 percent limitation. Chief Judge Margret Robb dissents.

Jason Deaton v. State of Indiana

79A02-1303-CR-282
Criminal. Affirms conviction of two counts of Class A felony child molesting, rejecting claims of prosecutorial misconduct and sufficiency of the evidence. A prosecutor’s comments during jury selection about evidence needed to convict compared to that presented in TV’s “CSI” dramas wasn’t fundamental error, nor was a statement that a victim’s testimony alone is sufficient for a conviction. The court also ruled the state presented evidence sufficient to support the conviction.

Sterling Commercial Credit - Michigan, LLC v. Hammert's Iron Works, Inc.
49A02-1306-PL-513
Civil plenary. Reverses summary judgment on Sterling’s complaint and Hammert’s counterclaim. Reverses and remands with instructions for trial court to enter summary judgment in favor of Sterling on its complaint as well as Hammert’s counterclaim. Rules promissory estoppel applies and Hammert’s is estopped to deny payment and place payment restrictions on invoices.

Mike Ellis, Debra Ellis, VJJ&A Transport, Inc., Bob Hopkins, Kathleen Hopkins, John Gomes, John Dunn, et al. v. David M. Duree and David M. Durree & Associates, P.C., and John R. Price et al. (NFP)
29A02-1212-PL-978
Civil plenary. Reversed grant of summary judgment in favor of the Duree lawyers on Kapza’s breach of contract claim and remands for further proceedings. Affirms all remaining summary judgment rulings in favor of Duree lawyers. Also affirms summary judgment in favor of the Price lawyers.

Clarence W. Seeley, III v. State of Indiana (NFP)
21A01-1303-CR-139
Criminal. Affirms conviction of public intoxication, a Class B misdemeanor.

Johnathan Robinson v. State of Indiana (NFP)
32A05-1304-CR-178
Criminal. Affirms conviction of inhaling toxic vapors as a Class B misdemeanor.
 
Dontay Martin v. State of Indiana (NFP)
02A05-1303-CR-113
Criminal. Affirms convictions of attempted murder and sentence of 40 years for each of the convictions.
 
Richard R. Hogshire v. Ursula Hoover (NFP)
06A01-1212-DR-557
Domestic relation. Reverses trial court’s order that Hogshire pay Hoover’s attorneys $15,000 in preliminary fees and costs. Remands for an evidentiary hearing. Judge Bailey concurs in a separate opinion but questions whether the court should address the issue of attorney fees when neither party has filed a motion claiming entitlement.
 
Terrence J. Douglass v. State of Indiana (NFP)
18A02-1302-CR-189
Criminal. Affirms convictions of two counts Class B felony dealing in cocaine.
 
Kasi Ballew v. State of Indiana (NFP)
22A01-1303-CR-141
Criminal. Affirms revocation of Ballew’s probation.
 
Tracy K. Fry and Keith A. Fry v. PHH Mortgage Corp. (NFP)
20A04-1212-MF-628
Mortgage foreclosure. Affirms grant of summary judgment in favor of PHH Mortgage Corp.

Laraysha Webb v. State of Indiana (NFP)
49A02-1304-CR-341
Criminal. Affirms conviction of Class C misdemeanor operating a vehicle without a license.
 
Pizza King of Elwood v. The Peniel Group, Dollar General Stores, and Elwood Holdings, LLC (NFP)
48A02-1302-PL-148
Civil plenary. Reverses the trial court finding that the defendants have a valid easement on Pizza King’s property.
 
Kenneth D. Hunter v. E*Trade Bank (NFP)
41A01-1208-MF-352
Mortgage foreclosure. Affirms trial court’s grant of summary judgment in favor of E*Trade Bank.
 
Mark A. Valdes and James H. Valdes v. Vincennes Building and Safety Commission and the City of Vincennes (NFP)
42A01-1302-PL-88
Civil plenary. Affirms trial court’s judgment affirming an order by the City of Vincennes Building and Safety Commission to demolish a hotel owned by Valdes.

The Indiana Supreme Court and Tax Court did not submit any opinions by IL deadline. The 7th Circuit Court of Appeals did not post any Indiana opinions by IL deadline.

 

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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