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Opinions May 29, 2014

May 29, 2014
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The following opinions were posted after IL deadline Wednesday:
Indiana Supreme Court

Stacy Smith and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith, Deceased v. Delta Tau Delta, Inc. and Beta Psi Chapter of Delta Tau Delta, et al.
54S01-1405-CT-356
Civil tort. Affirms summary judgment in favor of national fraternity Delta Tau Delta on the Smiths’ wrongful death complaint. There is no designated evidentiary material that shows that the national fraternity had a right to exercise direct day-to-day oversight and control of the behavior of the activities of the local fraternity and its members. Concludes as a matter of law that an agency relationship does not exist between the national fraternity and the local fraternity or its members.

Larry Robert David, II, as Special Administrator of the Estate of Lisa Marie David, Deceased v. William Kleckner, M.D.
49S02-1405-MI-355
Miscellaneous. Reverses summary judgment in favor of Kleckner on David’s wrongful death medical malpractice complaint. Kleckner is not entitled to summary judgment on his defense asserting the medical malpractice statute of limitations.

Indiana Tax Court
David A. McKeeman, Sr., and Karen A. McKeeman v. Steuben County Assessor
02T10-1104-TA-31
Tax. Affirms Indiana Board of Tax Review’s decision upholding the McKeemans’ 2006 real property assessment. The board did not err in rejecting their claim regarding establishment of their neighborhood, the McKeemans have not shown that the board erred in upholding the $5,900 base rate applied to their land, and they have not shown that the board erred in concluding that their sales comparison analysis lacked probative value.

Thursday’s opinions
Indiana Supreme Court

Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire & Marine Insurance Co. d/b/a Zurich Northland Insurance Co., Travelers Indemnity Co. of America
02S03-1305-CT-332
Civil tort. Reverses summary judgment order capping Empire Fire and Marine Insurance Co.’s liability for uninsured motorist coverage at $75,000. Indiana law applies because the truck at issue was registered and garaged in Indiana. But issues of material fact remain regarding the applicable level of coverage. Remands for further proceedings.

Indiana Court of Appeals
Floyd William Treece v. State of Indiana
79A05-1309-CR-458
Criminal. Affirms revocation of community corrections placement. The Tippecanoe County Community Corrections had the authority to reject Treece from his placement in community corrections for a violation he committed while in the community transition program. He committed an act of violence, so the trial court did not abuse its discretion in revoking his community corrections placement. Remands for clarification of sentencing order.

Guardianship of Phyllis D. Hayes, an Adult, Joann Hayes and Dianna Hale v. Kenneth J. Hayes
52A02-1308-GU-751
Guardianship. Affirms denial of Hayes’ and Hale’s motion for summary judgment and the trial court order concluding that the execution of an option contract by their mother, Phyllis Hayes, to their brother was enforceable. The trial court’s conclusion that their mother was not acting under undue influence when she executed the option contract was not clearly erroneous.

Indianapolis Metropolitan Police Department v. Donald A. Prout
49A04-1305-CR-236
Criminal. Affirms grant of Prout’s petition to expunge his arrest record. The trial court did not abuse its discretion in concluding that no offense was committed and that no probable cause existed to support either the filing or the prosecution of the charges. Prout, a sheriff’s deputy, was charged with four counts of Class D felony theft for allegedly working as a security guard while being paid by the Marion County Sheriff’s Office.

Mauricio Reyes-Flores v. State of Indiana (NFP)
49A05-1310-CR-502
Criminal. Affirms convictions of Class C felony criminal recklessness and Class A misdemeanor domestic battery.

Lance Stover v. State of Indiana (NFP)
49A05-1310-CR-507
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle while intoxicated.

Holly and Christopher Dunn, Holly and Benjamin Rothenbush, and Tomi and Michael Meyer v. Kathryn Davis and For the Children Medical Mission Foundation, Inc. (NFP)
02A03-1307-PL-269
Civil plenary. Affirms summary judgment to For the Children Medical Mission Foundation on breach of contract and fraud claims.

Anthony Flores v. Blake A. Hudson (NFP)
02A03-1307-PO-279
Protective order. Affirms dismissal of petition for the protective order sought against Hudson.

Ray A. Chamorro v. State of Indiana (NFP)
91A05-1309-CR-445
Criminal. Affirms murder conviction.

Danny Shane Claspell v. State of Indiana (NFP)
18A02-1310-CR-880
Criminal. Affirms conviction of Class C felony child molesting but reverses sentence and remands for it to be reduced to the advisory sentence of four years.

Dejuan D. Cox v. State of Indiana (NFP)
32A01-1310-CR-437
Criminal. Affirms conviction of Class B felony dealing in cocaine; reverses the sentencing order in part and remands for further proceedings.

Robert L. McFall v. State of Indiana (NFP)
62A05-1309-CR-446
Criminal. Affirms conviction of Class A felony dealing methamphetamine within 1,000 feet of a school. Remands for further sentencing proceedings on the charge of possession of paraphernalia.

Akeem Turner v. State of Indiana (NFP)
49A02-1310-CR-900
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft.

Steven Sullivan v. State of Indiana (NFP)
49A02-1309-CR-750
Criminal. Affirms denial of petition to issue order terminating parole.

Gabriel Senteney v. State of Indiana (NFP)
49A02-1309-CR-818
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Latroya Rucker v. State of Indiana (NFP)
49A02-1311-CR-918
Criminal. Affirms order that Rucker pay $240 in restitution to the owner of the vehicle whose windshield she smashed.

Betty Woods v. State of Indiana (NFP)
49A02-1309-CR-805
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct but reverses conviction of Class A misdemeanor resisting law enforcement.

Dennis Knight v. State of Indiana (NFP)
71A03-1401-CR-40
Criminal. Affirms conviction of Class B felony robbery.

R.C. v. J.Q. (NFP)
49A04-1308-DR-425
Domestic relation. Affirms the trial court’s denial of father’s motion to continue the final hearing and concludes that father waived his claim of error under Evidence Rule 612. The trial court’s child support order is supported by the evidence. Remands with instructions to issue an order containing findings sufficient to support its decision to restrict father’s parenting time or enter a new order without the restriction.

In re the Paternity of T.T.: D.T. v. S.B. (NFP)
Juvenile. Affirms denial of petition to modify court-ordered child support for T.T.
85A02-1311-JP-1006

Mardel Hill v. State of Indiana (NFP)
02A03-1309-CR-378
Criminal. Affirms convictions and sentence for Class B felony burglary, Class B felony attempted arson, Class D felony criminal mischief and Class D felony intimidation.

The Indiana Tax Court posted no opinions by IL deadline Thursday. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.
 

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  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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