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Opinions May 30, 2014

May 30, 2014
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Indiana Court of Appeals
In re the Paternity of V.A., (Minor Child), R.A. v. B.Y.
39A04-1310-JP-512
Juvenile. Affirms a special judge’s ruling that the judge who heard evidence remanded to the trial court from an earlier appeal should rule on the remanded issues, as required by Trial Rule 63(A). The panel rejected father R.A.’s objection claiming that his change-of-judge request trumps that rule, finding that the change-of-judge rule only applies prospectively, while Rule 63(A) operates retroactively to ensure that the remanded issues are considered by the judge who heard the evidence.

In Re: The Paternity of V.A., a Minor Child, R.A. Father v. B.Y., Mother
39A01-1307-JP-304
Juvenile. Affirms denial of a petition to modify custody and support, and a motion to correct error. A special judge appointed to hear the case ruled that he lacked jurisdiction, and the panel found that ruling was not an abuse of discretion.

Jose M. Santana v. State of Indiana
20A04-1302-CR-54
Criminal. Affirms conviction of Class C felony operating a motor vehicle while privileges are forfeited for life. Rules although the police officer began following the vehicle because he erroneously ran the wrong license plate number, he did not initiate the stop until he observed Santana fail to signal a turn at least 200 feet before turning.
 
Depuy Orthopaedics Inc. and, Johnson & Johnson v. Travis Brown, et al.
49A02-1304-CT-332
Civil tort. Reverses denial of Depuy’s and Johnson & Johnson’s motion to dismiss and remands to the trial court for dismissal on the grounds of forum non conveniens governed by Indiana Trial Rule 4.4(C). The litigation over defective hip replacement devices may be re-filed in Virginia or Mississippi, where plaintiffs underwent surgical implantation of the devices.

Joseph Fuentes v. State of Indiana
71A04-1310-CR-522
Criminal. Affirms convictions of Class A felony attempted murder, Class C felony possession of a handgun by a felon, Class D felony criminal recklessness and Class D felony resisting law enforcement. Finds the trial court did not abuse its discretion in admitting evidence that Fuentes had an assault rifle in his car when he fled police nor did the lower court commit fundamental error by encouraging the jury to continue deliberating after the jurors asked what they should do since they were split on one of the counts. Finally concludes the evidence was sufficient to establish Fuentes intended to kill a police officer.

In the Matter of the Termination of the Parent-Child Relationship of: O.V., Minor Child, J.V., Mother v. Indiana Department of Child Services (NFP)
71A03-1312-JT-499
Juvenile. Affirms involuntary termination of mother J.V.’s parental rights.

Brooke Tubbs v. State of Indiana (NFP)
48A02-1309-CR-771
Criminal. Affirms 18-month executed sentence and convictions of Class D felony operating a vehicle while intoxicated and Class A misdemeanor driving while suspended.

Charlie S. Hines III v. State of Indiana (NFP)
89A05-1307-CR-362
Criminal. Affirms convictions of two counts of Class B felony dealing cocaine.

Thomas H. Kramer, Member and Manager of Domus Property Investments, LLC v. Mark Kramer, and Domus Property Investments, LLC (NFP)
71A04-1305-PL-261
Civil plenary. Reverses trial court ruling that Mark Kramer violated a non-compete clause with regard to one rental property and finds that he violated those terms with regard to three properties. Remands for total judgment of $333,156 in Thomas Kramer’s favor. Affirms denial of legal fees and prejudgment interest for Thomas Kramer.
 
In Re the Marriage of: Michelle Schlotterback and Terry Schlotterback, Terry Schlotterback v. Michelle Schlotterback (NFP)
57A05-1306-DR-321
Domestic relation. Affirms denial of Terry Schlotterback’s motion to correct error relating to the division of the estate amassed during marriage and his motion to correct error with regard to the uninsured medical expenses of the parties’ children.
 
Dietrich D. Smith, Jr v. State of Indiana (NFP)
45A05-1401-CR-31
Criminal. Dismisses appeal over whether Smith’s pretrial and earned credit time was properly awarded by the Department of Correction because the record is inadequate to make a determination.

Ronald Buttermore v. State of Indiana (NFP)
48A05-1309-CR-472
Criminal. Affirms revocation of probation.

Raven McGinty v. State of Indiana (NFP)
46A05-1310- CR-500
Criminal. Affirms 45-year sentence for multiple felony convictions of child molestation and other sex crimes.
 
Alma Stanbary v. Madison-Jefferson County Library (NFP)
39A01-1312-CT-537
Civil tort. Affirms summary judgment in favor of the library.

Jeremiah Workman v. State of Indiana (NFP)
27A02-1312-CR-1020
Criminal. Affirms revocation of probation.

Indiana Supreme Court and Indiana Tax Court issued no opinions by IL deadline Friday.7th Circuit Court of Appeals issued no Indiana opinions by IL deadline Friday.
 

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  2. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  3. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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