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Opinions June 4, 2014

June 4, 2014
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The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
Bruce Ryan v. State of Indiana
49S02-1311-CR-734
Criminal. Affirms two convictions of Class C felony sexual misconduct with a minor, finding no fundamental error by prosecutor’s statements during closing argument. The prosecutor improperly urged the jury to convict Ryan for reasons other than his guilt, but his failure to contemporaneously object and enable the trial court to take corrective action results in procedural default on his appellate claim.

Wednesday’s opinions
Lori Nicklas v. Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber; and Von Tobel Lumber Company, Inc.
64A03-1310-CC-429
Civil collection. Affirms summary judgment in favor of Von Tobel Corp. and the denial of Nicklas’ motion for summary judgment on the company’s action to recover money owed on a promissory note executed by Nicklas and her husband. An agreed judgment against one obligor does not merge and extinguish the obligation of another person jointly and severally liable on the same contract, so Van Tobel was free to seek a judgment against Lori Nicklas after an agreed judgment with Shawn Nicklas had been entered.

In the Matter of the Supervised Estate of Mildred Borgwald, Deceased v. Old National Bank and Raelynn Pound
84A01-1302-ES-80
Estate, supervised. Affirms decision in favor of Old National Bank and Pound, entitling the bank to foreclose on the mortgage and equity line of credit against the estate. The trial court properly excluded the testimony of the estate’s proffered expert witness, Dr. Robert Lalouche pursuant to Evid. R. 702; the estate was not denied the opportunity to make an offer of proof regarding Lalouche’s anticipated testimony; the trial court did not abuse its discretion by admitting redacted, certified copies of medical records; and ONB’s mortgage was not invalidated.

Michael W. Palmby v. Karen M. Palmby
32A04-1310-DR-506
Domestic relation. Affirms denial of Michael Palmby’s verified petition for revocation of spousal maintenance. The trial court did not abuse its discretion when it denied his request and instead modified the payment terms of the accumulated rehabilitative maintenance.

Indiana Insurance Company v. Patricia Kopetsky, and KB Home Indiana Inc.
49A02-1304-PL-340
Civil plenary. KB Home has successfully alleged “property damage” caused by an “occurrence” pursuant to the policies and that the policies’ “expected and intended” and “contractual liability” exclusions do not work to bar coverage in this case. However, the designated evidence generates a question of fact as to whether the known loss doctrine works to bar coverage in this case, and so remands for trial on that question only. Reverses the trial court’s determination that Indiana Insurance is obligated to indemnify Kopetsky as a question not yet ripe for adjudication and affirms that the trial court did not err in granting summary judgment in favor of Indiana Insurance on her bad faith counterclaim.

Marilee Garrison v. State of Indiana (NFP)
82A04-1312-CR-599
Criminal. Affirms conviction and sentence for Class C felony conspiracy to commit theft.

Shemika L. Boyd v. Review Board of the Indiana Department of Workforce Development and Amazon Com INDC, LLC (NFP)
93A02-1310-EX-886
Agency action. Affirms decision that Boyd is ineligible for unemployment benefits.

Corday C. Dixon v. State of Indiana (NFP)
20A03-1311-CR-448
Criminal. Affirms convictions and sentence for two counts of Class C felony child molesting and one count of Class A felony child molesting.

Dennis Daniels v. State of Indiana (NFP)
20A05-1310-CR-517
Criminal. Affirms conviction of Class A misdemeanor criminal recklessness.

Nathan Ferguson and Deanna Ferguson v. Shiel Sexton Company, Inc. d/b/a Shiel Sexton, And WR Dunkin & Son, Incorporated; Lynch, Harrison & Brumleve, Inc.; et al (NFP)
29A02-1310-CT-839
Civil tort. Affirms summary judgment in favor of Shiel Sexton on the Fergusons’ negligence claim.

Aubrey Thompson v. State of Indiana (NFP)
49A02-1307-CR-606
Criminal. Reverses conviction of Class B misdemeanor public intoxication.

Jason Severs v. State of Indiana (NFP)
84A05-1310-CR-527
Criminal. Affirms sentence for securities fraud as a Class B felony, unlawful acts related to offer of sale of a security as a Class C felony and violating broker-dealer registration requirements as a Class C felony.

Jacob Lutz v. State of Indiana (NFP)
15A01-1310-CR-451
Criminal. Affirms determination that Lutz is a sexually violent predator.

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

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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