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High court grants 6 transfers

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The Indiana Supreme Court took six cases last week, including two cases of first impression before the Indiana Court of Appeals involving attorney’s fees under the Adult Wrongful Death Statute and the modification of a felony conviction to a misdemeanor.  

In Jeffery H. McCabe, As Representative of the Estate of Jean Francis McCabe, Decedent v. Commissioner, Indiana Department of Insurance as Administrator of the Indiana Patient’s Compensation Fund, No. 49S02-1010-CV-602, Jeffrey McCabe appealed the grant of partial summary judgment in favor of the commissioner, and Indiana Department of Insurance as administrator of the Indiana Patient’s Compensation Fund. The trial court had ruled attorney’s fees and expenses incurred by the attorney representing the personal representative of a wrongful death estate are not recoverable damages under the state Adult Wrongful Death Statute.

McCabe cited Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846 (Ind. Ct. App. 2009), to support his argument, but the appellate court noted Hillebrand is distinguishable from the instant case because it was a probate case deciding from which probate assets attorney’s fees incurred should be paid, and it precedes both the Child Wrongful Death Statute and the AWDS. The judges also relied on Butler v. Indiana Department of Insurance, 904 N.E.2d, 198, 202 (Ind. 2009), in which the Supreme Court held that the “include but not limited to” language doesn’t expand the class of necessitated expenses.

Judge Patricia Riley dissented, believing Hillebrand, Butler, and Estate of Kuba, (508 N.E.2d 1, 2 (Ind. 1987), permitted reasonable attorney’s fees to be considered recoverable damages under the AWDS. A separate panel of judges ruled in September in Indiana Patient's Compensation Fund v. Beverly S. Brown, et al., No. 49A02-1001-CT-80, that attorney’s fees and other costs can be awarded under the AWDS. That panel used Judge Riley’s dissent to support its decision.

In State of Indiana v. Jeffrey Brunner, No. 57S04-1010-CR-603, the Court of Appeals reversed and remanded with instructions the trial court’s modification of Jeffrey Brunner’s criminal sentence from a Class D felony to a Class A misdemeanor nine years after he pleaded guilty to operating a vehicle while intoxicated.

The judges examined Indiana Code Section 35-50-2-7(b), which the trial court used to modify his sentence, and found that the decision on whether to enter judgment on a Class D felony or Class A misdemeanor must be made at the moment of the original entry of the judgment of conviction. Judge Edward Najam said the trial court’s reliance on that statute to grant the requested relief was contrary to the plain meaning of the statute and an abuse of discretion.

In Susanne C. Gaudin, et al. v. J.W. Austin, president, et al., No. 07S04-1010-CV-600, Susanne Gaudin and other plaintiffs sought declaratory and injunctive relief upon learning the Brown County Commissioners enacted an ordinance in January 2009 purporting to dissolve a fire district. That district was created by a September 2007 ordinance. The plaintiffs alleged the dissolution ordinance was void because no petition to dissolve the district or repeal the ordinance establishing it had been filed.

The trial court granted summary judgment for the commissioners, ruling there's no reason to conclude that a governing body with the authority to establish the fire protection district doesn't have similar authority to dissolve it, but the Court of Appeals held county commissioners had no authority to enact the ordinance to attempt to dissolve the fire district.

Chief Justice Randall T. Shepard recused himself from hearing this case based on his involvement in leading the Indiana Commission on Local Government Reform, which provided recommendations for a leaner local government structure in the Kernan-Shepard report.

In Steven and Lauren Siwinski v. Town of Ogden Dunes, No. 64S03-1010-CV-599, the Court of Appeals reversed summary judgment for Ogden Dunes in its complaint against the Siwinskis alleging they violated an ordinance by renting out their house for periods of fewer than 30 days, which constituted a commercial use. The judges held nothing in the designated evidence established that any commerce or other activities not associated with a residence were ever conducted on the Siwinskis' property, nor did the evidence show that, at any time, the property was occupied by more than a single family simultaneously. They remanded for summary judgment to be entered in favor of the Siwinskis.

The Supreme Court granted transfer to two cases involving the same incident. In Damion Wilkins v. State of Indiana, No. 02S03-1010-CR-604, and Cornelius Tyrone Lacey Sr. v. State of Indiana, No. 02S05-1010-CR-601, the Court of Appeals reversed the denial of Damion Wilkins’ and Cornelius Lacey’s motions to suppress evidence obtained during the execution of a search warrant. During a trash pull at a suspected cocaine and marijuana dealer’s home, Lacey, police found mail addressed to Wilkins. He was at Lacey’s home when police decided to serve a search warrant in a “no-knock” fashion for officer safety and rammed the door down.

The appellate judges found there was probable cause for the issuance of the search warrant but the unilateral decision to dispense with the knock-and-announce rule was unreasonable under the Indiana Constitution. The police, if they were worried about their safety, had time to apply for a “no-knock” warrant, but did not. The appellate court took issue with the emergency response team’s policy that authorizes a unilateral decision to enter a home without knocking when there hasn’t been an independent determination regarding the circumstances. Judge Michael Barnes concurred in result in both decisions.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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