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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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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