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Justices take 4 cases

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The Indiana Supreme Court granted transfer to four cases last week, including three that involved divided lower court rulings.

In Ann L. Miller and Richard A. Miller v. Glenn L. Dobbs, D.O., and Partners In Health, 15S05-1302-CT-91, the majority on the Indiana Court of Appeals reversed summary judgment for Dr. Glenn Dobbs and Partners in Health on the issue of whether Ann and Richard Miller’s proposed medical malpractice complaint was timely filed with the Department of Insurance.

Judge Nancy Vaidik dissented, claiming that Judge James Kirsch created a new test to determine whether a complaint is timely filed and shifted the burden of ensuring fees are paid to the DOI instead of the attorney. In this case, the attorney did not include the $7 filing fee when mailing the complaint, but sent the fee on the date the statute of limitations expired.

Jeremiah Cline v. State of Indiana, 06S05-1302-MI-92, has a dissent from Chief Judge Margret Robb, in which she believed that the trial court has authority to “expunge” Jeremiah Cline’s existing information from the state Sex Offender Registry. The majority agreed with Cline that he has no obligation to register but that he must go through the Department of Correction to remove his name.

In Heather N. Kesling v. Hubler Nissan, Inc., 49S02-1302-CT-89, the Court of Appeals was divided as to whether Hubler Nissan was entitled to summary judgment on Heather Kesling’s lawsuit that made Indiana Deceptive Consumer Sales Act, Crime Victims Relief Act, and fraud claims. A little more than a year after she bought the car, she sued and an inspector found the car was unsafe to drive.

The majority found an issue of material fact as to whether Hubler made a representation in its advertisement that the car Kesling bought had performance, uses or benefits that it didn’t have and that the dealer should have known that the car didn’t have those characteristics. Judge Ezra Friedlander dissented, believing the ad did not run afoul of the Deceptive Consumer Sales Act.

The Supreme Court also took Wells Fargo Bank, N.A., successor in interest to The Money Store Investment Corp., f/d/b/a First Union Small Business Capital v. Neal A. Summers, et al., 02S04-1302-CP-90. The Court of Appeals initially dismissed the appeal, finding Wells Fargo failed to timely file its notice of appeal. It later affirmed most of the $627,000 judgment in favor of restaurant operator Neal Summers, who was sued by former mortgagors. The COA did order recalculation of a judgment based on Summer’s restaurant’s earnings.

The justices declined to take 12 cases on transfer.

 

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  1. 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...

  2. 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

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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