Opinions

Opinions Dec. 10, 2012

December 10, 2012
Indiana Court of Appeals
David Vance v. Francisco Lozano, et al.
02A03-1203-SC-142
Small claim. Reverses judgment in favor of Rock Solid and Lozano on Vance’s breach of contract claim. Finds the parties entered into an enforceable settlement agreement.
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Opinions Dec. 7, 2012

December 7, 2012
Indiana Court of Appeals
Terry L. Brown v. Tammy S. Brown
77A01-1204-PL-180
Civil plenary. Reverses civil judgment in favor of Terry Brown’s ex-wife. The trial court abused its discretion when it admitted evidence regarding criminal offenses he committed more than 20 years ago. Remands for further proceedings.
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Opinions Dec. 6, 2012

December 6, 2012
Indiana Court of Appeals
Connie Yates, Rick Yates, Jason Tibbs, and Pauline Tibbs v. Levi Wayne Kemp

50A04-1204-CT-192
Civil tort. Reverses grant of partial summary judgment to Kemp on the Yateses’ and Tibbses’ claims for nuisance. Based on the plain language of I.C. 14-22-31.5-6 and its context in the act as a whole, Kemp is not shielded by section 6 from liability related to his neighbors’ nuisance claims arising from noise pollution. There is also a material fact as to whether Kemp has caused his neighbors to experience inconvenience, annoyance or discomfort.
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Opinions Dec. 5, 2012

December 5, 2012
7th Circuit Court of Appeals
United States of America v. Gregory Wolfe
11-3281
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms convictions of bank theft and interstate transportation of stolen goods for Wolfe’s role in a copper theft scheme and his 88-month sentence, followed by concurrent three-year terms of supervised release, and order of more than $3 million in restitution. Wolfe argued that he was deprived of a fair trial because of statements the prosecutor made during closing argument. He also challenged the sentence and restitution order. Wolfe’s contentions lack merit.
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Opinions Dec. 4, 2012

December 4, 2012
Indiana Court of Appeals
Jerry Vanzyll v. State of Indiana
34A02-1111-CR-1050
Criminal. Affirms in part, reverses in part and remands to the trial court convictions of Class B felony dealing in methamphetamine, Class D felonies of possession of meth and possession of chemical reagents or precursors with intent to manufacture a controlled substance, and Class A misdemeanor resisting law enforcement. The court affirmed the drug convictions but ordered the resisting conviction vacated because it held there was insufficient evidence to prove that Vanzyll fled.
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Opinions Dec. 3, 2012

December 3, 2012
Indiana Court of Appeals
State of Indiana v. Terry J. Hough
64A05-1203-MI-113
Criminal. Affirms trial court’s grant of a petition that Hough’s name be removed from the Indiana Sex Offender Registry, holding that requiring him to register for a Pennsylvania rape committed before the establishment of the registry would violate the Indiana Constitution’s prohibition of ex post facto laws.
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Opinions Nov. 30, 2012

November 30, 2012
Indiana Supreme Court
State of Indiana Ex Rel., Indiana Supreme Court Disciplinary Commission v. Derek A. Farmer
94S00-1103-MS-165
Attorney discipline. Rejected petition to enjoin unauthorized practice of law, holding that the Disciplinary Commission failed to prove that Farmer had engaged in the unauthorized practice of law, and failed to convince the court that Farmer could not have reasonably expected to be authorized for temporary admission due to a pending disciplinary proceeding.
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Opinions Nov. 29, 2012

November 29, 2012
Indiana Court of Appeals
Terry and Laura Wagler, Larry and Jennifer Wagler, Norman Wagler, and Janet and Nathan Wagler v. West Boggs Sewer District Inc.
14A01-1109-PL-427
Civil plenary. Affirms denial of the Waglers’ motions for relief from judgment pursuant to Ind. Trial Rule 60(B), and that the court did not err in directing Janet and Nathan Wagler to connect to the sewer system. Denies West Boggs’ request for appellate attorney fees.
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Opinions Nov. 28, 2012

November 28, 2012
Indiana Court of Appeals
Richard Thomas v. Indiana Bureau of Motor Vehicles
64A03-1204-PL-191
Civil plenary. Affirms suspension of Thomas’ driving privileges for 10 years due to qualifying as a habitual traffic violator. The BMV timely notified Thomas that he qualified as a habitual traffic violator and the doctrine of laches is not applicable to the instant matter.
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Opinions Nov. 27, 2012

November 27, 2012
Indiana Court of Appeals
Kirstan Haub, d/b/a American Handyman Service v. Jenny Eldridge
10A01-1203-PL-107
Civil plenary. Reverses denial of Haub’s motion for summary judgment against Eldridge. The trial court erred in considering parol evidence, and the release unambiguously releases Haub from any and all claims that Eldridge may have had against him on or before Oct. 8, 2010. Orders trial court to enter summary judgment in favor of Haub.
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Opinions Nov. 26, 2012

November 26, 2012
Indiana Court of Appeals
Term. of the Parent-Child Rel. of B.W. and C.W. (Minor Children); J.W. (Mother) B.W. (Father) v. Indiana Dept. of Child Services (NFP)
33A04-1206-JT-289
Juvenile. Affirms termination of parental rights.
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Opinions Nov. 21, 2012

November 21, 2012
7th Circuit Court of Appeals
United States of America v. William Hagler
11-2984
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge William C. Lee.
Criminal. Affirms conviction of attempted bank robbery. Hagler argued that the government waited too long to indict him, that the evidence was insufficient to convict him, and that new DNA testing entitles him to a new trial.
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Opinions Nov. 20, 2012

November 20, 2012
7th Circuit Court of Appeals
United States of America v. Lincoln Plowman
11-3781
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Larry J. McKinney.
Criminal. Affirms Plowman’s convictions of federal funds bribery and attempted extortion under color of official right. The District Court did not err when it precluded him from arguing entrapment to the jury.
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Opinions Nov. 19, 2012

November 19, 2012
Indiana Court of Appeals
Dr. Norma Kreilein, Rock Emmert, and Healthy Dubois County, Inc. v. Common Council of the City of Jasper and Jasper Utility Board
19A04-1201-MI-51
Miscellaneous/Open Door Law. Reverses trial court’s denial of plaintiffs’ motion to amend complaint, continue trial and compel discovery, and remands for a new trial. The court held that plaintiffs were diligent in pursing discovery but were thwarted for months by Jasper’s refusal to cooperate.
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Opinions Nov. 16, 2012

November 16, 2012
Indiana Court of Appeals
Marybeth Lebo v. State of Indiana
46A05-1202-CR-104
Criminal. Affirms trial court’s judgment in denying motion to dismiss charges of failure to report child abuse or neglect. Lebo argued the charges were not permissible because they came after the statute of limitations had passed but the COA disagreed, finding the Legislature’s intent was to make the failure to report a continuing offense. Otherwise, the court stated, the duty to report would be limited to the day on which the individual comes to believe abuse is taking place.
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Opinions Nov. 15, 2012

November 15, 2012
Indiana Court of Appeals
Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire and Marine Ins. Co., d/b/a Zurich; Travelers Ideminity Co. of America
02A03-1204-CT-170
Civil tort/insurance. Affirms in part and reverses in part the trial court’s grant of summary judgment in favor of Empire, holding that Indiana law rather than Georgia law should apply in the case, but determining that Empire’s uninsured/underinsured motorist coverage limit is still only $75,000, as the trial court ruled.
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Opinions Nov. 14, 2012

November 14, 2012
Indiana Court of Appeals
John Fox v. Nichter Construction Co., Inc.
03A01-1202-SC-52
Small claims/wages. Affirms in part, reverses in part and remands in part the dismissal of Fox’s wage claim with prejudice and orders the court to enter a dismissal of the claim with prejudice. A divided appeals court held that the trial court erred in dismissing the complaint because it lacked subject matter jurisdiction because Fox had pursued his claim through the Department of Labor under the Wage Claim statute before filing suit. The appeals court ordered the trial court to dismiss the case without prejudice for failure to state a claim upon which relief can be granted, including the failure to name the real party in interest. Fox may refile his claim setting forth the reassignment by the Department of Labor.
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Opinions Nov. 13, 2012

November 13, 2012
Indiana Supreme Court
D.C. v. J.A.C.
32S04-1206-DR-349
Domestic relation/modification of custody. Reverses Court of Appeals ruling that overturned a trial court modification of a custody order in favor of a child’s father. In a case involving a mother who was moving out of state, the Supreme Court held that the Court of Appeals erred by failing to apply a highly deferential standard of review to the trial court’s determination of a custody modification based on testimony regarding the best interests of the child.
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Opinions Nov. 9, 2012

November 9, 2012
Indiana Court of Appeals
Amerisafe Risk Services, Inc., and Leerae Riggs v. The Estate of Hazel D. Wadsack, deceased, by Ronald J. Wadsack as Personal Rep., and Ronald J. Wadsack, individually
88A01-1204-CT-144
Civil tort. Reverses trial court denial of plaintiff’s request for dismissal, holding that the court lacked jurisdiction in the case. The estate of an injured worker’s mother sued the worker’s compensation insurer, claiming that the mother died as a result of emotional distress over the insurer’s handling of her son’s claim. The appeals court held that the Wadsacks had not exhausted appeals through the Worker’s Compensation Board, which the court determined had proper jurisdiction because the Wadsacks’ claim was derivative of their son’s claims for benefits.
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Opinions Nov. 8, 2012

November 8, 2012
Indiana Court of Appeals
Jerome Michael Burton v. State of Indiana
45A03-1201-CR-6
Criminal. Reverses denial of motion to dismiss the charge of failure to register as a sex offender. Remands with instructions. Wallace applies and the ex post facto provision of the Indiana Constitution prevents the application of Indiana’s Sex Offender Registry Act to require Burton, a resident of Indiana, to register as a sex offender for an offense committed in Illinois in 1987.
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Opinions Nov. 7, 2012

November 7, 2012
Indiana Supreme Court
Michael Kucholick v. State of Indiana
12S02-1211-CR-630
Criminal. Justices grant transfer and order Kucholick’s sentence for Class C felony criminal recklessness and Class B misdemeanor criminal mischief revised to the advisory term of four years, all executed. Summarily affirms Court of Appeals decision in all respects. Chief Justice Dickson dissents, believing the trial court’s sentence of seven years should be affirmed.
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Opinions Nov. 6, 2012

November 6, 2012
Indiana Supreme Court
State of Indiana v. Elvis Holtsclaw

49S02-1205-CR-264
Criminal. Reverses dismissal of state’s notice of appeal and remands to the Court of Appeals for consideration of its merits, holding that the appeal is timely under Appellate Rule 9.
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Opinions Nov. 5, 2012

November 5, 2012
Indiana Court of Appeals
Steven E. Miles, a/k/a Robert Dutcher v. State of Indiana (NFP)
49A02-1204-PC-310
Post conviction. Affirms denial of petition for post-conviction relief.
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Opinions Nov. 2, 2012

November 2, 2012
Indiana Court of Appeals
Joshua A. Bostic v. State of Indiana
12A02-1202-CR-154
Criminal. Affirms convictions of Cass C felony attempted battery by means of a deadly weapon and criminal recklessness; Class D felony arson; Class A misdemeanor criminal mischief; and Class B misdemeanor criminal mischief, holding that Bostic waived his right to appeal under Criminal Rule 4(C) by failing to object to trial delays before the trial court. The court also found he likewise waived his right to appeal the process for appointing a special judge. Remands to the trial court to correct the sentencing order, abstract of judgment, and chronological case summary to reflect that Bostic’s 12-year habitual offender enhancement is an enhancement to his sentence for felony criminal recklessness, and not a separate conviction.
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Opinions Nov. 1, 2012

November 1, 2012
Indiana Court of Appeals
Leslie Bridges v. Veolia Water Indianapolis, LLC, Veolia Water North America Operating Service, LLC, and The City of Indianapolis, Dept. of Waterworks
49A02-1112-CC-1097
Civil collection. Affirms trial court dismissal of Bridges’ class action filed after her water was turned off for nonpayment, finding Bridges failed to exhaust the administrative remedies available at the Indiana Utilities Regulatory Commission. She had to seek those remedies before seeking judicial relief. Concludes that I.C. 8-1-2-68 through -70 grant the IURC exclusive jurisdiction over Bridges’ claim regardless of whether it is treated as a challenge to and request for reimbursement of the reconnect fee or as a challenge to the allegedly improper act of terminating her residential water service in a manner inconsistent with the terms of the tariff.
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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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