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Opinions April 29, 2011

April 29, 2011
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Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Steven A. Coppolillo v. Anthony Cort
45A05-1007-PL-433
Civil plenary. Reverses summary judgment in favor of Cort on Coppolillo’s suit for unjust enrichment.  The parties’ contract does not preclude Coppolillo’s claim in equity against Cort. There is a material dispute of fact as to whether Cort was unjustly enriched. Remands for further proceedings.

Kevin A. Griffin and Maureen O. Griffin, et al. v. George E. Simpson, Team Indiana Volleyball, Inc., et al.
18A02-1009-CT-1064
Civil tort. Affirms grant of coach Becky Murray and Team Indiana Volleyball’s motion for summary judgment that as a matter of law they owed no duty to a minor player when she was injured on private property during the time that the team was on break between tournament sessions.

Joni Gabriel, personal representative of the estate of Eugene A. Gabriel Jr. v. Loretta Gabriel, personal representative of the estate of Eugene A. Gabriel Sr.
34A04-1007-ES-438
Estate, supervised. Affirms trial court properly determined that Loretta’s action was not barred and the evidence supported the findings that Eugene Sr. had not transferred stock to Eugene Jr. Reverses determination regarding the ownership of the stock and the percentage of the estate that is to be distributed to Loretta and the remaining heirs. Remands with instructions to hear further evidence if necessary and to make additional findings as to the distribution of the estate.

Edwin Blinn, Jr. v. The Law Firm of Johnson, Beaman, Bratch, Beal and White, LLP
27A05-1011-CT-721
Civil tort. Affirms dismissal of Blinn’s complaint against the law firm, alleging the firm was vicariously liable for Beal’s malpractice.  The trial court properly dismissed Blinn’s complaint because it was time-barred and was not saved by the Journey’s Account Statute.

Thomas J. Tarrance v. State of Indiana
60A01-1010-CR-570
Criminal. Dismisses Tarrance’s appeal of his sentence following a guilty plea to Class B felony robbery while armed with a deadly weapon. Tarrance didn’t timely file his notice of appeal, so it’s dismissed for lack of subject matter jurisdiction.

Aaron R. Nichols v. State of Indiana
29A04-1008-CR-589
Criminal. Affirms denial of motion to correct error challenging the denial of Nichols’ motion to order the Indiana Department of Correction to amend the Sex Offender Registry to reflect that he was required to register as a sex offender for a 10-year period instead of for life. Rejects Nichols’ interpretation of “unrelated” to require a “conviction-and-re-offense” sequence. The reporting period is determined by law, not by the trial court or the DOC.

Rodney Nicholson v. State of Indiana
55A01-1005-CR-251
Criminal. Reverses conviction of Class C felony stalking. The evidence is insufficient to support the stalking conviction. Judge Bradford dissents.

City of Mitchell, Indiana, et al. v. Steven Blair (NFP)
47A04-1011-PL-754
Civil plenary. Affirms trial court order reversing the Indiana Board of Works and Public Safety’s decision to terminate Blair’s employment with the Mitchell Police Department, and reinstating him with back pay.

John Pagorek v. Adrienne Garippo and Jimmy Warren (NFP)
45A03-1005-SC-243
Small claim. Affirms denial of Pagorek’s motion to correct error.

Brent Sims v. State of Indiana (NFP)
82A01-1007-CR-328
Criminal. Affirms convictions of felony murder and Class D felony neglect of a dependent.

Timothy Rene Warren v. State of Indiana (NFP)
02A03-1009-CR-461
Criminal. Affirms sentence following guilty plea to theft.

Construction Labor Contractors, Inc. v. Masiongale Electrical-Mechanical, Inc. (NFP)
18A02-1008-CC-881
Civil collections. Reverses denial of Construction Labor Contractors Inc.’s denial of its motion to correct error seeking additur following a judgment in its favor against Masiongale Electrical-Mechanical. Remands with instructions.

Amy Whitaker v. State of Indiana (NFP)
48A04-1010-PC-698
Post conviction. Affirms denial of petition for post-conviction relief.

Paternity of E.W.; L.W. v. C.M. (NFP)
65A01-1010-JP-588
Juvenile. Affirms order denying father’s petition to modify the physical custody of his daughter and the issuance of a modified parenting-time order.

R.W. v. Review Board (NFP)
93A02-1007-EX-802
Civil. Affirms finding that R.W. was discharged by his employer for just cause.

Simon Shulkin v. State of Indiana (NFP)
30A01-1012-CR-607
Criminal. Vacates conviction of Class C misdemeanor failure to stop after damage to a vehicle. Remands for a new trial.

Robert Arnold v. State of Indiana (NFP)
49A05-1010-CR-651
Criminal. Affirms conviction of Class C felony child molesting.

Timothy A. Strait v. State of Indiana (NFP)
71A03-1009-CR-536
Criminal. Affirms convictions of and sentence for Class C felony child molesting, Class D felony domestic battery, and Class D felony criminal confinement, which was entered as a Class A misdemeanor.

Avonte Yarbrough v. State of Indiana (NFP)
49A02-1010-CR-1088
Criminal. Affirms conviction of Class B felony battery.

Indiana Tax Court had posted no opinions at IL deadline.

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  2. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

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  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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