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Opinions April 30, 2013

April 30, 2013
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The following Indiana Tax Court opinion was posted after IL deadline Monday:
Kooshtard Property VIII, LLC v. Shelby County Assessor
49T10-1011-TA-58
Tax. The Indiana Board of Tax Review correctly found that Kooshtard failed to establish a prima facie case that its land was overassessed. Kooshtard offered nothing more than conclusory statements and previously rejected arguments in challenging the propriety of its land assessments.

Tuesday’s opinions

Indiana Court of Appeals
Countrywide Home Loans, Inc. v. Robert Holland

45A04-1202-PL-53
Civil plenary. Reverses summary judgment on Holland’s quiet title action and remands with instructions to enter summary judgment in Countrywide’s favor. Affirms dismissal of Holland’s common-law lien claim and remands with instructions to vacate the award of nominal damages. Holland is not entitled to summary judgment on the merits of his quiet title claim.

Vincennes University by the Board of Trustees of Vincennes v. Daniel E. Sparks
42A01-1206-PL-248
Civil plenary. Reverses jury verdict in Sparks’ favor on his lawsuit filed after the university did not renew his contract. There is no genuine issue of material fact, the designated evidence indicates that Sparks was not guaranteed employment with the university, and summary judgment should have been granted for the school.

Glenn Parker, As Trustee Under the Revocable Declaration of Trust Agreement of Glenn Parker, Individually and Phyllis C. Parker, Individually v. Obert's Legacy Dairy, LLC
26A05-1209-PL-450
Civil plenary. Affirms summary judgment in favor of the dairy on the Parkers’ nuisance claim. The Indiana Right to Farm Act bars their nuisance claim.

Ruben Pazmino v. Bose McKinney & Evans, LLP

49A02-1206-CC-499
Civil collections. Reverses summary judgment in favor of Bose McKinney & Evans in the amount of $11,174.20 for work the firm did for Pazmino. There is a genuine issue of material fact regarding whether Pazmino was acting on his own behalf or on behalf of Buena Vista Realty Group when he sought the firm’s services. Neither party is entitled to summary judgment at this time. Remands for further proceedings.

Kendall Johnson v. State of Indiana
49A02-1209-CR-755
Criminal. Affirms convictions and sentences for murder and Class C felony battery. The trial court did not abuse its discretion when it declined to instruct the jury on reckless homicide because the evidence did not support such an instruction. Finds sentence is appropriate.

John A. Hutchinson v. The City of Madison
39A01-1208-CC-394
Civil collections. Affirms dismissal without prejudice of the counterclaim for appropriation of a portion of Hutchinson’s real estate filed by the city of Madison, and affirms determination that an interlocal agreement between the city and Jefferson County was valid. Hutchinson could not establish that the city did not have the authority to acquire his property through eminent domain proceedings generally.

Phillip J. Troyer v. Tracy L. Troyer
02A03-1207-DR-319
Domestic relation. Affirms in part, reverses in part and remands. The trial court did not abuse its discretion in valuing and dividing the marital estate; the trial court exceeded its statutory authority in retroactively increasing the husband’s child support and healthcare expenses; the trial court did not abuse its discretion in denying husband’s petition for attorney fees; the trial court did fail to rule on husband’s request for wife to reimburse him for her share of K.T.’s private school expenses; the trial court did not abuse its discretion in awarding the parties joint legal custody of K.T.; and husband’s appeal is neither frivolous nor in bad faith, and therefore wife is not entitled to attorney fees pursuant to Appellate Rule 66(E). Judge Kirsch dissented in part.

In the Matter of: R.S. (Minor Child), Child in Need of Services, and S.S. (Mother) & B.M. (Father) v. The Indiana Dept. of Child Services

02A05-1208-JC-422
Juvenile. Reverses determination infant R.S. is a child in need of services. There is insufficient evidence to support the determination.

Natural Resources Defense Council v. Poet Biorefining-North Manchester, LLC; Poet Biorefining-Cloverdale, LLC; Central Indiana Ethanol, Inc., et al.
49A02-1205-MI-423
Miscellaneous. Reverses trial court reversal of the Indiana Department of Environmental Management’s Office of Environmental Adjudication’s determination that fuel-grade ethanol production plants should have been categorized as “chemical process plants.” The state could not properly exclude these plants from the category of “chemical process plants” without Environmental Protection Agency approval of a modification to the Indiana State Implementation Plan. Ethanol plants remain “chemical process plants.”

John Gresser and Janice Gresser, et al. v. The Dow Chemical Company, Inc.; Dowelanco n/k/a Dow Agrosciences LLC; and Reliable Exterminators, Inc.
79A02-1111-CT-1014
Civil tort. The trial court correctly granted Dow’s summary judgment motion on the Gressers’ failure to warn claims under the Indiana Product Liability Act. The trial court erred in denying Dow’s related summary judgment motion on the Gressers’ failure to satisfy IPLA requirements. The trial court improvidently granted Dow’s summary judgment motion pertaining to federal preemption. The trial court correctly denied Reliable’s motion to exclude the Gressers’ expert witnesses. The trial court also correctly denied Reliable’s summary judgment motions pertaining to the Gressers’ negligence claims and to the possibility of a punitive damage award. The trial court erred by granting summary judgment in favor of Reliable on the issue of federal preemption. Remands for further proceedings.

In the Matter of the Termination of the Parent-Child Relationship of R.R. and T.R.; R.R. v. Indiana Department of Child Services (NFP)

52A02-1208-JT-665
Juvenile. Affirms involuntary termination of parental rights.

Juan Murillo Bravo v. Silvia Bravo and Rancho Bravo, Inc. (NFP)
54A04-1207-PL-385
Civil plenary. Affirms award of attorney fees to Silvia Bravo and Rancho Bravo Inc. as a result of a discovery dispute. Remands with instructions to determine Rancho Bravo’s reasonable appellate attorney fees and to order Juan Murillo Bravo to pay that amount.

John F. Girvin v. State of Indiana (NFP)
87A01-1208-CR-381
Criminal. Remands for trial court to vacate Girvin’s conviction for vicarious sexual gratification because of double jeopardy and to revise his sentence with respect to credit time. Affirms in all other repsects.

In the Matter of the Termination of the Parent-Child Relationship of A.S.: K.S. v. Indiana Department of Child Services (NFP)
29A02-1210-JT-824
Juvenile. Affirms termination of parental rights.

Jerry D. Boyce v. State of Indiana (NFP)
16A01-1210-CR-453
Criminal. Affirms convictions of Class D felony battery by bodily waste, Class A misdemeanor battery and Class B misdemeanor battery.

Edward Lay v. State of Indiana (NFP)

49A05-1208-CR-387
Criminal. Affirms convictions of two counts of murder, one count of attempted murder and 140-year sentence.

Term. of the Parent-Child Rel. of K.C., a/k/a R.L., and A.L., Minor Children; S.L., Father v. Indiana Dept. of Child Services (NFP)
49A02-1207-JT-585
Juvenile. Affirms termination of parental rights.

Nelson Rios v. State of Indiana (NFP)
49A02-1209-CR-756
Criminal. Affirms revocation of probation.

Joshua D. Gaunt v. State of Indiana (NFP)
90A02-1210-CR-847
Criminal. Affirms sentence following plea agreement to Class C felony aiding, inducing or causing burglary; the Probation Condition 18 is not impermissibly vague; and the order Gaunt pay $300 in public defender fees. Remands with instructions to amend restitution order such that there is no duplicate recovery and establish a payment plan or schedule.

Donna Chapman and Lora Hoagland v. Central Indiana Educational Service Center and Franklin Township Community School Corporation (NFP)
49A05-1209-PL-478
Civil plenary. Affirms dismissal of Chapman’s claim against CIESC for failure to state a claim.

Douglas R. Bartel v. State of Indiana (NFP)
27A05-1207-CR-349
Criminal. Dismisses Bartel’s belated appeal from the revocation of his probation in two causes; finds he did not receive ineffective assistance of trial counsel in another cause. Affirms conviction of Class D felony operation of a motor vehicle as a habitual traffic offender and the sentence in all respects.

Allstate Insurance Company, As Subrogee of Juan R. Lopez, III v. Brenda J. Faulkner (NFP)
49A05-1211-CT-550
Civil tort. Reverses partial grant of Faulkner’s motion for relief from judgment.

Shawn E. Voorhies v. State of Indiana (NFP)

32A05-1208-CR-408
Criminal. Affirms sentence for Class A felony burglary resulting in serious bodily injury.

In the Matter of the Guardianship of the Person of H.M., S.M.M. and M.M., and S.E.M. v. D.L.M. and In the Matter of the Paternity of H.M., S.E.M. v. D.L.M. (NFP)
45A03-1208-GU-374
Guardianship. Affirms temporary order of child support, which ordered D.L.M., H.M.’s father, to pay guardians $158.88 per week. Remands with instructions that the trial court unify this case within one magistrate’s court to clarify father’s child support obligation pursuant to a completed and signed child support obligation worksheet and issue the orders it deems appropriate.

In the Matter of the Civil Commitment of: D.P. v. Richard L. Roudebush Veterans Affairs Medical Center (NFP)
49A02-1210-MH-807
Mental health. Affirms temporary commitment for mental health reasons.

The Indiana Supreme Court and Indiana Tax Court posted no decisions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana opinions by IL deadline.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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