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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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