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Opinions April 5, 2012

April 5, 2012
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The 7th Circuit Court of Appeals, Indiana Supreme Court and Indiana Tax Court had no opinions at IL deadline.

Indiana Court of Appeals

GMAC Mortgage, LLC v. Ronald Glenn Dyer
28A04-1107-MF-404
Mortgage Foreclosure. Reverses trial court’s order that GMAC Mortgage rewrite an agreement about an FHA-insured loan that Ronald Dyer defaulted on. Appellate court held that under federal law and HUD regulations, deeds in lieu of foreclosure release the borrower from any mortgage obligation and in this case the standard language GMAC used was sufficient.

Sharon Wright and Leslie Wright v. Anthony E. Miller, D.P.M. and Achilles Podiatry Group

54A01-1107-CT-302
Civil tort. Reverses medical malpractice ruling by trial court in striking expert witness testimony and dismissing a woman’s claim. Appellate court remands, finding that the trial court abused its discretion because the woman’s failure to comply with discovery orders and Indiana Trial Rule 41(E) did not rise to a sufficient level to deny her the chance to have her day in court.

Douglas W. Fancil v. State of Indiana
20A01-1107-CR-339
Criminal. Affirms and reverses in part, finding insufficient evidence to support the conclusion that Douglas Fancil manufactured three or more grams of meth. Affirms on other issues and remands with instructions to enter a conviction for a Class B felony dealing in meth and to issue a sentence accordingly.

William J. Harness and Bridget V. Harness v. Tabassum Parkar, Arshad Husain, John Mattingly Homes, Inc., and Lakeridge Crossing Homeowners Association, Inc.
87A04-1107-PL-380
Civil plenary. Affirms trial court’s denial of request for injunctive relief and final judgment entry in favor of Tabassum Parkar, Arshad Husain, John Mattingly Homes and Lakeridge Crossing Homeowners Association.

Amy and Steven Cerajewski v. Erin and Robert Kieffner
82A01-1109-SC-401
Small claims. Dismisses an interlocutory appeal of a Vanderburgh County small claims court’s denial of a couple’s motion to correct venue, in a case alleging breach of contract and fraud resulting from a real estate transaction in Posey County.

James Gagan, Fred Wittlinger, Jack Allen and Eugene Deutsch v. C. Joseph Yast
45A05-1107-CT-377
Civil tort. Affirms trial court’s grant of motion for summary judgment in favor of Yast, finding no evidence exists to support the plaintiffs’ claims that Yast abused his qualified common interest privilege, and holds that statements Yast made were not defamatory, but rather communicated that he was withdrawing as counsel due to conflict of interest.

Joshua Alford v. State of Indiana
49A02-1109-CR-816
Criminal. Affirms revocation of probation, holding that Alford’s false review of his father’s cleaning company on Angie’s List violated a no-contact order, as Alford used an intermediary in an effort to harass his father.

Joshua J. Sharp v. State of Indiana (NFP)
20A03-1109-CR-422
Criminal. Affirms trial court’s denial of a motion to suppress evidence in a jury trial of felony possession of a controlled substance found during a police search. Appellate court determined evidence shows defendant did not restrict his consent to search his vehicle, and so no Fourth Amendment or Indiana Constitution violation occurred.

Isaac Jones v. State of Indiana (NFP)
49A02-1106-PC-548
Post-conviction. Affirms trial court’s denial of a post-conviction relief petition, finding that Isaac Jones’ claim of ineffective assistance of counsel is barred by res judicata.

Debra A. Edwards v. State of Indiana (NFP)
30A04-1110-CR-528
Criminal. Affirms trial court judgment excluding the testimony of an allegedly biased material witness, finding it does not constitute reversible error in the felony theft conviction case.
 

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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. 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.

  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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