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Opinions Aug. 15, 2012

August 15, 2012
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7th Circuit Court of Appeals posted no Indiana opinions at IL deadline.

Indiana Supreme Court and Tax Court posted no opinions at IL deadline.

Indiana Court of Appeals

Reko D. Levels v. State of Indiana
82A01-1201-CR-25
Criminal. Reverses convictions of battery and public intoxication as Class B misdemeanors. Levels did not validly waive his right to a jury trial.

JPMCC 2006-CIBC 14 Eads Parkway, LLC v. DBL Axel, LLC, David Richman, Lynette Gridley, as Trustee of the Hartunian Family Trust (u/d/t dated November 8, 1989), Black Diamond Realty, LLC, et al.
15A01-1201-PL-23
Civil plenary. Holds that the trial court erred when it denied JPMCC’s motion for summary judgment on DBL’s complaint for declaratory judgment and when it denied JPMCC’s motion for summary judgment against the guarantors on its claim for breach of the guaranty with respect to the first two installments of the nuisance award. Affirms the trial court’s grant of summary judgment for the guarantors on the question of their liability for the balance of the debt and the grant of summary judgment for DBL on JPMCC’s tort claims. Remands for further proceedings on the amount of the guarantors’ liability to JPMCC.

Mary Barrix and Joe Barrix, Jr. v. Kristopher Jackson and Graves Plumbing Co. Inc.
28A04-1202-CT-82
Civil tort. Affirms judgment on the evidence against the Barrixes and in favor of Jackson and Graves Plumbing on the Barrixes’ suit for negligence following a car accident. Having thus afforded the trial court no opportunity to rule upon the specific portions of Dr. Fulton’s testimony that may have been admissible, the Barrixes invited the trial court’s error and are not entitled to relief. Any error in the trial court’s exclusion of Dr. Fulton’s testimony or the underlying medical records was harmless and thus not a basis for reversal.

Michael R. Jent v. Fort Wayne Police Department
02A03-1108-MI-388
Miscellaneous. Affirms summary judgment for the police department on Jent’s request for declaratory and injunctive relief asking the court to compel the Fort Wayne Police Department to disclose requested records. The undisputed evidence shows that Jent’s request does not identify with reasonable particularity the records he sought.

Michael K. Curts, Individually and as Personal Representative of the Estate of Dorothy J. Curts, Deceased v. Miller's Health Systems, Inc. a/k/a Miller's Merry Manor, Logansport, LLC, et al.
09A02-1112-CT-1191
Civil tort. Affirms summary judgment for Miller’s Merry Manor on Michael Curts’ lawsuit for wrongful death, breach of contract and negligent infliction of emotional distress. Concludes that nurses can potentially have sufficient expertise to qualify as experts for purposes of the medical standards of care and medical causation, but the nurse in this case does not qualify. There are no genuine issues of material fact.

In re the Term. of the Parent--Child Rel. of H.S. and N.S. and S.S. & D.S. v. Indiana Dept. of Child Services (NFP)
79A02-1112-JT-1200
Juvenile termination. Affirms termination of parental rights.

Douglas C. Holland v. Rising Sun/Ohio County First, Inc., Ohio County, Rising Sun, Quin Min, and Kirk and Michelle Neace (NFP)
58A01-1112-PL-616
Civil plenary. Affirms order denying Holland’s request to quiet title through adverse possession but reforming the deed in favor of defendants.

Tracy Lynn Weston, as Personal Representative of the Estate of Clinton Dale Weston, Deceased v. Scott D. Longevin, M.D., and Preferred Emergency Specialists, Inc. (NFP)
21A01-1112-PL-583
Civil plenary. Reverses grant of Dr. Longevin and Preferred Emergency Specialists’ motion for summary judgment and remands for further proceedings.

Tondalay Brown v. State of Indiana (NFP)
79A02-1111-CR-1038
Criminal. Affirms convictions of Class A felony possession of cocaine with intent to deliver and Class A misdemeanor possession of marijuana.

Joshua Ellis v. State of Indiana (NFP)
48A04-1203-CR-116
Criminal. Affirms revocation of probation and reinstatement of five years of previously suspended sentence.

Lloyd W. Mezick v. State of Indiana (NFP)
48A02-1112-CR-1170
Criminal. Affirms sentences for Class C felony nonsupport of a dependent child, Class D felony possession of a controlled substance, Class D felony intimidation, Class A resisting law enforcement, Class A misdemeanor battery on a police officer and two counts of Class B misdemeanor public intoxication.

Derek Dwane Hardy v. State of Indiana (NFP)
02A03-1109-PC-445
Post conviction. Affirms denial of petition for post-conviction relief.

D.J. v. State of Indiana (NFP)
49A02-1201-JV-29
Juvenile. Affirms adjudication as a delinquent child for committing what would be Class A misdemeanor intimidation if committed by an adult.

Floor Mart of Indiana, Inc., Annesse M. Covey, Cherly C. Covey, and William Covey v. Norman Fischer and Julie Fischer (NFP)
45A03-1111-PL-501
Civil plenary. Reverses summary judgment entered in favor of the Fischers on their complaint for fraud. Remands for further proceedings.

David M. Craft v. State of Indiana (NFP)
52A05-1203-CR-140
Criminal. Affirms sentence for Class C felony battery resulting in serious injury.

Victor Salazar v. State of Indiana (NFP)
79A02-1101-PC-150
Post conviction. Affirms denial of petition for post-conviction relief.

Larry Burns v. State of Indiana (NFP)
45A04-1111-CR-624
Criminal. Affirms conviction of murder.

Danny K. Peet v. State of Indiana (NFP)
20A05-1203-CR-185
Criminal. Affirms revocation of probation.

Vernon L. Mefford v. Lori Little and Jason McCord (NFP)
53A01-1110-SC-495
Small claims. Affirms judgment in favor of Little and McCord on Mefford’s claim for damages resulting from a breach of a lease of residential real estate.

Term. of Parent-Child Rel. of C.S., Jr., D.S., and J.S., minor children, and C.S., Sr., father v. Indiana Dept. of Child Services (NFP)
71A04-1111-JT-641
Juvenile termination. Affirms termination of parental rights.
 

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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