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Opinions Aug. 22, 2011

August 22, 2011
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The following opinion was posted after IL deadline Friday:
Indiana Tax Court
Virginia Garwood, et al. v. Indiana Dept. of State Revenue
82T10-0906-TA-29
Tax. Grants summary judgment for the Garwoods and denies the Indiana Department of State Revenue’s motion for summary judgment. Holds that the 16 jeopardy assessments issued against the Garwoods for all or part of the 2007 through 2009 tax years are void as a matter of law. The department’s use of the jeopardy assessment procedure against the Garwoods exceeded statutory authority. Orders the department to void all of the jeopardy assessments and take any other actions necessary to give full effect to the order.

Today’s opinions
7th Circuit Court of Appeals had posted no opinions from Indiana courts at IL deadline.


Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Smith Barney, et al. v. StoneMor Operating LLC, et al.
41A04-1103-MF-96
Mortgage foreclosure. Affirms denial of Barney’s motion to compel arbitration. As a matter of law, Independence Trust was not a “successor in interest” to either of the prior trustees and therefore isn’t bound by the arbitration clause in the account agreements. Consequently, there is no basis for compelling StoneMor to arbitrate its claims.

Dennis Perry v. State of Indiana
49A05-1012-CR-774
Criminal. Perry’s ex-girlfriend’s material statements detailing her physical attack and identifying her attacker were admissible pursuant to the medical diagnosis exception to the hearsay rule. Her statements were nontestimonial and did not implicate Perry’s confrontation rights. The trial court erred by admitting prior misconduct evidence involving Perry and the victim and this error warrants reversal and a new trial.  

Robbie J. Bex v. State of Indiana
53A01-1008-CR-422
Criminal. Affirms conviction of and sentence for Class A misdemeanor operating while intoxicated endangering a person. There is no federal constitutional bar to a defendant’s waiver of the presence and participation of one of the six jurors in a criminal trial. The trial court did not abuse its discretion by imposing the public defender fee as a condition of probation without holding a hearing on Bex’s ability to pay because the fees weren’t due until after she completed the executed portion of her sentence. Senior Judge Sullivan dissents in part.

Marc Van Rowland v. State of Indiana (NFP)
79A02-1010-CR-1161
Criminal. Affirms convictions of Class C felony attempted burglary, Class A misdemeanor resisting law enforcement, and an attendant adjudication of being a habitual offender.

Garry Coleman v. Department of Local Government Finance (NFP)
49A02-1101-MI-40
Miscellaneous. Affirms dismissal of wrongful termination complaint.

A.B. v. State of Indiana (NFP)
49A02-1101-JV-142
Juvenile. Affirms adjudication as a delinquent child for committing what would be Class C felony child molesting if committed by an adult.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court accepted five cases on transfer and denied 37 for the week ending Aug. 19, 2011.
 

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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