ILNews

Opinions Aug. 31, 2010

August 31, 2010
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The following opinion was posted after IL deadline Monday.
Indiana Supreme Court
Anne W. Murphy, et al. v. Jannis Fisher, et al.
49S02-1008-CV-463
Civil. Summarily affirms the Indiana Court of Appeals holding that the Medicaid transportation services providers do not have a private right to sue the state for cutting the transportation reimbursement rates. Concludes the state invited any court error with respect to the right of Medicaid recipients to sue for relief and it will be held to its concession that recipients have a private right of action in this case. Remands with instructions to allow the recipients to present evidence establishing the transportation to which they may be entitled by Section 30(A), that they have been or will be denied the services to which they are entitled, and what relief they are due. Justice Sullivan did not participate.

Today's opinions
7th Circuit Court of Appeals
Hayes Lemmerz International, Inc. v. ACE American Insurance Co.
10-1073
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of diversity suit against insurer. ACE had no duty to provide Hayes Lemmerz International’s lawyers with legal advice and didn’t breach its duty to defend by failing to advise HLI that its law firm wasn’t defending the suit properly.

Daniel J. Wickens and Pamela Wickens, and Mark E. Shere v. Shell Oil Co. and Shell Oil Products Co., LLC
09-2737 and 09-2620
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Reverses District Court’s ruling regarding calculation, deducting Colleen Shere’s fees from Mark Shere’s attorneys’ fees award in case involving corrective action costs. Remands for further proceedings, and affirms remainder of the District Court’s judgment.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Timothy Hamby, et al. v. Board of Zoning Appeals, et al.
87A04-0912-CV-700
Civil. Affirms trial court’s denial for declaratory relief for Hamby and other homeowners. The Board of Zoning Appeals and Area Plan Commission of Warrick County had approved a variance to allow a permit to be issued to another homeowner for a wind turbine exceeding the maximum height requirement in a multiple family zoning district; however the trial court’s reversal of the BZA’s decision to grant the variance is not being appealed.

James R. Meier, et al. v. Homeowners of Mallard's Landing, Inc. (NFP)
64A05-1001-CP-25
Civil. Finds the trial court erred in granting the homeowners’ association’s summary judgment without first determining the validity of the association’s formation. After the trial court makes it determination, it can then decide whether certain damages are appropriate regarding Meier’s lots.

James Wright, et al. v. Camaro Costello, et al. (NFP)
49A05-1002-CT-160
Civil. Affirms trial court’s ruling transferring case to Vanderburgh County because the business property he tried to purchase is located there, making the county a preferred venue.

Donald Fisher v. Tower Bank and Trust Co. (NFP)
02A05-1002-MF-97
Civil. Reaffirms and clarifies its decision that the trial court properly granted summary judgment. Fisher notes the appeals court cited evidence not properly designated to the trial court for summary judgment purposes. The appeals court acknowledges it referenced an appraisal report not property designated for summary judgment purposes but the information garnered from the report is contained within materials that were properly designated for such purposes.

Lori A. Deardorff (Tilden) v. Kevin L. Deardorff (NFP)
43A03-0912-CV-560
Civil. Because the appeals court is unable to address any of Lori’s allegations of error, it affirms the trial court’s order to reduce Kevin’s child support obligation. Lori, pro se, did not cite evidence or explain application in the record supporting her claims.

Dennis and Lisa Morrow v. Walter and Lois Kucharski (NFP)
45A03-0911-CV-509
Civil. Affirms $45,025.56 judgment in favor of the Kucharskis involving a private nuisance claim. Denies the Kucharskis’ request for appellate attorney’s fees.

James T. Parado v. Maria J. Parado (Mast) (NFP)
34A02-1002-DR-282
Civil. Affirms denial of James’ petition to modify custody and granting Maria’s petition to modify custody.

Max Jacobus, et al. v. Peggy L. Proffitt (NFP)
36A01-0912-CV-565
Civil. Reverses judgment and remands for trial court to establish an easement of necessity entirely on Proffitt’s property which complies with the applicable ordinance regarding the proper width of easements.

W.G. v. Review Board (NFP)
93A02-1004-EX-389
Civil. Rules the Review Board properly affirmed the administrative law judge’s decision dismissing W.G.’s appeal as untimely.

Pioneer Auto Truck Sales, Inc. v. Dolores Burch (NFP)
93A02-1002-EX-207
Civil. Affirms Worker’s Compensation Board’s award of benefits to Burch because medical report met statutory requirements.

Term. of Parent-Child Rel. of L.R.; A.W. v. IDCS (NFP)
32A01-1002-JT-53
Juvenile. Affirms termination of parental rights.

J.L. v. State of Indiana (NFP)
49A02-0912-JV-1184
Juvenile. Affirms J.L.’s adjudication as a delinquent child for committing what would be Class D felony resisting law enforcement, Class A misdemeanor carrying a handgun without a license, and Class A misdemeanor dangerous possession of a firearm if committed by an adult.

Term. of Parent-Child Rel. of A.O.S.; A.M. Jr. v. I.D.C.S. (NFP)
20A03-0911-JV-539
Juvenile. Affirms termination of parental rights.

F.D. v. State of Indiana (NFP)
71A03-1003-JV-199
Juvenile. Affirms modification of F.D.’s placement and commitment to the Indiana Department of Correction.

John Ray Henry v. State of Indiana (NFP)
45A03-0911-CR-513
Criminal. Affirms convictions of Class A felony child molesting and Class C felony child molesting.

Timothy William Woolum, Jr. v. State of Indiana (NFP)
48A02-0912-CR-1231
Criminal. Affirms probation revocation and order that Woolum serve the portion of sentence that previously had been suspended to probation.

Christopher Ostack v. State of Indiana (NFP)
49A02-1001-CR-28
Criminal. Affirms 30-year sentence and rules the state presented sufficient evidence to rebut his self-defense claim.

William J. VanHorn v. State of Indiana (NFP)
18A02-1002-PC-122
Criminal. Affirms denial of petition for post-conviction relief, which challenged his conviction following his guilty plea to burglary.

Brandon L. Lewis v. State of Indiana (NFP)
49A04-0910-CR-576
Criminal. Remands with instructions to vacate Smith’s conviction of and sentence for criminal confinement as a Class B felony, to impose conviction of and an appropriate sentence for criminal confinement as a Class D felony, and to conduct a hearing to determine an appropriate amount of restitution. Affirms in all other respects.

Emily Meyer v. State of Indiana (NFP)
35A02-1001-CR-69
Criminal. Affirms conviction of two counts of Class A felony dealing in a schedule I, II, or III controlled substance.

Grante Fricklin v. State of Indiana (NFP)
49A04-1001-CR-22
Criminal. Affirms conviction of Class A misdemeanor possession of paraphernalia.

Charles E. Hubbard v. State of Indiana (NFP)
89A01-1002-CR-151
Criminal. Rules the trial court did not abuse its discretion in sentencing Hubbard and that his 135-year sentence is not inappropriate.  

James R. Cook v. State of Indiana (NFP)
34A04-1004-CR-307
Criminal. Rules the trial court improperly imposed consecutive sentences totaling six years for two Class D felony counts of battery resulting in bodily injury to a person under fourteen years of age that were one episode of criminal conduct; reverses and remands for resentencing consistent with this opinion.

Justin Sparks v. State of Indiana (NFP)
48A02-0911-CR-1105
Criminal. Rules trial court did not abuse its discretion in ordering Sparks to serve the one year that remained on his sentence for battery after his probation revocation.

Finnegan J. Coley v. State of Indiana (NFP)
49A05-1001-CR-43
Criminal. Reverses and remands for the trial court to enter the advisory sentence of 1 1/2 years on the Class D felony conviction for possession of cocaine, to be served concurrent with Coley’s 16-year sentence on the Class B felony possession of a firearm by a serious violent felon. The State concedes the error that the same evidence of his being found in possession of a handgun was used to convict him for possession of a firearm by a serious violent felon and to enhance the cocaine conviction to a Class C felony, which is in contravention of Indiana’s prohibition against double jeopardy.

Timothy Treacy v. State of Indiana (NFP)
49A05-0911-CR-647
Criminal. Affirms revocation of probation.

Stevie W. Davis v. State of Indiana (NFP)
20A03-0908-CR-392
Criminal. Affirms denial of petition for permission to file a belated notice of appeal.

Kevin H. Griffith v. State of Indiana (NFP)
91A02-1003-CR-414
Criminal. Rules state presented sufficient evidence to rebut his claim of self-defense.

Ovidio Rosario v. State of Indiana (NFP)
49A02-1001-CR-17
Criminal. Affirms conviction of Class D felony theft.

Indiana Tax Court
Dora Brown, Ben Kindle, and Sonjia Graf v. Dept. of Local Government Finance (NFP)
49T10-0909-TA-52
Tax. Affirms in part and reverses in part the Department of Local Government Finance’s approval of the Gregg Township Board’s loan resolution for the 2009 tax year. Remands for the Department of Local Government Finance to determine what portion of the loan amount accurately reflects the fire department’s provision of ambulance service to Gregg Township in Morgan County.

Indiana Supreme Court granted 1 transfer and denied transfer to 22 cases for the week ending Aug. 27.
 

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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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