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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. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  2. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  3. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  4. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  5. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

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