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Opinions August 24, 2011

August 24, 2011
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7th Circuit Court of Appeals
Arboleda Ortiz v. Thomas Webster, Doctor
10-2012
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry McKinney.
Civil. Vacates summary judgment for Dr. Webster and remands with instructions that the case proceed to trial. This is the second time the case has come on appeal and the first time, the 7th Circuit reversed summary judgment for the doctor on the grounds that Ortiz had established fact disputes on the seriousness of his eye condition and the constitutionally of Webster’s delayed response. The record had changed very little on remand yet the District Court granted summary judgment for the doctor. Judge Kanne dissents.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Jesus A. Villagrana v. State of Indiana
08A05-1101-CR-21
Criminal. Reverses conviction of Class D felony neglect of a dependent. Villagrana was negligent, but the child neglect statute requires intent beyond negligence.

Kerwin Masten and Heather Masten v. AMCO Insurance Company
49A02-1009-CT-998
Civil tort. Reverses summary judgment for AMCO Insurance Co. The trial court erred in concluding as a matter of law that no underinsured motorist coverage is available to the Mastens. Remands for further proceedings.

Stephen L. Gilmore v. State of Indiana
40A01-1011-CR-553
Criminal. Reverses on interlocutory appeal the order finding that Gilmore was no longer indigent and that he had waived or forfeited his right to appointed counsel by his obstreperous conduct. The trial court abused its discretion by finding that Gilmore was not indigent and it retains the ability to order him to reimburse the costs of his defense to the extent he is able to do so. Gilmore is entitled to a hearing during which he should be warned that if his difficult behavior persists, the trial court will find he has chosen self-representation by his own conduct. Remands for further proceedings.

S.G. v. State of Indiana
49A05-1011-JV-736
Juvenile. Affirms in part and reverses in part S.G.’s adjudication as a delinquent child for committing what would be Class D felony receiving stolen property if committed by an adult. The facts of this case do not satisfy the requirements of a custodial interrogation and the introduction of S.G.’s statements did not violate Article I, Section 14 of the Indiana Constitution. The trial court abused its discretion in imposing a restitution order in an amount allegedly greater than the victim’s actual loss. Orders a new restitution hearing held if the state desires.

Carrie Chapman v. Irrevocable Trust of Stephen Chapman
02A03-1012-TR-624
Trust. Affirms trial court’s decision with regard to its exercise of jurisdiction over the trust proceedings. Carrie has not established that the trial court could not or should not have exercised jurisdiction over the trust as the subject matter of the trust reformation and the Chapmans’ divorce proceedings is not the same or substantially the same. The trial court erred when it determined the trustees weren’t required to establish that the dissolution was unforeseeable. Because the trustees failed to prove that the dissolution at the time of distribution was unforeseen or not anticipated as required, reverses modification of trust that delayed distribution to Stephen until after the dissolution is final or any appeal therefrom.

Dalmas Maurice Otieno Anyango, et al. v. Rolls Royce Corp., et al.
49A04-1011-CT-679
Civil tort. Affirms grant of Rolls Royce and other appellees’ motion to dismiss on the grounds of forum non conveniens the Anyanagos’ complaint for strict liability and wrongful death. Even if the trial court had not granted the motion to dismiss, the law of British Columbia would apply in Indiana, and the trial court did not err in granting the motion to dismiss based on forum non conveniens.

Matthew Erin Koch v. State of Indiana
82A01-1004-CR-154
Criminal. Affirms kidnapping, robbery, and battery convictions because evidence of probative value was presented at trial from which a jury could find Koch kidnapped Le in Indiana and that the robbery and battery offenses were integrally related. Vacates Koch’s convictions of two counts of Class B felony criminal confinement because of double jeopardy. Reverses 45-year aggregate sentence and remands with instructions to impose an aggregate sentence of 30 years. Judge Riley dissents regarding the sentence revision.

Travelers Insurance Companies, et al. v. Maplehurst Farms, Inc., et al.
49A04-1006-PL-394
Civil plenary. Reverses summary judgment for Maplehurst that directed Travelers to reimburse Maplehurst for the pre-notice costs and indemnity expenses. The trial court erred in doing so in light of Dreaded Inc. v. St. Paul Guardian Ins. Co. Maplehurst is not entitled to an award of its attorney fees from Travelers. Remands with instructions to enter summary judgment in Travelers’ favor as to those costs and expenses and for further proceedings. Judge May dissents.

James R. Sapp v. Flagstar Bank, FSB
49A02-1101-PL-4
Civil plenary. Affirms in part and reverses in part the denial of Sapp’s motion to correct error, which challenged a summary judgment order upon the claims of Flagstar Bank against Sapp for breach of contract, theft, and unjust enrichment. A genuine issue of material fact remains as to whether or not the bank’s loss of the check and two-month acquiescence was a failure to exercise ordinary care regarding the breach of contract claim. Sapp is entitled to summary judgment on the theft claim because Flagstar didn’t show that Sapp’s control was without authorization such that he could have been found to have criminally stolen the funds. He is also entitled to summary judgment on the unjust enrichment claim. Reverses award of attorney fees for Flagstar. Remands for trial only on the contract claim.

Larry D. Smith v. State of Indiana (NFP)
57A03-1102-CR-89
Criminal. Affirms sentence following guilty plea to Class C felony aiding in burglary.

Anthony W. Taylor v. Mark Sevier (NFP)
52A02-1010-MI-1252
Miscellaneous. Affirms dismissal of Taylor’s petition for writ of habeas corpus.

Troy T. Hardesty v. State of Indiana (NFP)
71A04-1012-CR-819
Criminal. Affirms conviction of Class C felony burglary.

D.R., Alleged to be CHINS; E.D. v. IDCS and Child Advocates (NFP)
49A02-1012-JC-1416
Juvenile. Affirms determination that D.R. was a child in need of services.

Terrell B. Wofford v. State of Indiana (NFP)
45A03-1011-CR-572
Criminal. Affirms conviction of and sentence for Class A felony battery.
 
Sanchez M. Ellis v. State of Indiana (NFP)
02A03-1012-CR-673
Criminal. Affirms convictions of Class C felony battery, Class D felony battery, and Class D felony resisting law enforcement.

James J. Duchene v. State of Indiana (NFP)
84A01-1012-CR-679
Criminal. Affirms order revoking probation and imposition of 18 months of previously suspended sentence.

Peter Johnson v. Keith Sove (NFP)
06A01-1102-SC-73
Small claims. Affirms denial of Johnson’s motion to correct error following the denial of his motion to set aside a default judgment in favor of Sove.

William Sebastian, Jr.v. State of Indiana (NFP)
14A01-1012-CR-655
Criminal. Affirms denial of jail credit time.

State of Indiana v. Steven Hollin (NFP)
69A05-1101-PC-113
Post conviction. Reverses grant of Hollin’s petition for post-conviction review. Remands with instructions to deny the petition for post-conviction relief.

Brian E. Crist, Jr. v. State of Indiana (NFP)
27A02-1011-CR-1285
Criminal. Affirms conviction of Class C felony battery.

Thomas E. Curtis v. State of Indiana (NFP)
18A05-1101-CR-48
Criminal. Reverses conviction of felony murder and remands with instructions.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

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