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Opinions Dec. 13, 2012

December 13, 2012
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The following Indiana Supreme Court opinions were posted after IL deadline Wednesday.

Margaret Kosarko v. William A. Padula, Administrator of the Estate of Daniel L. Herndobler, Deceased
45S03-1206-CT-310
Civil tort. Reverses denial of motion for prejudgment interest following a jury verdict awarding Kosarko monetary damages. Holds the Tort Prejudgment Interest Statute abrogates and supplants the common law prejudgment interest rules in cases covered by the statute. Remands for a prejudgment interest determination consistent with this opinion.

Jacqueline Wisner, M.D. and The South Bend Clinic, L.L.P. v. Archie L. Laney
71S03-1201-CT-7
Civil tort. Affirms denial of defendants’ motion for a new trial and the decision to deny the discretionary award of prejudgment interest. The trial court determined that the conduct of counsel did not prevent the jury from rendering a fair and just verdict. The awarding of prejudgment interest is not mandatory and is left to the discretion of the trial court.

Hassan Alsheik v. Alice Guerrero, Individually and as Administratrix of the Estate of I.A., Deceased
45S04-1212-CT-675
Civil tort. Reverses decision to deny Guerrero prejudgment interest based upon a defective settlement letter as the letter did comply with Indiana Code 34-51-4-6. Remands with instructions to determine whether Guerrero should be entitled to prejudgment interest. Affirms the Court of Appeals opinions relating to the second autopsy, the expert witness and the admission of photographs.

Kathy Inman v. State Farm Mutual Automobile Insurance Company
41S01-1108-CT-515
Civil tort. Holds the Tort Prejudgment Interest Statute applies to underinsured motorist coverage disputes because they are properly considered “civil actions arising out of tortious conduct” as required by I.C. 34-51-4-1. Also holds that because prejudgment interest is a collateral litigation expense, it can be awarded in excess of an insured’s UIM policy limits. Affirms finding that Inman is not entitled to prejudgment interest because the trial court acted within its discretion when it denied her request for prejudgment interest.

Today’s opinions
7th Circuit Court of Appeals

Estate of Rudy Escobedo (deceased) (Raquel Hanic, Personal Representative of Estate) v. Officer Brian Martin, et al.
11-2426
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms jury verdict in favor of the defendants on the estate’s excessive force claim against the police and the city of Fort Wayne and grant of judgment as a matter of laws on qualified immunity grounds, as well as summary judgment in favor of officers Martin and Brown on the excessive force claim. Finds among other things, that the District Court did not improperly admit evidence unknown to the officers at the time they used force against Escobedo, that the court committed a harmless error when it prohibited the estate from introducing evidence at trial of Escobedo’s death for purposes of calculating damages, and the court did not err when it granted summary judgment in favor of officers Martin and Brown on the estate’s excessive force claim for shooting Escobedo.

Indiana Court of Appeals
Byram E. Dickes, Ruth E. Logar, Christopher S. Spiritoso, Gregory Spiritoso, Lindsey E. Dickes, Dickes Development Co., LLC, et al. v. Ronald D. Felger, and Shambaugh, Kast, Beck & Williams, LLP
02A03-1206-PL-302
Civil plenary. Affirms summary judgment in favor of Felger and the law firm on the plaintiffs’ legal malpractice claim. The claim is barred by the statute of limitations.

Scott J. Lunsford v. State of Indiana (NFP)
34A02-1206-CR-501
Criminal. Reverses time the trial court calculated as the time remaining on Lunsford’s sentence at the time his probation was revoked and remands with instructions to resentence him to 673 days.

Uriah S. Swelfer v. State of Indiana (NFP)
45A05-1205-CR-260
Criminal. Affirms sentence for two counts of Class C felony battery and one count of Class D felony criminal mischief.

Decarlos Connell v. State of Indiana (NFP)
48A05-1203-CR-141
Criminal. Affirms conviction of Class B misdemeanor visiting a common nuisance.

Kerry Wagner and Wagner Trucking, Inc. v. Rugged Enterprises, LLC (NFP)
26A05-1206-CC-333
Civil collection. Affirms denial of relief from default judgment rendered in favor of Rugged Enterprises in its action against Wagner and Wagner Trucking for repayment of money mistakenly paid to Wagner Trucking by Rugged, which Wagner refused to refund.

Joseph Majors v. State of Indiana (NFP)
49A02-1205-CR-433
Criminal. Affirms convictions of attempted murder and carrying a handgun without a license. Reverses sentencing enhancement and orders it vacated, but affirms 45-year aggregate sentence imposed.

Roseann Kwak v. Kimberly Overmyer and Marshall-Starke Development Center, Inc., West Bend Mutual Ins. Company (NFP)
75A03-1203-CT-104
Civil tort. Affirms order denying Kwak’s motion to correct error from the trial court order granting summary judgment to West Bend Mutual, the garnishee-defendant, in proceedings supplement initiated by Kwak.

Daniel A. Sage v. State of Indiana (NFP)
20A03-1206-PC-266
Post conviction. Affirms denial of post-conviction relief.

Tyler P. Hogue v. State of Indiana (NFP)
29A02-1203-CR-217
Criminal. Affirms sentence after Hogue admitted to violating his probation.

Jaconiah Fields v. State of Indiana (NFP)
89A01-1205-PC-232
Post conviction. Affirms denial of petition for post-conviction relief.

Melissa L. Freyberger v. Duane L. Freyberger (NFP)
71A03-1206-MI-252
Miscellaneous. Dismisses Melissa Freyberger’s appeal of the modification of Duane Freyberger’s parenting time rights, allowing him to take the children on a six-week vacation in Europe. Denies her request for appellate attorney fees.
 

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  1. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  2. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  4. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  5. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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