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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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