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Opinions Dec. 22, 2010

December 22, 2010
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The following opinions were posted after IL deadline:
Indiana Tax Court
Virginia Garwood, et al. v. Indiana Dept. of State Revenue
82T10-0906-TA-29
Tax. Denies the Department of Revenue’s motion to dismiss. The Garwoods’ action is an original tax appeal, so the Tax Court denies all of the department’s 12(B) claims for a motion to dismiss.

Indiana Court of Appeals
Indiana Dept. of Insurance, et al. v. Robin Everhart
84A01-0912-CV-614
Civil. Judge Robb dissents to the order denying petition for rehearing. Believes Restatement (Second) of Torts Section 323 should not be applied, as was done in the original opinion.

Today’s opinions
7th Circuit Court of Appeals
Trinity Homes LLC and Beazer Homes Investments LLC v. Ohio Casualty Insurance Company and Cincinnati Insurance Company
09-3613
U.S. District Court for the Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker
Civil. Reverses District Court’s grant of summary judgment in favor of the insurers on the homebuilders’ suit alleging breach of contract and seeking a declaration that all of the insurers had a duty to provide coverage. The precedential landscape has changed regarding the claim against Ohio Casualty. Remands for reconsideration in light of Sheehan. The District Court’s interpretation of the contract between Cincinnati Insurance and Beazer was erroneous. Declines to reach the question of whether any exclusions or limitations in Cincinnati’s policy apply to Beazer’s claim, leaving that for further proceedings on remand.


Indiana Supreme Court
Andres Sanchez v. State of Indiana
20S04-1012-CR-692
Criminal. Revises Sanchez’s consecutive enhanced sentences of 80 years for three counts of Class A felony child molesting to be served concurrently. Generally, multiple victims justify the imposition of enhanced and consecutive sentences. But although the aggravating circumstances are sufficient to warrant imposing enhanced sentences, the record supports imposing consecutive sentences. Revises sentence to 30 years on two of the counts and to the enhanced term of 40 years on the remaining count and orders they be served concurrently. Justice Rucker dissents.

Indiana Court of Appeals
Oscar I. Belmares-Bautista v. State of Indiana
57A04-1003-CR-223
Criminal. Affirms convictions of possession of a counterfeit government-issued identification, a Class A misdemeanor; and operating a vehicle without ever having received a valid license, a Class C misdemeanor. The only issue is whether Belmares-Bautista knowingly, voluntarily, and intelligently waived his right to counsel. The counterfeit identification was what appeared to be a driver’s license from the state of Aguascalientes, Mexico, which an officer identified as a forgery.

Robert Neises Construction Corp. v. Grand Innovations Inc., et al.
45A03-1004-PL-238
Civil. Affirms trial court’s grant of summary judgment in favor of appellee-defendant Kentland Bank in this foreclosure action. Neises presented the following issues: whether the trial court erred when it concluded that Kentland’s expenditures to protect the subject real estate from damage pending the foreclosure should take priority over Neises’ and others’ mechanic’s liens; and whether the trial court erred when it did not assign Neises’ mechanic’s lien a higher priority than Kentland’s mortgage lien in the distribution of the proceeds from the sheriff’s sale.

Tracey L. Beswick and Ruthie Beswick v. Edward E. Bell, M.D., and Floyd Memorial Hospital & Health Services
22A01-1005-CT-260
Civil. Affirms trial court’s order granting summary judgment in favor of Floyd Memorial Hospital and Health Services in the medical malpractice action that Tracey L. Beswick and his wife Ruthie Beswick brought against Edward E. Bell, M.D. and Floyd Memorial. Beswicks raised the issue of whether the trial court erred by striking the affidavit of Michael Roback, M.D., submitted by the Beswicks in opposition to Floyd Memorial’s motion for summary judgment.

Glendal Rhoton v. State of Indiana
49A02-1004-CR-446
Criminal. Affirms convictions of murder and burglary as a Class C felony, and the sentences imposed following a jury trial. Rhoton presented three issues for review: whether trial court abused its discretion when it instructed the jury on burglary; whether the evidence was sufficient to support Rhoton’s conviction of murder; whether Rhoton’s sentence was inappropriate in light of the nature of the offenses and his character.

Mark R. Eiler v. State of Indiana
73A04-1005-CR-369
Criminal. Reverses and remands Eiler’s sentence for dealing cocaine as a Class A felony. Eiler raised the issues of whether the trial court abused its discretion in sentencing Eiler, and whether Eiler’s sentence was inappropriate in light of the nature of the offense and the character of the offender.

Francisco Contreras v. State of Indiana (NFP)
49A02-1004-CR-426
Criminal. Affirms convictions of three counts of Class A felony child molesting and two counts of Class C felony child molesting.

Ryan T. Renfroe v. State of Indiana (NFP)
40A01-1002-CR-96
Criminal. Affirms Renfroe’s aggregate executed sentence of 124 years after he pled guilty to two counts of murder and one count of Class C felony escape.

Clarence E. Lampkins v. State of Indiana (NFP)
29A05-1005-CR-373
Criminal. Reverses and remands conviction of possession of a firearm by a serious violent felon as a Class B felony.

Allen Marshall v. Kris Marshall (NFP)
85A03-1005-DR-289
Civil. Reverses and remands trial court’s order that emancipated father’s daughter.

Thomas M. Blair v. State of Indiana (NFP)
45A04-1005-CR-295
Criminal. Affirms conviction, following a jury trial, of burglary as a Class B felony.

James A. Nelson v. Michael Collins (NFP)
26A01-1007-PL-329
Civil. Remands with instructions for the trial court to dismiss Nelson’s complaint without prejudice.

In the Matter of T.O., et al.; J.O. v. Indiana Dept. of Child Services (NFP)
85A04-1006-JC-407
Juvenile. Affirms juvenile court’s order determining that T.O., S.O., B.O., R.O., Z.O., E.O., and G.O. were children in need of services.

Larrell Alexander v. State of Indiana (NFP)
34A04-1003-CR-250
Criminal. Affirms convictions of and sentence for dealing in cocaine, a Class B felony, and resisting law enforcement, a Class A misdemeanor.

Termination of Parent-Child Relationship of G.B., et al.; G.B. & B.B. v. Indiana Dept. of Child Services (NFP)
42A05-1005-JT-318
Juvenile. Reverses and remands with instructions trial court’s order terminating mother’s parental rights over her minor children G.B., K.B., and E.B.

Jerry Bunton v. State of Indiana (NFP)
49A02-1006-CR-600
Criminal. Affirms conviction of theft, a Class D felony, following a jury trial.

Eric Guess v. State of Indiana (NFP)
49A05-1004-PC-281
Post conviction. Affirms denial of petition for post-conviction relief.

Jeffrey D. Boggs v. State of Indiana (NFP)
40A01-1004-CR-163
Criminal. Affirms conviction of escape as a Class C felony, and eight-year executed sentence.

Mark Richmond v. State of Indiana (NFP)
45A03-0607-CR-293
Criminal. Affirms 93-year aggregate sentence imposed following convictions of rape, a Class B felony; criminal deviate conduct, a Class B felony; burglary, a Class B felony; and confinement, a Class D felony, as well as the finding that he is a habitual offender.

D.R. v. Review Board of the Indiana Dept. of Workforce Development (NFP)
93A02-1005-EX-522
Civil. Affirms a decision by the Review Board of the Indiana Department of Workforce Development that denied D.R.’s unemployment benefits.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

  3. The numbers are harsh; 66 - 24 in the House, 40 - 10 in the Senate. And it is an idea pushed by the Democrats. Dead end? Ummm not necessarily. Just need to go big rather than go home. Nuclear option. Give it to the federal courts, the federal courts will ram this down our throats. Like that other invented right of the modern age, feticide. Rights too precious to be held up by 2000 years of civilization hang in the balance. Onward!

  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

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