ILNews

Opinions Dec. 22, 2010

December 22, 2010
Keywords
Back to TopE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

ADVERTISEMENT