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Opinions Dec. 27, 2013

December 27, 2013
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7th Circuit Court of Appeals
Dawn Marie Adams v. James Gregory Adams
13-1636
Civil. Reverses District Court denial of creditor Dawn Marie Adams’ bankruptcy court claim against her former husband and business partner, James Gregory Adams. The bankruptcy court claims were previously adjudicated in state courts and the doctrine of issue preclusion prevented the bankruptcy court from rehearing those issues. Remanded for proceedings.

Indiana Court of Appeals
In the Matter of M.S. (A Child Alleged in Need of Services), and K.S., (Mother) v. The Indiana Department of Child Services
67A04-1305-JC-212
Juvenile. Affirms placement of M.S. with father who lives out-of-state and approval of the Department of Child Services’ petition to dismiss CHINS proceedings. The best interest of the child were served by placement with father and DCS’s efforts at reunifying the family were reasonable, Chief Judge Margret Robb wrote in an opinion joined by Judge Michael Barnes. Judge Elaine Brown concurred in a separate opinion that said M.S.’s interests would have been best served had DCS continued monitoring father’s compliance with court terms for a period of time.

State of Indiana v. Frank Greene
49A02-1303-PC-228
Post conviction. Affirms grant of post-conviction relief from a conviction of Class B felony criminal confinement and remands to the trial court with instructions to resentence Greene on the conviction as a Class D felony.  

In Re the Matter of R.K.: A Child Alleged to be a Child in Need of Services, A.K. v. The Indiana Department of Child Services (NFP)
31A01-1307-JC-310
Juvenile. Reverses juvenile court order awarding child custody to father, R.K. Sr., holding that the court abused its discretion by modifying custody without a formal evidentiary hearing. Vacates the modification order and remands for an evidentiary hearing on the modification petition.

DeWayne Nalls v. State of Indiana (NFP)
49A04-1306-CR-281
Criminal. Affirms concurrent sentences of 35 years for conviction of Class A felony attempted murder and 10 years for unlawful possession of a firearm by a serious violent felon, but vacates as illegal a separate five-year enhancement for the firearm charge.  

Cleverly Lockhart v. State of Indiana (NFP)
34A02-1304-CR-384
Criminal. Reverses trial court’s denial of a petition to file a belated notice of appeal of four counts of child molesting and remands for proceedings.

Clarian Health Partners, Inc., d/b/a Methodist Hospital v. Jessica Sprunger, as next best friend of James Daniel Sprunger, Minor (NFP)
49A02-1211-CT-943
Civil tort/medical malpractice. Finds the trial court erred in denying Clarian’s motion to correct error after a jury award of $500,000 in favor of James Sprunger. The court also abused its discretion in instructing the jury. Remanded for proceedings.

Virginia Davis v. Indiana State Board of Nursing (NFP)
49A05-1304-PL-187
Civil plenary. Affirms Indiana State Board of Nursing’s license revocation.

In Re the Estate of Ruby Shuler Blankenbaker Botkins, Deceased, Mark Allen Shuler and David Lee Shuler v. Estate of George Botkins by Larry Botkins (NFP)
22A01-1307-ES-337
Estate. Affirms probate court’s entry of final accounting.

Jamar Perkins v. State of Indiana (NFP)
49A02-1306-CR-551
Criminal. Affirms conviction of felony murder.

John D. May v. State of Indiana (NFP)
28A05-1307-PC-320
Post conviction. Affirms denial of post-conviction relief from a conviction of Class C felony possession of methamphetamine while in possession of a firearm.

Darrell McNary v. State of Indiana (NFP)
20A05-1211-PC-607
Post conviction. Affirms denial of relief from a conviction of Class B felony dealing cocaine.

Brandon White v. State of Indiana (NFP)
49A04-1304-CR-188
Criminal. Affirms conviction of Class D felony criminal recklessness.

Bonnie Shipley v. Anonymous Doctor A and Anonymous Hospital C (NFP)
40A04-1304-PL-184
Civil plenary/malpractice. Affirms grant of summary judgment in favor of Anonymous Doctor A and Anonymous Hospital C.

James E. Britt, Jr. v. State of Indiana (NFP)
20A03-1304-CR-152
Criminal. Affirms convictions of Class D felony possession of marijuana and Class A misdemeanor carrying a handgun without a license.

Ron Rose v. State of Indiana (NFP)
15A01-1306-PC-272
Post conviction. Reverses denial of a petition for relief from a conviction of Class B felony criminal deviate conduct, holding that the court clearly erred in imposing a lifelong requirement that Ron Rose register as a sexually violent predator rather than as a sex offender. Rose proved by a preponderance of the evidence that he didn’t understand that aspect of his guilty plea, and he had specifically rejected that provision when discussing the plea agreement with his attorney beforehand. Remanded for proceedings.

The Indiana Supreme Court and Tax Court issued no opinions prior to IL deadline.
 

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  2. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  3. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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