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Opinions Dec. 28, 2012

December 28, 2012
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Indiana Court of Appeals
James M. Brinkley and Stephanie L. Brinkley v. Michael Haluska, P.E., d/b/a Retro Tech, et al.
32A01-1204-MI-181
Miscellaneous. Affirms trial court’s summary judgment that Donald Gindelberger is a good faith purchaser for value of a 1965 Chevrolet Corvette because the Brinkleys were in the best position to prevent the allegedly fraudulent sale and did not do so. Also, it concluded the BMV is immune from liability.  

Joel Zivot v. Pamela London
49A02-1207-DR-613
Domestic relation. Reverses order and judgment on verified petition for contempt, holding that the documents before the court on which the judgment was based contained no evidence that such agreements had been approved by a court or incorporated into a court order.

Duke Energy Indiana, Inc. v. Office of the Utility Consumer Counselor, Indiana Utility Regulatory Commission
93A02-1111-EX-1042
Executive administration/utility. Affirms IURC denial of Duke’s request for deferred accounting of more than $11 million in storm-related expenses in a rehearing, holding that there were changes in the evidence from the first hearing that justified the IURC’s decision, and that the IURC was not required to explain why it reached a different conclusion.

Ricky Jester v. State of Indiana (NFP)
82A01-1203-CR-141
Criminal. Affirms trial court’s denial of Jester’s motion for correction of erroneous sentence.

Johnny C. Horton v. State of Indiana (NFP)
49A05-1206-PC-316
Post Conviction Relief Petition. Affirms the denial of Horton’s petition for post-conviction relief.

State of Indiana v. Elvis Holtsclaw (NFP)
49A02-1108-CR-743
Criminal. Finds no abuse of discretion and affirms trial court’s suppression of breath test evidence

Michael Watson v. State of Indiana (NFP)
49A02-1206-CR-443
Criminal. Affirms 90-year sentence. Concludes that trial court did not abuse its discretion in instructing the jury that it could not disregard the law for any reason during the guilt phase of Watson’s trial and that Watson failed to show his sentence is inappropriate.

In Re the Term. of the Parent-Child Rel. of K.K.; R.I. v. The Indiana Dept. of Child Services (NFP)
18A02-1205-JT-434
Juvenile Termination of Parental Rights. Affirms order involuntarily terminating father’s parental rights.

Steven McIntyre v. State of Indiana (NFP)
28A04-1207-PC-377
Post Conviction Relief Petition. Affirms the post-conviction court’s judgment in granting the state’s motion to correct error and denies McIntyre’s request for relief.

Alexander A. Lopez v. State of Indiana (NFP)
63A04-1201-CR-35
Criminal. Affirms conviction of Class A misdemeanor dealing in marijuana.

State of Indiana v. Blake Lodde (NFP)
79A02-1206-CR-496
Criminal. Reverses the granting of the motion to suppress evidence gathered when Lodde was pulled over and remands for further proceedings.

William Holly v. State of Indiana (NFP)
52A04-1109-MI-492
Miscellaneous. Affirms trial court’s grant of summary judgment in favor of the state of Indiana.

Jesus Torres v. State of Indiana (NFP)
49A05-1205-CR-233
Criminal. Affirms the trial court’s judgment to send an audiotape back to the jury during deliberations. The tape recorded Torres’ conversations with his granddaughter about him molesting her.

Randell Vandeventer v. State of Indiana (NFP)
28A04-1205-CR-242
Criminal. Affirms Vandeventer’s conviction of three counts of Class C felony child molesting and aggregated sentence of 21 years.

Guy Cummings v. State of Indiana (NFP)
49A02-1205-CR-430
Criminal. Affirms conviction of Class D felony theft, finding evidence was sufficient.

Mark Sexton v. State of Indiana (NFP)
49A02-1204-CR-282
Criminal. Affirms Sexton’s habitual-offender enhancement after his felony convictions. Finds the trial court did not abuse its discretion in finding good cause to allow the state to file the habitual-offender information more than 10 days after the omnibus date.

Rebecca J. Bartle v. Jackson Street Investors, LLC as Assignee of Paul E. Turner (NFP)
29A05-1205-CC-246
Civil Collection. Reverses trial court’s granting Jackson Street’s motion for summary judgment and remands for further proceedings.

Benito S. Gamba, Hilda P. Gamba and Gamba Real Estate Holdings, LLC v. The Ross Group, Inc., Ticor Title Ins. Co. v. The Ross Group, Inc., Benito Gamba, Hilda Gamba and Gamba Real Est. Holdings (NFP)
45A03-1202-PL-92
Civil Plenary. Affirms in part, reverses in part and remands. Concludes trial court did not err in holding Gamba responsible for the construction cost overage but reverses on the issues of Ticor’s right to indemnification and the amount of a subcontractor lien.

Kieth McCoy v. State of Indiana (NFP)
49A02-1206-CR-451
Criminal. Dismisses McCoy’s appeal for lack of jurisdiction. Finds the denial of the motion to lift the no-contact order was not a final appealable order and McCoy has not properly preserved this issue for appeal.

Quintez Deloney v. State of Indiana (NFP)
22A01-1204-CR-153
Criminal. Affirms Deloney’s consecutive, executed sentences of eight years for Class C felony robbery and 30 years for Class A burglary.

Manuel J. Silva v. State of Indiana (NFP)
02A03-1204-CR-190
Criminal. Affirms conviction of murder, finding the evidence was sufficient to rebut Silva’s self-defense claim.

In Re The Adoption of C.H.; M.W. v. B.H. and V.H. (NFP)
85A02-1205-AD-449
Adoption. Affirms trial court’s post-hearing order concluding that M.W.’s consent to the adoption of her child, C.H., is not required under I.C. 31-19-9-8.

Robert R. Ashcraft v. State of Indiana (NFP)
46A03-1109-CR-396
Criminal. Affirms Ashcraft’s convictions and 21-year sentence for two counts of Class B felony sexual misconduct with a minor, Class C felony sexual misconduct with a minor, and Class D felony child seduction.

Paul Marcum v. State of Indiana (NFP)
89A01-1205-CR-240
Criminal. Affirms Marcum’s 27-month sentence for his conviction of Class D felony Operation a Motor Vehicle After Suspension as a Habitual Traffic Violator.
 

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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