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Opinions Dec. 29, 2011

December 29, 2011
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The following Indiana Tax Court opinion was posted after IL deadline Wednesday:
Lyle Lacey v. Indiana Department of Revenue
49T10-1102-TA-7
Tax. Orders Lacey to pay attorney fees to the Indiana Department of Revenue, holding that his repeated claims that his income is not subject to Indiana adjusted gross income tax are frivolous.

Thursday's opinions
7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.


Indiana Supreme Court
State of Indiana v. Economic Freedom Fund, FreeEats.com, Inc., Meridian Pacific, Inc., and John Does 3-10
07S00-1008-MI-411
Miscellaneous. Reverses trial court’s grant of preliminary injunction in favor of FreeEats, holding that the court erred in finding FreeEats had a reasonable likelihood of success on its claim that the live-operator provision of the Indiana Autodialer Law violates Article 1, Section 9 of the Indiana Constitution. Remands for further proceedings. Justice Frank Sullivan dissented, writing that the application of the live-operator requirement in the present case imposes a material burden on political speech in violation of Art. I, Section 9 of the Indiana Constitution, and that the application of this requirement violates the First Amendment to the United States Constitution.

Indiana Court of Appeals
David L. Johnson, Jr. v. State of Indiana
82A01-1103-CR-130
Criminal. Affirms conviction of Class A felony neglect of a dependent, holding that Johnson failed to prove he should have been charged with a lesser offense. Holds that Johnson also failed to prove that he was a victim of actual prosecutorial vindictiveness.

Natalia Robertson, Personal Rep. of the Estate of John Lee Cunningham, III v. Gene B. Glick Co., Inc., The Woods of Eagle Creek, Briarwood Apartments, LP, and Briarwood Apartments II, LP
49A05-1104-CT-158
Civil tort. Affirms trial court’s dismissal of Robertson’s claim as untimely. Holds that in order for tolling statute to apply and allow the claim to be filed after the two-year statute of limitations, the person filing the claim – not the beneficiary of the claim – is the party that would need to have a disability.

In the Matter of the Supervised Estate of Leah Yeley, Deceased; Larry Yeley v. Timothy Purdom, as Personal Rep. of the Estate of Leah Yeley
27A02-1103-ES-456
Estate, supervised. Reverses court’s determination that Larry Yeley should be subject to a settlement agreement reached by his siblings, holding that the agreement was not affirming instructions in either of Leah Yeley’s contested wills, but was agreeing only to independent distribution of the estate. Remands for proceedings consistent with opinion.

Mario A. Allen v. State of Indiana
46A04-1106-PC-353
Post conviction. Affirms post-conviction court’s conclusion that Allen was denied the assistance of appellate counsel and remands with instructions that the trial court appoint Allen counsel to represent him on appeal.

Moorehead Electric Co. v. Jerry Payne
93A02-1105-EX-457
Civil. Affirms Worker’s Compensation Board’s award of benefits to Payne for an injury sustained outside of the workplace but that arose from a prior compensable injury. Holds that because the original injury arose out of Payne’s employment, and there was no intervening, causal act of negligence, the subsequent injury is a consequence which flows from it, and therefore, likewise arises out of his employment with Moorehead Electric.

D.B. v. State of Indiana (NFP)
49A05-1106-JV-338
Juvenile. Affirms court’s adjudication of D.B. as a delinquent for carrying a handgun without a license, a Class A misdemeanor if committed by an adult.

John W. Sawyer v. State of Indiana (NFP)
48A02-1105-CR-454
Criminal. Vacates conviction of Class A misdemeanor resisting law enforcement, citing double jeopardy principles, but affirms convictions of Class C felony battery, Class D felony strangulation, Class D felony intimidation and Class A misdemeanor cruelty to a law enforcement animal.

Troy Howard v. State of Indiana (NFP)
79A04-1107-CR-375
Criminal. Affirms post-conviction court’s denial of Howard’s request for educational credit time.

Miguel Esqueda v. State of Indiana (NFP)
20A05-1105-CR-263
Criminal. Affirms trial court’s denial of Esqueda’s motion for mistrial.

Fred E. Gordon v. State of Indiana (NFP)
45A05-1106-PC-281
Post conviction. Affirms denial of petition for post-conviction relief.

William Pond v. Paul B. McNellis and Linda Peters Chrzan (NFP)
90A05-1101-PL-14
Civil plenary. Affirms trial court’s determination that Pond was not entitled to further restitution.

Michael Loverde v. Thomas Kuehl (NFP)
64A03-1107-PO-327
Protective order. Reverses protective order granted against Loverde, holding that a civil protection order is not available for non-family members who cannot demonstrate stalking or a sex offense.

In the Matter of the Involuntary Term. of the Parent-Child Rel. of K.N., B.N., R.N., and G.N.; and C.N. v. Indiana Dept. of Child Services, Child Advocates Inc. (NFP)
49A02-1106-JT-530
Juvenile. Affirms termination of mother’s parental rights.

Robert Strickland v. State of Indiana (NFP)
67A01-1106-CR-283
Criminal. Reverses trial court’s judgment that Strickland violated terms of his probation and should serve the remainder of his sentence, holding evidence was not sufficient. Remands to the trial court to reinstate probation.

Johnathon R. Aslinger v. State of Indiana (NFP)
27A02-1105-CR-670
Criminal. Affirms conviction of Class B misdemeanor public intoxication.

Summer Belli-McIntyre v. State of Indiana (NFP)
83A01-1101-CR-5
Criminal. Affirms sentence for Class B felony neglect of a dependent.

Carrie Joan Garrett v. State of Indiana (NFP)
48A04-1106-CR-293
Criminal. Affirms sentence for Class C felony failing to stop after an accident.

Glenn D. Odom, II v. Indiana Dept. of Correction (NFP)
77A05-1103-SC-161
Small claims. Affirms court’s judgment in favor of the Indiana Department of Correction which alleged the DOC discarded Odom’s property.  

J.M. v. Review Board of the Indiana Dept. of Workforce Development (NFP)
93A02-1106-EX-560
Civil. Affirms Indiana Department of Workforce Development’s determination that J.M. was fired for just cause and is therefore not entitled to unemployment compensation.

Michael W. Krauskopf, Sr. v. State of Indiana (NFP)
02A04-1107-CR-414
Criminal. Affirms conviction of Class D felony possession of a controlled substance.

Thomas J. Tarrance v. State of Indiana (NFP)
60A04-1106-CR-358
Criminal. Reverses sentence for Class B felony robbery, holding that in light of the nature of the offense and Tarrance’s character, the sentence is inappropriate. Remands to the trial court to enter a revised sentence of 14 years, with four suspended to probation.

Maria Espinoza v. Rosa Martinez, Mi Familia Tienda, and Nassirou Gado (NFP)
49A02-1104-CT-373
Civil tort. Affirms trial court’s grant of appellees’ motion to dismiss.

Indiana Tax Court had posted no opinions at IL deadline.

 

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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