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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. 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.

  2. 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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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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