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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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