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Opinions Feb. 10, 2011

February 10, 2011
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Indiana Supreme Court
Killbuck Concerned Citizens Association v. J.M. Corporation and Ralph Reed
48S00-1003-PL-158
Civil plenary. Reverses trial court grant of J.M. Corporation’s motion for summary judgment on the grounds that Indiana Code Section 13-20-2-11, which would require further review and approval of zoning, violated the Indiana Constitution and remands for further proceedings. Declines to decide the constitutional issue, but finds because J.M. Corporation’s facilities accepted wasted before April 1, 2008, Indiana Code Section 13-20-2-11 doesn’t apply.

Indiana Court of Appeals
Christine and Ivan Kolozsvari v. John Doe, M.D., Jane Doe, R.N., Kelley Branchfield, R.Ph., and Hook SuperX, LLC
32A04-1008-CT-525
Civil tort. Reverses summary judgment against the Kolozsvaris and in favor of Kelley Branchfield and Hook Super X (CVS) in the Kolozsvaris’ suit alleging negligence and loss of consortium after Christine took a prescribed drug that caused kidney failure and the pharmacist disregarded warnings about drug interactions. In light of the evidence, CVS and Branchfield had a duty of care to Christine to either warn her of the side effects of the drug or to withhold the medication in accordance with Indiana Code Section 25-26-13-16 and Pharmacy Board rule 1-33-2. Remands for further proceedings.

Beneficial Indiana, Inc. v. Joy Properties, LLC
02A05-1005-PL-260
Civil plenary. Reverses order to the Allen County treasurer and auditor that it disburse to Joy Properties the surplus funds from a tax sale of real estate in Fort Wayne that Beneficial had an interest in. Beneficial has a more substantial interest in the real estate and that equity requires disbursement of the tax surplus funds to Beneficial.

Nexus Group Inc. v. Heritage Appraisal Service and Alan Landing
46A03-1007-PL-418
Civil plenary. Affirms summary judgment in favor of Heritage Appraisal Service and Landing in Nexus’ complaint for defamation per se, defamation per quod, and punitive damages. It is undisputed that Heritage’s statements related to a matter of public interest and that Nexus failed to designate any evidence showing that Heritage acted in bad faith or without a reasonable basis in law and fact when it made its statements in the letter. Remands for a hearing on appellate attorney fees.

Charles E. Justise, Sr. v. Jerry Huston, et al. (NFP)
77A01-1009-MI-511
Miscellaneous. Affirms dismissal of Justise’s pro se complaint against Jerry Huston and Karen Richards alleging they denied him access to legal research materials while he was in the Wabash Valley Correctional facility.

Ernest Smith v. State of Indiana (NFP)
49A05-1006-CR-339
Criminal. Affirms convictions of Class D felony attempted theft and Class B misdemeanor unauthorized entry of a motorized vehicle.

Term. of Parent-Child Rel. of B.B. & M.B.; K.A. & B.B. v. I.D.C.S. (NFP)
33A01-1007-JT-379
Juvenile. Affirms termination of parent-child relationship.

Willie G. Pargo v. State of Indiana (NFP)
49A02-1005-CR-573
Criminal. Affirms convictions of Class A felony dealing in cocaine, Class C felony possession with a firearm, and Class B felony unlawful possession of a firearm by a serious violent felon.

Charles Durham v. State of Indiana (NFP)
49A04-1006-PC-363
Post conviction. Affirms denial of petition for post-conviction relief.

Stephan D. Parks v. State of Indiana (NFP)
49A02-1006-CR-631
Criminal. Affirms sentence for voluntary manslaughter as a Class A felony.

Daniel A. Demaree v. State of Indiana (NFP)
55A01-1005-CR-295
Criminal. Affirms convictions of and sentence for five counts of Class A felony child molesting.

Rextori Pizza, et al. v. Dutch Mill Plaza, LLC (NFP)
90A02-1008-CC-920
Civil collections. Affirms order entering final judgment in favor of Dutch Mill Plaza on its complaint against Rextori for breach of contract and on Rextori’s counterclaims for wrongful eviction and conversion. Remands for a hearing on appellate attorney fees.

Douglas Alan Baker, Jr. v. State of Indiana (NFP)
42A01-1006-CR-320
Criminal. Affirms conviction of maintaining a common nuisance as a Class D felony.

James McMahon v. State of Indiana (NFP)
49A02-1004-CR-416
Criminal. Affirms conviction of Class C felony child molestation.

Michael A. Thompson v. State of Indiana (NFP)
53A01-1001-CR-24
Criminal. Affirms conviction of Class B felony aggravated battery.

L.P. v. State of Indiana (NFP)
49A02-1006-JV-766
Juvenile. Reverses order modifying probation and suspended commitment and remands for further proceedings.

Indiana Tax Court had posted no opinions at IL deadline.

 
 

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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