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Opinions Feb. 29, 2012

February 29, 2012
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7th Circuit Court of Appeals had posted no opinions at IL deadline.

Indiana Supreme Court and Indiana Tax Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Joseph A. Davis v. Herbert Simon and Bui Simon
49A04-1101-CT-5
Civil tort. Reverses denial of Davis’ motion to dismiss for lack of personal jurisdiction a complaint filed by the Simons alleging defamation and false light publicity. Davis’ act of responding to the questions of a reporter who initiated the contact with Davis regarding a California lawsuit, in which he is serving as a plaintiff’s attorney, was not done with the purpose of expressly targeting a resident of the forum state. Judge Kirsch dissents.

Engineered Steel Concepts, Inc., ESC Group Limited, and Tom Anderson v. General Drivers, Warehousemen, and Helpers Union Local 142, International Brotherhood of Teamsters, and Steven Parks
45A04-1106-CT-287
Civil tort. Affirms dismissal of Engineered Steel Concepts and Tom Anderson’s complaint against the union and Steven Parks for lack of subject matter jurisdiction. The trial court properly determined that it had been divested of its subject matter jurisdiction over the state law claims.

State of Indiana ex rel. Family and Social Services Administration v. Estate of Phillip Roy
33A04-1105-ES-246
Estate, supervised. Reverses in part the order that denied the FSSA’s claim against the estate of Phillip Roy for Medicaid expenses incurred by Roy during his lifetime. The FSSA’s claim was not time barred and it has a preferred claim under Indiana Code 12-15-9-1. Remands with instructions. Judge Barnes concurs in part and dissents in part.

Kevin B. Perry v. State of Indiana
30A01-1107-CR-327
Criminal. Reverses conviction of Class D felony sexual battery. While Perry’s actions are reprehensible, they don’t qualify for sexual battery as defined by Indiana statute. Remands with instructions for the conviction to be entered as Class B misdemeanor battery and Perry be sentenced to 180 days incarceration with 90 days suspended.

Monte Hanna and Kim Hanna v. Indiana Farmers Mutual Insurance Company
18A04-1106-PL-305
Civil plenary. Affirms summary judgment in Indiana Farmer’s favor that it was not obligated to pay the Hannas under their underinsured motorist provision of their policy. The Child Wrongful Death Act, the Indiana Supreme Court’s interpretation of the CWDA, and the Hannas’ insurance policy do not entitle the parents to bring more than a single joint claim for their son’s death. Also, the parents have already received amounts from the other drivers’ insurers that exceeded the maximum to which they would have been entitled under the UIM provisions of the Indiana Farmers policy.

Charles A. Jones v. State of Indiana (NFP)
02A04-1107-CR-376
Criminal. Affirms sentence for Class B felony attempted criminal confinement.

Mark Yoder and Barbara Yoder v. Capital One Bank, (USA), N.A. (NFP)
43A05-1103-CC-128
Civil collection. Affirms summary judgment in favor of Capital One Bank on a suit for a credit card balance.

Daniel Robert Mola v. State of Indiana (NFP)
45A03-1105-CR-206
Criminal. Affirms conviction of Class A felony voluntary manslaughter.

Thomas Pine, Individually and as Admin. for the Estate of Helen Pine, Deceased v. Stirling Clinic, Inc., Albert C. Lee, M.D., and Indiana Neurology Specialty Care (NFP)
49A02-1105-CT-382
Civil tort. Affirms summary judgment for defendants Stirling Clinic and others on a medical malpractice claim.

Anthony Taylor v. State of Indiana (NFP)
49A02-1108-PC-752
Post conviction. Reverses denial of petition for post-conviction relief and remands with instructions to grant the relief and vacate Taylor’s conviction of and sentence for unlawful use of body armor.

D.P.J. v. State of Indiana (NFP)
71A04-1109-JV-498
Juvenile. Affirms committing D.P.J. to the Indiana Department of Correction for assignment to the Boys’ School.

Calvin J. Spaulding v. State of Indiana (NFP)
20A03-1107-CR-346
Criminal. Affirms sentence for three counts of Class A felony child molesting and being a habitual offender.

Felix R. St. Pierre v. Jeannette St. Pierre (NFP)
79A02-1102-DR-137
Domestic relation. Reverses some of the findings in support of the maintenance award, either because the evidence in the record does not support them or because they do not support such an award under Indiana Code Section 31-15-7-2(3). However, the remaining findings support an award of rehabilitative maintenance and the trial court did not enter findings to support the amount of the award. Remands with instructions.

Douglas J. Smith v. Gail Lynnette Smith (NFP)
27A02-1107-DR-642
Domestic relation. Affirms in part and reverses in part the modification of father’s child support obligation. Remands with instructions to calculate his weekly support obligation as set forth in the opinion.

Edwin D. Calligan v. State of Indiana (NFP)
02A03-1108-CR-400
Criminal. Affirms denial of motion to correct erroneous sentence.

Charles Neal v. State of Indiana (NFP)
49A05-1106-CR-262
Criminal. Affirms classification as a sexually violent predator.

Logan B. Lake v. State of Indiana (NFP)
45A03-1106-CR-256
Criminal. Affirms murder conviction.

Antonio Rush v. State of Indiana (NFP)
49A02-1106-CR-537
Criminal. Affirms convictions of Class A felony dealing in cocaine and Class A misdemeanor driving while suspended.

Adam Schafer v. State of Indiana (NFP)
55A01-1108-CR-386
Criminal. Affirms sentence for Class B felony causing death when operating a motor vehicle with a schedule I or II controlled substance in the blood.

Stacey L. Certain v. State of Indiana (NFP)
57A03-1105-CR-264
Criminal. Affirms second probation revocation.

Harley J. Wise, II v. State of Indiana (NFP)
37A03-1108-CC-347
Civil collection. Affirms grant of Discover Bank’s motion for summary judgment for a credit card balance.

Nick Bigsby v. State of Indiana (NFP)
49A02-1106-CR-528
Criminal. Affirms convictions of Class A felony rape, Class D felony strangulation, and Class A misdemeanor battery.

Term. of Parent-Child Rel. of J.C.; J.P. v. Indiana Dept. of Child Services (NFP)
82A01-1107-JT-325
Juvenile. Affirms termination of parental rights.


 

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  1. 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...

  2. 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

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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