ILNews

Opinions Feb. 29, 2012

February 29, 2012
Keywords
Back to TopE-mailPrintBookmark and Share

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.


 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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)

ADVERTISEMENT