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Opinions Jan. 11, 2012

January 11, 2012
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7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.

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

Indiana Court of Appeals
Daniel E. Serban v. State of Indiana
02A03-1106-CR-285
Criminal. Declines to revise Serban’s 11-year sentence following guilty plea to Class C felony corrupt business influence and Class D felony theft. Serban failed to demonstrate his sentence is inappropriate, and his stealing from his clients injured not only them, but also the legal profession.

Nicholas Williams v. State of Indiana
49A02-1103-CR-266
Criminal. Reverses trial court’s grant of the Indiana Board of Pharmacy’s motion to quash Williams’ subpoena for a certified copy of “any and all” of Williams’ prescription records. The confidentiality provisions of the applicable statute were enacted to protect Williams’ physician-patient privilege and pharmacist-patient privilege and he waived those privileges by requesting his prescription records in the exercise of his constitutional right to present a complete defense to the charged crimes. Williams’ request is sufficiently particular, the requested information is material to his defense, not all the information requested would be available from his doctors and the board has failed to show a paramount interest in not disclosing the information.

Dave's Excavating, Inc. and Liberty Mutual Insurance Co. v. City of New Castle, Indiana
33A04-1104-PL-199
Civil plenary. Affirms two orders entered granting summary judgment to New Castle in its suit against Dave’s Excavating on breach of a construction contract and against Liberty Mutual under a performance bond. Dave’s refusal to resume work on the project constituted a breach of construction contract, and Liberty Mutual did not show that it asserted its rights to elect how to mitigate damages “promptly.”

Anthony J. Rehl, Sr. and Bessie A. Rehl v. Robert V. Billetz and Joy A. Billetz
52A05-1105-PL-246
Civil plenary. Affirms judgment in favor of the Billetzes regarding an access easement. The trial court did not err in making its findings of facts related to the relative use or increased use of the easement area and interference with the use of the Rehl property.

Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg
10A05-1102-PL-68
Civil plenary. Affirms in part and reverses in part summary judgment for Isgrigg. Isgrigg, in his official capacity as county surveyor, had standing to seek declaratory relief from the Clark County Drainage Board’s actions. The drainage board’s subdivision project didn’t establish a regulated drain under Indiana Code, and therefore, the board wasn’t required to utilize the county surveyor. The board’s removal of an obstruction from a natural watercourse without the county surveyor’s participation did violate Indiana Code.

Charles Lawrence, Sr. v. State of Indiana
02A03-1105-CR-194
Criminal. Affirms murder conviction. The state presented sufficient substantive evidence to establish that Lawrence was in his sister’s apartment around the time of the shooting and had the opportunity to commit murder.

Shandaleigha M. Tharp v. State of Indiana (NFP)
48A05-1105-CR-292
Criminal. Vacates Tharp’s aggregate 27-year sentence following a guilty plea for various offenses, including forgery, burglary, and theft and imposes an aggregate sentence of 19.5 years, with 14.5 executed and five years suspended.

Diyon Evans v. State of Indiana (NFP)
49A04-1104-CR-227
Criminal. Affirms convictions of Class B felony rape and Class B felony criminal deviate conduct.

Arnold W. Cook v. Consolidated Roofing, Inc. (NFP)
34A02-1104-CC-339
Civil collection. Affirms judgment substantially in favor of Consolidated Roofing on Cook’s complaint for injunctive and declaratory relief and damages.

Vincent Barrett and Sarah Barrett v. City of Logansport, Indiana; Michael Nicoll, in his capacity as Sexton of Mount Hope Cemetery; and James McDonald (NFP)
09A02-1103-PL-252
Civil plenary. Affirms judgment in favor of Logansport, Nicoll and McDonald on the Barretts’ claims for negligence, breach of contract, fraud and injunctive relief.

R.W. v. Indiana Department of Child Services (NFP)
71A03-1107-JT-309
Juvenile. Affirms involuntary termination of parental rights.
 

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  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

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