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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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