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Opinions Jan. 31, 2011

January 31, 2011
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Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Cynthia L. Foley v. Robert L. Schwartz and Danny L. Collins
78A04-1005-CT-305
Civil tort. Reverses grant of Schwartz’s motion to dismiss Foley’s complaint following an ATV accident on Collins’ property. The trial court erred when it granted Schwartz’s motion to dismiss for lack of personal jurisdiction. Remands for further proceedings.

JK Harris & Co. v. Ronald Sandlin
49A05-1003-CT-184
Civil tort. Affirms denial of JK Harris’ motions to set aside default judgment and class certification. JK Harris received adequate notice of the proceedings, and waived its right to compel arbitration. Remands for a new evidentiary hearing to define the plaintiff class with more specificity.

Term. of Parent-Child Rel. of D.B.; W.B. v. IDCS and Lake County CASA
45A03-1005-JT-285
Juvenile. Reveres involuntary termination of father W.B.’s parental rights to his child D.B. Given the circumstances before the court, this case hasn’t reached the “last resort” stage to terminate the relationship. Remands for further proceedings under the juvenile court’s previous child in need of services orders.

Merle R. Webb v. State of Indiana
49A02-1006-CR-650
Criminal. Affirms sentence following guilty plea to driving while suspended as a Class A misdemeanor, robbery as a Class B felony, six counts of fraud as Class D felonies, and two counts of attempted fraud as Class D felonies. As Webb pled guilty to all charges without the benefit of a plea agreement, the trial court should have identified his guilty plea as a mitigating factor. However, the trial court would not have imposed a lesser sentence even if it had explicitly identified his guilty plea as a mitigating factor. Webb has not established that his sentence is inappropriate.

R.M. v. Second Injury Fund
93A02-1007-EX-792
Civil. Reverses order of the Full Worker’s Compensation Board that determined R.M. is entitled to receive benefits from the Second Injury Fund beginning with the 501st week after the date of his workplace injury. R.M. should be entitled to receive benefits from the fund beginning with the week following the effective exhaustion of his worker’s compensation benefits.

John M. Norris v. State of Indiana
64A05-1003-CR-168
Criminal. Affirms conviction of murder. The trial court did not err in refusing to instruct the jury on involuntary manslaughter and there is sufficient evidence to prove that Norris knowingly or intentionally killed his long-term live-in girlfriend.

Brett Zagorac v. State of Indiana
45A03-0910-CR-481
Criminal. Affirms denial of motion to correct error following the summary denial of Zagorac’s petition to expunge his arrest record. He hasn’t show the summary denial was an abuse of the trial court’s “almost unfettered discretion” to deny his petition nor can he succeed with his argument that the expungement statute violates the Indiana Constitution as he waived that argument for appeal.

Charleen (Turi) King v. Kenneth Robert Turi (NFP)
82A01-1006-DR-267
Domestic relation. Affirms denial of King’s motion to correct error following the court’s ruling on her information for indirect contempt. Remands for a hearing on appellate attorney fee damages.

Daniel J. Hooper v. Donna J. Smith (NFP)
32A01-1009-DR-439
Domestic relation. Reverses order granting Smith’s “motion for acceptance of jurisdiction under the Uniform Child Custody Jurisdiction Act.”

Roy A. Selby v. State of Indiana (NFP)
63A01-1005-CR-235
Criminal. Affirms convictions of child molesting, one count as a Class A felony and one count as a Class C felony, and 50-year aggregate sentence.

Gary G. Lane v. State of Indiana (NFP)
15A01-1007-CR-346
Criminal. Affirms sentence imposed following revocation of probation.

G.W. v. Review Board (NFP)
93A02-1004-EX-542
Civil. Affirms denial of claim for full unemployment benefits.

Katherine Weber v. Carrie Schlichtenmyer (NFP)
02A03-1008-PL-460
Civil plenary. Affirms summary judgment in favor of Schlichtenmyer as personal representative of the estate of Gerald Schlichtenmyer on Weber’s claim asserting the estate owed her money for personal services rendered to Gerald before his death.

Marty B. Beard v. State of Indiana (NFP)
12A02-1001-CR-423
Criminal. Affirms conviction of Class D felony maintaining a common nuisance but reverses the Class D felony conviction of possession of precursors. Affirms sentence enhancement imposed due to habitual substance offender status. Remands for further proceedings.

Term. of Parent-Child Rel. of Ca.K and Co.K.; J.S. v. I.D.C.S. ad Monroe County CASA (NFP)
53A05-1006-JT-345
Juvenile. Affirms involuntary termination of parental rights.

Dorian L. Harris v. State of Indiana (NFP)
71A04-1004-CR-258
Criminal. Affirms convictions of Class B felonies burglary and robbery.

Virgil Austin v. State of Indiana (NFP)
49A02-1007-CR-868
Criminal. Affirms sentence following guilty plea to two counts of Class C felony operating a motor vehicle after license forfeited for life, Class D felony resisting law enforcement, and Class A misdemeanor criminal recklessness.

R.K. v. State of Indiana (NFP)
49A02-1002-JV-343
Juvenile. Affirms adjudication as a delinquent child for committing what would be Class A misdemeanor possession of marijuana if committed by an adult.

Jackie Joiner v. State of Indiana (NFP)
89A01-1005-CR-249
Criminal. Affirms conviction of Class C felony nonsupport of a dependent child.

A.C., et al., Alleged to be CHINS; D.B. v. IDCS and Child Advocates (NFP)
49A05-1002-JC-154
Juvenile. Affirms adjudication of A.C. as a child in need of services. Remands for the court to remove reference to E.C. from the order that D.B. establish paternity.

Tiffany Shelman v. State of Indiana (NFP)
49A02-1006-CR-664
Criminal. Affirms conviction of Class A misdemeanor possession of marijuana.

Scott A. Hesser v. Wendy S. Hesser (NFP)
71A05-1004-DR-300
Domestic relation. Affirms division of marital property.

Conan L. Helsley v. State of Indiana (NFP)
87A05-1006-CR-402
Criminal. Affirms order denying Helsley’s motion for discharge pursuant to Indiana Criminal Rule 4(C) and remands for trial.

James Daher, Jr. v. State of Indiana (NFP)
56A03-1006-CR-315
Criminal. Affirms conviction of Class B felony conspiracy to commit escape with a deadly weapon.

Gregory Barkdull v. State of Indiana (NFP)
48A05-1004-CR-218
Criminal. Affirms convictions of and 9-year sentence for Class D felony operation a vehicle while intoxicated, Class C infraction speeding, and determination he is an habitual substance offender.

T.B. v. Review Board (NFP)
93A02-1003-EX-535
Civil. Affirms Review Board’s affirmation of an administrative law judge’s decision finding T.B. was terminated for good cause.

Adoption of D.M.C., et al.; D.L.C. v. Chr.P. and Cha.P. (NFP)
43A03-1007-AD-370
Adoption. Affirms adoption by stepfather Chr.P.

D.A. v. State of Indiana (NFP)
49A05-1006-JV-448
Juvenile. Affirms adjudication as a delinquent for committing what would be two counts of Class B felony child molesting if committed by an adult.

Company v. Review Board, K.S. (NFP)
93A02-1007-EX-765
Civil. Affirms decision to grant unemployment benefits to K.S.

Term. of Parent-Child Rel. of S.S.; B.S. & T.S. v. I.D.C.S. (NFP)
15A05-1006-JT-406
Juvenile. Affirms termination of parental rights.

David Farmer, II v. State of Indiana (NFP)
55A05-1008-CR-512
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft.

Charles D. Lamphier v. State of Indiana (NFP)
71A03-1006-CR-335
Criminal. Affirms sentence following guilty plea to operating a motor vehicle after driving privileges had been forfeited for life as a Class C felony.

Monica M. Emmons v. State of Indiana (NFP)
30A05-1004-CR-414
Criminal. Affirms trial court didn’t abuse its discretion in allowing a brief continuance or in admitting audio recordings. Reverses trial court award of credit time and remands with instructions to recalculate the amount of credit time.

Charles Vernon Nute, Jr. v. State of Indiana (NFP)
48A02-1007-CR-828
Criminal. Affirms convictions of two counts of Class D felony child solicitation and one count of Class C felony child molesting.

Kaouthar Chamem v. State of Indiana (NFP)
49A05-1004-CR-214
Criminal. Affirms conviction of Class B misdemeanor battery.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court granted one transfer and denied 12 for the week ending Jan. 28.
 

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  1. I enrolled America's 1st tax-free Health Savings Account (HSA) so you can trust me. I bet 1/3 of my clients were lawyers because they love tax-free deposits, growth and withdrawals or total tax freedom. Most of the time (always) these clients are uninformed about insurance law. Employer-based health insurance is simple if you read the policy. It says, Employers (lawyers) and employees who are working 30-hours-per-week are ELIGIBLE for insurance. Then I show the lawyer the TERMINATION clause which states: When you are no longer ELIGIBLE! Then I ask a closing question (sales term) to the lawyer which is, "If you have a stroke or cancer and become too sick to work can you keep your health insurance?" If the lawyer had dependent children they needed a "Dependent Conversion Privilege" in case their child got sick or hurt which the lawyers never had. Lawyers are pretty easy sales. Save premium, eliminate taxes and build wealth!

  2. Ok, so cheap laughs made about the Christian Right. hardiharhar ... All kidding aside, it is Mohammad's followers who you should be seeking divine protection from. Allahu Akbar But progressives are in denial about that, even as Europe crumbles.

  3. Father's rights? What about a mothers rights? A child's rights? Taking a child from the custody of the mother for political reasons! A miscarriage of justice! What about the welfare of the child? Has anyone considered parent alienation, the father can't erase the mother from the child's life. This child loves the mother and the home in Wisconsin, friends, school and family. It is apparent the father hates his ex-wife more than he loves his child! I hope there will be a Guardian Ad Litem, who will spend time with and get to know the child, BEFORE being brainwashed by the father. This is not just a child! A little person with rights and real needs, a stable home and a parent that cares enough to let this child at least finish the school year, where she is happy and comfortable! Where is the justice?

  4. "The commission will review applications and interview qualified candidates in March and April." Riiiiiight. Would that be the same vaulted process that brought us this result done by "qualified candidates"? http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774 Perhaps a lottery system more like the draft would be better? And let us not limit it to Indiana attorneys so as to give the untainted a fighting chance?

  5. Steal a little, and they put you in jail. Steal a lot, and they make you king. Bob Dylan ala Samuel Johnson. I had a very similar experience trying to hold due process trampling bureaucrats responsible under the law. Consider this quote and commentary:"'When the president does it, that means it is not illegal,' [Richard] Nixon told his interviewer. Those words were largely seen by the American public -- which continued to hold the ex-president in low esteem -- as a symbol of his unbowed arrogance. Most citizens still wanted to believe that no American citizen, not even the president, is above the law." BWHaahaaahaaa!!!! http://www.philly.com/philly/blogs/attytood/When-the-president-does-it-that-means-it-is-not-illegal.html

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