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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. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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