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Opinions Jan. 31, 2013

January 31, 2013
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Indiana Court of Appeals
Mark S. Weinberger, M.D., et al. v. Gloria Gill
45A05-1203-CT-107
Civil tort. Affirms award of $150,000 in damages to Gloria Gill following her medical malpractice action. Concludes that the testimony concerning Weinberger’s odd behavior before his flight from the country was relevant evidence because it established an inference of consciousness of guilt.

Brian Kendrick v. State of Indiana

49A05-1206-CR-314
Criminal. Affirms sentence on remand of 53-years for Class A felony attempted murder, Class B felony robbery and Class A misdemeanor carrying a handgun without a license. Even though Kendrick’s sentence for Class A felony attempted murder increased, his aggregate sentence did not change.

Virginia E. Alldredge and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis v. The Good Samaritan Home, Inc.

82A01-1206-CT-249
Civil tort. Affirms portion of judgment that held fraudulent concealment could operate to toll the Wrongful Death Act’s two-year limitations period, but reverses the court’s conclusion that the plaintiffs had only a reasonable time in which to commence their wrongful death action. The plaintiffs have two years after the concealment is or should have been discovered with reasonable diligence in which to file their claims. Remands for continuation of the underlying litigation.

Paul D. Edwards v. Zobeida E. Bonilla-Vega
53A05-1203-DR-163
Domestic relation. Affirms distribution of marital assets. Because a chose in action is a property right, the trial court did not abuse its discretion when it included the husband’s settlement with a former employer in the marital pot.

In Re: The Paternity of A.S.: Melissa Slansky v. Mary Doffin-Syler, and Bradley Howell

64A03-1204-JP-171
Juvenile. Reverses order awarding custody of M.S.’s daughter to the maternal grandmother M.D. The trial court’s judgment isn’t supported by clear and convincing evidence. The trial court shall determine the details of the father’s visitation and determine what, if any, visitation rights are due to the grandmother.

Henry Wagler, Barb Wagler and Henry and Barb Wagler, LP v. Fort Wayne-Allen County Department of Health

02A03-1206-PL-269
Civil plenary. Affirms summary judgment in favor of the health department on its claim that the Waglers were required to obtain a construction permit from the department prior to installing their septic systems. Rejects the Waglers’ statutory exemption argument, finding the statute is inapplicable.

Reuban L. Strong, Jr. v. State of Indiana (NFP)
84A01-1205-CR-235
Criminal. Affirms revocation of placement in work release.

Joseph J. Rheubottom, Jr. v. State of Indiana (NFP)
84A01-1205-CR-244
Criminal. Affirms sentence following guilty plea of Class B felony neglect of a dependent.

Bernard Carter, Prosecuting Attorney, Lake County, John Buncich, Sheriff of Lake County, and Indiana Dept. of Correction v. Tim J. Hurd (NFP)
45A04-1206-PL-302
Civil plenary. Affirms grant of injunction enjoining the Department of Correction, Lake County sheriff and Lake County prosecutor from requiring Hurd to continue registering as a sex offender.

Schwala M. Royal v. State of Indiana (NFP)

02A03-1206-CR-292
Criminal. Affirms conviction and sentence for Class D felony prostitution as well as revocation of probation.

In Re the Termination of the Parent-Child Rel. of N.W. and D.W. v. Indiana Department of Child Services (NFP)
49A02-1206-JT-480
Juvenile. Affirms involuntary termination of parental rights.

Marvin Willis v. State of Indiana (NFP)

82A01-1206-CR-273
Criminal. Affirms two convictions of Class A misdemeanor driving while suspended.

Steve Pigg v. State of Indiana (NFP)
52A05-1205-CR-318
Criminal. Affirms denial of motion to correct erroneous sentence.

Michael A. O'Brien v. State of Indiana (NFP)

65A01-1205-CR-220
Criminal. Affirms conviction of Class B felony attempted rape.

Brian Buffington v. State of Indiana (NFP)
45A05-1206-CR-297
Criminal. Affirms conviction of Class A felony robbery.

In Re the Involuntary Termination of the Parent-Child Rel. of S.F.; C.P. v. The Indiana Dept. of Child Services (NFP)

02A03-1206-JT-275
Juvenile. Affirms involuntary termination of parental rights.

Edmond MIller v. State of Indiana (NFP)
49A02-1108-CR-721
Criminal. Reverses conviction of Class B misdemeanor disorderly conduct.

Joey Saylor v. State of Indiana (NFP)
58A01-1206-CR-269
Criminal. Affirms order revoking probation and order that Saylor serve remaining two years of previously suspended sentence.

Richard Keith Lazur v. State of Indiana (NFP)
45A04-1207-CR-358
Criminal. Affirms conviction of Class D felony attempted residential entry.

Jovan Fitzhugh v. State of Indiana (NFP)
02A03-1206-CR-255
Criminal. Affirms conviction of Class B felony sexual misconduct with a minor and orders the trial court to vacate the Class C felony sexual misconduct with a minor conviction.

Melvin Sanders v. State of Indiana (NFP)

02A03-1206-CR-262
Criminal. Affirms 60-year sentence for murder.

Dustin L. Grissom v. State of Indiana (NFP)

11A01-1207-CR-301
Criminal. Affirms sentence for Class C felony battery resulting in bodily injury to a pregnant woman and three counts of Class A misdemeanor domestic battery.

Darrol Fox v. State of Indiana (NFP)

49A02-1206-CR-475
Criminal. Affirms denial of motion to suppress evidence.

Keith A. Harlow v. State of Indiana (NFP)

06A01-1206-PC-296
Post conviction. Affirms denial of petition for post-conviction relief.

Torrey Pargo v. State of Indiana (NFP)
49A05-1207-CR-351
Criminal. Affirms sentence for Class D felony intimidation.

Toby Webster v. State of Indiana (NFP)
49A02-1206-CR-522
Criminal. Affirms conviction of Class D felony attempted auto theft and adjudication as a habitual offender.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of V.M. and M.A. v. Indiana Department of Child Services (NFP)

45A03-1205-JT-221
Juvenile. Affirms termination of parental rights.

French Tibbs v. State of Indiana (NFP)

49A02-1205-CR-438
Criminal. Affirms convictions of Class A misdemeanors resisting law enforcement and possession of marijuana.

The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline. The Indiana Supreme Court and Tax Court did not post any decisions by IL deadline.
 

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  1. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  2. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  3. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  4. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  5. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

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