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Opinions July 1, 2010

July 1, 2010
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The following opinions were posted after IL deadline Wednesday
Indiana Supreme Court

The Kroger Co. v. Lu Ann B. Plonski
49S02-0907-CV-347
Civil. Affirms denial of Kroger’s motion for summary judgment on Plonski’s complaint for damages for negligence after she was attacked in the store’s parking lot. The trial court erred in granting her motion to strike Kroger affidavits on criminal activity within the past 2 years and by allowing her to introduce the police reports for the ostensible purpose of supporting her motion. The burden is on Kroger to demonstrate that the assault was not foreseeable, which they did not do.

Curtis F. Sample v. State of Indiana
45S03-1006-CR-338
Criminal. Affirms Sample’s convictions and sentence for attempted murder and criminal confinement. Vacates habitual finding adjudication and remands for new habitual offender phase of trial. Because the trial court provided over Sample’s objection an instruction that minimized the jury’s power of discretion in making a determination on habitual offender status, and provided a “law and facts” instruction that rendered meaningless the jury’s Article I, Section 19 authority, the trial court committed reversible error. Sample is entitled to have the habitual offender adjudication vacated.

Luis E. Duran v. State of Indiana
45S03-0910-CR-430
Criminal. Entry into Duran’s home violated both the state and federal constitutions and the evidence of drugs must be suppressed. The information available to the arresting officers didn’t satisfy even the least-restrictive reasonable suspicion standard.

Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General
32S01-0910-CV-504
Civil. Holds that a 2005 amendment authorized State Employee Appeals Commission to consider ethical violations among other grounds for termination in conducting this review, but did not otherwise affect the general rule that the Ethics Commission has exclusive jurisdiction to interpret the state Ethics Code. Ghosh’s attempt to review his termination by the Indiana Department of Environmental Management in this subsequent Ethics Commission proceeding is therefore barred by IDEM’s earlier unappealed decision to terminate him. Upholds the Ethics Commission’s sanction against Ghosh.

Austin Knight v. State of Indiana
02S03-1006-CR-339
Criminal. Revises Knight’s sentence of 70 years following a guilty plea without a plea agreement to 11 counts, including felony burglary and robbery, to a total aggregate term of 40 years. Cannot conclude that Knight’s transgressions necessarily “demonstrate a character of such recalcitrance or depravity” that they justify a 70-year sentence. Remands for re-sentencing.

Today’s opinions
Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Luiz Alves v. Old National Bank f/k/a St. Joseph Capital Bank
71A03-0909-CV-416
Civil. Affirms denial of Alves’ Ind. Trial Rule 60(B) motion. Because he filed his motion more than one year after the trial court granted summary judgment for Old National Bank and his earlier appeal of that judgment doesn’t toll the 1-year limit applicable to motions brought pursuant to subsections (1)-(4), his motion is untimely. In addition, the evidence on appeal doesn’t show the bank owed a duty to Alves or that the bank breached a duty by conspiring with his former business partner to remove him from their company.

John M. Knight v. Kelly A. Knight (NFP)
39A01-0909-CV-453
Civil. Affirms denial of John Knight’s petition for modification of child support.

Luiz Alves v. Damon R.  Leichty, James W. Tuesley, and Barnes & Thornburg, LLC (NFP)
71A03-0912-CV-605
Civil. Affirms dismissal with prejudice of Alves’ complaint for legal malpractice.

Karla J. Reaser v. State of Indiana (NFP)
92A03-1001-CR-20
Criminal. Affirms convictions of Class C felony battery, Class A misdemeanor possession of paraphernalia, and Class D felony criminal confinement.

Derrick D. Hammond v. State of Indiana (NFP)
59A05-0908-CR-475
Criminal. Affirms convictions of Class A misdemeanor operating while intoxicated and Class B misdemeanor false informing.

In Re: the Marriage of J.R. and M.R. (NFP)
30A01-0912-CV-581
Civil. Affirms child support award, reverses division of marital estate, and remands with instructions.

Elizabeth Saldivar-Cruz v. Guardian Industries Corp. (NFP)
93A02-0909-EX-839
Civil. Affirms denial of application for adjustment of claim with the Worker’s Compensation Board of Indiana.

Gregory A. Harpenau v. State of Indiana (NFP)
62A01-1002-CR-52
Criminal. Affirms conviction of Class D felony operating a vehicle while intoxicated with a prior conviction.

Indiana Tax Court had posted no opinions at IL deadline.

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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