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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. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

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