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Opinions July 17, 2012

July 17, 2012
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The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.

The Indiana Supreme Court Tax Court posted no opinions by IL deadline.

Indiana Court of Appeals

Darrell Larue Brown v. State of Indiana
10A04-1109-CR-551
Criminal. Affirms Brown’s sentence following guilty plea to two counts of Class B felony child molesting. Brown waived his right to appeal.

Anthony W. Browning v. State of Indiana
49A05-1110-CR-540
Criminal. Affirms five convictions of Class C felony child exploitation. There is sufficient evidence to support Browning knowingly disseminated child pornography.

Mark Gaither v. Indiana Dept. of Correction, et al.
18A02-1111-MI-1073
Miscellaneous. Affirms grant of summary judgment in favor of the Indiana Department of Correction and other defendants on Gaither’s claim that a residency restriction placed on him as a sex offender by the statutes violates the ex post facto clause of the Indiana Constitution. Home ownership does not determine whether a condition restricting residency is permissible. It is permissible to prohibit a sex offender from living within 1,000 feet of a school as a condition of probation.

State of Indiana Military Dept., State Armory Board of the State of Indiana, and Governor Mitch E. Daniels, Jr. v. Continental Electric Co., Inc.
45A05-1109-PL-465
Civil plenary. Reverses trial court judgment in favor of Continental Electric on its claim against the state actors for breach of contract and quantum meruit. The trial court erroneously determined that the state had breached a contract between the state and the subcontractor, which had no contract with the state. The court also erred in concluding Continental Electric was entitled to recover from the state on the basis of quantum meruit.

Kenneth Simmons v. State of Indiana (NFP)
49A02-1108-CR-781
Criminal. Affirms conviction of Class B felony aggravated battery.

John Doe a/k/a mspbis123, a/k/a Stacy Palombo v. Eve Carson (NFP)
49A05-1201-PL-2
Civil plenary. Reverses denial of Palombo’s partial motion for summary judgment on Carson’s claim of defamation per se. Remands with instructions to enter an order consistent with this opinion.  

Jason E. Hough v. State of Indiana (NFP)
05A04-1107-CR-361
Criminal. Affirms convictions of three counts of Class A felony child molesting but reverses and remands with instructions with respect to Hough’s sentence.

Adrian Hardy v. State of Indiana (NFP)
18A02-1111-CR-1002
Criminal. Affirms convictions of Class B felony dealing in cocaine and Class D felony maintaining a common nuisance. Remands with instructions to correct the abstract of judgment.

Timothy Matson v. State of Indiana (NFP)
04A03-1112-CR-567
Criminal. Affirms denial of motion to correct erroneous sentence.

Larry C. Perry, Jr. v. State of Indiana (NFP)
02A05-1112-CR-635
Criminal. Affirms convictions of Class D felonies criminal confinement, strangulation, two counts of domestic battery, residential entry, and invasion of privacy; Class A misdemeanors interference with the reporting of a crime and resisting law enforcement; and adjudication as a habitual offender.

William M. Steele v. Daniel Callahan (NFP)
84A01-1110-SC-484
Small claim. Affirms denial of Steele’s motion to dismiss and denial of Callahan’s claim for attorney fees. The trial court properly found that inconsistencies in the 2008 and 2009 surveys conducted by Steele proximately caused Callahan and Riggs to incur costs related to the third survey by Myers. The trial court’s findings that Steele’s negligence proximately caused Callahan’s damages regarding the movement of the fence, the 2008 Steele survey, and his initial landscaping costs, were clearly erroneous. Remands with instructions.

Margaret Killion v. Jarrod Kendall, d/b/a Kendall Kontracting and Jarrod Kendall (NFP)

09A04-1109-CT-513
Civil tort. Affirms denial of Killion’s motion to correct error in the ruling that Kendall Kontracting and Kendall did not commit any fraud during Killion’s home improvement project.

In Re: the Paternity of T.P., R.L. and W.M. v. B.P. (NFP)
06A01-1202-JP-38
Juvenile paternity.  Affirms grant of father’s discovery protective order and finding that stepmother did not meet her burden to pursue third-party custody of T.P. Reverse the award of attorney fees.

In the Matter of the Term. of the Parent-Child Rel. of K.D., K.B., and B.Y.; and N.D., O.Y., and W.B. v. Indiana Dept. of Child Services (NFP)
50A05-1110-JT-568
Juvenile termination. Affirms involuntary termination of parental rights.

Garry Balthes v. Concept Industries, Inc., Composite Technologies, LLC, and Shawn Eshragh (NFP)
20A03-1111-CC-517
Civil collection. Reverses in part summary judgment and remands for further proceedings on the sole issue of Balthes’ promissory estoppel defense or claim and affirms in all other respects.

Robert Spears v. State of Indiana (NFP)
49A05-1103-PC-110
Post conviction. Affirms denial of petition for post-conviction relief.

Michael Berthiaume v. State of Indiana (NFP)
49A02-1111-CR-1018
Criminal. Affirms convictions of Class D felony strangulation and Class A misdemeanor battery.

Gregory Hensley v. State of Indiana (NFP)
49A05-1111-CR-605
Criminal. Affirms conviction of Class B felony criminal deviate conduct.

Omnisource Corporation v. David E. Lallow, James Niswonger, Sr., 3 Rivers Metal Recycling, LLC and J & D Real Estate, LLC (NFP)
02A05-1112-PL-627
Civil plenary. Reverses order granting defendants’ cross-motion for summary judgment in Omnisource’s action against Lallow, Niswonger, 3 Rivers Metal Recycling and J&D Real Estate for injunctive relief and damages.

Dellia Castile v. State of Indiana (NFP)
71A03-1112-CR-583
Criminal. Affirms trial court decision to not reduce bail.

Erik Morales v. State of Indiana (NFP)
10A01-1110-CR-554
Criminal. Affirms convictions of two counts of Class A felony child molesting and one count of Class A felony attempted child molesting.

Term. of Parent-Child Rel. of: Jo.L. (Minor Child), and J.L. (Mother) v. The Indiana Dept. of Child Services (NFP)
22A01-1111-JT-542
Juvenile termination. Affirms termination of parental rights.

Payroll Disbursement Account 2, Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development (NFP)
93A02-1108-EX-878
Agency appeal. Affirms decision by liability administrative law judge affirming the determination of the department of workforce development that PDA 2 is a partial successor employer of Management 2000 Benefits Inc. for purposes of calculating its unemployment insurance tax contributions.

Term. of Parent-Child Rel. of: O.H. & J.M. (Minor Children), and C.H. (Mother) v. The Indiana Dept. of Child Services (NFP)
71A05-1112-JT-707
Juvenile termination. Affirms termination of parental rights.

Tracy Hertel v. State of Indiana (NFP)
71A03-1106-CR-244
Criminal. Affirms denial of motion to correct erroneous sentence.

In the Matter of the Term. of the Parent-Child Rel. of: E.M.R., and V.H. & M.R. v. The Indiana Dept. of Child Services (NFP)
71A03-1110-JT-494
Juvenile termination. Affirms termination of parental rights.
 

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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