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Opinions July 30, 2013

July 30, 2013
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The following opinion was released after IL deadline Monday:
7th Circuit Court of Appeals
Mobile Tool International, Inc. and MTI Insulated Products, Inc. v. Davis H. Elliot Company, Inc.
12-2673
Civil. Affirms summary judgment for Mobile. Finds that the indemnity provision in the invoice did not supersede the language in the lease so Elliot was required to defend and indemnify Mobile against claims made by an injured employee.

Today's opinions:
Indiana Court of Appeals

In Re the Adoption of: P.A.H., f/k/a P..V., Minor Child, B.D. and L.H.C., v. J.H.
79A02-1302-AD-183
Adoption. Reverses trial court’s order granting post-adoption visitation to P.H.’s biological uncle, J.H. Finds the lower court lacked authority to grant post-adoption visitation rights to J.H. since he is not within any statutory category of persons entitled to visitation rights.

In Re: The Paternity of Jo.J., J.W.J., v. D.C.
29A05-1209-JP-447
Juvenile paternity. Affirms the judgment of the trial court to modify the father’s child support obligation and to jail father for contempt. The COA concludes the trial court may have erred in considering mother’s request for “temporary support” prematurely. It did not err in modifying father’s weekly child support payment.

Darla M. Brenton, as Personal Representative of the Estate of Evelyn Norfleet, Deceased v. Leslie D. Lutz
77A01-1302-ES-86
Estate, supervised. Affirms trial court’s order removing Brenton as special administrator of her mother’s estate. Brenton had successfully sought to be appointed as administrator for the sole purpose of collecting damages for wrongful death. However, when the trial court removed her as administrator after learning her brother had already been named as the executor of her mother’s estate, Brenton argued that the trial court did not comply with Indiana Code Section 29-1-10-6. This did not persuade the COA. The appeals court ruled without a valid appointment of a special administrator, there is not reason to seek removal under I.C. Section 29-1-10-6.      

Adam Miller v. State of Indiana
53A05-1211-CR-560
Criminal. Reverses trial court’s denial of Miller’s motion to suppress. Concludes the search of Miller’s backpack was impermissible under the Fourth Amendment of the U.S. Constitution. Judge Cale Bradford dissents, arguing the search of Miller’s backpack did not violate the Fourth Amendment of the U.S. Constitution or Article I, Section 11 of the Indiana Constitution. Further, he asserts, the trial court did not abuse its discretion in allowing the state to reopen its evidence at the suppression hearing.  

Kevin Buckley v. State of Indiana (NFP)

49A04-1211-CR-564
Criminal. Affirms conviction for Class C felony.

Robert Marks v. State of Indiana (NFP)

62A01-1212-CR-591
Criminal. Affirms trial court’s revocation of Marks’ probation.  

Anonymous Hospital, Inc., v. Jane Doe, Et Al., and Indiana Department of Insurance (NFP)
20A03-1210-CT-426
Civil tort. Reverses and remands for further proceedings the trial court granting Doe partial summary judgment. Rules Doe’s complaint for damages falls within the purview of the Indiana Medical Malpractice Act.

Joseph Dowell and Angie L. Grove and Cody Rowe v. American Modern Home Insurance Company (NFP)
50A03-1211-CT-487
Civil tort. Affirms summary judgment for American Modern Home Insurance Co.

Gary Wayne Shortt v. State of Indiana (NFP)
73A01-1212-CR-590
Criminal. Affirms the denial of Shortt’s motion for earned credit time and to correct error in his sentence.

Floyd D. Stewart v. State of Indiana (NFP)

65A05-1212-CR-656
Criminal. Affirms Stewart’s conviction of two counts of Class A felony dealing in cocaine and sentence to concurrent terms of 23 years, with 21 years executed and two years suspended.  

Kendal R. Pitts v. State of Indiana (NFP)

45A03-1211-CR-492
Criminal. Affirms Pitts’ 30-year sentence for Class A felony rape.

Dominique Devon Hayes v. State of Indiana (NFP)

45A05-1211-CR-576
Criminal. Affirms Hayes’ sentence of 17 years for one count of Child Molesting as a Class B felony.  

Margaret Smith v. Kristopher Schaler (NFP)

49A05-1211-CT-552
Civil tort. Affirms trial court’s denial of Smith’s motion to dismiss Schaler’s complaint pursuant to Indiana Trial Rule 12(B)(6). Judge Nancy Vaidik dissents, arguing the trial court did err because Schaler has only pled to spoliation-of-evidence claim in his complaint and spoliation of evidence is not a recognized cause of action in Indiana.

Victor Fointno v. Clair Barnes, Et Al., (NFP)
52A05-1303-SC-126
Small Claim. Affirms trial court’s entry of judgment against Fointno and in favor of the defendants.

James A. Groff v. State of Indiana (NFP)
90A02-1211-CR-886
Criminal. Affirms Groff’s statutory no-contact order as a condition of his executed sentence following his plea of guilty to sexual misconduct with a minor, a Class B felony.  

In the Matter of the Term. of Parent-Child Rel. of M.G. & A.G. (Minor Children), and S.S.(Mother) & S.G.(Father), v. Child Advocates Inc. and Indiana Department of Child Services (NFP)
49A05-1211-JT-583
Juvenile termination. Affirms the termination of mother’s and father’s parental rights.

Truong Vu v. State of Indiana (NFP)
53A04-1207-CR-352
Criminal. Affirms Vu’s convictions for criminal deviate conduct, as a Class B felony; sexual battery, as a Class D felony; and two counts of criminal confinement, as Class D felonies. Remands with instructions for the court to correct its written sentencing statement and any related documents to include the term of probation.  

Jose F. Medina v. State of Indiana (NFP)

20A04-1210-CR-525
Criminal. Affirms Medina’s conviction of and sentence for Class A felony attempted child molesting.

Adam Sullender v. State of Indiana (NFP)
20A03-1212-CR-554
Criminal. Affirms Sullender’s sentence for Class C felony battery of a pregnant woman and Class D felony strangulation.
 
Martez Brown v. State of Indiana (NFP)
48A02-1212-CR-1007
Criminal. Affirms Brown’s 150-year sentence after being convicted of two counts of murder and one count of Class B felony robbery.

Billy Ray Mead v. State of Indiana (NFP)
03A01-1301-CR-33
Criminal. Affirms trial court’s revocation of Mead’s probation and order for him to serve his previously suspended five-year sentence in the Indiana Department of Correction with credit for time served.  

The Indiana Supreme Court and Tax Court release no opinions prior to IL deadline. The 7th Circuit Court of Appeals released no Indiana decisions prior to IL deadline.
 

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  1. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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