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Opinions July 30, 2014

July 30, 2014
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Indiana Court of Appeals
Bartholomew County, Indiana v. Review Board of the Indiana Department of Workforce Development, and Robert L. Amos
93A02-1311-EX-986
Agency action. Affirms administrative law judge’s determination that Robert Amos was entitled to unemployment benefits after he was discharged for playfully shooting another participant with a nonlethal bullet after a training exercise. The review board did not err in finding that the merit board unevenly applied rules to the class of other officers who had playfully shot others in training exercises, Amos was not collaterally estopped from contesting the merit board determination that he was fired for cause, and the administrative law judge did not abuse discretion by denying the county’s request to submit the transcript of the merit board hearing as additional evidence.

Land Innovators Company, L.P., R.N. Thompson, Trinity Homes, Inc. and Trinity Homes, LLC d/b/a Beazer Homes v. Michael L. Bogan and Melody A. Bogan
29A05-1306-PL-308
Civil plenary. Affirms partial summary judgment to the Bogans against Trinity on liability as to claims of negligence, negligence per se, breach of contract, and breach of covenants. Also affirms partial summary judgment to the Bogans against Land Innovators and Thompson on liability as to claims of breach of covenants. In addition, affirms granting Trinity’s motion for judgment on the pleadings against the developers’ claim for indemnification. Reverses injunction for removal of the home. Rules the trial court’s decision without presentation of evidence or findings was improper.  

Selective Insurance Company of South Carolina and 500 Rangeline Road, LLC v. Erie Insurace Exchange, Welch & Wilson Properties, LLC d/b/a Hammons Storage, Allianz Global Risks U.S. Insurance Company
73A01-1307-PL-311
Civil plenary. Reverses grant of summary judgment to Erie Insurance Exchange and denial of appellants’ motion for partial summary judgment. Finds Rangeline is an additional insured under Erie’s policy in the underlying litigation. Robb dissents, agreeing with the trial court that the Additional Insured Endorsement did not provide coverage for Rangeline in the underlying litigation.

Rogelio Garcia v. Garau Germano Hanley & Pennington, P.C.

49A02-1401-PL-7
Civil plenary. Affirms grant of summary judgment in favor of Garau Germano Hanley & Pennington P.C. in a lawsuit alleging improper collection of attorney fees arising from a settlement in a medical malpractice representation. The panel found the firm’s fees were authorized under the contract and the manner in which fees were collected does not compel a conclusion that the firm recovered fees in excess of 15 percent as permitted by statute.

James E. Whitfield, M.D. and St. Joseph Primary Care, LLC v. Jerry Wren, Individually and As Personal Representative of The Wrongful Death Estate of Leslie Wren, et al.
34A02-1307-CT-660
Civil tort. Affirms denial of summary judgment for Whitfield and St. Joseph Primary Care, concluding the trial court did not err because it is clear that evidence relevant to the breach in the standard of care alleged was presented to the Medical Review Panel as required by the Medical Malpractice Act.

Micah D. Perryman v. State of Indiana
20A03-1308-PC-299
Post conviction. Affirms denial of post-conviction relief to an aggregate 50-year sentence for conviction of Class A felony possession of cocaine and Class A misdemeanor possession of marijuana. Perryman failed to meet his burden of establishing grounds for post-conviction relief by a preponderance of the evidence and the court did not err in denying his petition.

Duneland Properties, LLC, Duneland Sand, Inc., Duneland Sand Enterprises, LLC, Duneland Holdings, LLC, David Lasco and Lasco Family Trust v. Northern Indiana Public Service Company
56A03-1308-PL-320
Civil plenary. Affirms award of $245,858 for the cost of reconstructing power lines on a new easement after a prior easement was mined for sand, making servicing poles difficult. The trial court did not err when it allowed experts to testify to opinions based on inadmissible evidence, which the court held is allowed, provided it is the type reasonably relied upon by experts in the field.

In the Matter of the Termination of the Parent-Child Relationship of: S.E. (Minor Child), and R.K. (Mother) v. The Indiana Department of Child Services
29A02-1312-JT-1064
Juvenile. Affirms termination of parental right, holding that the trial court did not err when it required mother R.K., who is deaf, to sign to an interpreter who then spoke her responses aloud. The evidence supports the trial court termination ruling, and R.K. was not denied due process when it required her to sign through an interpreter.

Frederick Bazeley, Jr., As Personal Representative of the Estate of Frederick T. Bazeley, III v. Robert Price and Sampson Fiberglass, Inc. (NFP)
20A03-1401-CT-36
Civil tort. Reverses trial court grant of summary judgment in favor of Robert Price and Sampson Fiberglass in Frederick Bazeley’s wrongful death suit. Remands for proceedings, holding there is a genuine issue of material fact regarding the cause of the fatal crash.

Northern Indiana Public Service Company v. Ruth A. Cranor (NFP)
45A04-1403-PL-117
Civil plenary. Affirms trial court order reinstating Ruth Cranor’s driving privileges.

Warren Parks v. State of Indiana (NFP)
89A01-1308-PC-351
Post conviction. Affirms denial of post-conviction relief.

Nicolas Duesler v. State of Indiana (NFP)
76A03-1311-CR-454
Criminal. Affirms aggregate 40-year sentence for conviction of four counts of Class B felony sexual misconduct with a minor.

In the Matter of the Termination of the Parent-Child Relationship of: A.W., (Minor Child), and J.W., (Mother) v. The Indiana Department of Child Services (NFP)
82A05-1311-JT-581
Juvenile. Affirms termination of parental rights.

Michelle Rose f/k/a Michelle Grabbe v. Jay D. Grabbe (NFP)
64A04-1312-DR-616
Domestic. Affirms grant of father’s petition for termination of child support. Remands to correct a scrivener’s error.  

Natosha L. Stillions v. State of Indiana (NFP)
53A01-1311-CR-508
Criminal. Affirms Class A misdemeanor conviction of theft.

Eric Barnett v. State of Indiana (NFP)
49A02-1311-PC-989
Post conviction. Affirms denial of post-conviction relief.

Angela M. Littrell v. State of Indiana (NFP)
15A01-1401-CR-15
Criminal. Affirms six-year sentence for conviction of Class C felony forgery.

Thomas J. Wiater v. State of Indiana (NFP)
45A03-1403-MI-80
Miscellaneous. Reverses denial of petition to expunge a Class A misdemeanor battery conviction. Because all the statutory requirements for expungement were met, the court was obligated to grant the petition.

Jeremy D. Jones v. State of Indiana (NFP)
65A01-1310-CR-473
Criminal. Affirms 10-year executed sentence for conviction of Class B felony child molesting.

In the Matter of the Finding of Contempt Against Tad Bohlsen During the Proceedings of Health and Hospital Corporation of Marion County v. Dickson Street Investments, LLC (NFP)
49A04-1401-PL-34
Civil plenary. Affirms finding of indirect contempt.

Travis L. Chizum v. State of Indiana (NFP)
50A04-1311-CR-560
Criminal. Affirms convictions of Class B felony dealing methamphetamine and Class D felony convictions of possession of methamphetamine, possession of chemical reagents or precursors with intent to manufacture and maintaining a common nuisance.

The Indiana Supreme Court and Tax Court issued no opinions by IL deadline. The 7th Circuit Court of Appeals issued no Indiana decisions by IL deadline.
 

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  3. 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.

  4. 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.

  5. 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.

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