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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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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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