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Opinions July 31, 2012

July 31, 2012
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The following Indiana Supreme Court opinion was released Monday after IL deadline.
Dalmas Maurice Otieno Anyango and Jane Tinna Agola Otieno, as Natural Parents and Next of Kin of Isaiah Omondi Otieno, Deceased v. Rolls-Royce Corporation, Honeywell International Inc., et al.
49S04-1207-CT-434
Civil tort. Affirms trial court ruling dismissing the case based on forum non conveniens, holding that the trial court did not abuse its discretion in holding that another more convenient, adequate forum was available to plaintiffs in a wrongful death action.

Opinions July 31, 2012

7th Circuit Court of Appeals
Carol Aschermann v. Aetna Life Insurance Company, et al.
12-1230
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Larry J. McKinney.
Civil. Affirms the District Court judgment in favor of the insurers, in which an insurer stopped paying a worker’s disability benefits claim, holding that the decision was not arbitrary or capricious.

Indiana Supreme Court
Anthony H. Dye v. State of Indiana
20S04-1201-CR-5
Criminal. Reverses habitual-offender enhancement but summarily affirms the COA’s ruling that an executed term of 20 years is not inappropriate. Remanded to trial court with instructions to enter an order for an executed term of 20 years. Justice Massa dissents.

Shepherd Properties Co., d/b/a Shepco Commercial Finishes v. International Union of Painters and Allied Trades, District Council 91
49S04-1112-PL-697
Civil plenary. Affirms trial court ruling that private parties are liable for attorney fees of a substantially prevailing plaintiff under the Access to Public Records Act. Remands for determination of what additional attorney fees the union incurred under the APRA as a result of Shepherd Properties’ appeal. Chief Justice Dickson and Justice Massa dissent without opinion.

The Presbytery of Ohio Valley, Inc., d/b/a The Presbytery of Ohio Valley, d/b/a Ohio Valley Presbytery, et al. v. OPC, Inc., f/k/a Olivet Presbyterian Church, Inc., et al.
82S02-1105-MF-314
Mortgage foreclosure. Reverses and remands to the trial court for further proceedings in this property dispute, holding that neither party is fully entitled to either the trial court’s grant of summary judgment in favor of Olivet, nor the appeals court’s reversal and grant of summary judgment for the Presbytery. Justices Sullivan and Massa dissent.

Sean Thomas Ryan v. Dee Anna Ryan
71S03-1111-DR-644
Domestic relation. Affirms the trial court ruling that it had no authority to modify the property agreement between Sean and Dee Anna Ryan without Dee Anna’s consent. Finds the language of the parties’ agreement allows the court to conclude as a matter of contract law that Dee Anna is bound to agree to sales prices for the properties that would produce net proceeds less than those stated in the agreement.

James C. Purcell v. Old National Bank
49S02-1201-CT-4
Civil tort. Holds the trial court did not abuse its discretion under Trial Rule 50(A) in its determination that the evidence presented by Purcell was insufficient to merit presentation of evidence to the jury. When Stein’s interrogatory responses are viewed as a whole and in conjunction with his trial testimony, the import is that this evidence – standing alone – is insufficient to support Purcell’s intentional tort claims under the court’s qualitative analysis. Also agrees that Old National did not owe a duty of care to Purcell. Chief Justice Dickson and Justice Rucker dissent in part.

Indiana Court of Appeals
The Estate of K. David Short by Judith Y. Short, Personal Representative v. Brookville Crossing 4060 LLC d/b/a Baymont Inns & Suites and MPH Hotels, Inc. d/b/a Baymont Inns & Suites
49A02-1112-CT-1128
Civil tort. Affirms trial court grant of summary judgment in favor of defendants, holding that defendants did not have reason to know of the plaintiff’s peril.

James L. Hebner v. State of Indiana (NFP)
89A04-1111-CR-605
Criminal. Affirms in part and reverses part three convictions of resisting law enforcement, one as a Class D felony and two as Class A misdemeanors.

Samuel Davis, Jr. v. State of Indiana (NFP)
57A03-1110-CR-499
Criminal. Affirms conviction of Class B felony operating while intoxicated causing death.
 
Zachary Daye Riffle v. State of Indiana (NFP)
71A04-1201-CR-7
Criminal. Affirms conviction of Class C felony attempted burglary.

Tommy Joe Doublin v. State of Indiana (NFP)
90A05-1110-CR-521
Criminal. Affirms conviction of Class B felony burglary and adjudication as a habitual offender.
 
Joshua Wotowiec v. State of Indiana (NFP)
49A05-1111-CR-609
Criminal. Affirms conviction of Class A misdemeanor carrying a handgun without a license.

Joseph Peters v. State of Indiana (NFP)
59A01-1108-CR-330
Criminal. Affirms trial court’s denial of motion to dismiss child molesting charges.

Micole Draughon v. State of Indiana (NFP)
49A02-1111-CR-995
Criminal. Affirms in part, reverses in part sentence for Class C felony criminal recklessness, remanding to the trial court to conduct a hearing on indigency and how restitution is to be paid.

Kelly Allen v. State of Indiana (NFP)
42A01-1112-CR-601
Criminal. Affirms trial court revocation of probation.  

Michael Burnett v. State of Indiana (NFP)
49A02-1112-CR-1119
Criminal. Affirms trial court convictions of Class B felony burglary, Class D felony theft and adjudication as a habitual offender.

In re the Guardianship of Thora Moulton: Alison E. Clapp (O'Callaghan) v. Donald J. Evans (NFP)
64A04-1201-GU-13
Guardianship. Reverses award of attorney fees and guardianship-related fees to Evans, holding that the trial court abused its discretion by awarding fees filed too late.

David E. Arnold v. State of Indiana (NFP)
48A05-1112-CR-668
Criminal. Affirms revocation of probation.

David Smithers v. State of Indiana (NFP)
41A04-1111-PC-617
Post-conviction relief. Affirms denial of post-conviction relief.  

Melissa Bruce v. State of Indiana (NFP)
46A03-1110-CR-476
Criminal. Affirms sentence for neglect of a dependent as a Class B felony.

Cynthia R. Atkinson v. Indiana Dept. of Administration (NFP)
49A04-1202-PL-81
Civil plenary. Affirms trial court denial of motion to correct error.

Indiana Tax Court posted no opinions at IL deadline.
 

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  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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