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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. 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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