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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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