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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. 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.

  2. 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.

  3. 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.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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