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Opinions June 17, 2010

June 17, 2010
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The following opinions were posted after IL deadline Wednesday.
Indiana Tax Court

Mirant Sugar Creek, LLC v. Indiana Dept. of State Revenue
71T10-0803-TA-18
Tax. Denies in part Mirant’s cross-motion for summary judgment on whether Mirant obtained a ruling from the Department of State Revenue providing that it wasn’t subject to the Utility Services Use Tax. The department’s denial of Mirant’s claim wasn’t precluded by Indiana Code Section 6-8.1-3-3. Affirms in part Mirant’s cross-motion for summary judgment on whether the company’s purchases of natural gas was subject to the USUT during the period at issue. Its purchases weren’t subject to the tax pursuant to I.C. sections 6-2.3-3-5 and 6-2.3-5.5-4(2). The department is ordered to refund Mirant the USUT taxes it paid for the period at issue.

Mirant Sugar Creek, LLC v. Indiana Dept. of State Revenue (NFP)

71T10-0803-TA-18
Tax. Denies the Department of State Revenue’s motion to strike in its entirety the affidavit of Mirant’s senior tax analyst and three pages of e-mails between the analyst and a tax analyst with the state department.

Today’s opinions
Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals

Russel Howard v. American Family Mutual Insurance Co.
87A01-0910-CV-512
Civil. Reverses grant of American Family’s motion to substitute the underinsured driver as the sole defendant at trial in Howard’s suit following an accident. Indiana law does not allow the underinsured driver’s substitution as a nominal defendant in these circumstances.

William B. Jones v. State of Indiana
73A01-0911-CR-532
Criminal. Affirms conviction of resisting law enforcement and finding to be a habitual offender. A gaming agent of the Indiana Gaming Commission constitutes a law enforcement officer for purposes of the offense of resisting law enforcement.

Medical Realty Associates, LLC, et al. v. D.A. Dodd, Inc., et al.
45A03-0909-CV-426
Civil. Reverses order denying Medical Realty Associates and Hasse Construction Co.’s motion to compel arbitration and request to stay the mechanic’s lien foreclosure action initiated by D.A. Dodd, and declaring the arbitration unavailable for a claim brought by Korellis Roofing.  By the clear unambiguous language of the Dodd Subcontracts, Hasse is given the option to require arbitration of any or all of Dodd’s claims, including those against MRA and Pinnacle Hospital. The trial court ruled prematurely that Korellis cannot be compelled to arbitrate. Remands for further proceedings.

W.H. v. State of Indiana
49A02-0912-JV-1166
Juvenile. Affirms denial of motion to suppress evidence and adjudication for Class A misdemeanor carrying a handgun without a license. Finds that W.H.’s detention was supported by reasonable suspicion and did not offend his federal constitutional rights. Holds that the stop did not violate W.H.’s state constitutional protections, as the level of suspicion and extent of law enforcement needs outweighed the degree of intrusion.

Burl E. and Carolyn S. Grayson v. United Federal Savings & Loan Association of Crawfordsville, Ind. (NFP)
54A04-1002-MF-114
Civil. Affirms judgment for Union Federal Savings in the Graysons’ counterclaim seeking damages for Union Federal’s disposition of personal property as to which the Graysons were junior holders of a secured interest.

Patricia Garrison v. State of Indiana (NFP)
48A04-0910-CR-568
Criminal. Affirms sentence imposed following revocation of probation.

Daniel Mojica, as Special Administrator of the Estate of Felix Mojica, Jr., Deceased v. Hector Rosario, et al. (NFP)
45A03-0903-CV-116
Civil. Affirms jury verdict in favor of Rosario and the City of East Chicago in Mojica’s suit following the shooting death of Mojica.

Paul Roell v. American Senior Communities, et al. (NFP)
20A03-1001-CC-7
Civil. Affirms summary judgment in favor of American Senior Communities in Roell’s suit that he was discharged in retaliation.

S.P. v. Review Board (NFP)
93A02-0912-EX-1245
Civil. Affirms S.P. is not entitled to unemployment benefits.

Byron D. Thomas v. State of Indiana (NFP)
20A03-0904-CR-182
Criminal. Affirms sentence following guilty plea to dealing in cocaine, one as a Class A felony and one as a Class B felony.

Indiana Tax Court had 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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