ILNews

Opinions June 26, 2014

June 26, 2014
Keywords
Back to TopE-mailPrintBookmark and Share

The following opinions were posted after IL deadline Wednesday:
7th Circuit Court of Appeals
Chris Cabral and Nancy Tarsitano v. City of Evansville, Ind.; Appeal of: West Side Christian Church
13-2914
U.S. District Court, Southern District of Indiana, Evansville Division, Judge Sarah Evans Barker.
Civil. Dismisses West Side Church’s appeal of the court order that permanently enjoined the city from permitting the erection of the church’s crosses on the public riverfront. West Side does not have standing to bring the appeal because the court cannot redress any injury the church might have suffered because Evansville is not a party to this appeal and could prohibit the display’s erection regardless of any issue ordered.


Indiana Court of Appeals
First American Title Insurance Company v. Darrell Calhoun and Barbara Calhoun, Successors to Marcus Burgher III, for Issuance of Tax Deed
13A01-1304-MI-177
Miscellaneous. Affirms order denying the original intervenor/mortgage foreclosure judgment holder’s motion for summary judgment, in which it sought to set aside the tax deed issued to the tax sale purchaser and original petitioner, Burgher, for property he later quitclaim deeded to substitute petitioners, the Calhouns. There are questions of fact regarding the constitutional adequacy of the 4.6 Notice and regarding the balancing of the parties’ interests and regarding whether Burgher gave notice in a manner reasonably calculated to inform WM of the issuance of the tax deed.

Indiana Tax Court
Clark County, Indiana v. Indiana Department of Local Government Finance
39T10-1102-TA-9
Tax.  Affirms the DLGF’s final determination that denied Clark County’s petition for an excess property tax levy for the 2011 budget year. The county’s decision to not charge the maximum property tax levy that was allowed under statute for the 2008 year is not an “error in data” that the DLGF can later fix.

Thursday’s opinions

Indiana Court of Appeals
Traci Nelson v. Tony Nelson
41A01-1309-DR-424
Domestic relation. Affirms order denying Traci Nelson’s motion to relocate and modifying custody of her child in favor of father Tony Nelson. Finds mother’s reasons for relocation were legitimate and in good faith and that the conclusion that the Relocation Statute factors disfavored relocation and merited a change in custody to father was not clearly erroneous.

Terry Weisheit Rental Properties, LLC v. David Grace, LLC and Dance Central Academy, LLC

19A05-1310-PL-488
Civil plenary. Reverses judgment finding the existence of a prescriptive easement permitting Grace and the dance academy use of portions of land used by Weisheit for ingress and egress from Grace’s property. The trial court erred in construing the provision of the plaintiffs’ deed.

Lindsay Washmuth and Kristopher Washmuth v. Johnny Wiles and Amy Wiles
48A04-1310-SC-515
Small claims. Reverses judgment in favor of the tenants, Johnny and Amy Wiles. The small claims court erred when it determined that the Washmuths’ notice to the tenants was untimely. Remands for calculation of the amount of damages incurred by the landlords and the amount of security deposit, if any, that should be returned to the tenants.

James R. Sapp v. Flagstar Bank, FSB
49A02-1311-PL-935
Civil plenary. Affirms the trial court properly determined that FSB could issue a charge back to Sapp’s account in accordance with the agreement and Uniform Commercial Code. The trial court correctly found Sapp personally liable for the amount of the check that had been lost. Affirms the amount of attorney fees that the trial court awarded to FSB and remands to decide the amount of appellate attorney fees to which FSB may be entitled.

Rebecca Roberts v. State of Indiana (NFP)
03A01-1311-CR-498
Criminal. Affirms decision ordering Roberts to serve the entire previously suspended sentence following her probation violation.

Thomas Schultheis v. State of Indiana (NFP)
60A04-1311-CR-582
Criminal. Affirms conviction of Class D felony intimidation of a law enforcement officer.

E. Rodney Lewis Blair v. State of Indiana (NFP)
45A03-1311-CR-432
Criminal. Affirms denial of motion to withdraw guilty plea to Class B felony dealing in cocaine.

Desmond McGee v. State of Indiana (NFP)
49A05-1311-CR-555
Criminal. Affirms conviction of Class B misdemeanor battery.

Garry D. Jackson v. State of Indiana (NFP)
39A01-1310-CR-457
Criminal. Affirms conviction of Class A misdemeanor driving while intoxicated, finding Jackson is a habitual offender, and four-year prison sentence.

L.P. Richardson v. Eric Armstrong, Jonathon Postell, Tyrone Postell, Lambert Barnes (NFP)
49A02-1309-PL-826
Civil plenary. Affirms dismissal of Richardson’s complaint and award of attorney fees and court costs to Armstrong.

Shawn P. English v. State of Indiana (NFP)
02A03-1311-CR-457
Criminal. Affirms convictions of Class D felony resisting law enforcement and Class D felony battery.

Rick Whipple v. State of Indiana (NFP)
29A02-1312-CR-1000
Criminal. Affirms conviction of Class A misdemeanor possession of paraphernalia.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline Thursday. The 7th Circuit Court of Appeals posted no Indiana opinions by IL deadline.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

ADVERTISEMENT