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Opinions June 28, 2010

June 28, 2010
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Indiana Supreme Court
Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven
09S05-1003-CV-149
Civil. Reverses grant of summary judgment as to the plaintiffs’ liability claims against the sheriff for the conduct of Deputy Brad Craven. Affirms summary judgment for claims against Craven personally. Holds that a law enforcement officer's use of force in excess of the reasonable force authorized by statute is not shielded from liability under the "enforcement of a law" immunity provided in Indiana Code § 34-13-3-3(8) and that genuine issues of fact exist, precluding summary judgment. Chief Justice Shepard dissents without opinion.

Indiana Court of Appeals

Julianne E. Tamasy v. Peter S. Kovacs
49A05-0910-CV-563
Civil. Affirms order granting physical custody of the parties’ children to Kovacs. The trial court did not abuse its discretion in denying Tamasy’s request to transfer the custody proceedings to Massachusetts, in excluding certain testimony at trial, in modifying the previous custody order, and in issuing a July 23, 2009, order regarding Tamasy’s emergency motion to compel parenting time.

Indianapolis-Marion Co. Public Library v. Thornton Thomasetti Engineers, et al.

6A05-0906-CV-327
Civil. Affirms summary judgment in favor of Thorton Thomasetti Engineers on the common law indemnity cross-claim and contractual indemnity cross-claim. Declines library’s invitation to adopt the doctrine of implied contractual indemnity. Reverses summary judgment for TTE on the cross-claim for breach of professional standard of care. It is up a jury to decide whether TTE committed a breach of damages to which WMP may be entitled. Remands for further proceedings on this cross-claim.

American Family Insurance v. Beazer Homes, et al.
49A02-0912-CV-1292
Civil. Reverses dismissal of American Family Insurance’s claim for failure to prosecute against Beazer Homes and other defendants. The trial court abused its discretion in dismissing the claim under Indiana Trial Rule 41(E). The record does not reveal a history of an egregious pattern of deliberate delay on the part of American Family or that American Family defied any court orders. Remands with instructions to reinstate the cause of action.

Elmer D. Baker, v. State of Indiana
17A04-0905-CR-299
Criminal. Grants rehearing to clarify holding on the issue of the amendment of the charging information but affirms original opinion affirming convictions of two counts of Class A felony child molesting and one count of Class C felony child molesting. Clarifies holding to state that the applicable deadline for amending the information is not “before the commencement of the trial” that ended in a mistrial; rather, it is “before the commencement of the trial” that was held on the amended charges, and the one from which Baker filed his appeal.

Eliud Anthony Delgado v. State of Indiana (NFP)
29A02-0911-CR-1142
Criminal. Affirms revocation of placement in community corrections.

Travis Halveland v. State of Indiana (NFP)
89A04-1002-CR-111
Criminal. Affirms sentence following guilty plea to Class D felony theft.

Stardust Development, LLC v. City of Bloomington (NFP)

53A04-0908-CV-487
Civil. Reverses small claims judgment in favor of Bloomington in Stardust Development’s action to recover costs of a tree branch removal. Remands with instructions.

Martin Serrano v. State of Indiana and the City of Fort Wayne (NFP)

02A03-0908-CV-362
Civil. Reverses judgment in favor of the state and City of Fort Wayne ordering the forfeiture of Serrano’s truck, which was seized after a traffic stop.

Maurice Hairston v. State of Indiana (NFP)
02A03-1003-CR-137
Criminal. Affirms convictions of burglary as a Class B felony, receiving stolen property as a Class D felony, and adjudication as a habitual offender.

Jason D. Arbuckle v. State of Indiana (NFP)

72A01-0912-CR-618
Criminal. Affirms conviction of Class A felony dealing in methamphetamine.

Term. of Parent-Child Rel. of T.L.; H.L. v. IDCS (NFP)
02A03-1002-JT-100
Juvenile. Affirms involuntary termination of parental rights.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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