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Opinions June 30, 2011

June 30, 2011
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The following Indiana Supreme Court opinions were posted after IL deadline Wednesday:
Steven Siwinski, et al. v. Town of Ogden Dunes
64S03-1010-CV-599
Civil. Affirms trial court ruling in favor of the town in its suit against the Siwinskis for violating a town ordinance by renting their home. The ordinance is not ambiguous and the Siwinskis impermissibly rented their dwelling in violation of the ordinance. The fine for this violation should not exceed $32,500. Justice Rucker concurs in a separate opinion. Justice Sullivan dissents, believing the Court of Appeals’ analysis was correct.

Donald A. Pierce v. State of Indiana
13S04-1101-CR-7
Criminal. Revises Pierce’s 124-year sentence for three counts of Class A felony child molesting and one count of Class C felony child molesting to 80 years based on the nature of the offense and Pierce’s character. On remand, the trial court may determine whether and to what extent any portion of the sentence should be suspended to probation. Justices David and Dickson dissent.

Hematology-Oncology of Ind., P.C. v. Hadley W. Fruits, et al.
49S05-1106-CV-387
Civil. Affirms judgment awarding attorney fees and litigation expenses brought under the Adult Wrongful Death Statute. Those fees and expenses are recoverable under the statute but remands to limit the provider’s aggregate liability to the $250,000 cap prescribed by the Medical Malpractice Act. Chief Justice Shepard and Justice Rucker dissent.

Jeffery H. McCabe v. Commissioner, Indiana Dept. of Insurance
49S02-1010-CV-602
Civil. Reverses partial summary judgment for the Department of Insurance on the issue of whether attorney fees are recoverable under the Adult Wrongful Death Statute. Holds that attorney fees are recoverable under the Adult Wrongful Death Statute. Considering the General Wrongful Death Statute and the Adult Wrongful Death Statute in pari materia and warranting harmonious interpretation, finds that the phrase "may include but are not limited to" in the AWDS includes the availability of attorney fees and all other elements of damages permitted under the GWDS. Chief Justice Shepard and Justice Rucker dissent.

Indiana Patient's Compensation Fund v. Beverly S. Brown
49S02-1106-CT-388
Civil. Affirms that sums for the expenses of administration, contingent attorney fees and loss of services are recoverable under the Adult Wrongful Death Statute. Agrees with COA decision that attorney fees, probate administration costs, and litigation costs are compensatory damages that remedy actual pecuniary losses so there’s no reason why these damages shouldn’t be allowed. Chief Justice Shepard and Justice Rucker dissent.

Today’s opinions
Indiana Supreme Court
Arturo Garcia-Torres v. State of Indiana
64S03-0912-CR-550
Criminal. Affirms convictions of rape, attempted rape, and two counts of burglary. Garcia-Torres’ consent to the swab of his cheek for DNA was voluntary so the swab was not a violation of the Fourth Amendment. Declines to find Pirtle applies. Justice Rucker dissents.

Indiana Court of Appeals
Enhanced Network Solutions, Inc. v. Hypersonic Technologies
02A03-1011-PL-609
Civil plenary. Affirms order granting Hypersonic Technologies’ request for declaratory judgment that Hypersonic did not violate the terms of the subcontractor agreement. The trial court did not err in finding that Hypersonic did not solicit or induce an employee of Enhanced Network Solutions to terminate his employment in violation of the terms of the subcontractor agreement entered into between Hypersonic and ENS.

Coldwell Banker v. Laub Brothers Oil Co., Inc., et al.
02A05-1003-PL-134
Civil plenary. Affirms denial of Laub Brothers' motion for summary judgment as there is no issue of material fact with respect to whether Coldwell engaged in negotiations with S&S Oil. Affirms denial of judgment on the evidence as Coldwell presented evidence that disputed Laub Brothers' contention that it did not negotiate with S&S Oil. Affirms trial court didn’t err by ruling on its own motion to correct error on the basis that it did not timely file its own motion to correct error. Holds that a new trial on Coldwell’s suit that Laub Brothers wrongfully refused to pay Coldwell a commission is warranted.

David L. Gibbs v. State of Indiana
49A02-1010-CR-1074
Criminal. Reverses conviction of Class B felony arson and remands for a new trial. The trial court erred in failing to appoint a psychiatrist to examine Biggs months after his competency hearing, but it was a harmless error because the trial court did not declare him competent to stand trial as a result of the error. The state’s amendment to Gibbs’ charging information was substantive and the trial court erred in allowing the state to amend the charging information after it had read the original charges to the jury.

Edwin Blinn, Jr. v. Rick Kammen and The Law Firm of Gilroy Kammen & Hill (NFP)
27A04-1008-PL-532
Civil plenary. Affirms summary judgment for Kammen in Blinn’s suit for professional negligence.

Michael Carlton v. State of Indiana (NFP)
49A02-1012-CR-1344
Criminal. Affirms sentence for Class D felony escape.

Quanardel Wells v. State of Indiana (NFP)
49A02-1008-CR-950
Criminal. Affirms conviction of Class C felony intimidation. Affirms imposition of the $250 Sexual Assault Victims Assistance fee, vacates the $100 supplemental public defender fee and remands with instructions that the court hold a hearing on Wells’ ability to pay.

Tina Whiting v. State of Indiana (NFP)
38A05-1008-CR-505
Criminal. Affirms conviction of and sentence for felony murder.

Shawn D. Downs v. State of Indiana (NFP)
09A02-1011-CR-1246
Criminal. Affirms sentence following guilty plea to Class C felony nonsupport of a dependent child.

Justin R. Leed v. Melissa A. Leed (NFP)
50A03-1011-DR-593
Domestic relation. Affirms order modifying the marriage settlement agreement.

Mark May v. Ashley F. Ward, Inc. (NFP)
93A02-1011-EX-1323
Agency appeal. Reverses decision by the Full Worker’s Compensation Board denying May’s claim for benefits. Remands for further proceedings.

Jamison A. Brucker v. State of Indiana (NFP)
02A04-1011-CR-781
Criminal. Affirms sentence for Class D felony fraud.

Llewellyn Richardson v. State of Indiana (NFP)
71A05-1012-CR-820
Criminal. Affirms convictions of Class D felony residential entry and Class A misdemeanor invasion of privacy.

Donna J. Layton v. City of Lebanon (NFP)
06A04-1008-PL-597
Civil plenary. Affirms denial of motion to correct error after jury awarded Layton $133 in her lawsuit against the city after sewage invaded her residence and crawl-space.

Peter Frericks v. State of Indiana (NFP)
43A03-1008-CR-412
Criminal. Dismisses appeal of revocation of probation.

James L. Whitfield v. State of Indiana (NFP)
49A02-1008-CR-938
Criminal. Affirms conviction of Class D felony theft.

Byron G. Lewis v. State of Indiana (NFP)
46A03-1004-CR-200
Criminal. Affirms convictions of and sentence for three counts of Class A felony dealing in cocaine. Remands for correction to the abstract of judgment.

Hector R. Castillo v. State of Indiana (NFP)
49A02-1009-CR-1020
Criminal. Affirms convictions of two counts of Class A felony dealing in methamphetamine.

Jarrod W. Fair v. State of Indiana (NFP)
30A01-1012-CR-685
Criminal. Vacates possession of cocaine and marijuana convictions and sentences and affirms convictions of and sentences for dealing in cocaine and dealing in marijuana.

Rodney L. Williams v. Sullivan County Sheriff's Department, et al. (NFP)
77A04-1006-MI-403
Miscellaneous. Dismisses challenge to the ruling on Williams' wife’s motion to intervene. Affirms the trial court was not required to order an appraisal of Williams’ property prior to forfeiture.

Gerry S. Hicks v. Rachel M. (Hicks) Villareal (NFP)
43A03-1102-DR-78
Domestic relation. Affirms order granting Villareal’s motion to modify child support.

Trisha Dawn Hudson v. Jeffrey Michael Hudson (NFP)
82A01-1009-DR-545
Domestic relation. Affirms modification of custody in favor of the father but reverses order directing mother’s parenting time with the children be supervised.

Indiana Tax Court had posted no opinions at IL deadline.

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  1. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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