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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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