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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. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  2. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  4. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  5. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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