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Opinions June 4, 2014

June 4, 2014
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The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
Bruce Ryan v. State of Indiana
49S02-1311-CR-734
Criminal. Affirms two convictions of Class C felony sexual misconduct with a minor, finding no fundamental error by prosecutor’s statements during closing argument. The prosecutor improperly urged the jury to convict Ryan for reasons other than his guilt, but his failure to contemporaneously object and enable the trial court to take corrective action results in procedural default on his appellate claim.

Wednesday’s opinions
Lori Nicklas v. Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber; and Von Tobel Lumber Company, Inc.
64A03-1310-CC-429
Civil collection. Affirms summary judgment in favor of Von Tobel Corp. and the denial of Nicklas’ motion for summary judgment on the company’s action to recover money owed on a promissory note executed by Nicklas and her husband. An agreed judgment against one obligor does not merge and extinguish the obligation of another person jointly and severally liable on the same contract, so Van Tobel was free to seek a judgment against Lori Nicklas after an agreed judgment with Shawn Nicklas had been entered.

In the Matter of the Supervised Estate of Mildred Borgwald, Deceased v. Old National Bank and Raelynn Pound
84A01-1302-ES-80
Estate, supervised. Affirms decision in favor of Old National Bank and Pound, entitling the bank to foreclose on the mortgage and equity line of credit against the estate. The trial court properly excluded the testimony of the estate’s proffered expert witness, Dr. Robert Lalouche pursuant to Evid. R. 702; the estate was not denied the opportunity to make an offer of proof regarding Lalouche’s anticipated testimony; the trial court did not abuse its discretion by admitting redacted, certified copies of medical records; and ONB’s mortgage was not invalidated.

Michael W. Palmby v. Karen M. Palmby
32A04-1310-DR-506
Domestic relation. Affirms denial of Michael Palmby’s verified petition for revocation of spousal maintenance. The trial court did not abuse its discretion when it denied his request and instead modified the payment terms of the accumulated rehabilitative maintenance.

Indiana Insurance Company v. Patricia Kopetsky, and KB Home Indiana Inc.
49A02-1304-PL-340
Civil plenary. KB Home has successfully alleged “property damage” caused by an “occurrence” pursuant to the policies and that the policies’ “expected and intended” and “contractual liability” exclusions do not work to bar coverage in this case. However, the designated evidence generates a question of fact as to whether the known loss doctrine works to bar coverage in this case, and so remands for trial on that question only. Reverses the trial court’s determination that Indiana Insurance is obligated to indemnify Kopetsky as a question not yet ripe for adjudication and affirms that the trial court did not err in granting summary judgment in favor of Indiana Insurance on her bad faith counterclaim.

Marilee Garrison v. State of Indiana (NFP)
82A04-1312-CR-599
Criminal. Affirms conviction and sentence for Class C felony conspiracy to commit theft.

Shemika L. Boyd v. Review Board of the Indiana Department of Workforce Development and Amazon Com INDC, LLC (NFP)
93A02-1310-EX-886
Agency action. Affirms decision that Boyd is ineligible for unemployment benefits.

Corday C. Dixon v. State of Indiana (NFP)
20A03-1311-CR-448
Criminal. Affirms convictions and sentence for two counts of Class C felony child molesting and one count of Class A felony child molesting.

Dennis Daniels v. State of Indiana (NFP)
20A05-1310-CR-517
Criminal. Affirms conviction of Class A misdemeanor criminal recklessness.

Nathan Ferguson and Deanna Ferguson v. Shiel Sexton Company, Inc. d/b/a Shiel Sexton, And WR Dunkin & Son, Incorporated; Lynch, Harrison & Brumleve, Inc.; et al (NFP)
29A02-1310-CT-839
Civil tort. Affirms summary judgment in favor of Shiel Sexton on the Fergusons’ negligence claim.

Aubrey Thompson v. State of Indiana (NFP)
49A02-1307-CR-606
Criminal. Reverses conviction of Class B misdemeanor public intoxication.

Jason Severs v. State of Indiana (NFP)
84A05-1310-CR-527
Criminal. Affirms sentence for securities fraud as a Class B felony, unlawful acts related to offer of sale of a security as a Class C felony and violating broker-dealer registration requirements as a Class C felony.

Jacob Lutz v. State of Indiana (NFP)
15A01-1310-CR-451
Criminal. Affirms determination that Lutz is a sexually violent predator.

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

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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