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Opinions June 7, 2013

June 7, 2013
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Indiana Court of Appeals
In the Matter of the Supervised Admin. of the Estate of Cora E. Young, deceased; Terry Douthitt, Kelly Douthitt, and Kevin Douthitt v. Theodore R. Young
53A04-1301-EU-36
Estate, unsupervised. Affirms trial court’s finding that the proceeds of a sale of Cora Young’s property should be distributed to her second husband at her death. Since the property was a specific bequest under Young’s will and was sold before her death, it was adeemed by extinction and therefore the proceeds pass to the residuary beneficiary under her will, which is her second husband.

Gayle Fischer v. Michael and Noel Heymann

49A02-1204-PL-340
Civil plenary. Reverses $93,972.18 in damages to Fischer on her breach of contract claim and orders the court to enter a damage award of $117. Holds that the Heymanns committed an anticipatory breach of the purchase agreement on Feb. 10, 2006; that, given the evidence and the trial court’s findings, Fischer’s duty to mitigate arose on Feb. 11, 2006, when she learned of the Heymanns’ breach; and that Fischer failed to act with reasonable diligence to mitigate her damages at her first opportunity, which was no later than Feb. 18, 2006. The trial court acted within its discretion when it limited Fischer’s award for attorney fees and costs, but orders the court to enter an award for those fees commensurate with Fischer’s recovery on the merits and court costs. Judge Bradford dissents.

Jerome K. Jackson, Jr. v. State of Indiana (NFP)
34A04-1210-PC-535
Post conviction. Reverses denial of petition for post-conviction relief and remands for findings and conclusions on the failure to present an officer’s testimony regarding the validity of a license plate as a claim of ineffective assistance of counsel. Reverses on issue of attorney’s failure to present evidence on the issue of whether children were present at the school at the time of Jackson’s arrest. If court finds the failure to present the officer’s testimony wasn’t ineffective assistance of counsel, directs Jackson receive a new trial on the issue of a statutory defense if the state so chooses.

In the Matter of the Term. of the Parent-Child Rel. of: M.R. and L.P. v. The Indiana Dept. of Child Services (NFP)
38A04-1211-JT-573
Juvenile. Affirms termination of parental rights.

Cody Matthew Fritz v. State of Indiana (NFP)
73A01-1212-CR-539
Criminal. Affirms sentence for Class D felony operating a vehicle while intoxicated with a prior conviction.

James D. Brooks v. State of Indiana (NFP)

02A03-1210-CR-454
Criminal. Affirms conviction and sentence for Class D felony theft.

Larry C. Perry, Jr. v. State of Indiana (NFP)

02A03-1211-CR-456
Criminal. Affirms sentence for Class D felony invasion of privacy.

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

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  1. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  2. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  3. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  4. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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