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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. 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.

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

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