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Opinions June 8, 2011

June 8, 2011
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Indiana Supreme Court
Randy Edward Johnson v. State of Indiana
53S01-1106-CR-335
Criminal. Johnson failed to establish that his trial counsel was burdened by a conflict of interest sufficient to trigger the Sixth Amendment duty of inquiry under Holloway or Sullivan. Under similar circumstances, though, a judge should do more than simply pass a complaint by a defendant to the public defender’s office.

Indiana Court of Appeals
Donna Gibson v. G. David Bojrab, M.D., et al.
02A05-1008-CT-497
Civil tort. Affirms judgment in favor of Dr. Bojrab and Pain Management Associates PC on Gibson’s medical malpractice claim. To the extent the issue was properly preserved, Gibson didn’t establish that the trial court abused its discretion in excluding evidence of the medical review panel’s conclusion in an unrelated case against Bojrab.

Cynthia Perdue v. Greater Lafayette Health Services d/b/a Home Hospital
79A05-1011-CT-687
Civil tort. Reverses summary judgment in favor of Home Hospital on Perdue’s complaint alleging negligence and seeking damages for bodily injuries. The trial court erred when it concluded her complaint is barred by a statute of repose. Remands for further proceedings.

Guideone Insurance Co., as Subrogee of Andrew Alexander and Michael Schafstall v. U.S. Water Systems, Inc., and Lowe's Home Centers, Inc.
49A05-1009-CT-569
Civil tort. Affirms grant of partial summary judgment to Lowe’s on the scope of liablity. Reverses summary judgment in favor of Guideone on the issue of liability because an issue of material fact remains. Reverses grant of U.S. Water’s motion to dismiss because the flood damage that resulted from the apparent failure of the water system resulted in physical damage to “other property,” a claim under which Guideone could potentially recover. Remands for further proceedings. Judge Baker dissents in part.

Michael K. Arthur v. State of Indiana
28A01-1008-CR-489
Criminal. Reverses order that denied Arthur eligibility for credit time while placed on home detention in a community corrections program. A reasonable construction of the statute, as amended and consistent with its purpose, finds that Arthur may earn credit time during his placement on home detention. Affirms modification of Arthur’s sentence.

Evelyn Garrard, by and through her Attorney-in-fact, Ronald D. Garrard v. Debra L. Teibel and Douglas Grimmer, and Debra Lindsay
45A04-1003-PL-229
Civil plenary. Affirms summary judgment in favor of Evelyn Garrard’s children, Debra Teibel and Douglas Grimmer, following their counterclaim and third-party complaint in Robert Garrard’s action against them for damages, seeking invalidation of Garrard’s power of attorney over Evelyn. The appellate court is unable to discern Garrard’s basis for appeal.

Charles Price v. Delmar Kuchaes

45A04-1007-CT-467
Civil tort. Reverses summary judgment for Kuchaes on the theory of judicial estoppel for Price’s failure to disclose this malpractice action in his Chapter 13 bankruptcy filing. Price has standing to pursue his legal malpractice action. Affirms denial of summary judgment as to damages to Price. Issues of material fact remain such that Price isn’t entitled to summary judgment as to Kuchaes’ liability for malpractice. Remands for further proceedings.

Terri L. Mozingo v. Timothy Pursifull (NFP)
24A04-1011-DR-677
Domestic relation. Reverses child support entered in favor of Pursifull and remands with instructions.

Chad Byrd v. State of Indiana (NFP)
54A01-1101-CR-4
Criminal. Affirms sentence following guilty plea but mentally ill to murder.

Anthony Welkie v. State of Indiana (NFP)
64A04-1006-CR-443
Criminal. Affirms convictions of two counts of Class A felony child molesting and one count of Class C felony child molesting.

Tana Dulin v. Sun Mortgage Co., LLC a/k/a Sun Mortgage, LLC, and Wendy Creed (NFP)
29A04-1008-PL-482
Civil plenary. Affirms award of damages to Dulin in her successful suit against Sun Mortgage and Creed.

Troy L. McMurtry v. Sabrina L. McMurtry (NFP)
82A01-1008-DR-485
Domestic relation. Affirms order granting Sabrina McMurtry’s petition to modify the pre-existing parenting time schedule, calculating father’s child support obligation, and denying Troy McMurtry’s request for attorney fees.

Brandon Gifford v. State of Indiana (NFP)
29A05-1010-CR-707
Criminal. Affirms finding of being a habitual substance offender.

Thomas A. Smith v. State of Indiana (NFP)
38A04-1008-CR-478
Criminal. Affirms Smith’s sentence following a guilty plea to murder, but reverses the imposition of a $10,000 fine. Reverses sentence following a finding of Smith being in contempt of court. Remands for further proceedings.

Jeffrey Randolph v. State of Indiana (NFP)
48A02-1010-CR-1104
Criminal. Affirms sentence following guilty plea to Class D felony criminal recklessness, Class A misdemeanor resisting law enforcement, and Class B misdemeanor public intoxication.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  2. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

  3. The US has 5% of the world's population and 25% of the world's prisoners. Far too many people are sentenced for far too many years in prison. Many of the federal prisoners are sentenced for marijuana violations. Marijuana is safer than alcohol.

  4. My daughter was married less than a week and her new hubbys picture was on tv for drugs and now I havent't seen my granddaughters since st patricks day. when my daughter left her marriage from her childrens Father she lived with me with my grand daughters and that was ok but I called her on the new hubby who is in jail and said didn't want this around my grandkids not unreasonable request and I get shut out for her mistake

  5. From the perspective of a practicing attorney, it sounds like this masters degree in law for non-attorneys will be useless to anyone who gets it. "However, Ted Waggoner, chair of the ISBA’s Legal Education Conclave, sees the potential for the degree program to actually help attorneys do their jobs better. He pointed to his practice at Peterson Waggoner & Perkins LLP in Rochester and how some clients ask their attorneys to do work, such as filling out insurance forms, that they could do themselves. Waggoner believes the individuals with the legal master’s degrees could do the routine, mundane business thus freeing the lawyers to do the substantive legal work." That is simply insulting to suggest that someone with a masters degree would work in a role that is subpar to even an administrative assistant. Even someone with just a certificate or associate's degree in paralegal studies would be overqualified to sit around helping clients fill out forms. Anyone who has a business background that they think would be enhanced by having a legal background will just go to law school, or get an MBA (which typically includes a business law class that gives a generic, broad overview of legal concepts). No business-savvy person would ever seriously consider this ridiculous master of law for non-lawyers degree. It reeks of desperation. The only people I see getting it are the ones who did not get into law school, who see the degree as something to add to their transcript in hopes of getting into a JD program down the road.

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