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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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