ILNews

Opinions June 8, 2011

June 8, 2011
Keywords
Back to TopE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Joseph Buser, Montgomery County Chief Prosecutor, has been involved in both representing the State of Indiana as Prosecutor while filing as Representing Attorney on behalf of himself and the State of Indiana in Civil Proceedings for seized cash and merchandise using a Verified Complaint For Forfeiture of Motor Vehicle, Us Currency And Reimbursement Of Costs, as is evident in Montgomery County Circuit Court Case Number 54C01-1401-MI-000018, CCS below, seen before Judge Harry Siamas, and filed on 01/13/2014. Sheriff Mark Castille is also named. All three defendants named by summons have prior convictions under Mr. Buser, which as the Indiana Supreme Court, in the opinion of The Matter of Mark R. McKinney, No. 18S00-0905-DI-220, stated that McKinney created a conflict of interest by simultaneously prosecuting drug offender cases while pocketing assets seized from defendants in those cases. All moneys that come from forfeitures MUST go to the COMMON SCHOOL FUND.

  2. I was incarcerated at that time for driving while suspended I have no felonies...i was placed on P block I remember several girls and myself asking about voting that day..and wasn't given a answer or means of voting..we were told after the election who won that was it.

  3. The number one way to reduce suffering would be to ban the breeding of fighting dogs. Fighting dogs maim and kill victim dogs Fighting dogs are the most essential piece of dog fighting Dog fighting will continue as long as fighting dogs are struggling to reach each other and maul another fih.longaphernalia

  4. Oh, and you fail to mention that you deprived the father of far FAR more time than he ever did you, even requiring officers to escort the children back into his care. Please, can you see that you had a huge part in "starting the war?" Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

  5. Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

ADVERTISEMENT