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Opinions March 16, 2012

March 16, 2012
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Indiana Tax Court had posted no opinions by IL deadline.

7th Circuit Court of Appeals

Harry Foster III and Linda Foster v. State Farm Fire and Casualty Company
11-3100
United States District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springman.
Civil. Affirms District Court’s grant of summary judgment in favor of State Farm Fire and Casualty Company, holding the Fosters’ failure to produce requested documents was a material breach of their insurance agreement.

Indiana Supreme Court
Jesse J. Harris, Jr. v. State of Indiana
34S02-1203-CR-169
Criminal. Clarifies a matter Harris presented in his appeal, holding that a person who claims forum-shopping has occurred in a criminal case need not establish prejudice in order to prevail on appeal. Requests the judges of Howard County to draft amendments to Local Rule 29 that clear-up ambiguous areas of the law in order to prevent future challenges.

Indiana Department of State Revenue v. AOL, LLC
49S10-1108-TA-514
Tax appeal. Reverses the tax court’s determination that AOL does not owe sales tax for promotional matters distributed in Indiana. The components acquired from vendors outside of Indiana were used to make CD-ROM packages, and AOL argued that it did not acquire the CD-ROM packages and promotional materials in any retail transactions because it merely purchased assembly and printing services. But the Supreme Court held that because the assembly houses and letter shops were selling at retail, the transactions between AOL and its assembly houses and letter shops constituted retail transactions that triggered Indiana’s use tax once AOL used the property in Indiana.

Indiana Court of Appeals
Harry Kaufmann Motorcars, Inc. v. Schumaker Performance, Inc.
41A05-1108-MI-411
Miscellaneous. Reverses ruling by Johnson Superior Judge Lance Hamner to set aside a Wisconsin court’s default judgment regarding sale of a boat. Appellate court holds that Wisconsin’s long-arm statute and caselaw dictates that the state court had personal jurisdiction on the case. Remands for further proceedings.

Indiana Farm Bureau Insurance Company as subrogee of Joseph Koors d/b/a Koors Amoco v. Harleysville Insurance Company
43A04-1109-PL-507
Civil plenary. Reverses Kosciusko Superior Judge Duane Huffer’s decision that granted summary judgment for Harleysville Insurance Company regarding insurance policy coverage pertaining to a service station environmental contamination. Holds that insurance company was not entitled to summary judgment on policy exclusion and questions about notification, and remands for further proceedings.

Jack Messer v. New Albany Police Department
22A05-1104-MI-179
Miscellaneous. Affirms judgment by Floyd Superior Judge Roger Duvall, granting summary judgment for New Albany Police Department and finding there was no issue of fact as to whether police officer Jack Messer’s racially charged remarking to other officers during roll call was considered conduct unbecoming of an officer. That comment provided an appropriate basis for his 30-day suspension. Judge John Baker dissented, finding the department did not meet its burden in proving its interests in operational efficiency outweighed Messer’s First Amendment rights.

Chad M. McLain v. State of Indiana
20A05-1109-CR-480
Criminal. Affirms trial court’s decision to allow evidence obtained in a search of McLain’s car after his initial traffic stop had been completed. Holds that because the police officer told McLain he was free to go, he was not obligated to agree to the search or answer questions, and no violation of his constitutional rights occurred.

In the Matter of the Term. of the Parent-Child Rel. and Adoption of J.P.; M.P. and Z.P.; D.P. and G.P. v. Indiana Dept. of Child Services and J.H. and T.H. (NFP)
71A03-1106-JT-248
Juvenile. Affirms probate court’s denial of paternal grandparents’ petition to adopt J.P. Dismisses without prejudice the court’s decision regarding the foster parents’ adoption petition, because it was neither a final judgment nor an appealable interlocutory order.

Lesnick Jones v. State of Indiana (NFP)
49A02-1105-CR-415
Criminal. Affirms convictions of Class A felony rape, six counts Class A felony deviate conduct, Class B felony burglary, Class B felony robbery, Class B felony criminal confinement and associated charges.

Rickey Robey v. State of Indiana (NFP)
49A04-1107-CR-433
Criminal. Affirms trial court’s denial of motion to correct erroneous sentence, holding that the motion was not the appropriate vehicle for Robey to use.

Dominee M. Florence v. Review Board of the Indiana Dept. of Workforce Development and Kindred Nursing Centers LTD PTR (NFP)
93A02-1109-EX-867
Civil. Dismisses appeal, due to Florence’s numerous and substantial violations of the Indiana Rules of Appellate Procedure.

Paul J. Kinnaman v. State of Indiana (NFP)
24A01-1105-CR-229
Criminal. Affirms convictions of Class A felony dealing in methamphetamine and Class A misdemeanor possession of paraphernalia.

R.F. and I.A. v. Indiana Department of Child Services (NFP)
41A05-1107-JT-376
Juvenile. Affirms termination of parental rights for mother and father.

Andre Gonzalez v. State of Indiana (NFP)
45A03-1108-CR-369
Criminal. Reverses denial of Gonzalez’ petition to remove his sex offender designation, holding that at the time he was sentenced, Indiana law did not require lifetime registration. Remands for removal of his registration.

Rebecca A. Thieling v. State of Indiana (NFP)
45A03-1108-CR-344
Criminal. Affirms convictions of Class C felony forgery and Class D felony auto theft.

Terrell Ewell v. State of Indiana (NFP)
49A04-1107-CR-401
Criminal. Dismisses case for lack of subject matter jurisdiction, concluding Ewell did not timely file his notice of appeal.

Todd Richmond v. Erin Mager (Richmond) (NFP)
64A05-1108-DR-455
Domestic relation. Affirms denial of father’s petition for change of custody and grant of mother’s petition for modification of father’s parenting time.

B.O. v. State of Indiana (NFP)
89A01-1111-JV-503
Juvenile. Affirms J.O.’s placement with the Department of Correction.

Kimberly L. Zapalac v. State of Indiana (NFP)
48A02-1107-CR-762
Criminal. Dismisses appeal for lack of jurisdiction, as Zapalac committed several crimes and made two plea agreements 12 years ago, before absconding.

Jeffrey S. Pryor v. State of Indiana (NFP)
29A02-1108-CR-740
Criminal. Affirms conviction of Class C misdemeanor operating while intoxicated.

In Re: The Adoption of T.L.; M.J. v. D.F. and K.F. and Indiana Dept. of Child Services (NFP)
49A04-1108-AD-477
Adoption. Affirms trial court’s dismissal of M.J.’s petition to adopt his half-sister.

Olde York Potato Chips, Inc., ONAP, Inc., and Peter Margie v. Shenolikar Dwarka and Dwarka & Sons, Inc. (NFP)
02A05-1107-PL-375
Civil plenary. Dismisses Olde York’s appeal, holding it does not appear to be an interlocutory appeal that may be brought as of right and would be the subject of an interlocutory appeal only on certification by the trial court and acceptance by appeals court, and that there is no such certification or acceptance in the case.

Dathan Alexander v. State of Indiana (NFP)
49A02-1105-CR-465
Criminal. Affirms conviction of Class A misdemeanor possession of marijuana.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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