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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. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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