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Opinions March 21, 2012

March 21, 2012
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The following Indiana Supreme Court opinions were posted after IL deadline Tuesday:
LaPorte Community School Corporation v. Maria Rosales
46S04-1105-CT-284
Civil tort. Reverses and remands for a new trial on the issue of liability only. One of the jury instructions given by the trial court could have misled the jury about a key issue regarding liability in this child wrongful death case. Justice Sullivan dissents.

Randall L. Woodruff, Trustee, U.S. Bankruptcy Court, on Behalf of Legacy Healthcare, Inc.d/b/a New Horizon Develop. Center v. In. Family & Social Serv. Admin., Office of Medicaid Policy & Planning
29S02-1110-PL-598
Civil plenary. Affirms trial court finding that FSSA breached its contract with respect to the remaining pre-decertification claims and awarded New Horizon $93,666.09. It also allowed FSSA an equal amount as a set-off for the receivership costs.

Wednesday’s opinions
7th Circuit Court of Appeals and Indiana Tax Court  posted no opinions by IL deadline.


Indiana Supreme Court
State of Indiana v. International Business Machines Corporation
49S00-1201-PL-15
Civil plenary. Holds that Indiana Code 34-29-2-1 – providing that the governor of the state of Indiana is “privileged from arrest on civil process, and from obeying any subpoena to testify” – operates to preclude a trial court from issuing an order to compel the governor’s deposition in a contract dispute brought by the state of Indiana against a contractor. Justice Sullivan concurs in result.

John Witt, HydroTech Corp, and Mark Shere v. Jay Petroleum, Inc., and Jack R. James
38S02-1110-CV-608
Civil. Affirms trial court order holding John Witt, HydroTech Corp. and attorney Mark Shere in contempt of court for violating the terms of a temporary restraining order. The court order was sufficiently clear and certain to unambiguously direct the cessation of all further activities by Witt, Shere, and Hydrotech at the site. Justices Rucker and Sullivan dissent.

Marion County Auditor, and McCord Investments, LLC v. Sawmill Creek, LLC a/k/a Saw Creek Investments, LLC
49S02-1106-CV-364
Civil. Reverses trial court decision to set aside the tax deed on grounds that the auditor’s effort to notify Sawmill Creek of the tax sale was constitutionally deficient for failing to meet the requirements of due process. The auditor satisfied the due process requirement articulated in Mullane, Dusenbery and Flowers. Justice Rucker dissents.     

Rodney Nicholson v. State of Indiana
55S01-1107-CR-444
Criminal. Affirms conviction of Class C felony stalking. Holds that the lag in time between the harassing calls in 2006 and the subsequent single call in 2008 didn’t foreclose the conviction for stalking, particularly since much of the break in time between the calls was due to Nicholson’s incarceration.

Indiana Court of Appeals
Michael J. Griffin v. State of Indiana
53A05-1106-CR-288
Criminal. Affirms murder conviction but revises Griffin’s sentence to 45 years. The state produced sufficient evidence to negate Griffin’s claim that he was acting in sudden heat when he killed the victim, and the reckless homicide instruction was properly refused.

Kristine Bunch v. State of Indiana
16A05-1007-PC-439
Post conviction. Reverses denial of petition for post-conviction relief and remands for a new trial. The fire victim toxicology evidence does constitute newly discovered evidence and the state’s failure to turn over a report from the Bureau of Alcohol, Tobacco and Firearms testing of floor samples violates Brady. Judge Crone dissents.

Bill Musgrave v. Squaw Creek Coal Co. and Indiana Dept. of Natural Resources
49A05-1104-MI-164
Miscellaneous. Affirms order in favor of Squaw Creek Coal Co. and the Indiana Department of Natural Resources on SCCC’s petition for judicial review on an order issued by the Indiana Natural Resources Commission administrative law judge vacating the DNR’s decision to release certain portions of SCCC’s reclamation bond on its surface mining permit. The trial court did not err by refusing to dismiss SCCC’s petition even though it did not pay a filing fee and SCCC’s process and service was sufficient. The trial court was correct to conclude that Musgrave is not collaterally estopped from challenging the release of the bond on Permit S-008.

Jody Brewster v. State of Indiana (NFP)
49A02-1109-CR-450
Criminal. Affirms conviction of Class D felony theft.

John W. Kimbrough v. State of Indiana (NFP)
45A04-1106-CR-328
Criminal. Affirms four convictions of Class A felony child molesting. Reverses sentencing order and remands to the trial court to enter a sentence as outlined in the opinion. Judge Mathias concurs in part and dissents in part.


 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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