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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. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

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