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Opinions March 25, 2013

March 25, 2013
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Indiana Court of Appeals
Maria Upham, as Surviving Spouse and Personal Rep. of the Estate of Wilbur A. Upham, Deceased v. Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, Kendrick Family Practice, et al.
55A01-1202-CT-53
Civil tort/malpractice. Affirms jury verdict in favor of the hospital, holding that Upham’s counsel failed to request an admonishment and therefore waived the argument that the court should have declared a mistrial because of a prospective juror’s comments that plaintiff’s counsel was motivated by money. There was no abuse of discretion in jury instructions or in the court’s limiting of discovery.  

Ronald G. Arnold and B. Candi Arnold v. Allen Robert Linnemeier and Kathy Sue Linnemeier (NFP)

53A04-1207-PL-368
Civil plenary. Affirms the trial court’s judgment in favor of the Linnemeiers which granted them an easement by prior use and an irrevocable license across the Arnolds’ land for purposes of entering and exiting.

Jesse R. Luckey v. State of Indiana (NFP)
34A04-1208-CR-399
Criminal. Reverses order revoking Luckey’s probation in two underlying cases arising from his convictions for possession of a controlled substance as a Class D felony, possession of marijuana as a Class D felony and possession of paraphernalia as a Class A misdemeanor. Ruled although the evidence was sufficient for the trial court to find probable cause that Luckey had committed the new offenses, it was insufficient to establish the commission of such crimes by preponderance of the evidence.

Aaron Brown v. State of Indiana (NFP)
49A02-1207-CR-546
Criminal. Affirms convictions of Class D felony possession of marijuana and Class A misdemeanor driving with a suspended license. Found the trial court did not abuse its discretion when it admitted the evidence obtained incident to Brown’s arrest.

Alejandro Gomez-Aviles v. State of Indiana (NFP)
49A02-1209-CR-728
Criminal. Affirms convictions of two counts of child molesting, each as a Class A felony; two counts of child molesting, each as a Class C felony; and four counts of sexual misconduct with a minor, each as a Class C felony. Found corpus delicti had been established so the admission of Gomez-Aviles videotaped confession did not constitute a fundamental error. Also ruled Gomez-Aviles did not carry his burden of demonstrating prosecutorial misconduct.

Rev. Carl Z. Liggins and The Board of Trustees of Mt. Olive Missionary Baptist Church, Inc. v. William Bagley, Raymond Gaines, Gregg Merriweather, Stevie Bonds, Curtis Godfre, et al. (NFP)
49A02-1203-CT-184
Civil tort.  Reverses trial court’s order directing Mount Olive Missionary Baptist Church to hold a general meeting to consider the retention of Rev. Liggins. Found the trustees did not fail to follow the procedures set out in the bylaws concerning the renewal or extension of the pastor’s contract because the bylaws did not give a procedure for how to handle a contract renewal or extension.

Jaime A. Herrera v. State of Indiana (NFP)

45A05-1208-PC-440
Post conviction. Affirms denial of Harrera’s petition for post-conviction relief. Ruled that Herrera’s proposed sentencing challenge was meritless and, therefore, he did not demonstrate his appellate counsel was ineffective.

Mark Kevin Liston v. State of Indiana (NFP)
45A05-1207-CR-385
Criminal. Dismisses Liston’s appeal of the trial judge’s order rescinding the referee’s order granting his petition for post-conviction relief. Liston did not request the trial court to certify its order for interlocutory appeal and did not request the Court of Appeals to accept jurisdiction.

Sherry L. Pruitt v. State of Indiana (NFP)

58A01-1206-CR-275
Criminal. Affirms the revocation of Pruitt’s probation and the order that she serve incarcerated the three years remaining on her sentences. Remands for the court to correct a clerical error and enter a modified abstract of judgment that lists both cause numbers under which the revocation was adjudicated.  
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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