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Opinions March 30, 2012

March 30, 2012
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7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.

Indiana Supreme Court and Indiana Tax Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Kristine A. and Larry G. Dawson v. Fifth Third Bank
49A02-1107-PL-704
Civil plenary. Affirms order denying the Dawsons’ motion for summary judgment and granting Fifth Third Bank’s cross-motion for summary judgment on its claim for replevin. When Magish, who sold a motorcycle to the Dawsons, defaulted on his loan from Fifth Third, the bank as the secured party had the right to take possession of the motorcycle. The Dawsons’ interest in the motorcycle as its purchasers is not superior to the bank’s perfected security interest.   

D.C. v. J.A.C.
32A04-1106-DR-296
Domestic relation. Reverses order modifying custody in favor of the ex-husband and preventing mother from relocating with their minor child. Father is not entitled to appellate attorney fees, and relocation alone cannot be used as a reason to support custody modification.

Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg
10A05-1102-PL-68
Civil plenary. Grants rehearing and affirms original opinion in all respects. Finds neither of Isgrigg’s assertions on rehearing are meritorious.

Carolyn Boss v. State of Indiana
49A05-1106-CR-320
Criminal. Remands with instructions to vacate Boss’ convictions and sentences for harboring a non-immunized dog as Class B misdemeanors and enter a determination that she committed harboring a non-immunized dog as Class C infractions. Affirms convictions of six counts of Class A misdemeanor failure to restrain a dog and sentence.

Steinrock Roofing & Sheet Metal Inc. v. James S. McCulloch, PNC Bank, N.A.
22A05-1108-CC-457
Civil collection. Affirms the trial court’s determination that Steinrock Roofing breached the contract and affirms award of damages to McCulloch in a dispute over payment for work completed. Substantial evidence was presented establishing the contractor’s work was deficient. The trial court properly concluded that the contractor had waived any claim to reduce the damage under the Home Improvement Warranties statute.

Lewis J. Richardson and Laurel Richardson v. Board of Commissioners of Owen County
60A01-1106-PL-228
Civil plenary. Affirms finding that the Richardsons lacked standing as an aggrieved party to remonstrate against the vacation of a roadway leading to a cemetery. The Richardsons are not abutting landowners to the vacated roadway and have failed to demonstrate that they have sustained an injury that is unique or special to them.

Imperial Insurance Restoration & Remodeling, Inc. v. James Costello
10A05-1109-SC-478
Small claim. Reverses order granting judgment in favor of Costello on Imperial Insurance’s claims for breach of contract. Although Imperial provided a contract to Costello that it concedes did not satisfy requirements of the Indiana Home Improvement Contracts Act, that non-compliance did not automatically render the contract void. Concludes that the contract is enforceable and should not be voided. Remands with instructions to enter judgment in favor of Imperial for $669.86 and to hold a hearing to determine contractual interest due and if attorney fees or other costs are warranted.

Bilsland, LLC, LPM Investments, LLC, Phillip D. Mervis, Louis Mervis, Henry Bilsland, Justin Bilsland, and Biosafe Engineering, LLC v. Bradley D. Crain and Richard J. Redpath (NFP)
32A01-1106-PL-266
Civil plenary. Affirms grant of an Indiana Trial Rule 12(B)(8) motion by Crain and Redpath to dismiss the appellants’ claim.

Delmar J. Kent v. State of Indiana (NFP)
39A01-1105-CR-234
Criminal. Affirms conviction of and sentence for two counts of Class A felony child molesting and one count of Class C felony child molesting.

In Re the Paternity of: B.H. by next friend: B.C. (Father) v. D.H. (Mother) (NFP)
49A04-1106-JP-311
Juvenile. Affirms denial of father’s requests to place B.H. in a different school district and to grant him joint physical and/or legal custody.

Andrew Abbott v. State of Indiana (NFP)
33A04-1109-CR-545
Criminal. Affirms sentence following guilty plea to Class A misdemeanor trespass.

State of Indiana, Little Calumet River Basin Development Commission v. Gary Murphy and Lake County Treasurer (NFP)
45A03-1106-PL-261
Civil plenary. Affirms jury verdict of $332,172 in damages to Murphy and the Lake County Treasurer for multiple easements placed on Murphy’s property by the development commission.

J.R.T. v. State of Indiana (NFP)
20A03-1110-JV-477
Juvenile. Affirms commitment to the Department of Correction.

Vicky L. Tisdial v. State of Indiana (NFP)
29A05-1011-CR-728
Criminal. Reverses denial of petition requesting expungement of arrest record.

Derrick L. Myers v. State of Indiana (NFP)
49A02-1106-CR-508
Criminal. Affirms revocation of probation.

Aaron Isby v. State of Indiana (NFP)
48A02-1107-CR-774
Criminal. Affirms denial of Isby’s motions to compel his original trial counsel to produce all documents relating to his 1992 trial and for copies of his preliminary hearing transcript and the transcripts of three depositions taken leading up to his 1992 trial.

Gerald McKinney v. State of Indiana (NFP)
71A04-1108-CR-450
Criminal. Affirms conviction of Class A misdemeanor animal cruelty.

Rondell Boyd v. State of Indiana (NFP)
49A02-1108-CR-725
Criminal. Affirms three convictions of Class C felony child molesting.

K.J. v. Review Board of the Indiana Dept. of Workforce Development and T.N.V.A.H. (NFP)
93A02-1106-EX-634
Agency appeal. Affirms denial of unemployment benefits.

DeCarlos J. Freeman v. State of Indiana (NFP)
20A04-1111-CR-619
Criminal. Affirms convictions of resisting law enforcement – one as a Class D felony and one as a Class A misdemeanor – following a guilty plea.
 

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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