Opinions March 8, 2013

March 8, 2013
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Indiana Court of Appeals
In the Matter of the Supervised Estate of Evelyn Garrard; Ronald Garrard v. Debra L. Teibel and Douglas Grimmer and Debra Lindsay
Civil plenary. Affirms summary judgments in favor of Teibel, Grimmer and Lindsay, holding that Garrard had waived all issues on appeal and failed to show an issue of material fact existed. The court also warned Garrard about language in pleadings that disparaged other parties to the litigation and the bench.

KOA Properties, LLC v. Laura Matheison

Small claim. Affirms the small claims court did not abuse its discretion by appointing appellate counsel for Matheison and did not err in denying KOA’s motion to set aside the default judgment. The Court of Appeals ruled the notice of the claim clearly included KOA as a party defendant and found that although KOA was not served a separate notice of the initial claim, it was provided with service reasonably calculated to inform the business that a small claims action had been filed against it.

Cheryl L. Schlimpert v. Timothy M. Schlimpert (NFP)

Domestic relations. Dismisses, concluding wife did not file a timely appeal.

Clark Sales & Service, Inc. v. John D. Smith and Ferguson Enterprises, Inc. (NFP)

Civil plenary. Reverses and remands on interlocutory appeal a preliminary injunction granted to Clark’s based on terms of a non-disclosure agreement.

In the Matter of the Supervised Estate of George Lee Coon, Mark A. Coon v. Allen W. Coon, Donald L. Moster, Jr., and Beverly S. Moster (NFP)
Estate. Affirms summary judgment and concludes that evidence of a postnuptial agreement was properly admitted.

Davion Peterson v. Sandra Owen (NFP)
Protection order. Affirms Owen’s protection order.

Curtis Porter v. State of Indiana (NFP)
Criminal. Affirms conviction and 40-year sentence for Class A felony child molesting.

Ivan Gonzalez v. State of Indiana (NFP)
Criminal. Affirms convictions of two counts of Class D felony intimidation and a count of Class B misdemeanor visiting a common nuisance.

Oo Aka v. State of Indiana (NFP)
Criminal. Affirms convictions of Class D felony and a Class A misdemeanor domestic battery.

Andrew Abbott v. State of Indiana (NFP)
Criminal. Affirms conviction of Class D felony receiving stolen property, but remands to the trial court for proceedings to recalculate pretrial detention credit for time served.

Gateway West Townhouse Association, Barry J. Stern and Judy C. Stern v. Metropolitan Development Commission of Marion County v. SF Industrial Properties-Indianapolis, LLC (NFP)
Miscellaneous/zoning. Affirms trial court dismissal of a petition for judicial review of a zoning variance granted to SF Industrial.

Allen G. Parker v. State of Indiana (NFP)
Criminal. Affirms convictions of murder, robbery and confinement.

Jamie Farmer v. State of Indiana (NFP)
Criminal. Affirms conviction and sentence for Class B felony dealing in a schedule II controlled substance.

Scott Rose v. J.Z. and J.Z. (Adoptive Parents) (NFP)

Adoption. Affirms trial court denial of motion to set aside adoption decree.

Benito S. Gamba, Hilda P. Gamba and Gamba Real Estate Holdings, LLC v. The Ross Group Inc./Ticor Title Insurance Co. v. The Ross Group Inc., Benito Gamba, Hilda Gamba, et al. (NFP)
Civil plenary. Reaffirms in rehearing prior ruling that the Gamba interests are liable for a construction-cost overage.

J.W.S. v. State of Indiana (NFP)
Juvenile. Affirms adjudication as a juvenile delinquent for what would have been a Class D felony conviction of criminal gang activity if committed by an adult.

Indiana Supreme Court and Indiana Tax Court issued no opinions by IL deadline. 7th Circuit Court of Appeal issued no Indiana decisions by IL deadline.



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  1. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  2. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  3. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  4. I hope you dont mind but to answer my question. What amendment does this case pretain to?

  5. Research by William J Federer Chief Justice John Marshall commented May 9, 1833, on the pamphlet The Relation of Christianity to Civil Government in the United States written by Rev. Jasper Adams, President of the College of Charleston, South Carolina (The Papers of John Marshall, ed. Charles Hobson, Chapel Hill: Univ. of North Carolina Press, 2006, p, 278): "Reverend Sir, I am much indebted to you for the copy of your valuable sermon on the relation of Christianity to civil government preached before the convention of the Protestant Episcopal Church in Charleston, on the 13th of February last. I have read it with great attention and advantage. The documents annexed to the sermon certainly go far in sustaining the proposition which it is your purpose to establish. One great object of the colonial charters was avowedly the propagation of the Christian faith. Means have been employed to accomplish this object, and those means have been used by government..." John Marshall continued: "No person, I believe, questions the importance of religion to the happiness of man even during his existence in this world. It has at all times employed his most serious meditation, and had a decided influence on his conduct. The American population is entirely Christian, and with us, Christianity and Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations with it. Legislation on the subject is admitted to require great delicacy, because freedom of conscience and respect for our religion both claim our most serious regard. You have allowed their full influence to both. With very great respect, I am Sir, your Obedt., J. Marshall."