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Opinions May 13, 2013

May 13, 2013
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Indiana Court of Appeals
Joseph Matheny v. State of Indiana
49A04-1207-CR-347
Criminal. Grants petition for rehearing to clarify that the previous holding – that the trial court’s refusal of Matheny’s tendered instruction constituted error in light of Santiago v. State and Albores v. State – does not conflict with those cases. The judges reaffirmed their original decision which affirmed the Class D felony auto theft conviction and found that although the trial court erred in refusing to give the instruction regarding the jury’s duty to conform the evidence to the presumption that the defendant is innocent, the error was harmless.

First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, on Behalf of the Indiana Dept. of Insurance
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2013/may/05131301mgr.pdf  
49A04-1206-PL-326
Civil plenary. Affirms denial of the commissioner’s motion to dismiss. Reverses the denial of First American’s verified petition for judicial review and declaratory relief against Robertson, and remands with instructions to grant the petition. The commissioner waived his claim regarding exhaustion of administrative remedies by waiting to raise the issue for the first time on appeal. The commissioner’s failure to comply with the statutory deadline rendered his order void and the trial court erred by requiring a separate showing of prejudice.

David D. Kiely v. Kathryn Starnes-Kiely (NFP)
14A05-1208-DR-430
Domestic relation. Remands division of marital estate property to the trial court for clarification.

Vickie Fenoglio as Personal Representative of the Estate of Paul Fenoglio v. Boguslaw Gluszak, M.D. and Steve Robertson, Commissioner of the Indiana Dept. of Ins. and Boguslaw Gluszak, M.D. (NFP)
84A01-1211-PL-513
Civil plenary. Affirms summary judgment in favor of Boguslaw Gluszak M.D. on a proposed medical malpractice complaint.

Stephen Harriman and Elena Ivanova v. Smith Brothers Ultimate Builders, Inc. (NFP)
41A01-1210-SC-460
Small claim. Affirms judgment in favor of Smith Brothers on a breach of contract claim.

Paul Komyatti, Jr. v. The Consolidated City of Indianapolis-Marion County and Citizens Energy Group (NFP)
49A04-1209-CT-445
Civil tort. Affirms summary judgment for the city and Citizens Energy on Komyatti’s lawsuit after he hit a pothole while on his bicycle and was injured.

Chris Griner v. State of Indiana (NFP)
49A02-1208-CR-656
Criminal. Affirms conviction of Class A felony child molesting.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.
 

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  1. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  2. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  4. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  5. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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