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Opinions May 30, 2012

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

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

Indiana Court of Appeals

Clifton Ervin v. State of Indiana
29A05-1109-CR-454
Criminal. Affirms grant of a portion of Ervin’s motion to suppress. The trial court properly determined that the evidence seized by the uniformed on-duty police officers should not be suppressed pursuant to the exclusionary rule. Remands for trial.

James Androusky, II, Individually and as Personal Rep. of the Estate of James Androusky, III, Deceased v. Cole A. Walter and Tammra Androusky
83A01-1103-CT-137
Civil tort. Affirms jury verdict in favor of Cole in a wrongful death action following the drowning death of James Androusky II’s son. The trial court did not abuse its discretion by instructing the jury regarding licensee versus invitee status, on abandonment under the Child Wrongful Death Act, regarding a state administrative pool safety regulation, or on the effect of a parent’s failure to supervise his or her child around a known or obvious condition upon the land.  

Dianne L. Perkins v. Jeffrey Stesiak, and Pfeifer, Morgan and Stesiak
71A03-1111-PL-521
Civil plenary. Affirms summary judgment for Jeffrey Stesiak and the law firm in Perkins’ legal malpractice action against Stesiak for not filing her claim for emotional distress against a school district. Perkins does not have a viable claim for negligent infliction of emotional distress under the bystander theory of recovery or Indiana’s modified impact rule.

Term. of Parent-Child Rel. of D.K.; O.K. v. Indiana Department of Child Services
22A01-1110-JT-485
Juvenile. Affirms termination of parental rights. There is clear and convincing evidence that the conditions that led to D.K.’s initial removal and continued placement outside of the mother’s care would not be remedied.

Donald Everling v. State of Indiana (NFP)
29A04-1108-CR-487
Criminal. Affirms conviction of Class D felony theft.

In Re the Term. of the Parent-Child Rel. of J.R.: K.C. v. The Indiana Dept. of Child Services (NFP)
15A04-1110-JT-587
Juvenile. Affirms involuntary termination of parental rights.

Kamal El-Adnani v. State of Indiana (NFP)
02A03-1109-CR-463
Criminal. Affirms convictions of and sentence for Class B felonies battery resulting in serious bodily injury and neglect of a dependent resulting in serious bodily injury.

The Estate of Rose Graves v. Anonymous Nursing Home (NFP)
45A03-1112-CT-560
Civil tort. Affirms grant of a motion to dismiss the estate’s proposed medical malpractice complaint against Anonymous Nursing Home.

David E. Schalk v. Yellow Book Sales and Distribution Co., Inc. (NFP)
53A05-1110-CC-535
Civil collection. Affirms summary judgment in favor of Yellow Book Sales and Distribution Co. regarding its breach of contract claim against Schalk for advertising services that it provided.

Robert Allen Barker v. State of Indiana (NFP)
36A05-1108-CR-401
Criminal. Affirms sentence for conviction of murder and adjudication as a habitual offender.

Mitchell L. Rogers v. State of Indiana (NFP)
48A02-1110-PC-1028
Post conviction. Affirms convictions of Class B felonies criminal deviate conduct and battery. Remands with instructions to vacate the conviction of Class D felony sexual battery and reinstate the conviction of criminal confinement as a Class D felony and impose a sentence consistent with the instructions of the opinion.

Melvin Bishop v. State of Indiana (NFP)
49A04-1101-CR-1
Criminal. Grants rehearing for the limited purpose of addressing Bishop’s arguments and clarifying original analysis. Affirms opinion in all respects. Judge Brown concurs and dissents.

 

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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