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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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  2. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  3. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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