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Opinions May 31, 2011

May 31, 2011
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The following opinion was posted after IL deadline Friday:
Indiana Tax Court
Rent-A-Center East, Inc. v. Indiana Dept. of State Revenue
49T10-0612-TA-106
Tax. Denies the Department of State Revenue’s motion for summary judgment and grants it in favor of RAC East. The department has failed to designate any facts to show it complied with Indiana Code 6-3-2-2(p), so it hasn’t made a prima facie case that it is entitled to judgment as a matter of law regarding whether the department consider alternatives to assessing tax based on a combined return. Remands to the Department of State Revenue for actions consistent with the opinion.

Today’s opinions
Indiana Supreme Court had posted no opinions at IL deadline.


Indiana Court of Appeals
Dennis Block v. Mark Magura
64A05-1012-PL-752
Civil plenary. Reverses summary judgment for Magura on Block’s lawsuit filed after Magura didn’t complete the purchase of Block’s interest in a partnership. The letter of intent is an enforceable contract because it contains the essential terms of the parties’ agreement and expresses their intent to be bound. Remands for summary judgment in favor of Block as to Magura’s liability for breach of contract and to conduct further proceedings with respect to damages.

Jeffrey L. Hunter v. State of Indiana
49A02-1011-CR-1224
Criminal. Affirms conviction of Class A misdemeanor battery. The force employed by Hunter on his daughter was unreasonable in punishing her, and the evidence presented by the state was sufficient to rebut the alleged parental discipline privilege.

Abram Coleman, Rhonda Coleman, and Jerry Wayne Coleman v. Cynthia Ann Coleman
63A01-1009-PL-500
Civil plenary. Reverses judgment in favor of Cynthia Coleman awarding her $20,000 in damages and $11,097 in attorney fees on her unjust enrichment claim. There is insufficient evidence to support a judgment against the Colemans as such a claim requires a plaintiff to prove not only the provision of a measurable benefit to a defendant, but also that the defendant impliedly or expressly requested that benefit. The jury erred in awarding Cynthia attorney fees. Remands for further proceedings.

Mark A. Kolish v. State of Indiana
66A03-1009-CR-493
Criminal. Affirms conviction of operating a vehicle with an alcohol concentration of at least 0.15 grams of alcohol per 100 milliliters of his blood as a Class A misdemeanor. The arresting officer adequately informed the magistrate that at the time he submitted the probable cause affidavit, there was a fair probability that Kolish’s blood contained evidence of a crime. The evidence supports a determination that the person who drew Kolish’s blood followed the hospital’s protocol in prepping his arm for the blood draw and that person was authorized to perform the blood draw.

Edward Godby v. State of Indiana
69A01-1009-CR-504
Criminal. Reverses convictions of methamphetamine-related offenses. Godby’s wife did not have authority, actual or apparent, to consent to a search of Godby’s locked box, and the warrantless search of it was impermissible under the Indiana and United States constitutions. Remands for a new trial.

Trinda Barocas v. State of Indiana
49A02-1007-CR-732
Criminal. Reverses conviction of Class B misdemeanor battery. The state didn’t prove the force Barocas used on a student was unreasonable or that Barocas was unreasonable to believe a physical prompt was necessary to control the student’s behavior of sticking out her tongue.

Lawrence Archuleta v. State of Indiana (NFP)
64A03-1008-CR-430
Criminal. Affirms sentence following guilty plea to four counts of Class C felony child molesting and one count of Class B felony child molesting.

Keenan A. Davis v. State of Indiana (NFP)
02A04-1011-CR-740
Criminal. Affirms convictions of Class D felonies possession of a controlled substance and maintaining a common nuisance.

Lloyd Conn v. State of Indiana (NFP)
24A05-1009-CR-608
Criminal. Affirms convictions of Class B felony dealing in methamphetamine and Class D felony dumping controlled substance waste.

Scott Groce v. State of Indiana (NFP)
49A05-1010-CR-637
Criminal. Affirms conviction of Class B felony robbery.

John Mocasque v. State of Indiana (NFP)
22A05-1005-CR-303
Criminal. Affirms conviction of Class C felony battery by means of a deadly weapon.

Ronald Lee Phares v. State of Indiana (NFP)
73A04-1008-CR-523
Criminal. Affirms two convictions of Class A felony dealing in cocaine, but reverses conviction of Class C felony corrupt business influence. Remands for further proceedings.

Kyle Brinkley v. State of Indiana (NFP)
49A05-1010-CR-664
Criminal. Affirms conviction of Class A misdemeanor invasion of privacy.

David Wayne Bray v. Linda Sue Oberholtzer (NFP)
39A01-1010-DR-528
Domestic relation. Reverses order finding Bray in contempt of court for refusing to make child support payments to Oberholtzer. Remands with instructions and to hold a hearing as to whether Bray is entitled to an award of attorney fees.

Rossando L. McLellan v. State of Indiana (NFP)
02A03-1008-CR-416
Criminal. Affirms convictions of and sentence for three counts of Class D felony theft.

James L. Teague, Jr. v. State of Indiana (NFP)
48A02-1009-CR-1113
Criminal. Affirms conviction of unlawful possession of a firearm by a serious violent felon.

Kristian D. Davis v. State of Indiana (NFP)
79A02-1009-CR-1155
Criminal. Affirms sentence following guilty plea to Class B felony dealing in cocaine.

Joan Mazurkiewicz, et al. v. George Hodakowski, M.D., et al. (NFP)
45A03-1008-CT-408
Civil tort. In a medical malpractice action, affirms judgment in favor of Dr. Hodakowski, reverses the grant of Dr. Perelman’s motion for judgment on the evidence, and remands for further proceedings.

Gary E. Masak v. Sherry E. Masak (NFP)
64A03-1011-DR-559
Domestic relation. Affirms equal division of the monies received by Gary as part of the Ford buyout and the equal divisions of other marital assets. Remands to the trial court to correct the errors identified in the opinion, recalculate the marital estate, and divide the property in accordance with its conclusion that an equal division of the martial estate was just and reasonable.

Daniel R. Wallace v. State of Indiana (NFP)
82A01-1009-CR-465
Criminal. Affirms conviction of attempted arson.

Balboa Capital Corporation v. Brad Apple (NFP)
49A02-1101-CC-15
Civil collections. Reverses judgment for Apple on Balboa Capital Corp.’s complaint to domesticate a foreign judgment. Remands for further proceedings.

Term. of Parent-Child Rel. of T.P.; A.P. & T.P. v. I.D.C.S. (NFP)
40A05-1008-JT-723
Juvenile. Affirms termination of parental rights.

Carlos L. Cordova v. State of Indiana (NFP)
17A05-1011-CR-688
Criminal. Affirms sentence following guilty plea to Class D felony sexual misconduct with a minor.

Maria Cabrera v. State of Indiana (NFP)
09A02-1010-CR-1084
Criminal. Affirms Cabrera’s conviction of Class A felony dealing in cocaine. Reverses sentence and remands for the issuance of an order reflecting the revised sentence of 20 years with 10 years suspended to probation.

State of Indiana v. Aaron R. Limburg (NFP)
24A01-1009-CR-454
Criminal. Reverses grant of Limburg’s motion to suppress evidence obtained as the result of a warrantless search of his vehicle.

David Landau v. City of Indianapolis (NFP)
49A02-1011-OV-1249
Local ordinance violation. Affirms finding that Landau violated the animal control ordinance of the city of Indianapolis.

K.S. v. Review Board (NFP)
93A02-1011-EX-1349
Civil. Affirms denial of unemployment benefits.

Marlon D. McKnight v. State of Indiana (NFP)
20A05-1005-CR-357
Criminal. Affirms felony convictions of dealing in cocaine, two as Class A felonies and one as a Class B felony.

Kevin Curry v. State of Indiana (NFP)
20A03-1008-CR-454
Criminal. Affirms convictions of Class C felony corrupt business influence, 15 counts of Class C felony forgery, and being a habitual offender. Remands for clarification of sentence.

Floyd E. Marsh v. State of Indiana (NFP)
48A04-1006-CR-412
Criminal. Affirms denial of motion for relief from judgment.

Richard Keck v. Sate of Indiana (NFP)
36A01-1008-CR-469
Criminal. Affirms sentence following guilty plea to Class D felony battery resulting in serious bodily injury.

M.T., et al.: Alleged to be C.H.I.N.S.; T.J. v. I.D.C.S. (NFP)
49A02-1009-JC-1137
Juvenile. Affirms adjudication of children as children in need of services and dispositional order requiring father to complete services due to that adjudication.

Joe Spiker Excavating Inc. v. Monica M. Rahill and Jo A. Morton (NFP)
67A05-1012-MF-751
Mortgage foreclosure. Affirms holding that Joe Spiker Excavating was bound by the $2,500 price an employee quoted after the company sued a homeowner to foreclose on a mechanic’s lien after the homeowner only paid $2,750 of a $4,019 bill for work performed.

Eugene C. Ziobron v. Streetlinks National Appraisal Services (NFP)
29A05-1007-PL-449
Civil plenary. Dismisses Ziobron’s appeal of the denial of his motion for summary judgment.

Otha Hamilton v. State of Indiana (NFP)
49A02-1009-CR-1021
Criminal. Affirms conviction of and sentence for class A felony child molesting by deviate sexual conduct.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court granted one transfer and denied 21 cases for the week ending May 27.
 

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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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