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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. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  2. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  3. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  4. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  5. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

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