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
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
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
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
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
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
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
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)
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)
Criminal. Affirms convictions of Class D felonies possession of a controlled substance and maintaining a common nuisance.

Lloyd Conn v. State of Indiana (NFP)
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)
Criminal. Affirms conviction of Class B felony robbery.

John Mocasque v. State of Indiana (NFP)
Criminal. Affirms conviction of Class C felony battery by means of a deadly weapon.

Ronald Lee Phares v. State of Indiana (NFP)
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)
Criminal. Affirms conviction of Class A misdemeanor invasion of privacy.

David Wayne Bray v. Linda Sue Oberholtzer (NFP)
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)
Criminal. Affirms convictions of and sentence for three counts of Class D felony theft.

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

Kristian D. Davis v. State of Indiana (NFP)
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)
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)
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)
Criminal. Affirms conviction of attempted arson.

Balboa Capital Corporation v. Brad Apple (NFP)
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)
Juvenile. Affirms termination of parental rights.

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

Maria Cabrera v. State of Indiana (NFP)
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)
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)
Local ordinance violation. Affirms finding that Landau violated the animal control ordinance of the city of Indianapolis.

K.S. v. Review Board (NFP)
Civil. Affirms denial of unemployment benefits.

Marlon D. McKnight v. State of Indiana (NFP)
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)
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)
Criminal. Affirms denial of motion for relief from judgment.

Richard Keck v. Sate of Indiana (NFP)
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)
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)
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)
Civil plenary. Dismisses Ziobron’s appeal of the denial of his motion for summary judgment.

Otha Hamilton v. State of Indiana (NFP)
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. So men who think they are girls at heart can use the lady's potty? Usually the longer line is for the women's loo, so, the ladies may be the ones to experience temporary gender dysphoria, who knows? Is it ok to joke about his or is that hate? I may need a brainwash too, hey! I may just object to my own comment, later, if I get myself properly "oriented"

  2. Heritage, what Heritage? The New Age is dawning .... an experiment in disordered liberty and social fragmentation is upon us .... "Carmel City Council approved a human rights ordinance with a 4-3 vote Monday night after hearing about two hours of divided public testimony. The ordinance bans discrimination on the basis of sexual orientation or gender identity, among other traits. Council members Rick Sharp, Carol Schleif, Sue Finkam and Ron Carter voted in favor of it. The three council members opposing it—Luci Snyder, Kevin Rider and Eric Seidensticker—all said they were against any form of discrimination, but had issues with the wording and possible unintended consequences of the proposal." Kardashian is the new Black.

  3. Can anyone please tell me if anyone is appealing the law that certain sex offenders can't be on school property. How is somebody supposed to watch their children's sports games or graduations, this law needs revised such as sex offenders that are on school property must have another non-offender adult with them at all times while on school property. That they must go to the event and then leave directly afterwards. This is only going to hurt the children of the offenders and the father/ son mother/ daughter vice versa relationship. Please email me and let me know if there is a group that is appealing this for reasons other than voting and religion. Thank you.

  4. Should any attorney who argues against the abortion industry, or presents arguments based upon the Founders' concept of Higher Law, (like that marriage precedes the State) have to check in with the Judges and Lawyers Assistance Program for a mandatory mental health review? Some think so ... that could certainly cut down on cases such as this "cluttering up" the SCOTUS docket ... use JLAP to deny all uber conservative attorneys licenses and uber conservative representation will tank. If the ends justify the means, why not?

  5. Tell them sherry Mckay told you to call, they're trying to get all the people that have been wronged and held unlawfully to sign up on this class action lawsuit.