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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. This is easily remedied, and in a fashion that every church sacrificing incense for its 501c3 status and/or graveling for government grants should have no problem with ..... just add this statue, http://commons.wikimedia.org/wiki/File:Capitoline_she-wolf_Musei_Capitolini_MC1181.jpg entitled, "Jesus and Cousin John learn to suckle sustenance from the beloved Nanny State." Heckfire, the ACLU might even help move the statue in place then. And the art will certainly reflect our modern life, given the clergy's full-bellied willingness to accede to every whim of the new caesars. If any balk, just threaten to take away their government milk … they will quiet down straightaway, I assure you. Few, if any of them, are willing to cross the ruling elite as did the real J&J

  2. Tina has left the building.

  3. Is JLAP and its bevy of social "scientists" the cure to every ailment of the modern practitioner? I see no allegations as to substance abuse, but I sure see a judge who has seemingly let power go to her head and who lacks any appreciation for the rule of law. Seems that she needs help in her legal philosophy and judicial restraint, not some group encounter session to affirm she is OK, we are OK. Can’t we lawyers just engage in peer professionalism and even peer pressure anymore? Need we social workers to tell us it is wrong to violate due process? And if we conduct ourselves with the basic respect for the law shown by most social workers .... it that good enough in Indiana? If not, then how is JLAP to help this 2003 law school grad get what her law school evidently failed to teach her? (In addition .... rhetorical question … I have a theory that the LAP model serves as a conduit for governmental grace when the same strict application of the law visited upon the poor and the powerless just will not do. See in the records of this paper ... can the argument be made that many who save their licenses, reputations, salaries by calling upon that font of grace are receiving special treatment? Who tracks the application of said grace to assure that EP and DP standards are fully realized? Does the higher one climbs inside the Beltway bring greater showers of grace? Should such grace be the providence of the government, or the churches and NGO's? Why, we would not want to be found mixing the remnants of our abandoned faith with the highest loyalty to the secularist state, now would we?)

  4. Is JLAP and its bevy of social "scientists" the cure to every ailment of the modern practitioner? I see no allegations as to substance abuse, but I sure see a judge who has seemingly let power go to her head and who lacks any appreciation for the rule of law. Seems that she needs help in her legal philosophy and judicial restraint, not some group encounter session to affirm she is OK, we are OK. Cannot we lawyers not engage in peer professionalism and even pressure anymore? Need we social workers to tell us it is wrong to violate due process? And if we conduct ourselves with the basis respect for the law shown by most social workers .... it that good enough in Indiana?

  5. Judge Baker nails it: "Russell was in a place he did not have a right to be, to take an action he did not have a right to take. Russell neglected to leave that property even after engaging in a heated argument with and being struck with a broom handle by the property owner." AS is noted below ... sad to think that the next shoe to drop will be the thief suing the car owner. That is justice?

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