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Opinions Nov. 20, 2013

November 20, 2013
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Indiana Court of Appeals
Clifford and Judith Ann Garrett v. Paul and Linda Spear
23A01-1303-PL-96
Civil plenary. Affirms summary judgment for the Spears on their claims of title by acquiescence and adverse possession and denial of summary judgment for the Garrets. The trial court did not err in granting summary judgment based upon the doctrine of title by acquiescence.

Tony Sluder v. State of Indiana
03A01-1305-CR-208
Criminal. Reverses conviction of Class A misdemeanor possession of paraphernalia. The evidence was insufficient to establish that Sluder intended to use the syringe to introduce a controlled substance into his body.

Thomas Haggerty and Cathy Haggerty v. Anonymous Party 1, Anonymous Party 2, and Anonymous Party 3
53A01-1210-CT-472
Civil tort. Affirms in part and reverses in part. The trial court had jurisdiction to rule on the issue of immunity because it is an affirmative defense. Concludes that the Haggertys’ suit against the anonymous parties is barred by statutory immunity. Affirms the trial court’s grant of summary judgment, on immunity grounds, to AP1. Concludes that there is no genuine issue of material fact as to whether immunity also applies to AP2 and AP3; thus, reverses the trial court’s denial of their motion for summary judgment. Judge Baker dissents in part.

The City of Fort Wayne v. Consolidated Electrical Distributors, Inc. d/b/a All-Phase Electric Supply Co.
02A04-1306-CC-283
Civil collection. Affirms summary judgment for All-Phase on its unpaid subcontractor’s claim served on the mayor of Fort Wayne and against the city. When read in conjunction with relevant statutory provisions, I.C. 36-1-12-12 allowed All-Phase to serve notice of its unpaid subcontractor’s claim on the mayor of Fort Wayne. Also finds that All-Phase provided timely notice of its claim.

In Re The Paternity of B.B., R.B. v. T.J.
34A02-1303-JP-243
Juvenile. Affirms order modifying custody, visitation and support of B.B. to mother T.J. The court ruled that the mother was in the best position to act as B.B.’s primary caretaker and awarded her physical custody. After review, COA cannot say that the court’s findings or conclusions were clearly erroneous and concludes that the court did not abuse its discretion in granting her petition to modify custody.

John S. Paniaguas, Kathy R. Paniaguas, Woodrow Cornett, III, and Kristine E. Cornett v. Endor, Inc. et al (NFP)
45A03-1205-PL-244
Civil plenary. Affirms order that determined that the appellee homeowners’ homes were in compliance with the restrictive covenants of the subdivision.

In The Matter of The Estate of Charles W. Merlau, Deceased, Patricia Trout v. C. Thomas Cone, et al (NFP)
30A01-1304-EU-166
Estate, unsupervised. Affirms in part and reverses in part, and remands with instructions to conduct further proceedings. The successor representative improperly valued the stock, in that it should have been valued as of the date of distribution rather than on the date of the decedent’s death. All of the heirs should share equally in the payment of the taxes and the loss that was incurred on the stock. A subsequent hearing needs to be conducted that also addresses the issue of an administrative claim that the business lodged against the estate.

Dino D. Hickmon, Sr v. State of Indiana (NFP)
45A03-1305-CR-167
Criminal. Affirms 22-year sentence for two convictions of Class B felony incest.

Howard Moffitt v. State of Indiana (NFP)
49A04-1304-CR-186
Criminal. Affirms convictions of Class B felony burglary, Class D felony theft and Class C misdemeanor operating never having received a license.

Carlowe Wilson v. State of Indiana (NFP)
48A02-1304-CR-440
Criminal. Affirms sentence following guilty plea to Class D felony nonsupport of a dependent child.

Tawon L. Wright v. State of Indiana (NFP)
34A02-1304-CR-368
Criminal. Affirms conviction of Class C felony possession of cocaine.

George Cunitz v. State of Indiana (NFP)
35A02-1305-CR-405
Criminal. Affirms 40-year sentence following convictions for two counts of Class B felony burglary.

Eric Rasnick v. State of Indiana (NFP)
39A01-1211-CR-526
Criminal. Affirms convictions and 36-year sentence for Class B felony burglary and Class D felony theft.

The Indiana Supreme Court and Indiana Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.
 

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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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