Opinions Nov. 27, 2013

November 27, 2013
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Indiana Supreme Court
Released Nov. 26 after IL deadline:

F.D., G.D., and T.D. b/n/f J.D. and M.D.; and J.D. and M.D., individually v. Indiana Dept. of Child Services, Evansville Police Dept., and Vanderburgh County Prosecutor's Office
Civil tort. Affirms in part and reverses in part grant of summary judgment in favor of Department of Child Services, Evansville Police Department, and Vanderburgh County Prosecutor’s office. In a 3-2 opinion, affirms grant of summary judgment for the police and prosecutor’s office, but reverses grant of summary judgment on the basis of statutory immunity in favor of DCS, holding that DCS did not have immunity under the Tort Claims Act or the child abuse reporting statute for failing to notify the parents of a child whose molestation had resulted in another child’s adjudication as a delinquent. Chief Justice Brent Dickson wrote the majority opinion joined by justices Steven David and Robert Rucker. Justice Loretta Rush wrote a dissent joined by Mark Massa that would have affirmed summary judgment on the immunity basis.

Nov. 27, 2013
Indiana Court of Appeals
Diane S. Brown Bell, on behalf of herself and all others similarly situated v. The Bryant Company, Inc.
Civil plenary. Reverses dismissal of a suit seeking class action against a property management company that kept late fees paid by renters and asserted a right to do so. The court found the plaintiff likely entitled to recovery of the fees, and that at minimum the trial court erred in granting Bryant’s motion for judgment on the pleadings. Remands for proceedings, including whether class certification is appropriate.

Glenn Hatmaker v. Betty Hatmaker
Domestic relation. Reverses and remands denial of motions for unsupervised parenting time and modification of support. The trial court abused its discretion in denying the petitions, finding that an order allowing modification of visitation by agreement of the parties is contrary to law, and that the court disregarded evidence that the mother’s income had increased while the father’s income declined. Because the father could not afford the costs associated with supervised parenting time, the court ruled mother may be able to contribute to costs of supervision.

Debra A. Roop v. Dean A. Buchanan
Domestic relation. Affirms trial court’s order that Roop pay the accrued child support obligation to oldest emancipated child to cover Buchanan’s funeral expenses. Reverses the order awarding the remainder of the child support arrearage to the adult children.

Anonymous Physician v. Diana Wininger, Stephen Robertson, Commissioner, Indiana Department of Insurance, and Douglass J. Hill, Panel Chair
Miscellaneous. Reverses denial of physician’s summary judgment motion. Rules Wininger’s complaint for medical malpractice was not timely filed. Although Wininger argues she did not know something may have gone wrong with her foot surgery until she got a second opinion in April 2009, the COA found she knew she should see another doctor in October 2007.  
Joseph Everroad v. State of Indiana
Criminal. Affirms conviction of robbery, rejecting an appeal that claimed a ruling limiting the cross-examination of an expert witness’s testimony regarding the location of a cell phone call violated the Sixth Amendment right to confront witnesses.

Peter A. Roberts v. State of Indiana
Criminal. Reverses trial court’s assignment of 305 days actual time served and remands for sentencing. Affirms not awarding Roberts good-time credit for the time he spent on pre-trial home detention.

Indiana Patient's Compensation Fund v. Judy Holcomb, Personal Representative of the Estate of Mable Louis Cochran, Deceased
Civil collection. Reverses and remands for further proceedings. The trial court’s award of attorney fees in an adult wrongful death case involving the Medical Malpractice Act does not accurately reflect either the proper amount of attorney fees or proper allocation of money awarded from the Indiana Patient Compensation Fund. Under the facts the parties have placed before the court, including an agreement regarding the fund’s liability that purported to include no attorney fees as damages, it is impossible to reach a result that is fair to the estate and to its counsel, yet consistent with the statutory 15 percent limitation. Chief Judge Margret Robb dissents.

Jason Deaton v. State of Indiana

Criminal. Affirms conviction of two counts of Class A felony child molesting, rejecting claims of prosecutorial misconduct and sufficiency of the evidence. A prosecutor’s comments during jury selection about evidence needed to convict compared to that presented in TV’s “CSI” dramas wasn’t fundamental error, nor was a statement that a victim’s testimony alone is sufficient for a conviction. The court also ruled the state presented evidence sufficient to support the conviction.

Sterling Commercial Credit - Michigan, LLC v. Hammert's Iron Works, Inc.
Civil plenary. Reverses summary judgment on Sterling’s complaint and Hammert’s counterclaim. Reverses and remands with instructions for trial court to enter summary judgment in favor of Sterling on its complaint as well as Hammert’s counterclaim. Rules promissory estoppel applies and Hammert’s is estopped to deny payment and place payment restrictions on invoices.

Mike Ellis, Debra Ellis, VJJ&A Transport, Inc., Bob Hopkins, Kathleen Hopkins, John Gomes, John Dunn, et al. v. David M. Duree and David M. Durree & Associates, P.C., and John R. Price et al. (NFP)
Civil plenary. Reversed grant of summary judgment in favor of the Duree lawyers on Kapza’s breach of contract claim and remands for further proceedings. Affirms all remaining summary judgment rulings in favor of Duree lawyers. Also affirms summary judgment in favor of the Price lawyers.

Clarence W. Seeley, III v. State of Indiana (NFP)
Criminal. Affirms conviction of public intoxication, a Class B misdemeanor.

Johnathan Robinson v. State of Indiana (NFP)
Criminal. Affirms conviction of inhaling toxic vapors as a Class B misdemeanor.
Dontay Martin v. State of Indiana (NFP)
Criminal. Affirms convictions of attempted murder and sentence of 40 years for each of the convictions.
Richard R. Hogshire v. Ursula Hoover (NFP)
Domestic relation. Reverses trial court’s order that Hogshire pay Hoover’s attorneys $15,000 in preliminary fees and costs. Remands for an evidentiary hearing. Judge Bailey concurs in a separate opinion but questions whether the court should address the issue of attorney fees when neither party has filed a motion claiming entitlement.
Terrence J. Douglass v. State of Indiana (NFP)
Criminal. Affirms convictions of two counts Class B felony dealing in cocaine.
Kasi Ballew v. State of Indiana (NFP)
Criminal. Affirms revocation of Ballew’s probation.
Tracy K. Fry and Keith A. Fry v. PHH Mortgage Corp. (NFP)
Mortgage foreclosure. Affirms grant of summary judgment in favor of PHH Mortgage Corp.

Laraysha Webb v. State of Indiana (NFP)
Criminal. Affirms conviction of Class C misdemeanor operating a vehicle without a license.
Pizza King of Elwood v. The Peniel Group, Dollar General Stores, and Elwood Holdings, LLC (NFP)
Civil plenary. Reverses the trial court finding that the defendants have a valid easement on Pizza King’s property.
Kenneth D. Hunter v. E*Trade Bank (NFP)
Mortgage foreclosure. Affirms trial court’s grant of summary judgment in favor of E*Trade Bank.
Mark A. Valdes and James H. Valdes v. Vincennes Building and Safety Commission and the City of Vincennes (NFP)
Civil plenary. Affirms trial court’s judgment affirming an order by the City of Vincennes Building and Safety Commission to demolish a hotel owned by Valdes.

The Indiana Supreme Court and Tax Court did not submit any opinions by IL deadline. The 7th Circuit Court of Appeals did not post any Indiana opinions by IL deadline.



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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues