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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
82S01-1301-CT-19
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.
49A04-1305-PL-210
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
49A05-1305-DR-253
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
88A01-1304-DR-171
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
59A04-1303-MI-103
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
55A01-1303-CR-107
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
10A05-1301-CR-35
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
49A05-1207-CC-340
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

79A02-1303-CR-282
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.
49A02-1306-PL-513
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)
29A02-1212-PL-978
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)
21A01-1303-CR-139
Criminal. Affirms conviction of public intoxication, a Class B misdemeanor.

Johnathan Robinson v. State of Indiana (NFP)
32A05-1304-CR-178
Criminal. Affirms conviction of inhaling toxic vapors as a Class B misdemeanor.
 
Dontay Martin v. State of Indiana (NFP)
02A05-1303-CR-113
Criminal. Affirms convictions of attempted murder and sentence of 40 years for each of the convictions.
 
Richard R. Hogshire v. Ursula Hoover (NFP)
06A01-1212-DR-557
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)
18A02-1302-CR-189
Criminal. Affirms convictions of two counts Class B felony dealing in cocaine.
 
Kasi Ballew v. State of Indiana (NFP)
22A01-1303-CR-141
Criminal. Affirms revocation of Ballew’s probation.
 
Tracy K. Fry and Keith A. Fry v. PHH Mortgage Corp. (NFP)
20A04-1212-MF-628
Mortgage foreclosure. Affirms grant of summary judgment in favor of PHH Mortgage Corp.

Laraysha Webb v. State of Indiana (NFP)
49A02-1304-CR-341
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)
48A02-1302-PL-148
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)
41A01-1208-MF-352
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)
42A01-1302-PL-88
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. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

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