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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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