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Opinions Oct. 17, 2013

October 17, 2013
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The following Indiana Tax Court opinion was posted after IL deadline Wednesday.
Orbitz, LLC v. Indiana Department of State Revenue
49T10-0903-TA-10
Tax. Grants Orbitz’s request to have certain documents, including contracts with Indiana hotels, placed under seal. The contracts have the four characteristics of trade secrets, so they fall within the mandatory exceptions to the general rule of public access set forth in the Access to Public Records Act and Administrative Rule 9.

Thursday’s opinions
Indiana Court of Appeals

Timothy L. Hyser v. State of Indiana
20A05-1301-CR-37
Criminal. Reverses convictions of Class A felony and Class C felony child molesting. The exclusion of the evidence Hyser wished to present deprived him of a meaningful opportunity to present a complete defense. The state is not barred from retrying Hyser.

North American Roofing Services, Inc. v. Menard, Inc.
26A01-1303-PL-125
Civil plenary. Reverses grant of summary judgment to Menard and denial of partial summary judgment to North American Roofing Services on its lawsuit after Menard refused to pay for installation of a new roof. Remands with instructions to deny Menard’s motion for summary judgment on NARSI’s claims for breach of contract and foreclosure of mechanic’s lien; grant NARSI’s motion for partial summary judgment on its claim for breach of contract; and move forward to resolve NARSI’s claim to foreclose upon mechanic’s lien.

Anthony Worl v. State of Indiana (NFP)
29A02-1302-CR-167
Criminal. Affirms convictions of Class A felony child molesting, Class D felony child solicitation and three counts of Class C felony child molesting, as well as a habitual offender determination.

Antonio Hughley v. State of Indiana (NFP)
49A04-1301-CR-40
Criminal. Affirms convictions of Class A felony dealing in cocaine and Class D felony dealing in marijuana.

William J. Eisele v. State of Indiana (NFP)
51A01-1304-PC-154
Post conviction. Affirms denial of petition for post-conviction relief.

Darren Englert v. State of Indiana (NFP)
79A04-1302-CR-88
Criminal. Vacates convictions of Class A felony conspiracy to commit murder, Class D felony criminal confinement and Class C felony conspiracy to commit battery. Affirms convictions of Class B felony conspiracy to commit criminal confinement, Class C felony battery and Class A misdemeanor possession of marijuana and affirms 80-year sentence.

Jeffery Bonds v. State of Indiana (NFP)
49A04-1301-CR-11
Criminal. Affirms conviction of Class D felony invasion of privacy.

Darrail Mix v. State of Indiana (NFP)
49A02-1304-CR-314
Criminal. Affirms convictions of Class D felonies domestic battery and battery and Class A misdemeanors domestic battery and resisting law enforcement.

Frances Ashton v. City of Indianapolis (NFP)
49A02-1210-MI-815
Miscellaneous. Affirms judgment affirming the decision of the merit board of the Indianapolis Metropolitan Police Department to terminate Ashton’s employment as a police officer.

Harold Ferrin v. State of Indiana (NFP)
49A02-1210-PC-839
Post conviction. Affirms denial of petition for post-conviction relief.

Justin Dent v. State of Indiana (NFP)
29A03-1304-CR-128
Criminal. Affirms sentence for Class D felony operating a vehicle as a habitual traffic violator.

Norman T. Podell v. State of Indiana (NFP)
71A03-1302-CR-64
Criminal. Affirms two convictions of Class D felony pointing a firearm.

David Davenport v. State of Indiana (NFP)
49A02-1210-CR-842
Criminal. Affirms conviction and sentence for Class B felony dealing in cocaine and conviction of Class A misdemeanor resisting law enforcement. Remands for the trial court to impose a sentence on the misdemeanor conviction that comports with I.C. 35-50-3-2.

Miguel Perez v. State of Indiana (NFP)
49A02-1304-CR-288
Criminal. Affirms conviction of Class D felony identity deception.

Bush Truck Leasing, Inc., v. Indiana Farmers Mutual Insurance Company (NFP)
49A05-1304-CT-189
Civil tort. Affirms summary judgment for Indiana Farmers on Bush Truck Leasing’s complaint for declaratory judgment and damages.

FSF Presidential Estates, Associates, LLC, individually and d/b/a Presidential Estates Apartments and Indianapolis Power and Light v. Joshua Grounds, Fleener Roofing & Guttering, LLC (NFP)
49A05-1305-CT-209
Civil tort. Affirms denial of IPL’s motion for summary judgment and Grounds’ motion for partial summary judgment in Grounds’ suit filed to recover damages after he was electrocuted.

Devon Miller v. State of Indiana (NFP)
49A02-1303-CR-286
Criminal. Affirms conviction of Class A misdemeanor carrying a handgun without a license.

Stanley D. Wills v. State of Indiana (NFP)
18A02-1210-CR-834
Criminal. Vacates Wills’ conviction for Class C felony theft as a lesser included offense of robbery and remands for further proceedings. Affirms convictions of Class B felony aiding in the commission of armed robbery, Class B felony conspiracy to commit armed robbery, and Class B felony criminal confinement, as well as finding Wills is a habitual offender.

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

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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