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Opinions Oct. 19, 2011

October 19, 2011
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7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.

Indiana Supreme Court had posted no opinions at IL deadline.


Indiana Court of Appeals
Alan Massey v. State of Indiana
49A05-1012-PC-808
Post conviction. Affirms denial of petition for post-conviction relief. Even though the jury was improperly instructed regarding the elements of voluntary manslaughter, Massey wasn’t entitled to the voluntary manslaughter instruction because his girlfriend’s words ending their relationship do not constitute sufficient provocation to induce sudden heat. He also failed to carry his burden to show that the sentencing issue was significant.

Mark S. Weinberger, M.D., Mark S. Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC and Nose and Sinus Center, LLC v. William Boyer
45A03-1011-CT-598
Civil tort. Affirms award of $300,000 in damages to William Boyer following his complaint for medical malpractice. The trial court properly denied the Weinberger entities’ motion for change of judge; did not abuse its discretion when it failed to strike jurors for cause; the testimony on Weinberger’s breach of his standard of care, the result of Boyer’s EKG, and evidence of Weinberger’s flight and absence from the country were properly admitted; and the jury award was not excessive. Affirms in all other respects.

Carolyn S. Baird v. State of Indiana
82A01-1106-CR-185
Criminal. Affirms convictions of infractions for operating a motor vehicle without financial responsibility, failure to register and failure to have the proper license for operating a motorcycle. The evidence was sufficient to support these convictions. Reverses her conviction of Class A misdemeanor driving while suspended with a prior conviction because there was insufficient evidence. Remands with instructions to enter a conviction of the lesser included offense of driving while suspended, a Class A infraction.

Barker Industrial Park, Inc., Clara Barker and Charles E. Barker v. Ken Cut Lawn Service, Inc. (NFP)
49A05-1104-PL-201
Civil plenary. Reverses attorney fee award to the Bakers and remands for recalculation. Also on remand, the trial court should explain its prejudgment interest calculation and correct its total judgment calculation.

Marquinn McGruder v. State of Indiana (NFP)
49A04-1102-CR-29
Criminal. Affirms convictions of Class A misdemeanors carrying a handgun without a license and possession of marijuana.

Zachary Thomas v. State of Indiana (NFP)
49A02-1009-CR-1143
Criminal. Affirms conviction of Class D felony residential entry.

Remy Inc. v. Ice Miller LLP and Kathy S. Kiefer (NFP)
49A02-1012-CT-1419
Civil tort. Affirms summary judgment for Ice Miller and Kiefer on Remy’s legal malpractice claim.

Jeffrey J. Whitmer v. Nancy J. Whitmer (NFP)
85A02-1103-DR-283
Domestic relation. Affirms in part and reverses in part the order that set aside substantial sums to Nancy following the sale of property at auction for expenses she claimed to have incurred, as most of the expenses she requested were either untimely raised or were an improper attempt to relitigate the equal property distribution. Remands with instructions.

Danny L. Slaven v. State of Indiana (NFP)
18A02-1101-PC-116
Post conviction. Affirms in part and reverses in part the denial of petition for post-conviction relief. Remands for resentencing.

Darren B. Stone v. State of Indiana (NFP)
51A01-1103-PC-154
Post conviction. Affirms denial of petition for post-conviction relief.

K.B.S. v. State of Indiana (NFP)
71A04-1104-JV-251
Juvenile. Affirms order placing K.B.S. at a private residential facility after the juvenile court found she committed what would be Class A misdemeanor criminal conversion if committed by an adult.

Christopher Davies v. State of Indiana (NFP)
34A05-1103-CR-136
Criminal. Affirms order Davies serve the 18-month balance of his suspended sentence following a probation violation.

Kevin Legg v. State of Indiana (NFP)
49A02-1102-CR-76
Criminal. Affirms convictions of Class B felony rape, Class B felony criminal deviate conduct and Class D felony criminal confinement.

James Lee v. State of Indiana (NFP)
49A04-1103-PC-152
Post conviction. Affirms denial of petition for post-conviction relief.

Sergio Esqueda v. Alfredo and Maria Ponce (NFP)
93A02-1105-EX-476
Agency appeal. Affirms denial of application for adjustment of claim.

Valentin Jaramillo v. State of Indiana (NFP)
76A03-1103-PC-125
Post conviction. Affirms denial of petition for post-conviction relief.

Rumero Ziebell v. State of Indiana (NFP)
82A01-1012-PC-694
Post conviction. Affirms in part and reverses in part the denial of Ziebell’s petition for post-conviction relief. Remands for the post-conviction court to order the habitual offender enhancement in the murder case to be served concurrent with the habitual offender enhancement in the drug case.

Ayron Saylors v. State of Indiana (NFP)
27A05-1102-PC-99
Post conviction. Affirms denial of petition for post-conviction relief.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. 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?

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  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.

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  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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