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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. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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