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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. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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