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Opinions Oct. 26, 2011

October 26, 2011
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The following Indiana Tax Court opinion was posted after IL deadline Oct. 25:

AE Outfitters Retail Co. v. Indiana Dept. of State Revenue (NFP)
49T10-1012-TA-66
Tax. Grants AE Outfitters’ motion for partial summary judgment and directs the court to set a case management conference to discuss all remaining matters by separate order.

Wednesday's opinions
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
Anthony D. Laster v. State of Indiana
02A03-1103-CR-91
Criminal. Affirms convictions of Class B felony burglary and four counts of Class B felony robbery, holding the trial court did not abuse its discretion in denying Laster’s motion for continuance. Remands to the trial court to revise sentence, holding that in light of the offender’s character and nature of offenses, a fully executed sentence on each count is not warranted.

Hassan Alsheik v. Alice Guerrero, Individually and as Admin. of the Estate of Israel Arcuri
45A04-1011-CT-680
Civil tort. Affirms trial court’s decision to admit results of a second autopsy, to allow Guererro’s pathologist to testify as an expert witness and holds the trial court did not abuse its discretion by admitting post-mortem photographs of the victim. Holds that the trial court erred in denying Guerrero’s request for pre-judgment interest and remands to the trial court for determination of pre-judgment interest.

Jeff Castetter, Tony Jones, David Strode and Matthew Hickey v. Lawrence Township
49A05-1105-PL-249
Civil plenary. Affirms court’s denial of appellants’ motion for summary judgment and its grant of Lawrence Township’s motion for summary judgment, holding there is no genuine issue of fact as to the Lawrence Township Fire Department Merit Commission’s decision to eliminate the rank of battalion chief.

Homestead Finance Corporation v. Southwood Manor L.P. d/b/a Village Green of Southwood Manor and d/b/a Village Green Mobile Home Park
71A04-1103-CC-167
Civil collection. Reverses trial court’s judgment in favor of Southwood Manor, holding that Homestead Finance was no longer subject to the Park Owner’s Lien Statute once it released its liens on the mobile homes in question. Remands to the trial court with instructions to enter judgment in favor of Homestead.

Danielle Garrett v. State of Indiana
49A02-1101-CR-1
Criminal. Affirms conviction of Class A misdemeanors battery on a law enforcement officer and resisting law enforcement, holding that Garrett failed to establish unlawful entry and that her resistance was not reasonable.

Dustin T. Allen v. State of Indiana
15A04-1101-CR-16
Criminal. Reverses trial court’s judgment denying Allen’s motion to dismiss, holding that he was improperly subjected to a successive prosecution that is prohibited under Indiana Code 35-41-4-4.

Jason Edward Thomas v. State of Indiana (NFP)
45A03-1102-CR-61
Criminal. Affirms sentences for Class B felony robbery and Class D felony auto theft.

Stephen Grady v. State of Indiana (NFP)
34A04-1011-CR-669
Criminal. Affirms court’s denial of motion for jail time credit.

Earl Lee Russelburg v. State of Indiana (NFP)
82A01-1103-CR-156
Criminal. Affirms trial court’s denial of motion to correct erroneous sentence.

In the Matter of the Paternity of J.W. and A.W. (NFP)
67A04-1103-JP-147
Juvenile. Affirms trial court’s custody determination awarding aunt custody.  

Daniel J. Harvey v. State of Indiana (NFP)
45A03-1104-PC-150
Post conviction. Affirms denial of petition for post-conviction relief.

Maria Bodor v. Town of Lowell, Indiana; Board of Zoning of the Town of Lowell, Indiana; Wilbur Cox; and Frank Lagace (NFP)
45A03-1012-PL-666
Civil plenary. Affirms trial court’s order vacating and lifting its stay of the Town of Lowell’s demolition order and affirming the entry of that demolition order.

Arlene M. Doub v. State of Indiana (NFP)
20A03-1103-CR-100
Criminal. Affirms conviction of Class D felony receiving stolen property.

Anthony Williams v. State of Indiana (NFP)
29A02-1103-CR-174
Criminal. Affirms court’s revocation of probation and order to serve balance of sentence.

Tenzin Tamding v. State of Indiana (NFP)
49A05-1104-CR-170
Criminal. Affirms convictions of Class D felony criminal recklessness and Class A misdemeanor battery.

Phillip Buhrt v. State of Indiana (NFP)
20A05-1101-PC-43
Post conviction. Affirms denial of petition for post-conviction relief.

Protect-All Insurance Agency, Inc., Robert H. Drake, Jr., and Kevin Surface v. James E. Surface, Sr., and Allied Kitchen Equipment Sales, Inc. (NFP)
49A02-1102-PL-136
Civil plenary. Reverses trial court’s grant of summary judgment on three counts of appellants’ counterclaim, but affirms the judgment of the trial court in all other respects. Remands for proceedings consistent with opinion.

Aaron Spencer v. State of Indiana (NFP)
49A04-1102-CR-68
Criminal. Affirms conviction of Class B misdemeanor public intoxication.

Daniel Stovall v. State of Indiana (NFP)
68A01-1106-CR-245
Criminal. Affirms sentence for Class C felony nonsupport of a dependent child.

Chester Lloyd v. State of Indiana (NFP)
79A02-1105-PC-520
Post conviction. Affirms denial of petition for post-conviction relief.

Christopher Carter v. State of Indiana (NFP)
15A01-1011-CR-674
Criminal. Affirms sentence for Class C felony intimidation.

Floyd McQueen v. State of Indiana (NFP)
32A04-1103-CR-137
Criminal. Affirms convictions of Class C felony burglary and Class A misdemeanor resisting law enforcement.

Adam Williams v. State of Indiana (NFP)
79A02-1101-CR-198
Criminal. Affirms convictions of Class B felony conspiracy to manufacture methamphetamine, Class B felony dealing methamphetamine and three counts of Class D felony possession of precursors.

Demetreous A. Brown, Sr. v. Elisha J. Gray and Paul A. Brown (NFP)
49A02-1009-PL-1124
Civil plenary. Reverses order denying injunctive relief and dismissing Paul Brown as a party, holding appellant showed, prima facie, that he was not afforded procedural due process. Remands for further proceedings.

Craig S. Conrad v. Review Board of the Indiana Department of Workforce Development (NFP)
93A02-1103-EX-261
Miscellaneous. Affirms decision finding Conrad was discharged for just cause.

Term. of Parent-Child Rel. of A.R.S. and A.L.S.; L.S. and X.K. v. Indiana Dept. of Child Services (NFP)
02A04-1103-JT-157
Juvenile. Affirms termination of parental rights of mother and father.

Norman Trent v. State of Indiana (NFP)
54A01-1104-CR-172
Criminal. Affirms trial court’s denial of motion to correct abstract of judgment.

Term. of Parent-Child Rel. of A.J.H.; M.D. v. Indiana Dept. of Child Services and Lake County CASA (NFP)
45A03-1104-JT-155
Juvenile. Affirms termination of mother’s parental rights.

Kevin Brown v. State of Indiana (NFP)
49A02-1012-CR-1283
Criminal. Affirms on rehearing a previous decision that Brown was not entitled to abandonment defense because his decision to abandon a robbery attempt was based on extrinsic factors.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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