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Opinions, Oct. 3, 2013

October 3, 2013
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Opinions, Oct. 3, 2013

Indiana Tax Court

Orange County Assessor v. James E. Stout
49T10-1112-TA-94
Property tax. Affirms the final determination of the Indiana Board of Tax Review that the Orange County Assessor failed the meet the burden of proving that Stout’s land assessment was proper. Finds although the Indiana Board applied a 2011 statute to a 2010 appeal, the 2011 law was not new but a clarification of the original 2009 statute which shifted the burden to the assessor. Also rules the assessor failed to provide any evidence demonstrating that Stout was not using his 8.12 acre property for an agriculture purpose.

Indiana Court of Appeals
Koch Development Corporation and Daniel L. Koch v. Lori A. Koch, as Personal Representative of the Estate of William A. Koch, Jr., Deceased
82A04-1212-PL-612
Civil plenary. Affirms the trial court’s judgment that Lori A. Koch, as personal representative of the Estate of William A. Koch Jr., does not have to sell the estate’s share in Holiday World and Splashin’ Safari to Koch Development Corp. and Daniel L. Koch. Finds the evidence supports the conclusion that Daniel Koch and KDC materially breached the terms of the Share Purchase and Security Agreement by offering a per-share price that was significantly less than the price agreed to by the parties. Also rules that this material breach relieves the estate from its obligation sell its shares.  

Katherine Chaffins and Roger Chaffins Sr. v. Clint Kauffman, M.D.; Family and Women's Health Services; and Pulaski County Memorial Hospital
66A04-1302-CT-85
Civil tort. Reverses grant of summary judgment in favor of Dr. Clint Kauffman and Family and Women’s Health Services, with the majority finding that a material issue of genuine fact exists as to the Chaffinses’ claim that defendants’ alleged negligence after a colonoscopy resulted in 12 hours of prolonged pain before the subsequent diagnosis of a perforated colon. Judge Elaine Brown dissented and would have affirmed summary judgment because no evidence shows that the defendants deviated from the standard of care appropriate in such a case.

Geroge A. Nunley v. State of Indiana
10A04-1212-CR-630
Criminal. Affirms conviction of Class C felony robbery but reverses habitual offender finding because it was based on a complaint amended after a jury had been empaneled, prejudicing Nunley’s substantial rights. The panel concluded that no part of I.C. 35-34-1-5 allowed the amendment that the state proposed in this case. The matter was remanded to removing the 12-year enhancement to an eight-year sentence on the robbery conviction.

Shayla Bowling v. State of Indiana
92A03-1212-CR-553
Criminal. Affirms a conviction of Class D felony domestic violence, holding that a jury properly determined that Bowling was “living as if a spouse” with the victim with whom she was involved in a romantic relationship despite being married to another man. The court rejected Bowling’s argument that she could not be living as if a spouse with another person while she was married because to do so would be bigamy and that applying the domestic violence statute in her case could arguably broaden the scope of the law.

Jose Garcia v. G. Wm. Walker Construction (NFP)
93A02-1305-EX-437
Civil. Affirms the Indiana Worker’s Compensation Board’s ruling that Garcia’s injury did not arise from his employment.

Elbert G. Elliott v. State of Indiana (NFP)
45A04-1212-CR-659
Criminal. Affirms revocation of Elliott’s probation based on drug use and willful failure to pay restitution.

Milton L. Medsker v. State of Indiana (NFP)
49A02-1303-PC-203
Post conviction. Affirms post-conviction court’s denial of Medsker’s petition for post-conviction relief.

Marlen Hernandez v. State of Indiana (NFP)
02A05-1304-CR-181
Criminal. Affirms conviction for criminal recklessness, a Class D felony.

Richard Green v. State of Indiana (NFP)
36A01-1212-CR-571
Criminal. Affirms Green’s conviction for armed robbery, a Class B felony, and his adjudication as a habitual offender.

Robert Klinglesmith v. State of Indiana (NFP)
49A05-1303-CR-116
Criminal. Affirms in part and reverses in part. Concludes that Klinglesmith did not suffer fundamental error due to the cumulative effect of allegedly erroneously admitted evidence but that one of his two convictions for Class B felony criminal deviate conduct must be vacated due to double jeopardy concerns.  

Matthew P. Thrall v. State of Indiana (NFP)
56A05-1304-CR-159
Criminal. Affirms 13-year sentence for pleading guilty to one count of Class B felony rape.

Priority Press, Inc. v. Media Methodology (NFP)
29A02-1303-SC-278
Small claims. Affirms judgment in favor of Media Methodology.

Rasheen Middleton v. State of Indiana (NFP)
82A01-1301-CR-8
Criminal. Affirms conviction and 12-year sentence, with two years suspended, for one count of Class B felony unlawful possession of firearm by a serious violent felon.

Dennis Tiller v. State of Indiana (NFP)
49A02-1211-CR-928
Criminal. Affirms convictions for one count child molesting as a Class A felony and one count child molesting as a Class C felony. Concludes while the prosecutor’s comments may have been more narrowly construed, they did not prevent Tiller from receiving a fair trial.

Indiana Supreme Court released no opinions before IL deadline. 7th Circuit Court of Appeals released no Indiana opinions before 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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