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Opinions Oct. 30, 2012

October 30, 2012
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Indiana Supreme Court
Lisa J. Kane v. State of Indiana
30S04-1206-CR-372
Criminal. Reverses conviction of Class D felony receiving stolen property and remands for retrial. The trial court improperly instructed the jury on the mental state required to convict Kane.

Indiana Court of Appeals
In the Matter of the Estate of Nathaniel Kappel v. William Kappel, Judith Kappel, and Mark Kappel
32A01-1111-ES-526
Estate, supervised. Affirms denial of the estate’s recovery of insurance proceeds, directive that William and Mark Kappel withdraw their claims against the estate, and the denial of the complaint for contribution. Also affirms denial of the request the estate pay William, Judith and Mark Kappel’s attorney fees. The probate court’s judgment is not clearly erroneous based on the evidence.

Boulder Acquisition Corp. (n/k/a Affiliated Computer Services, LLC), et al. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development
93A02-1202-EX-127
Agency appeal. Reverses liability administrative law judge’s decision to combine BAC’s unemployment experience account with all its subsidiaries’ accounts and in recalculating BAC and the subsidiaries’ contribution rates. BAC is not a successor employer to the subsidiaries under I.C. 22-4-10-6(a) or 22-4-11.5-7. Remands to the Department of Workforce Development to adjust their respective experience accounts accordingly and to refund any overpayment by BAC and/or the subsidiaries.

Mark Carter and John E. Carter, Co-Personal Rep. of the Estate of John O. Carter, M.D., Deceased v. Loretta Robinson, Individually and as Admin. of the Estate of John E. Robinson, Deceased
45A05-1110-CT-563
Civil tort. Affirms $550,000 verdict in favor of Loretta Robinson, individually and as administratix of the estate of John E. Robinson, deceased, following John Robinson’s complaint for medical malpractice. Concludes Dr. James Bryant’s expert opinion is based on a proper use of the differential etiology methodology, that the trial court did not abuse its discretion when it excluded Dr. Michael Kaufman as a witness in support of Carter. Denies Robinson’s request for attorney fees.

Indiana Gas Company, Inc. and Southern Indiana Gas and Electric Company, et al. v. Indiana Finance Authority and Indiana Gasification, LLC
93A02-1112-EX-1141
Agency appeal. Reverses approval by the Indiana Utility Regulatory Commission of a substitute natural gas purchase and sale agreement between the Indiana Finance Authority and Indiana Gasification. The utilities and industrial group’s claims are justiciable, the commission did not exceed its jurisdiction when it approved the contract, and the contract’s definition of retail end use customer inappropriately included industrial transportation customers even though the Legislature did not intend for these customers to be subject to the Substitute Natural Gas Act as retail end use customers. Chief Judge Robb concurs in part and dissents in part.

Kevin Reaves v. State of Indiana (NFP)
49A02-1202-CR-131
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft.

In the Matter of the Revocable Trust of Mary Ruth Moeder (NFP)
49A02-1205-TR-377
Trust. Affirms order modifying the trust agreement.

Thomas R. Clements v. State of Indiana (NFP)
20A03-1204-CR-161
Criminal. Affirms denial of verified petition for permission to file a belated notice of appeal.

State of Indiana v. Christopher Holloway (NFP)
49A02-1203-CR-240
Criminal. Reverses revision of Holloway’s sentence and remands with instructions to reinstate the original sentence.

Demetriese Gunn v. State of Indiana (NFP)
49A02-1202-CR-152
Criminal. Affirms convictions of Class C felony neglect of a dependent and Class D felony strangulation.
 

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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