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Opinions Oct. 31, 2011

October 31, 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
Thomas J. Ostrowski and Phyllis Ostrowski v. Everest Healthcare Indiana, Inc., d/b/a Merrillville Dialysis Center, and Family Mobile Medical Services, Inc.
45A03-1012-CT-645
Civil tort. Affirms jury verdict in favor of defendants Everest Healthcare Indiana and Family Mobile Medical Services on Thomas Ostrowski’s suit for negligence against the building owner and the EMT’s employer after he was injured by a door opening and hitting his hand. The trial court did not err in giving the sudden emergency instruction or in permitting the defendants’ expert witness to testify. The lay witness did not improperly testify as an expert witness.  

Lorenzo Surrisi, Individually and d/b/a City Tavern and Joette Surrisi, Individually and d/b/a City Tavern v. James D. Bremner
50A04-1102-MF-83
Mortgage foreclosure. Reverses trial court order that stated the Surrisis’ real and personal business property were sold at a sheriff’s sale to Bremner. The sheriff’s bill of sale which included the business personal property is faulty because according to the praecipe of the sale, notice of sale and tax documentation, only the real property was subject to the sheriff’s sale. Remands for vacation of the court order indicating the sale included the business personal property and for the trial court to determine the amount of compensation due to the Surrisis for the loss of their business personal property.

Luigi Amalfitano v. State of Indiana
48A02-1102-CR-243
Criminal. Affirms sentence following guilty plea to Class B felony criminal confinement, Class C felony battery with serious bodily injury, Class D felony exploitation of an endangered adult and Class D felonies financial exploitation of an endangered adult, theft, obtaining a prescription by fraud and possession of a controlled substance. The court didn’t abuse its discretion by finding Amalfitano’s criminal history and violation of a position of trust with the victim to be aggravators, and his sentence is not inappropriate given that he kept an elderly woman locked in a utility closet for six months so he could steal her benefits and prescription drugs.

Joseph Simmons v. State of Indiana
40A05-1101-CR-10
Criminal. Affirms conviction of and sentence for Class C felony operating a vehicle while intoxicated. Simmons’ conviction of Class C felony OWI does not constitute an ex post facto violation. There is sufficient evidence to support his conviction and his eight-year sentence is appropriate.

Terry C. Winslow v. State of Indiana (NFP)
49A02-1103-CR-257
Criminal. Affirms conviction of Class A misdemeanor intimidation.

Raymond Scebbi v. State of Indiana (NFP)
77A01-1103-CR-96
Criminal. Affirms conviction of Class C felony child solicitation.

S.W. v. State of Indiana (NFP)
49A04-1104-JV-190
Juvenile. Affirms adjudication as a delinquent child for committing what would be Class C felony attempted robbery if committed by an adult.

Patrick Black v. State of Indiana (NFP)
82A04-1103-CR-175
Criminal. Affirms convictions of and sentence for various felony drug offenses and misdemeanors resisting law enforcement, false informing and battery.

Christopher D. Taylor v. State of Indiana (NFP)
71A03-1103-CR-163
Criminal. Affirms conviction of Class C felony operating a motor vehicle after driving privileges have been forfeited for life and the revocation of probation.

M.B. and M.F. v. Indiana Dept. of Child Services (NFP)
79A02-1104-JT-300
Juvenile. Affirms termination of parental rights.

1991 Investors Limited Partnership, an Indiana Limited Partnership, Pamela T. Hennessy, Joseph J. Hennessy, et al. v. Citizens Financial Services, FSB (NFP)
71A03-1105-MF-193
Mortgage foreclosure. Affirms personal judgment entered against the defendants 1991 Investors Limited Partnership and the Hennessys and the motion to correct error in a suit for failure to pay a loan.

Zachary Krachinski v. Cindy Schoof, Century 21 - 1st Team, Inc., Lon F. Terry, and Horizon Bank, N.A. (NFP)
46A03-1009-CC-498
Civil collection. Affirms summary judgment in favor of Schoof and Century 21 in Krachinski’s complaint alleging fraud and misrepresentation of property.

Tracey L. Routon v. State of Indiana (NFP)
34A04-1104-CR-209
Criminal. Affirms sentence for Class C felony conspiracy to commit possession of methamphetamine in excess of three grams.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court denied transfer to 14 cases and vacated transfer to one case for the week ending Oct. 28.


 

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  1. 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.

  2. 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.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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