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Opinions Oct. 7, 2013

October 7, 2013
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Opinions, Oct. 7, 2013

Indiana Court of Appeals

The Estate of Richard A. Mayer, and Spangler, Jennings & Dougherty v. Lax, Inc., and David Lasco
37A03-1207-PL-323
Civil plenary. Affirms in part, reverses in part and remands. Reverses denial of summary judgment to the Estate and Spangler Jennings on claims for negligent supervision and/or retention, tortious interference with a business relationship, and tortious interference with a contract, and directs that summary judgment be entered in the estate’s and Spangler Jennings’s favor on those claims. Reverses denial of summary judgment to Spangler Jennings on the defamation claim and directs that summary judgment be entered in its favor on that claim. Reverses the denial of summary judgment to the estate regarding Lax and Lasco’s seeking punitive damages against it and direct that summary judgment be entered in favor of the estate on that claim. Affirms the granting of summary judgment in the estate’s favor on the defamation and malicious prosecution claims. Affirms denial of summary judgment on the malicious prosecution claim against Spangler Jennings and the denial of summary judgment on the abuse of process claim to both the estate and Spangler Jennings. Affirms the denial of summary judgment in favor of Spangler Jennings on punitive damages.

Dorian Gray Jackson v. State of Indiana

20A05-1210-CR-572
Criminal. Affirms convictions for possession of a narcotic with intent to deliver as a Class A felony, two counts of dealing in a narcotic drug as Class B felonies and possession of marijuana as a Class A misdemeanor. Finds intervening circumstances –
rather than the GPS device police had attached to the suspect’s car without a warrant – led to the traffic stop and discovery of the illegal drugs. Concludes the circumstances were sufficient to remove any taint from any police illegality.

Daniel B. Buffkin v. Glacier Group
79A02-1302-PL-141
Civil plenary. Reverses trial court grant of temporary injunction to enforce terms of an employment non-competition clause, holding that the activities prohibited and the geographic restraints Glacier Group sought to place on terminated contractor Daniel Buffkin were unreasonable, rendering that part of the agreement unenforceable. Remands for further proceedings.

Marie Castner v. State of Indiana (NFP)
49A05-1302-CR-44
Criminal. Affirms conviction for Class A misdemeanor battery.

In the Matter of the Civil Commitment of S.I. v. Midtown CMHC (NFP)
49A05-1304-MH-146
Mental Health. Affirms order for temporary commitment.

Michael Morrisey v. State of Indiana (NFP)
49A04-1304-CR-146
Criminal. Affirms revocation of Morrisey’s community corrections placement.
 
Robert Walke and Karen Walke v. Kitley Law Office, P.C., (NFP)
49A02-1304-CT-291
Civil Tort. Affirms granting summary judgment in favor of Kitley.

Gordon B. Dempsey v. JPMorgan Chase Bank, N.A. (NFP)
49A02-1303-PL-218
Civil Plenary. Affirms Chase’s motion for summary judgment. Reverses the award of $141,545.21 in attorney’s fees and costs, and remands for further proceedings to ensure the court’s award does not improperly overlap with the award of attorney’s fees in federal court.  

In Re: The Paternity of J.K., A.K. v. T.L. (NFP)
02A03-1301-JP-12
Juvenile Paternity. Affirms denial of Father’s (A.K.) petition to modify custody of his daughter (J.K.).  

In Re The Paternity of I.B., K.H. v. I.B. b/n/f L.B. (NFP)
34A02-1305-JP-401
Juvenile Paternity. Affirms order that, among other things, directed father (K.H.) to pay child support and $1,200 of the mother’s (L.B.) attorney fees.

The Indiana Supreme Court and the Indiana Tax Court did not release opinions by IL deadline. The 7th Circuit Court of Appeals did not release Indiana opinions by IL deadline.
 

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  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. 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.

  5. 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!

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