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Opinions Sept. 17, 2013

September 17, 2013
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Indiana Tax Court
The following opinion was released after IL deadline Monday.
United Parcel Service, Inc. v. Indiana Department of State Revenue
49T10-0704-TA-24
Premiums tax. On remand from a reversal by the Indiana Supreme Court, denies UPS’s motion for summary judgment of an appeal of taxes due for the years 2000 and 2001 and grants summary judgment in favor of the Department of Revenue, holding that statutes governing premiums tax on out-of-state insurers are immune from Commerce Clause challenges.

Indiana Court of Appeals
Bartholomew County and Bartholomew County Commissioners v. Doug Johnson and Lucretia Johnson v. C & H/M Excavating and Construction, Inc., and Christopher B. Burke Engineering, LTD.
03A01-1212-CT-578
Civil tort. Reverses denial of summary judgment in favor of Bartholomew County. Remands for further proceedings as to the county’s allegedly negligent maintenance and operation of the bridge. Finds that under Indiana Code Section 34-13-3-3(10), the county had immunity from liability because the construction of the bridge was a delegable duty.

Evergreen Shipping Agency Corp., v. Djuric Trucking, Inc.
45A03-1302-CC-40
Civil collection. Affirms award of legal fees for Djuric Trucking Inc., holding that the award is not barred by the doctrine of res judicata and therefore Djuric has not waived its claim.

Nancy A. Missig v. State Farm Fire & Casualty Company, Andre M. Missig, and Autumn Missig
34A02-1212-CT-1002
Civil tort. Affirms trial court ruling in a dispute over proceeds from a real estate insurance policy issued to the son and daughter-in-law of Nancy Missig who were purchasing a home from her on a land contract. Andre Missig and Autumn Missig received proceeds from a total-loss fire, but Nancy Missig failed to convince the appeals court that State Farm owed an interest to her because she was not named on the policy taken out by her son and daughter-in-law. Also affirmed is a trial court judgment in Nancy’s favor and a lien sufficient to satisfy the land contract on a property Andre and Autumn purchased with insurance proceeds.

Nathan K. Barker v. State of Indiana
73A01-1212-CR-575
Criminal. Remands for new sentencing order that does not exceed the 40-year cap on the executed portion of Barker’s sentence. Affirms all other aspects of his sentence. Finds since detainees serving home detention can earn credit for time served, Barker’s 120-day home detention exceeded the terms of his plea agreement which limited the executed time to 40 years. Also concludes the trial court did not abuse its discretion when it did not consider Barker’s apology as mitigating circumstance. Finally, holds that Barker failed to meet his burden of demonstrating that his sentence is inappropriate.  

Kenneth F. Kipp v. State of Indiana (NFP)
73A01-1211-CR-507
Criminal. Affirms conviction of Class A felony burglary; Class B felony armed robbery; two counts of Class B felony burglary; Class B felony attempted carjacking; two counts of Class C felony battery with a deadly weapon; Class C felony attempted robbery; two counts of Class D felony theft; Class D felony resisting law enforcement; and being a habitual offender.

Eric G. Couthen v. State of Indiana (NFP)
84A04-1302-CR-65
Criminal. Affirms sentence imposed after revocation of probation for conviction of Class C felony intimidation.

Spiros Alatorre v. State of Indiana (NFP)
49A04-1301-CR-28
Criminal. Reverses and vacates convictions for Class A felony kidnapping and Class B felony carjacking on double-jeopardy grounds, but finds a 45-year executed sentence for conviction of murder is not inappropriate.

Dellia Castile v. State of Indiana (NFP)
71A04-1212-CR-625
Criminal. Affirms conviction and 50-year aggregate sentence for conviction of Class A felony neglect of a dependent and Class B felony neglect of a dependent.

Katherine Cervantes v. State of Indiana (NFP)
10A04-1301-CR-19
Criminal. Affirms five-year aggregate sentence for conviction of Class C felony sexual misconduct with a minor and Class A misdemeanor contributing to the delinquency of a minor.

Jennifer Rose Peverly v. State of Indiana (NFP)
54A01-1303-CR-145
Criminal. Affirms aggregate three-year sentence for conviction of three counts of Class A misdemeanor invasion of privacy.

The Indiana Supreme Court and Tax Court issued no opinions prior to IL deadline. The 7th Circuit Court of Appeals issued no Indiana decisions prior to IL deadline.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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