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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. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

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