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Opinions Sept. 30, 2013

September 30, 2013
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Opinions, Sept. 30, 2013

Indiana Court of Appeals
Jeffrey Archer v. State of Indiana

49A05-1209-CR-448
Criminal. Affirms Class A felony conviction of child molestation, rejecting arguments that the trial court’s statement about the victim’s competency was an impermissible vouching statement and that the court improperly allowed vouching statements by multiple witnesses. The court’s denial of Archer’s request to present evidence of the victim’s post-allegation demeanor also was proper, as were jury instructions and the effectiveness of Archer’s trial counsel.

Paul J. Livers II, v. State of Indiana
06A01-1303-CR-119
Criminal. Affirms convictions for battery causing bodily injury, a Class A misdemeanor, and interference with reporting a crime, a Class C misdemeanor. Livers claims his counsel was ineffective because the attorney failed to file a motion for a jury trial in a timely manner. The COA finds the trial court record does not indicate that Livers wanted a jury trial prior to his trial counsel’s belated requested. Also rejects Livers’ argument that the testimony of the victim was incredibly dubious.

Joseph M. Guinn v. Applied Composites Engineering, Inc.
49A02-1303-CC-239
Civil. Reverses grant of summary judgment in favor of Applied Composites Engineering Inc., and remands to the trial court for consideration of Joseph Guinn’s claim of tortious interference with a contract due to ACE’s enforcement of a non-compete clause that resulted in his termination from a subsequent employer. Summary judgment was improper because a genuine issue of material fact exists as to whether ACE’s conduct was justified, fair or reasonable under the circumstances.

Amy Palmer v. Margaret Sales and Unique Insurance Company
45A03-1302-SC-31
Small claims. Reverses denial of motion for change of judge and motion for jury trial and remands with instructions to grant change of judge, implement procedures for the selection of a new judge and transfer the case to the plenary docket, the majority holding that the question of timeliness of a change of judge request should be guided by the dissenting opinion in McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008). Judge Mark Bailey, who wrote the McClure opinion, dissented in part, finding that the court shouldn’t reach McClure, which he acknowledged may have been wrongly decided, and that because Palmer acknowledged liability, proceedings on remand should be limited to the matter of damages.

William A. Asher v. Stephanie J. Coomler
49A04-1302-DR-71
Domestic relation. Reverses trial court modification of child support, holding that a magistrate was not within the class of judicial officers specified in Trial Rules for selection of a special judge and therefore could not have presided after appointment of a special judge. Remands to the trial court with instructions to permit the parties to select a successor special judge.

David M. Green v. State of Indiana
45A03-1210-PC-418
Post-conviction. Affirms denial of petition for post-conviction relief from his sentence of two consecutive 45-year sentences for his conviction of two counts of murder, concluding that a defense attorney’s failure to object to an anonymous jury was not ineffective assistance of counsel.

Tom Trisler d/b/a Canal House Antiques v. Clayton L. Carter
35A02-1302-SC-192
Small claim. Reverses the trial court’s order that Trisler reimburse Carter the purchase price for a chest of drawers. Rules when Carter bought the piece of furniture at the antiques store, he did not expect the business would remedy any defect. Consequently he has no legitimate reason to revoke his acceptance of the chest of drawers.

Gary Oswalt v. State of Indiana
35A02-1208-CR-684
Criminal. Affirms conviction and aggregate sentence of 84 years for two counts of child molesting as Class A felonies, child solicitation as a Class D felony, and five counts of possession of child pornography as Class D felonies. Rules Oswalt did not exhaust his peremptory challenges and therefore waived review of the trial court’s denial of his request to strike Juror No. 28 for cause. Finds the five charges for possession of child pornography fell within the statutory limitations period. Concludes that the evidence was sufficient to sustain Oswalt’s convictions for five counts of possession of child pornography and that Oswalt failed to demonstrate he was denied a fair trial due to the charges of possession of child pornography. Upholds the sentence as appropriate considering the nature of the offense and the character of Oswalt.

In the Matter of the Termination of the Parent-Child Relationship of K.C., R.C., and B.C., Minor Children and R.C., Father v. Indiana Department of Child Services (NFP)
72A01-1301-JT-35
Juvenile. Affirms involuntary termination of R.C.’s (father) parental rights to K.C., R.C. and B.C.

Joseph A. Taylor v. Dr. William H. Wolfe, in his Individual Capacity as an Employee of Corizon and Medical Director at the Pendleton Correctional Facility, Corizon, Inc., and Pharma Corr, (NFP)
48A05-1212-PL-638
Civil Plenary. Affirms dismissal of Taylor’s complaint against Wolfe, Corizon Inc. and Pharma Corr for lack of subject matter jurisdiction.

In the Matter of; H.B., G.M., P.M., and A.C. (Minors), C.M. (Mother) v. The Indiana Department of Child Services and Lake County Court Appointed Special Advocate (NFP)
45A03-1302-JT-62
Juvenile. Affirms order terminating C.M.’s (mother) parental rights to her minor children, H.B., G.M., P.M. and A.C.

Gerald W. Staton v. Dawn M. Dobyns-Gross, Indiana Family Social Services Administration, Tippecanoe County, Indiana and Tippecanoe County Prosecutor (NFP)
79A02-1305-CT-412
Civil Tort. Affirms denial of Staton’s motion to correct error and the dismissal of Staton’s complaint.

Mark Burkett v. State of Indiana (NFP)
09A04-1305-CR-262
Criminal. Affirms 20-year sentence for criminal confinement, a Class B felony.

Brandon Stewart v. State of Indiana (NFP)
45A03-1301-CR-6
Criminal. Affirms conviction for two counts child molesting, both Class A felonies, one count sexual misconduct with a minor, a Class B felony, one count child molesting, a Class C felony, and one count sexual misconduct with a minor, a Class C felony. Also affirms aggregate sentence of 46 years.
 
The Indiana Supreme Court and the Indiana Tax Court issued no opinions by IL deadline. The 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline.
 

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  1. Actually, and most strikingly, the ruling failed to address the central issue to the whole case: Namely, Black Knight/LPS, who was NEVER a party to the State court litigation, and who is under a 2013 consent judgment in Indiana (where it has stipulated to the forgery of loan documents, the ones specifically at issue in my case)never disclosed itself in State court or remediated the forged loan documents as was REQUIRED of them by the CJ. In essence, what the court is willfully ignoring, is that it is setting a precedent that the supplier of a defective product, one whom is under a consent judgment stipulating to such, and under obligation to remediate said defective product, can: 1.) Ignore the CJ 2.) Allow counsel to commit fraud on the state court 3.) Then try to hide behind Rooker Feldman doctrine as a bar to being held culpable in federal court. The problem here is the court is in direct conflict with its own ruling(s) in Johnson v. Pushpin Holdings & Iqbal- 780 F.3d 728, at 730 “What Johnson adds - what the defendants in this suit have failed to appreciate—is that federal courts retain jurisdiction to award damages for fraud that imposes extrajudicial injury. The Supreme Court drew that very line in Exxon Mobil ... Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments ...but Exxon Mobil shows that the Rooker Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is “intertwined” with something else …Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.” So, as I already noted to others, I now have the chance to bring my case to SCOTUS; the ruling by Wood & Posner is flawed on numerous levels,BUT most troubling is the fact that the authors KNOW it's a flawed ruling and choose to ignore the flaws for one simple reason: The courts have decided to agree with former AG Eric Holder that national banks "Are too big to fail" and must win at any cost-even that of due process, case precedent, & the truth....Let's see if SCOTUS wants a bite at the apple.

  2. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  3. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  4. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

  5. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

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