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Opinions May 23, 2016

May 23, 2016

Indiana Court of Appeals
Douglas Costella and Profit Search Inc. v. Gersh Zavodnik
49A04-1504-PL-163.
Civil plenary. Reverses and remands summary judgment for Gersh Zavodnik for $30,044.07 after Court of Appeals ruled Zavodnik abused Trial Court Rule 36(B) which governs the withdrawal of admissions, using it for his own gain. Remands for trial court to determine whether case should be dismissed because of Trial Rule 41(E) which provides for dismissal when a plaintiff does not diligently prosecute a case or comply with court rules.

James E. Saylor v. State of Indiana
39A05-1503-PC-113
Post conviction. Affirms mistake James Saylor’s attorney made when defending him, which said Saylor wasn’t the only person having sex with his minor victim, did not constitute judicial admission as the prosecution did not capitalize on the statement and there was more than enough evidence to convict him without the statement. Remands for trial on Saylor’s habitual offender adjudication, as Saylor did not personally waive his right to trial on that issue.

Consumer Attorney Services, P.A., et al. v. State of Indiana
49A05-1504-PL-274
Civil plenary. Affirms in part and reverses in part the trial court’s denial of summary judgment against the Indiana attorney general. Reverses denial of summary judgment in favor of CAS and remands for entry of summary judgment with respect to its liability under the Credit Services Organization Act’s exemption for attorneys; the Mortgage Rescue Protection Fraud Act under that Act’s exemption for attorneys; the Home Loan Practices Act; and a claim under the Deceptive Consumer Services Act based on violations of the CSOA. CAS is not entitled to summary judgment on the independent DCSA claim for deceptive representations, and denial of that motion is affirmed. Brenda L. McCann is not entitled to summary judgment on any of the AG’s claims; denial of that motion is affirmed.  

Michael Ryan v. TCI Architects/Engineers/Contractors, Inc. and BMH Enterprises, Inc., d/b/a Craft Mechanical
49A02-1508-CT-1198
Civil tort. Affirms summary judgment in favor of TCI Architects on Michael Ryan’s lawsuit claiming TCI had a non-delegable contractual duty toward him after he was injured while working for a subcontractor hired by a subcontractor of TCI.

Marvon Cole v. State of Indiana (mem. dec.)
89A04-1508-CR-1248
Criminal. Affirms sentence Marvon Cole received for Level 6 felony possession of a narcotic drug, Class A misdemeanor possession of a controlled substance and Class B misdemeanor possession of marijuana should be served consecutively with another case he was also involved in.

Graylon D. Bell v. State of Indiana (mem. dec.)
84A04-1511-CR-1851
Criminal. Affirms Graylon Bell must serve his suspended sentence in the Indiana Department of Correction after his probation was revoked.

Larry Fulbright v. State of Indiana (mem. dec.)
49A02-1407-CR-449
Criminal. Affirms Larry Fulbright’s sentence for Class A felony child molesting.

N.H. v. Indiana Department of Child Services (mem. dec.)
49A04-1510-JT-1627
Juvenile. Affirms termination of father’s parental rights.

Boubacar Mbengue v. Karen M. Novak (mem. dec.)
49A02-1508-DR-1124
Domestic relations. Affirms grant of a petition for modification of child support filed by mother.

William L. Howard v. State of Indiana (mem. dec.)
92A03-1504-CR-129
Criminal. Affirms William L. Howard’s conviction for possession of two or more chemical reagents or precursors with intent to manufacture methamphetamine as a Class D felony.

In the Term. of the Parent-Child Relationship of: J.P. and C.P., Minor Children, and C.T., Mother v. Ind. Dept. of Child Services (mem. dec.)
79A02-1510-JT-1751
Juvenile. Affirms termination of mother’s parental rights.

Philip H. Chamberlain v. State of Indiana (mem. dec.)
53A04-1507-CR-1016
Criminal. Affirms Philip Chamberlain, a suspended attorney, must pay $10,000 in restitution for his counterfeiting conviction.

 

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