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Opinions June 28, 2010 ILD

Indiana Court of Appeals

Julianne
E. Tamasy v. Peter S. Kovacs
49A05-0910-CV-563
Civil. Affirms order granting physical custody of the parties’ children to Kovacs. The trial court did not abuse its
discretion in denying Tamasy’s request to transfer the custody proceedings to Massachusetts, in excluding certain testimony
at trial, in modifying the previous custody order, and in issuing a July 23, 2009, order regarding Tamasy’s emergency
motion to compel parenting time.

American
Family Insurance v. Beazer Homes, et al.
49A02-0912-CV-1292
Civil. Reverses dismissal of American Family Insurance’s claim for failure to prosecute against Beazer Homes and other
defendants. The trial court abused its discretion in dismissing the claim under Indiana Trial Rule 41(E). The record does
not reveal a history of an egregious pattern of deliberate delay on the part of American Family or that American Family defied
any court orders. Remands with instructions to reinstate the cause of action.

Elmer
D. Baker, v. State of Indiana
17A04-0905-CR-299
Criminal. Grants rehearing to clarify holding on the issue of the amendment of the charging information but affirms original
opinion affirming convictions of two counts of Class A felony child molesting and one count of Class C felony child molesting.
Clarifies holding to state that the applicable deadline for amending the information is not “before the commencement
of the trial” that ended in a mistrial; rather, it is “before the commencement of the trial” that was held
on the amended charges, and the one from which Baker filed his appeal.

Eliud
Anthony Delgado v. State of Indiana (NFP)
29A02-0911-CR-1142
Criminal. Affirms revocation of placement in community corrections.

Travis
Halveland v. State of Indiana (NFP)
89A04-1002-CR-111
Criminal. Affirms sentence following guilty plea to Class D felony theft.


Stardust Development, LLC v. City of Bloomington (NFP)

53A04-0908-CV-487
Civil. Reverses small claims judgment in favor of Bloomington in Stardust Development’s action to recover costs of
a tree branch removal. Remands with instructions.


Martin Serrano v. State of Indiana and the City of Fort Wayne (NFP)
02A03-0908-CV-362
Civil. Reverses judgment in favor of the state and City of Fort Wayne ordering the forfeiture of Serrano’s truck, which
was seized after a traffic stop.

Maurice
Hairston v. State of Indiana (NFP)
02A03-1003-CR-137
Criminal. Affirms convictions of burglary as a Class B felony, receiving stolen property as a Class D felony, and adjudication
as a habitual offender.


Jason D. Arbuckle v. State of Indiana (NFP)
72A01-0912-CR-618
Criminal. Affirms conviction of Class A felony dealing in methamphetamine.

Term.
of Parent-Child Rel. of T.L.; H.L. v. IDCS (NFP)
02A03-1002-JT-100
Juvenile. Affirms involuntary termination of parental rights.

Indiana Tax Court had posted no opinions at IL deadline.

Opinions June 28, 2010

Indiana Supreme Court
Richard
Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven
09S05-1003-CV-149
Civil. Reverses grant of summary judgment as to the plaintiffs’ liability claims against the sheriff for the conduct
of Deputy Brad Craven. Affirms summary judgment for claims against Craven personally. Holds that a law enforcement officer's
use of force in excess of the reasonable force authorized by statute is not shielded from liability under the "enforcement
of a law" immunity provided in Indiana Code § 34-13-3-3(8) and that genuine issues of fact exist, precluding summary
judgment. Chief Justice Shepard dissents without opinion.

SCOTUS has historic day in ending session

On a historic day for the Supreme Court of the United States, one justice stepped down after more than three decades as his
successor began her confirmation hearings before the U.S. Senate Judiciary Committee.

Partnership targets Indiana’s corrections system

To address Indiana’s growing prison population and increasing related costs, the state is partnering with The Pew Center
on the States and the Council of State Governments Justice Center for the first comprehensive review of the state’s
criminal code and sentencing policies since 1976.

Justices order trial on reasonable force issue

A law enforcement officer’s use of force in excess of reasonable force authorized by statute isn't shielded from
liability under the "enforcement of a law" immunity under Indiana Code Section 34-13-3-3(8), the Indiana Supreme
Court held today.

Indiana attorney gets award for work on recusals

A partner at an Indianapolis law firm is being recognized by the National Center for State Courts for his work on judicial
recusals, and he has some ideas that state chief justices and Indiana's top court could find interesting.

Appeals court rules on corporate subsidiaries case

The Indiana Court of Appeals has ruled against a Bluffton electric company, finding that corporations can’t simply create
subsidiaries internally and declare them separate entities in order to avoid paying higher tax rates under state unemployment
compensation law.

Opinions June 25 2010 ILD

7th Circuit Court of Appeals

Lincoln National Life Insurance Co. v. Peter S. Bezich, individually and on behalf of a class
of others similarly situated
10-8013
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen
Civil. Remands to state court. Concludes Bezich’s claim “relates to the rights, duties, … and obligations relating
to or created by or pursuant to … [a] security,” as defined in the 1933 Act, therefore the District Court has no jurisdiction.

Indiana Supreme Court posted no opinions before IL deadline.

Indiana Court of Appeals

Weigand
Construction Co. Inc. and Ohio Farmers Insurance Co. v. Stephens Fabrication Inc. and Ball State University Board of Trustees

18A02-0910-CV-953
Civil. Concludes Stephens’ claims against Weigand, Weigand’s Surety, and Ball State University survived bankruptcy
proceedings. Therefore, Stephens is entitled to the unpaid sums under the base contract: $39,408.09 plus attorney fees, prejudgment
interest including the periods of time before and during the bankruptcy proceeding, postjudgment interest, and costs of collection
to Stephens. Also concludes Stephens’ claim for additional compensation was untimely under the terms of the relevant
contracts and that Weigand is entitled to enforce the contractual provisions in this regard.

M.B.
v. State of Indiana (NFP)
89A01-1001-JV-59
Juvenile. Affirms M.B.’s commitment to the Indiana Department of Correction.

Involuntary
Termination of Parent-Child Relationship of Z.H.; A.H. v. Indiana Dept. of Child Services (NFP)
20A03-1002-JT-49
Juvenile. Affirms termination of parental rights.

In
the Matter of R.J.K., a child alleged to be a delinquent child v. State of Indiana (NFP)
02A05-0909-JV-539
Juvenile. Affirms court’s finding that R.J.K. was a delinquent child who committed the offense of sexual battery, a
Class D felony if committed by an adult.

Indiana Tax Court posted no opinions before IL deadline.

Opinions June 25, 2010

7th Circuit Court of Appeals

Lincoln National Life Insurance Co. v. Peter S. Bezich, individually and on behalf of a class of others similarly situated
10-8013
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen
Civil. Remands to state court. Concludes Bezich’s claim “relates to the rights, duties, … and obligations relating to or created by or pursuant to … [a] security,” as defined in the 1933 Act, therefore the District Court has no jurisdiction.

Justices adopt appellate court findings

The Indiana Supreme Court issued a pair of short per curiam opinions on Thursday afternoon that adopt what the Indiana Court
of Appeals decided on two criminal appeals.

Opinions June 24, 2010 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Donald
Wilson v. State of Indiana (NFP)
10A04-1001-PC-12
Post conviction. Affirms denial of petition for post-conviction relief.

Androuckoo
Jones v. State of Indiana (NFP)
49A02-0911-CR-1108
Criminal. Affirms convictions of two Class A misdemeanors, one for domestic battery, and one for resisting law enforcement.

Term.
of Parent-Child Rel. of G.W.; J.W. v. IDCS (NFP)
48A02-0910-JV-1042
Juvenile. Affirms involuntary termination of parental rights.

Carleon
M. Ragsdale v. State of Indiana (NFP)
02A03-0912-CR-595
Criminal. Affirms sentence following guilty plea to Class D felonies criminal recklessness and resisting law enforcement,
and Class A misdemeanor possession of a firearm by a domestic batterer.

James
Walsh v. State of Indiana (NFP)
52A05-0911-CR-667
Criminal. Reverses sentence following guilty plea to Class B felony burglary and admission to being a habitual offender.
Remands with instructions.

R.D.
v. State of Indiana (NFP)
49A02-0909-JV-840
Juvenile. Affirms adjudication for committing what would be Class D felony criminal recklessness if committed by an adult.

Anthony
H. Taylor v. State of Indiana (NFP)
71A03-0912-CR-602
Criminal. Reverses adjudication as a habitual offender.


Terrence
Hopson v. State of Indiana (NFP)
29A02-0912-CR-1239
Criminal. Affirms conviction of Class B felony burglary.

Virgil
J. Smith v. State of Indiana (NFP)
85A02-1001-CR-176
Criminal. Revises sentence following guilty plea to Class B felony robbery and remands for the trial court to order concurrent
sentences for the robbery conviction and an unrelated case.

Robertson
Developers v. Jerry Hodges, et al. (NFP)
18A02-0910-CV-1051
Civil. Affirms judgment in favor of defendants Hodges and others upon a claim for payment of lease. Remands for determination
of reasonable attorney fees.

K.
K. B. v. R. K. B. (NFP)
26A05-0910-CV-595
Civil. Affirms evidence supports all but one of the findings in the order entry awarding physical custody of children to
father. Reverses finding that Mother did not adequately investigate S.B.’s allegation of sexual abuse is not supported
by the evidence. Remands for the dissolution court to reconsider the remaining findings and the other evidence from the hearing
on final custody in order to determine what physical custody order is in the children’s best interests, or, if no change
to the custody award is indicated, to so state.


Term. of Parent-Child Rel. of J.K., et al.; S.K. v. IDCS (NFP)
71A03-1002-JT-94
Juvenile. Affirms termination of parental rights.

Indiana Tax Court had posted no opinions at IL deadline.

Opinions June 24, 2010

Indiana Court of Appeals
Douglas
Covey v. State of Indiana
30A01-0906-CR-311
Criminal. Affirms convictions of dealing in methamphetamine as a Class A felony, possession of methamphetamine as a Class
B felony, possession of methamphetamine as a Class B felony, possession of marijuana as a Class A misdemeanor, and possession
of paraphernalia a Class A misdemeanor. The state presented sufficient evidence to prove that Crosby lived in an “apartment
complex” and thus Covey delivered the methamphetamine and possessed the methamphetamine in or within 1,000 feet of a
“family housing complex.” Because Covey never placed the mitigating factors of Indiana Code Section 35-48-4-16(b)
at issue, the trial court did not commit fundamental error by not instructing the jury on those mitigating factors.

Indiana lawyer loses SCOTUS case

A Terre Haute attorney has lost a free speech case before the Supreme Court of the United States, striking a blow to what
he calls an ongoing campaign to eliminate campaign finance reform.

Judges affirm elevated drug convictions

The state presented sufficient evidence to prove a defendant delivered and possessed methamphetamine within 1,000 feet of
a family housing complex, so the Indiana Court of Appeals affirmed elevating his convictions to a higher felony level.

Human trafficking experts visit law school

Two law enforcers and a nongovernmental organization official from the Philippines will visit Indiana University School of
Law – Indianapolis Friday to discuss global human trafficking.

Opinions June 23, 2010 ILD

Indiana Court of Appeals
Mary Ann Dandino v. Luisito C. Gonzales, M.D., and Elkhart Clinic, LLC (NFP)
20A03-0907-CV-354
Civil. Affirms grant of Dandino’s motion to correct error and grant of a new trial based on the omission of the definition
of proximate cause in the jury instructions. Reverses denial of her motion to amend her complaint pursuant to Ind. Trial Rule
15(B). Remands for further proceedings.


I.S. v. State of Indiana (NFP)
49A02-0909-JV-861
Juvenile. Affirms adjudication for committing what would be Class A misdemeanor possession of marijuana if committed by an
adult.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions June 23, 2010

Indiana Supreme Court
Indiana
Patient's Compensation Fund v. Gary Patrick
49S02-0909-CV-402
Civil. Reverses finding that the Adult Wrongful Death Statute applied to Patrick’s claim as personal representative
of his son’s estate and award to Patrick for his emotional distress claim. Because damages for emotional distress aren’t
available under the Adult Wrongful Death Statute, a parent can’t bring a derivative claim seeking such damages under
the Medical Malpractice Act.

Justices: Claim not allowed under MedMal act

Because claims for emotional distress aren’t allowed under the Adult Wrongful Death Statute, a father can’t bring
this type of derivative claim under the Medical Malpractice Act, the Indiana Supreme Court ruled today.