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Wednesday, January 20, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (2):

In Indiana Professional Licensing Agency and Indiana State Board of Dentistry v. Irfan A. Atcha, D.D.S. , a 19-page opinion, Chief Judge Vaidik writes:

Dr. Atcha, a Dyer dentist, began an extensive advertising campaign marketing his expertise in modern implant and sedation techniques. Among other claims, he touted that his procedures are “too advanced for most dentists, oral surgeons, and periodontists.” He also promoted himself as the “only licensed and certified advanced trained dentist to perform the IV sedation and dental care on his patients.” Undoubtedly to encourage potential clients to receive dental implants from him, he used pictures to show that dentures combined with dental adhesives are poisonous.

After a number of complaints from fellow dentists, the Indiana Professional Licensing Agency and the Indiana State Board of Dentistry found when advertising his practice Dr. Atcha made false and misleading claims of (1) dental specialty and (2) better materials or superior services. He also was found to have violated regulations compelling him to disclose every dentist within his practice in his advertisements. Upon his appeal to the Marion Superior Court, the court found all three dental advertising regulations unconstitutional. We reverse in part and affirm in part.

Although protected by the First Amendment, commercial speech receives less protection than other forms of expression. In particular, the State retains the authority to prohibit or restrict false and misleading commercial speech. Here, the State properly restricted Atcha’s false and misleading claims implying he had a particular dental specialty and could provide better materials or superior service than other dentists. However, we conclude that the State may not compel a dentist to list on his advertisements every dentist in his practice.

Finding no reasonable relationship between compelling the disclosure of all associated dentists and preventing deception, we agree with the trial court that the regulation does not satisfy First Amendment protections for commercial speech. Therefore, we affirm the trial court in part and reverse in part.

In Shari L. Morey v. W. Michael Morey, an 18-page opinion, Judge Mathias writes:
The marriage of Shari (“Wife”) and W. Michael (“Husband”) Morey was dissolved in Marion Superior Court. Wife appeals the decree of dissolution and raises three issues, which we restate as:
I. Whether the trial court erred in in its application of the coverture fraction formula to Husband’s Reynolds & Reynolds pension;
II. Whether the trial court abused its discretion in failing to credit Wife’s payment of Husband’s post-dissolution expenses and;
III. Whether the trial court abused its discretion in its valuation of the marital residence.

Husband cross-appeals and argues that the trial court abused its discretion when it found that Husband failed to rebut the presumption that an equal division of marital property was just and reasonable. He also asserts that the trial court erred when it failed to apply the coverture fraction formula to his annuity and 401(k). We affirm. * * *

Bailey, J., concurs.
Baker, J., concurs in result with opinion. [which begins, at p. 17] I fully concur with the majority opinion with the exception of its analysis related to the coverture fraction. As the majority observes, the doctrine of coverture has its origin in an outdated and misogynist view of the respective roles and rights of men and women. In my view, it is long since time that the State of Indiana should discard this archaic doctrine, especially
since it is no longer needed. * * *

In my opinion, the coverture fraction has been superseded by statute for decades. Given that it has been superseded, and given its roots in an aspect of our history that we have gladly put behind us, I believe that the outmoded theory should no longer be applied in this State, and I part ways with the majority in its application of this doctrine. That said, if the relevant statutes were applied to this case as opposed to the coverture doctrine, I believe that the same result would be reached. Consequently, I concur in the result reached by the majority on this issue. In all other ways, I fully concur with the majority opinion.

NFP civil decisions today (6):

Joshua Shepherd Thompson v. City of Jeffersonville, Indiana and its Fire Department Merit Commission (mem. dec.)

In the Matter of the Civil Commitment of S.J. v. Eskenazi Health (mem. dec.)

Janel Manriquez v. Derek Lee Manriquez (mem. dec.)

Robert J. Lunsford v. Laurie (Lunsford) Knight (mem. dec.)

2007 East Meadows, LP v. RCM Phoenix Partners, LLC (mem. dec.)

Charles E. Gatewood, II, and Rita L. Gatewood v. John A. Gatewood, as Personal Representative of the Estate of Margaret H. Gatewood (mem. dec.)

NFP criminal decisions today (4):

Michael Townsend v. State of Indiana (mem. dec.)

Zolo Agona Azania v. State of Indiana (mem. dec.)

Ryan A. Kish v. State of Indiana (mem. dec.)

D.L. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on January 20, 2016 11:56 AM
Posted to Ind. App.Ct. Decisions