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Thursday, March 02, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (3):

In Central Indiana Podiatry, P.C., Northwest Surgery Center, LLC, d/b/a Foot & Ankle Surgery Center, f/k/a Foot & Ankle Surgery Center, LLC and Anthony E. Miller, D.P.M. v. Barnes & Thornburg, LLP, an 11-page opinion on rehearing, Judge May writes:

We grant rehearing to acknowledge and adopt our Indiana Supreme Court’s holding in Nichols v. Amax Coal Co., 490 N.E.2d 754, 755 (Ind. 1986), reh’g denied, and affirm the trial court’s grant of summary judgment on grounds different than those expressed in our earlier opinion. * * *

Conclusion. As there is no evidence creating a genuine issue of material fact from which a reasonable jury could conclude B&T concealed information from the Miller Parties, and as Miller’s contradictory testimony in two different lawsuits cannot create an issue of material fact, we conclude the trial court did not err when it granted summary judgment in favor of B&T. We grant rehearing to acknowledge, adopt, and apply our Indiana Supreme Court’s holding in Nichols; vacate our prior opinion, Podiatry, 62 N.E.3d 440 (Ind. Ct. App. 2016); and affirm the trial court’s grant of summary judgment for B&T.

Bailey, J., concurs.
Crone, J., concurs with separate opinion. [that reads in full] I agree with the granting of rehearing in this case. I write separately to reiterate my concerns about “allowing attorneys to prospectively insulate themselves from liability for future acts of legal malpractice” under Indiana Rule of Professional Conduct 1.8(h), which, in my view, “subverts the very nature of the attorney-client relationship.” Cent. Ind. Podiatry, 62 N.E.3d at 449, 450.

In Michael R. Pilkington v. Karen A. Pilkington, a 13-page opinion, Sr. Judge Shepard writes:
Michael Pilkington sued his stepmother, alleging she breached her duties as trustee of a trust created by her late husband, Michael’s father. The trial court dismissed the complaint with prejudice for lack of subject matter jurisdiction. We conclude that the court has authority to adjudicate Michael’s complaint, and reverse. * * *

The trial court did err in dismissing the complaint with prejudice. This cause is remanded for further proceedings on whether Michael’s beneficiary interest in the trust survived the bankruptcy. In all other respects, the trial court’s decision is affirmed without prejudice to Michael refiling his complaint once the dispositive question regarding his remainder interest has been decided.

In Larenda Jones v. State of Indiana, a 15-page opinion, Judge Mathias writes:
Larenda Jones (“Jones”) appeals the order of the Marion Superior Court revoking her placement in community correction and sentencing her to serve the remainder of her executed sentence at the Department of Corrections (“DOC”). On appeal, Jones presents two issues, which we reorder and restate as: (1) whether the trial court erred by failing to inform Jones of her release date, and (2) whether the trial court denied Jones the right to speak in allocution. Concluding that the trial court did not err in failing to inform Jones of her release date but that the trial court did err by refusing to let Jones speak in allocution, we reverse and remand. * * *

Pyle, J., concurs.

Baker, J., concurs with a separate opinion. [that begins on p. 14] I fully concur with the majority opinion. I write separately to urge our Supreme Court to revisit its interpretation of the right of allocution as codified in Indiana Code section 35-38-1-5. For two reasons, I believe that a broader interpretation of “sentencing” would be the best practice. First, the right of allocution, in my view, is a fundamental right of every criminal defendant who faces a potential loss of freedom. Furthermore, every trial judge who is about to order said loss of freedom is aided when a defendant is permitted to explain to the court the potential consequences of a prison term. This is no less true in the context of a revocation of probation than it is in the context of the original pronouncement of the defendant’s sentence. I believe that a broader interpretation of “sentencing” should encompass probation revocation proceedings so that this fundamental right is secure during each point in time when the defendant faces a loss of freedom.

Second, I believe that a consistent rule will be easier for trial judges to manage. * * * For these two reasons, I hope that our Supreme Court will revisit this issue, holding that Indiana Code section 35-38-1-5 does, in fact, apply to probation revocation proceedings.

NFP civil decisions today (3):

In the Termination of the Parent-Child Relationship of: Ic.G. and Ib.G. (Minor Children) and M.G. (Mother) and B.G. (Father) v. The Indiana Department of Child Services (mem. dec.)

Kevin L. King v. Mary E. King (mem. dec.)

Karen Fielder v. Hamilton Southeastern Schools (mem. dec.)

NFP juvenile and criminal decisions today (2):

Joetta S. Sells v. State of Indiana (mem. dec.)

Martin A. Davis, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 02, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - Applications for Supreme Court due by noon tomorrow

From the January 17th announcement [emphasis added]:


The deadline for the 11 completed hard-copy applications is 12:00 p.m. on March 3, 2017. Applications must be delivered to the Commission’s Office at 30 S. Meridian Street, Suite 500, Indianapolis, Indiana 46204. Please retain proof of delivery. The electronic copy of the application should be submitted to Commission’s Counsel at adrienne.meiring@courts.in.gov by 3:00 p.m. on March 3, 2017.

Upon the Commission’s receipt of 11 complete applications and an electronic copy, the candidate’s name will be made public. I.C. § 33-27-3-2(d).


The Nominating Commission will conduct public interviews in Indianapolis on a date to be determined in the future, after which the Commission will select a number of candidates for second interviews. Upon the conclusion of the second round of interviews, the Nominating Commission will deliberate in executive session, then vote in a public session to nominate to the Governor the three most highly qualified candidates. I.C. § 33-27-3-2.

Candidates must be available on the interview dates, including evening hours.

After the Commission has evaluated each application and determines whether to interview all or some of the applicants, the applications of the candidates to be interviewed become public records and may be posted on the Indiana Supreme Court’s website. I.C. § 33-27-3-2(d)(1).

Posted by Marcia Oddi on Thursday, March 02, 2017
Posted to Vacancy on Supreme Court - 2017

Environment - "Cut EPA? Remember Louisville before the EPA"

From James Bruggers' story today in the Louisville Courier Journal:

[N]ew President Donald Trump has made it clear he's no fan of the nation's environmental bureaucracy or safety net. During the campaign, he promised to restore lost Appalachian coal jobs – and he revisited that theme during his address to Congress Tuesday night.

Climate change never came up, as it would with Obama. And the environment was mentioned only in passing, a short clause in a longer sentence that strung together several policy goals: "My administration wants to work with members in both parties to make childcare accessible and affordable, to help ensure new parents have paid family leave, to invest in women's health, and to promote clean air and clear water, and to rebuild our military and our infrastructure."

He has said he wants to get rid of the U.S. Environmental Protection Agency, and U.S. Rep. Thomas Massie, R-Kentucky, has co-sponsored legislation to do just that.

It all makes one ponder what life was like in Kentucky before the EPA was established by President Richard Nixon in 1970.

I spent some time on Wednesday looking through Courier-Journal archive photos and stories to refresh my understanding of the past. Air pollution was so thick it was measured by yardsticks in buckets. There was open dumping of toxic wastes at places like the Valley of the Drums and the Lees Lane landfill.

Nobody is suggesting we go back to those days. And the president is going to find himself constrained by what he can do when it comes to the environment – unless Congress can do what other Congresses have been unable to do, and roll back powerful and popular laws such as the Clean Water Act and the Clean Air Act.

But with the EPA under such a strong attack, it's good to look back to remember a past when rivers burned.

The story is accompanied by a video, including many shots of Louisville before the air and water was cleaned up.

Posted by Marcia Oddi on Thursday, March 02, 2017
Posted to Environment

Ind. Law - More on "Could Indiana pass forfeiture reform this year?"

Updating this ILB post from Jan. 17th, and adding to this very long list of ILB posts on the issue, Senate Bill 8 passed the first house Feb. 28th.

The Institute for Justice issued this news release yesterday. Some quotes:

The Indiana Senate overwhelmingly passed SB 8 yesterday, an important overhaul of the state’s civil forfeiture laws. Currently, Hoosiers do not have to be convicted of a crime, much less charged with one, for the government to take their property through civil forfeiture.

Under the bill, the government would first need to secure a criminal conviction before forfeiture could occur. SB 8 would also shift the burden of proof from innocent third-party owners onto the government—where it belongs—and require “clear and convincing evidence” to forfeit property.

“SB 8 would go a long way toward securing the property rights of all Hoosiers,” said Institute for Justice Attorney Sam Gedge. “At the same time, the bill would still allow law enforcement agencies to ‘reimburse’ themselves using forfeited property. Indiana police and prosecutors have exploited this sort of loophole for years to funnel millions of dollars into their own budgets.”

To challenge this type of “policing for profit,” the Institute for Justice filed a lawsuit in 2016 on behalf of forfeiture victims and concerned Hoosier families. That case is still ongoing.

Posted by Marcia Oddi on Thursday, March 02, 2017
Posted to Indiana Government