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Opinions May 29, 2014

May 29, 2014
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The following opinions were posted after IL deadline Wednesday:
Indiana Supreme Court

Stacy Smith and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith, Deceased v. Delta Tau Delta, Inc. and Beta Psi Chapter of Delta Tau Delta, et al.
54S01-1405-CT-356
Civil tort. Affirms summary judgment in favor of national fraternity Delta Tau Delta on the Smiths’ wrongful death complaint. There is no designated evidentiary material that shows that the national fraternity had a right to exercise direct day-to-day oversight and control of the behavior of the activities of the local fraternity and its members. Concludes as a matter of law that an agency relationship does not exist between the national fraternity and the local fraternity or its members.

Larry Robert David, II, as Special Administrator of the Estate of Lisa Marie David, Deceased v. William Kleckner, M.D.
49S02-1405-MI-355
Miscellaneous. Reverses summary judgment in favor of Kleckner on David’s wrongful death medical malpractice complaint. Kleckner is not entitled to summary judgment on his defense asserting the medical malpractice statute of limitations.

Indiana Tax Court
David A. McKeeman, Sr., and Karen A. McKeeman v. Steuben County Assessor
02T10-1104-TA-31
Tax. Affirms Indiana Board of Tax Review’s decision upholding the McKeemans’ 2006 real property assessment. The board did not err in rejecting their claim regarding establishment of their neighborhood, the McKeemans have not shown that the board erred in upholding the $5,900 base rate applied to their land, and they have not shown that the board erred in concluding that their sales comparison analysis lacked probative value.

Thursday’s opinions
Indiana Supreme Court

Derek Asklar and Pauline Asklar v. David Gilb, Paul Garrett Smith d/b/a P.H. One Trucking, Empire Fire & Marine Insurance Co. d/b/a Zurich Northland Insurance Co., Travelers Indemnity Co. of America
02S03-1305-CT-332
Civil tort. Reverses summary judgment order capping Empire Fire and Marine Insurance Co.’s liability for uninsured motorist coverage at $75,000. Indiana law applies because the truck at issue was registered and garaged in Indiana. But issues of material fact remain regarding the applicable level of coverage. Remands for further proceedings.

Indiana Court of Appeals
Floyd William Treece v. State of Indiana
79A05-1309-CR-458
Criminal. Affirms revocation of community corrections placement. The Tippecanoe County Community Corrections had the authority to reject Treece from his placement in community corrections for a violation he committed while in the community transition program. He committed an act of violence, so the trial court did not abuse its discretion in revoking his community corrections placement. Remands for clarification of sentencing order.

Guardianship of Phyllis D. Hayes, an Adult, Joann Hayes and Dianna Hale v. Kenneth J. Hayes
52A02-1308-GU-751
Guardianship. Affirms denial of Hayes’ and Hale’s motion for summary judgment and the trial court order concluding that the execution of an option contract by their mother, Phyllis Hayes, to their brother was enforceable. The trial court’s conclusion that their mother was not acting under undue influence when she executed the option contract was not clearly erroneous.

Indianapolis Metropolitan Police Department v. Donald A. Prout
49A04-1305-CR-236
Criminal. Affirms grant of Prout’s petition to expunge his arrest record. The trial court did not abuse its discretion in concluding that no offense was committed and that no probable cause existed to support either the filing or the prosecution of the charges. Prout, a sheriff’s deputy, was charged with four counts of Class D felony theft for allegedly working as a security guard while being paid by the Marion County Sheriff’s Office.

Mauricio Reyes-Flores v. State of Indiana (NFP)
49A05-1310-CR-502
Criminal. Affirms convictions of Class C felony criminal recklessness and Class A misdemeanor domestic battery.

Lance Stover v. State of Indiana (NFP)
49A05-1310-CR-507
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle while intoxicated.

Holly and Christopher Dunn, Holly and Benjamin Rothenbush, and Tomi and Michael Meyer v. Kathryn Davis and For the Children Medical Mission Foundation, Inc. (NFP)
02A03-1307-PL-269
Civil plenary. Affirms summary judgment to For the Children Medical Mission Foundation on breach of contract and fraud claims.

Anthony Flores v. Blake A. Hudson (NFP)
02A03-1307-PO-279
Protective order. Affirms dismissal of petition for the protective order sought against Hudson.

Ray A. Chamorro v. State of Indiana (NFP)
91A05-1309-CR-445
Criminal. Affirms murder conviction.

Danny Shane Claspell v. State of Indiana (NFP)
18A02-1310-CR-880
Criminal. Affirms conviction of Class C felony child molesting but reverses sentence and remands for it to be reduced to the advisory sentence of four years.

Dejuan D. Cox v. State of Indiana (NFP)
32A01-1310-CR-437
Criminal. Affirms conviction of Class B felony dealing in cocaine; reverses the sentencing order in part and remands for further proceedings.

Robert L. McFall v. State of Indiana (NFP)
62A05-1309-CR-446
Criminal. Affirms conviction of Class A felony dealing methamphetamine within 1,000 feet of a school. Remands for further sentencing proceedings on the charge of possession of paraphernalia.

Akeem Turner v. State of Indiana (NFP)
49A02-1310-CR-900
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft.

Steven Sullivan v. State of Indiana (NFP)
49A02-1309-CR-750
Criminal. Affirms denial of petition to issue order terminating parole.

Gabriel Senteney v. State of Indiana (NFP)
49A02-1309-CR-818
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Latroya Rucker v. State of Indiana (NFP)
49A02-1311-CR-918
Criminal. Affirms order that Rucker pay $240 in restitution to the owner of the vehicle whose windshield she smashed.

Betty Woods v. State of Indiana (NFP)
49A02-1309-CR-805
Criminal. Affirms conviction of Class B misdemeanor disorderly conduct but reverses conviction of Class A misdemeanor resisting law enforcement.

Dennis Knight v. State of Indiana (NFP)
71A03-1401-CR-40
Criminal. Affirms conviction of Class B felony robbery.

R.C. v. J.Q. (NFP)
49A04-1308-DR-425
Domestic relation. Affirms the trial court’s denial of father’s motion to continue the final hearing and concludes that father waived his claim of error under Evidence Rule 612. The trial court’s child support order is supported by the evidence. Remands with instructions to issue an order containing findings sufficient to support its decision to restrict father’s parenting time or enter a new order without the restriction.

In re the Paternity of T.T.: D.T. v. S.B. (NFP)
Juvenile. Affirms denial of petition to modify court-ordered child support for T.T.
85A02-1311-JP-1006

Mardel Hill v. State of Indiana (NFP)
02A03-1309-CR-378
Criminal. Affirms convictions and sentence for Class B felony burglary, Class B felony attempted arson, Class D felony criminal mischief and Class D felony intimidation.

The Indiana Tax Court posted no opinions by IL deadline Thursday. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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