ILNews

Court affirms protective order without evidentiary hearing

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A Shelby County man’s protective order against a neighbor is valid even though the trial court didn’t hold an evidentiary hearing or honor the neighbor’s request for a continuance, the Court of Appeals ruled Tuesday.

The court held that the nature of claims in Ray Evans v. Eric L. Thomas, 73A04-1112-PO-670, were sufficient to warrant quick action by the court. Thomas claimed that disputes with Evans, with whom he shared a driveway, had escalated to violence and that he feared for his safety.

Thomas went to Shelby Superior Court in December 2011 and asked for a protective order against Evans, alleging among other things that Evans punched him a month earlier, had pulled a gun on him in 2005, had shot and killed the family cat at some point, and had threatened and stalked his family.

The court set a hearing on the protective order for Dec. 20, 2011, and Evans was served notice on Dec. 15. On Dec. 19, Evans moved for a continuance on the basis that he would be unable to retain counsel by the hearing date.

The court denied the request for continuance and noted that requests for protective orders are to be handled promptly. Evans told the court he did not object to the issuance of the P.O., which would have required him to surrender his firearms to the sheriff’s department.

The appeals court noted that the trial court assured Evans that if he wished to file petition to modify after retaining counsel, the court would consider it.

“We conclude with little hesitation that the seriousness of the allegations in Thomas’s petition warranted the swiftest of judicial action,” Judge Cale Bradford wrote for the unanimous panel. “Further delay might have put Thomas at risk. Evans has not established an abuse of discretion in this regard.”

The court also disagreed with Evans’ contention that a full evidentiary hearing is required for issuance of a P.O.

Evans also was unsuccessful in arguing that he had insufficient time to obtain counsel or that he didn’t understand the proceedings in which he said he did not object to the P.O.

“Evans does not explain how either of these things, even if true, denied him notice, the opportunity to be heard, or the opportunity to confront witnesses. Evans has not established that his rights to due process and due course of law were infringed,” Bradford wrote.


 

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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