Indiana Court of Appeals

Scholarship at Indiana Tech pays tribute to Abraham Lincoln

August 19, 2014
IL Staff
Indiana Tech Law School has created the endowed Sara Vaughn Gabbard Scholarship which will award two law students a scholarship for participating in and winning an annual Abraham Lincoln writing competition organized by the school.
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COA affirms child should be raised with half-siblings

August 19, 2014
Jennifer Nelson
The Indiana Court of Appeals affirmed the petition to adopt a child by a couple who have already adopted her half-siblings. Although the couple temporarily dropped their petition to adopt, the judges agreed it is in the child’s best interests to be raised with her siblings.
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Court clarifies attorney fee recovery under Trial Rule 34(C)(3)

August 19, 2014
Jennifer Nelson
The Indiana Court of Appeals Tuesday decided that under Indiana Trial Rule 34(C)(3), refusing to comply with a discovery request solely because the parties can’t agree on an appropriate amount to pay does not constitute reasonable resistance to a discovery request.
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Suit alleging unconstitutional school fees fails in COA

August 18, 2014
Jennifer Nelson
A Marion County mother who sought damages for having to pay certain fees for her children to attend public school lost her appeal before the Indiana Court of Appeals Monday. The judges agreed with the lower court that the state constitution does not permit her claim for monetary damages.
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COA: Auditor complied with notice statutes in tax sale

August 18, 2014
Jennifer Nelson
The Indiana Court of Appeals affirmed a 2013 order by a trial court that tax sale deeds be issued, agreeing that the Marion County auditor complied with the statutes dealing with notices surrounding tax sales.
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Court affirms boy should stay in Indiana with father

August 15, 2014
Jennifer Nelson
Noting that its decision should not be viewed as a punishment for either parent, a trial court denied a mother’s request to move to California with  her son and ordered the boy remain in Indiana with his father. The Indiana Court of Appeals affirmed Friday, finding the father presented evidence that supported the trial court’s decision.
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Father’s lack of parenting experience does not support CHINS finding

August 15, 2014
Jennifer Nelson
The Indiana Court of Appeals reversed the adjudication of a toddler as a child in need of services after finding the Department of Child Services did not establish that the child’s father is unlikely to meet the child’s needs absent court intervention based on his lack of parenting experience and previous diagnosis of having post-traumatic stress disorder.
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Court orders man’s records expunged

August 15, 2014
Jennifer Nelson
The statute in effect when a man petitioned to have his Class D felony conviction records expunged said the trial court “shall order” the expungement if all statutory requirements have been met. As a result, the trial court erred in denying Michael Kevin Mallory’s petition based on testimony of his victims.
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COA affirms belt considered a deadly weapon in domestic battery case

August 15, 2014
Jennifer Nelson
The belt used by a man to repeatedly strike his girlfriend qualifies as a deadly weapon and supports elevating his battery conviction to a Class C felony, the Indiana Court of Appeals held Friday.
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Trial court must consider husband’s interest in land in divorce case

August 14, 2014
Jennifer Nelson
The Indiana Court of Appeals has ordered a trial court to take another look at the marital pot of a northern Indiana couple, finding the lower court should have included the husband’s ownership interest in two parcels of land he owns as a joint tenant with his brother.
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COA finds officer had no reason to make woman sit in squad car after stop

August 14, 2014
Jennifer Nelson
 A police officer was not justified in requesting that the woman he pulled over for an expired driver’s license sit in his squad car while he decided how to proceed in the matter, the Indiana Court of Appeals ruled Thursday.
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Court orders more proceedings in foreclosure action

August 14, 2014
Jennifer Nelson
An Elkhart County man successfully convinced the Indiana Court of Appeals to reverse the denial of his motion to set aside default judgment in a foreclosure action. The man argued he relied on information from the bank that he could proceed with a short sale and the foreclosure proceeding would be put on hold.
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Justices uphold sentence, clarify previous caselaw

August 13, 2014
Jennifer Nelson
The Indiana Supreme Court accepted a case to address the proposition that relying on an element of the offense as an aggravating factor when sentencing is no longer prohibited. The justices believe that the Court of Appeals has applied this position too broadly.
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Court reduces attorney fees awarded to pay firm by $1 million

August 13, 2014
Jennifer Nelson
The Indiana Court of Appeals Wednesday found that an estate of a man with dependents can recover attorney fees under the General Wrongful Death Statute, but the trial court erred in how it calculated the amount the law firm will receive.
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Court affirms termination of parental rights without case plan

August 12, 2014
Dave Stafford
Morgan County parents, including a father who dealt meth to a confidential informant while his wife and three minor children were present, lost an appeal of their termination of parental rights Tuesday.
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Payment of ‘ad valorem’ taxes sustain ownership in mineral interest

August 11, 2014
Marilyn Odendahl
Reversing the trial court’s ruling, the Indiana Court of Appeals concluded that a woman’s payment of “ad valorem” taxes on a mineral interest in Posey County prevented the lapse of her partial ownership.
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Argumentative passenger’s public intoxication conviction reversed

August 11, 2014
Dave Stafford
A passenger in a car that a police officer stopped after seeing an arm and object hanging out of the car window, followed by the sound of shattering glass, was improperly convicted of public intoxication, the Indiana Court of Appeals ruled Monday.
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COA: Sentencing court must hear inmate’s habeas petition

August 11, 2014
Dave Stafford
A man serving a 60-year murder sentence at the Pendleton Correctional Facility must seek relief in the court where he was sentenced, the Indiana Court of Appeals ruled Monday.
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Evidence does not support stand-your-ground defense

August 11, 2014
Marilyn Odendahl
A man’s attempt to bolster his defense by using Indiana’s stand-your-ground law was rejected because the evidence did not support his claim.
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Insurer loses appeal over matter litigated elsewhere

August 8, 2014
Dave Stafford
An insurance company may not recover in Marion Superior Court claims paid for an auto accident after a St. Joseph court ruled a driver was not at fault in the crash.
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Search of home after improper GPS tracking affirmed

August 8, 2014
Dave Stafford
Though the Indiana Court of Appeals agreed the warrantless installation of GPS devices was improper, it affirmed a trial court’s denial of a motion to suppress evidence subsequently collected at the home of a suspected drug dealer.
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Court clarifies ‘known claim’ exclusion applies in insurance coverage dispute

August 7, 2014
Jennifer Nelson
The Indiana Court of Appeals granted rehearing to a case involving a dispute over coverage for environmental contamination and found that the "known claim” exclusion applies, not the known loss doctrine.
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Judge ‘troubled’ by delays in relocation case

August 7, 2014
Jennifer Nelson
The Indiana Court of Appeals Thursday upheld a mother’s decision to relocate from Indiana to Georgia with her daughter before a court hearing was held on the matter. But one judge on the panel found the court’s reliance on the time the mother and child lived in Georgia to support its decision “makes a mockery” of the relocation statute.
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Man does not need to wait 3 years to file new expungement petition

August 6, 2014
Jennifer Nelson
The Indiana Court of Appeals granted a defendant’s petition for rehearing to address a “perhaps unique question” presented in his petition: Does he have to wait three years before he can file another petition to expunge the records of his Class A misdemeanor conviction?
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Court correctly ruled man with terminated employment contract could retire

August 6, 2014
Jennifer Nelson
An employment contract between a certified public accountant and his employer did not prohibit the CPA from retiring from his position after the company announced it would not be renewing his contract, the Indiana Court of Appeals concluded Wednesday.
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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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