Court opinions

COA clarifies decision in reversed CHINS case

February 12, 2015
Jennifer Nelson
The Indiana Court of Appeals granted the Department of Child Services’ request for rehearing of an August 2014 decision in which the court reversed a child in need of services finding for a child whose father was in the Navy for the first few years of the child’s life. The judges clarified their reasoning but affirmed their decision in all respects.
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Justices: Previous ruling did not alter fundamental error doctrine

February 12, 2015
Jennifer Nelson
The Indiana Supreme Court wants to clear up potential confusion involving the state’s fundamental error doctrine.
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Couple needed expert testimony to show proximate cause in defective air bag suit

February 11, 2015
Jennifer Nelson
A couple suing Ford Motor Company, alleging their 2003 Mercury Mountaineer was defective because the air bags did not deploy in an accident, lost their case because they failed to designate expert testimony to support their claim.
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Panel issues 3 opinions on interplay between T.R. 15(C) and 17(F)

February 11, 2015
Jennifer Nelson
While the three judges on the Indiana Court of Appeals panel agreed summary judgment was proper for an Indianapolis attorney being sued for defamation and other claims because the statute of limitations had expired, each judge interpreted the interplay between Trial Rules 15(C) and 17(F) differently.
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Man fails to prove Supreme Court would rule against established caselaw

February 11, 2015
Jennifer Nelson
The 7th Circuit Court of Appeals affirmed the grant of an insurance adjuster’s motion to dismiss it from an injured man’s lawsuit alleging negligence in how it handled his case. The judges pointed out that the Indiana Court of Appeals has held that an insurance adjuster owes no legal duty to the insured and the plaintiff didn’t show that the Indiana Supreme Court would disagree with that decision.
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COA: Postnuptial agreement is enforceable

February 11, 2015
Jennifer Nelson
It is not a requirement that one party in a marriage must initiate divorce proceedings in order for the parties to later enter into a valid and enforceable reconciliation agreement, the Indiana Court of Appeals held Wednesday.
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Awarded guardianship fees overturned due to potential misconduct

February 11, 2015
Jennifer Nelson
Because a trial court did not look at whether fees requested by a man’s former guardians were necessary, the Indiana Court of Appeals reversed the order they receive more than $15,000 from his estate.
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Justices add malpractice, adoption cases to docket

February 9, 2015
Dave Stafford
The Indiana Supreme Court will review summary judgment in favor of healthcare providers sued for medical malpractice in a stillbirth case as well as an adoption by a grandmother who claimed a 1997 conviction for neglect of a dependant should not automatically bar her from adopting the children.
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Appeals panel reinstates med-mal case

February 9, 2015
Dave Stafford
A trial court erred in granting summary judgment to a hospital and a doctor who performed a hysterectomy during which an arm board became unattached. After the patient’s arm dangled for much of the surgery, she was diagnosed with nerve damage in her arm.
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COA: Ex-husband entitled to legal fees for former wife's contempt

February 9, 2015
Dave Stafford
The ex-husband in an acrimonious domestic relations case is entitled to $9,000 in legal fees a trial court awarded to him as well as judgments in his favor on parenting time and child support, the Indiana Court of Appeals ruled Monday.
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Double jeopardy lifts 2 of burglar’s multiple convictions

February 9, 2015
Dave Stafford
A man who repeatedly broke into property and stole tools and items being used to renovate a long-vacant farmhouse likely will remain sentenced to 50 years in prison, even though the Indiana Court of Appeals vacated two of his convictions as violations of the prohibition against double jeopardy.
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Ex-Martin County judge pleads guilty to failing to pay income tax

February 6, 2015
IL Staff
One-time Martin Circuit judge and county prosecutor Robert J. Howell pleaded guilty Friday to charges that he failed to pay more than $66,000 in taxes on receipts from his law firm in Loogootee.
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Appeals court strips grandmother’s visitation, cites grandchild’s adoption

February 6, 2015
Dave Stafford
An Indiana Court of Appeals panel Friday stripped a maternal grandparent of visitation rights, finding she had no standing to seek visitation. The parents of the child had divorced, and the father remarried shortly after the mother’s death.
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COA reverses confinement conviction, cautions prosecution on future statements

February 5, 2015
Dave Stafford
The Indiana Court of Appeals reversed a Lake County man’s Class B felony criminal confinement conviction because the trial court erred in admitting out-of-court statements by an alleged accomplice.
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7th Circuit affirms carjacking enhancement stemming from bank robbery

February 5, 2015
Jennifer Nelson
The 7th Circuit Court of Appeals quickly dismissed a defendant’s argument that his sentence for bank robbery should not include a two-level sentence enhancement for carjacking because the keys to the car were obtained by rummaging through the victim’s purse and not through force or intimidation.
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7th Circuit stresses holding Pavey hearing separate from summary judgment hearing

February 5, 2015
Jennifer Nelson
The 7th Circuit Court of Appeals affirmed summary judgment for the Indiana Department of Correction and its commissioner on a disabled inmate’s claims of violations of the Americans with Disabilities Act and the Rehabilitation Act. The judges also suggested that courts do not hold a Pavey hearing at the same time as a hearing on a motion for summary judgment.
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Defendant must try to prevent crime discovery for statute of limitations to toll

February 5, 2015
Jennifer Nelson
In dealing with an issue of first impression, the Indiana Supreme Court found a robbery charge should be dismissed because it was filed outside of the statute of limitations. The state argued the defendant had concealed evidence of the crime, thus tolling the five-year statute of limitations.
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Majority finds no error regarding potential electronic monitoring

February 4, 2015
Jennifer Nelson
The Indiana Court of Appeals rejected a man’s argument that a trial court had improperly delegated to a community corrections program the authority to decide whether he should be subject to electronic monitoring.
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Court rules in favor of hospital in contract dispute

February 4, 2015
Jennifer Nelson
A Lake County medical center prevailed in an appeal filed by the other party in a contract to provide anesthesiology services for patients. The Indiana Court of Appeals affirmed summary judgment in favor of the hospital on several breach of contract claims.
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Man’s conviction for murdering neighbor upheld

February 4, 2015
Jennifer Nelson
Citing a wide array of circumstantial evidence to support a Cass County man’s murder conviction in connection with his neighbor’s death, the Indiana Court of Appeals affirmed the conviction.
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Man’s criminal confinement conviction reversed, battery conviction reinstated

February 3, 2015
Jennifer Nelson
The Indiana Court of Appeals ordered a Class B felony criminal confinement conviction reversed based on insufficient evidence, but judges ordered a battery conviction previously dismissed over double jeopardy concerns reinstated.
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COA affirms father must pay $876 in child support to non-custodial parent

February 3, 2015
Jennifer Nelson
There was no error by a trial court when it ordered a father to pay his ex-wife, who is the non-custodial parent of their two children, nearly $900 a week in child support, the Court of Appeals affirmed Tuesday. The order and figure are supported by the Indiana Child Support Guidelines.
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COA reverses summary judgment in personal injury claim, abandons volunteer doctrine

February 3, 2015
Jennifer Nelson
A negligence case involving a Terre Haute HVAC business and a man injured while helping move a furnace will move forward now that the Indiana Court of Appeals has reversed summary judgment in favor of the company.
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COA reverses conviction based on unreasonable police search

February 3, 2015
Jennifer Nelson
A police officer had no reasonable suspicion to believe that a container found in a man’s pocket during an arrest held any illegal substances, the Indiana Court of Appeals ruled Tuesday. As such, it reversed his Class D felony possession of schedule III controlled substance conviction, ruling it violated the Indiana Constitution.
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Judge orders revenue department to produce handwritten notes

February 2, 2015
Jennifer Nelson
Two pages of handwritten notes prepared by an Indiana Department of State Revenue employee must be turned over to an Illinois company challenging the denial of four refund claims, the Indiana Tax Court held Friday.
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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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