Opinions

Opinions March 28, 2013

March 28, 2013
Indiana Court of Appeals
In the Matter of the Involuntary Termination of the Parent-Child Relationship of G.P., and J.A. v. The Indiana Department of Child Services

49A02-1208-JT-643
Juvenile. Affirms termination of parental rights. Mother J.A.’s due process rights were not violated, and there was sufficient evidence to support the termination.
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Opinions March 27, 2013

March 27, 2013
Indiana Court of Appeals
Terrence J. Fuqua v. State of Indiana
02A03-1207-CR-342
Criminal. Affirms convictions of Class A felony dealing in cocaine, Class B felony unlawful possession of a firearm by a serious violent felon, Class D felonies possession of a controlled substance and dealing in marijuana, and Class A misdemeanor possession of paraphernalia. The investigating detectives had reasonable suspicion to search Fuqua’s trash, and the subsequent search warrant was supported by probable cause. The trial court acted within its discretion when it admitted evidence seized during the execution of the search warrant.
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Opinions March 26, 2013

March 26, 2013
Indiana Supreme Court
Teresa Meredith, et al. v. Mike Pence, et al.
Civil plenary/school vouchers. Affirms constitutionality of Indiana’s Choice Scholarship program, affirming a trial court’s grant of summary judgment for state defendants in a suit in which plaintiffs claimed the voucher program violated state Constitution provisions on education and religious liberties. The court held that the voucher plan is within the Legislature’s power under Article 8, Section 1, and that the enacted program does not violate either Section 4 or Section 6 of Article 1 of the Indiana Constitution.
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Opinions March 25, 2013

March 25, 2013
Indiana Court of Appeals
Maria Upham, as Surviving Spouse and Personal Rep. of the Estate of Wilbur A. Upham, Deceased v. Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, Kendrick Family Practice, et al.
55A01-1202-CT-53
Civil tort/malpractice. Affirms jury verdict in favor of the hospital, holding that Upham’s counsel failed to request an admonishment and therefore waived the argument that the court should have declared a mistrial because of a prospective juror’s comments that plaintiff’s counsel was motivated by money. There was no abuse of discretion in jury instructions or in the court’s limiting of discovery. 
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Opinions March 22, 2013

March 22, 2013
Indiana Court of Appeals
F.G. v. B.G. (NFP)
49A05-1210-DR-506
Domestic relation. Affirms trial court’s denial of father F.G.’s motion to set aside decree establishing paternity and for DNA testing regarding paternity of one of his children.
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Opinions March 21, 2013

March 21, 2013
Todd J. Crider v. State of Indiana
91S05-1206-CR-306
Criminal. Reverses in part the sentencing order that Crider’s habitual offender enhancement in a White County case be served consecutively to the habitual offender enhancement in a case from Tippecanoe County. Concludes that the waiver of the right to appeal contained in the plea agreement is unenforceable where the sentence imposed is contrary to law and the defendant did not bargain for the sentence.
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Opinions March 20, 2013

March 20, 2013
Indiana Court of Appeals
State of Indiana v. I.T.
20A03-1202-JV-76
Juvenile. Dismisses state’s appeal from the juvenile court’s order rescinding its prior approval of a delinquency petition filed against I.T. Concludes sua sponte that the state is without authority to appeal a juvenile court’s order withdrawing its approval of the filing of a delinquency petition.
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Opinions March 19, 2013

March 19, 2013
7th Circuit Court of Appeals
Frontier Insurance Company v. J. Roe Hitchcock, Timothy S. Durham and Terry G. Whitesell
11-3510
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms order the guarantors Hitchcock, Durham and Whitesell deposit with the clerk more than $1.5 million regarding a surety bond issued by Frontier Insurance. The guarantors must keep their promise to post collateral on Frontier’s demand.
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Opinions March 18, 2013

March 18, 2013
Indiana Court of Appeals
Carmeuse Lime & Stone and Carmeuse Lime, Inc. v. Illini State Trucking, Inc.
45A03-1211-CC-462
Civil collection. Affirms the trial court order dismissing Carmeuse Lime & Stone’s and Carmeuse Lime Inc.’s complaint in favor of Illini State Trucking, Inc. regarding indemnification. Illini did not waive its ability to raise the forum selection clause with the court.
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Opinions March 15, 2013

March 15, 2013
Indiana Court of Appeals
Charles Meriwether v. State of Indiana
49A02-1208-CR-676
Criminal. Affirms convictions of Class A misdemeanor possession of marijuana and Class D felony possession of paraphernalia. The trial court did not commit fundamental error when it admitted Meriwether’s statement into evidence because he was not in custody when he made it.
 
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Opinions March 14, 2013

March 14, 2013
Indiana Court of Appeals
Michael Bowser v. State of Indiana

71A03-1208-CR-361
Criminal. Affirms two convictions of Class C felony battery by means of a deadly weapon. The trial court did not abuse its discretion by denying Bowser’s motion for severance and there is sufficient evidence to sustain the convictions.
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Opinions March 13, 2013

March 13, 2013
7th Circuit Court of Appeals
Kelly S. Thomas v. Dushan Zatecky, superintendent, Pendleton Correctional Facility
13-1136
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Denies Thomas’ request that he be allowed collateral relief to file appeals without regard to the fees required by Section 1913 and the resolutions of the Judicial Conference. Gives Thomas 21 days to file in the 7th Circuit a motion for permission to proceed in forma pauperis and a certificate of appealability. Failure to meet this schedule will result in dismissal for failure to prosecute.

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Opinions March 12, 2013

March 12, 2013
Indiana Supreme Court
Curtis A. Bethea v. State of Indiana
18S05-1206-PC-304
Post conviction. Affirms trial court denial of post-conviction relief, holding that Curtis Bethea, who pleaded guilty to armed robbery and criminal confinement in a deal that dropped seven other felony counts, was not improperly denied post-conviction relief when a judge considered evidence of charges that were dismissed.

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Opinions March 11, 2013

March 11, 2013
Indiana Court of Appeals
Bay Colony Civic Corporation v. Pearl Gasper Trust and Bruce F. Waller
49A05-1207-PL-365
Civil plenary. Reverses trial court ruling in favor of Gasper and Waller, holding that a public easement to a reservoir also grants access to the water and not just to the land adjacent to the water, and that a neighborhood association did not violate its bylaws by spending money to improve access to the lake for residents. Remands to the trial court to grant the association’s motion for partial summary judgment.
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Opinions March 8, 2013

March 8, 2013
Indiana Court of Appeals
In the Matter of the Supervised Estate of Evelyn Garrard; Ronald Garrard v. Debra L. Teibel and Douglas Grimmer and Debra Lindsay
45A03-1111-PL-547
Civil plenary. Affirms summary judgments in favor of Teibel, Grimmer and Lindsay, holding that Garrard had waived all issues on appeal and failed to show an issue of material fact existed. The court also warned Garrard about language in pleadings that disparaged other parties to the litigation and the bench.

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Opinions March 7, 2013

March 7, 2013
Indiana Supreme Court
In Re: Visitation M.L.B.: K.J.R. v. M.A.B.
41S01-1209-MI-556
Miscellaneous. Rules despite the trial court’s ample “best interests” findings, the lack of findings on the other three factors, both standing alone and as compounded by the extensive visitation awarded without those necessary findings, violates Mother’s fundamental right to direct M.L.B.’s upbringing. Remands for a new entry of findings and conclusions revealing the court’s consideration of all four McCune/K.I. factors, without a new hearing.
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Opinions March 6, 2013

March 6, 2013
Indiana Supreme Court
Holiday Hospitality Franchising, Inc. v. Amco Insurance Company
33S01-1206-CT-312
Civil tort. Affirms summary judgment for Amco Insurance Co. on its motion for declaratory judgment to enforce its reading of the insurance contract with the hotel disclaiming coverage for, and its duty to defend against, a civil complaint brought by a motel guest molested by an off-duty motel employee. The facts of the case reflect precisely the sort of scenario contemplated by the parties to be excluded from coverage when they agreed to the insurance contract. Chief Justice Dickson concurs and Justice Rucker dissents.
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Opinions March 4, 2013

March 4, 2013
Indiana Court of Appeals
Michael Williams, Jr. v. State of Indiana
30A01-1207-CR-305
Criminal. Reverses convictions of Class B felonies burglary and conspiracy to commit burglary, and Class C felony carrying a handgun without a license. Williams’ trial counsel’s performance was deficient by failing to object under Indiana Evidence Rule 404(b) to the admission of evidence of William’s previous bad acts and convictions. Remands for a new trial.

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Opinions March 1, 2013

March 1, 2013
7th Circuit Court of Appeals
Securities and Exchange Commission v. First Choice Management Services Inc., et al.
12-3308
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms $600,000 sanction against SonCo for contempt of court by not following a court order. The $600,000 is actually a gross understatement of the harm caused by SonCo’s contempt for failing to take over operation of Alco’s wells within 90 days as ordered.
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Opinions Feb. 28, 2013

February 28, 2013
Indiana Court of Appeals
Verdyer Clark v. State of Indiana
49A04-1202-CR-66
Criminal. Grants rehearing for clarification and affirms in all respects. Holds that the determination whether the age of a perpetrator is relevant to a child victim’s medical diagnosis or treatment is best left to another case.
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Opinions Feb. 27, 2013

February 27, 2013
Indiana Court of Appeals
Lamont Holloway v. State of Indiana
49A02-1207-CR-548
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft. The evidence was sufficient to support the convictions.
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Opinions Feb. 26, 2013

February 26, 2013
Indiana Court of Appeals
Paul M. Brock v. State of Indiana
79A04-1208-CR-433
Criminal. Affirms trial court sentence of 12 years on convictions of Class C felony auto theft; Class D felony intimidation; Class A misdemeanors resisting law enforcement, striking a law enforcement animal, and operating a vehicle while intoxicated; and a habitual offender enhancement. The court held that the sentence was not impermissible double enhancement, was not inappropriate, and that the court did not abuse its discretion when it considered Brock’s prior behavior while incarcerated.
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Opinions Feb. 25, 2013

February 25, 2013
Indiana Court of Appeals
Jose Maldonado-Morales v. State of Indiana
20A05-1205-CR-255
Criminal. Affirms Class D felony conviction of domestic battery, ruling that a jury instruction on the doctrine of transferred intent was not an abuse of discretion and that the state was not required to prove that Maldonado-Morales knowingly or intentionally struck his ex-wife in the presence of their child.  

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Opinions Feb. 22, 2013

February 22, 2013
Indiana Supreme Court
K.W. v. State of Indiana
49S02-1301-JV-20
Juvenile. Affirms Court of Appeals reversal of trial court ruling designating K.W. a delinquent for resisting law enforcement, and orders the delinquency adjudication vacated. Justices held that evidence was insufficient that K.W. acted “forcibly” to resist a school resource officer when he pulled away as the officer was attempting to handcuff him.
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Opinions Feb. 21, 2013

February 21, 2013
Indiana Court of Appeals
Curtis Tyrell Cutler v. State of Indiana

71A05-1206-CR-339
Criminal. Affirms conviction of Class B felony burglary. Finds there was sufficient evidence to warrant a jury finding beyond a reasonable doubt that Cutler committed the burglary. Holds the trial court did not err in permitting the use of a statement Cutler made to police for impeachment.

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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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