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Opinions Aug. 22, 2013

August 22, 2013
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Indiana Court of Appeals
Roger A. Buchanan and Susan Buchanan v. HSBC Mortgage Services, Inc.
39A01-1211-MF-515
Mortgage foreclosure. Affirms trial court grant of summary judgment in favor of HSBC Mortgage Services, holding that even if a mortgage was not properly acknowledged, the Buchanans don’t deny that they executed a mortgage and note when they purchased their home, on which they stopped making mortgage payments in 2007. The Buchanans’ arguments therefore are without merit.

Dianne M. Ross, William L. Ross, Martha Jane Milhouse and Paul David Milhouse v. Bartholomew County Drainage Board and Stephen A. Hoevener, Jim Pence, Ron Speaker, Jeff Schroer, and Carl Lienhoop
03A01-1210-PL-489
Civil plenary. Affirms ruling that a berm constructed by the Rosses and the Milhouses did impede the draining of a natural surface watercourse and should be removed. Also affirms the reduction of attorney fees related to a violation of Indiana’s Open Door Law, finding the petitioners included reimbursements for work done outside the Open Door Law claim.

Alexander David Toradze v. Susan Blake Toradze
71A05-1212-DR-623
Domestic relation. Affirms trial court’s denial of Alexander Toradze’s motion to dismiss for lack of jurisdiction. Father is contesting his ex-wife’s petition to a modify child support order to include college expenses. Finds the court does have jurisdiction because recent amendments to the termination of child support and emancipation statute entitle Susan Toradze to file a petition. In a concurring opinion, Judge Elaine Brown concludes the trial court had personal and subject matter jurisdiction.    

Jeremiah Walls v. State of Indiana
55A05-1211-CR-603
Criminal. Affirms conviction and three-year sentence on two counts of Class D felony intimidation and misdemeanor counts of resisting law enforcement, criminal trespass, two counts of battery and disorderly conduct, and a divided appeals panel affirmed the conviction and sentence, rejecting Walls’ arguments that the evidence was insufficient to sustain the criminal trespass and convictions, that the jury was improperly instructed, that the trial court improperly limited his closing argument, and that the voluntary intoxication statute is unconstitutional. Dissenting Judge Patricia Riley would reverse the criminal trespass conviction, holding that residents of an apartment complex could not ask Walls to leave the common areas outside their doors where he was creating a disturbance.

Terry Eldridge v. State of Indiana (NFP)
49A04-1301-CR-24
Criminal. Dismisses appeal to trial court’s denial of petition for additional credit time for completing a rehabilitative program prior to sentencing. Rules under Appellate Rule 9, Eldridge did not file a timely notice of his appeal. The proper time to file an appeal was within 30 days of the court’s 2006 sentencing order which Eldridge did not do.   

Kevin Patterson v. State of Indiana (NFP)
48A02-1208-CR-628
Criminal. Affirms convictions for battery, a Class C felony; and intimidation, a Class C felony.

Isaiah Adams v. State of Indiana (NFP)
49A05-1212-CR-605
Criminal. Affirms conviction for Class A misdemeanor invasion of privacy.

Joshua Steelman v. State of Indiana (NFP)
15A05-1212-CR-661
Criminal. Affirms convictions for theft, as a Class D felony; criminal mischief, as a Class B misdemeanor; and unauthorized entry of a motor vehicle, as a Class B misdemeanor.

Clifford N. Whitmer, II v. State of Indiana (NFP)
20A04-1302-CR-70
Criminal. Affirms 50-year sentence for conviction of robbery resulting in serious bodily injury, a Class A felony.

Timothy G. Lyles v. State of Indiana (NFP)
08A02-1302-CR-179
Criminal. Affirms convictions of two counts of Class A felony child molesting and two counts of Class C felony child molesting along with sentence for a 40-year aggregate term.

In the Matter of D.S., Child in Need of Services; R.J. v. Indiana Dept. of Child Services (NFP)
49A02-1301-JC-26
Juvenile. Affirms the juvenile court’s adjudication of R.J.’s (father) child, D.S., as a child in need of services.

Indiana Supreme Court and Indiana Tax Court issued no opinions by IL deadline. 7th Circuit Court of Appeals issued no Indiana opinions by IL deadline.
 

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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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