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Opinions Dec. 17, 2010

December 17, 2010
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The following opinions were posted after IL deadline Thursday:
Indiana Supreme Court

Adoption of L.D.; A.B. and N.E. v. Jo.D. and Ja.D.
49S02-1006-CV-330
Civil. Vacates adoption decree and remands with directions to grant mother A.B.’s Trial Rule 60(B) motion. The paternal grandparents and their attorney did not perform the diligent search required by the Due Process Clause to inform A.B. of their adoption petition.

Indiana Court of Appeals
D.P. v. State of Indiana (NFP)
71A03-1006-JV-391
Juvenile. Affirms commitment to the custody of the Indiana Department of Correction following a delinquency adjudication.

Today’s opinions
7th Circuit Court of Appeals

Karl Schmidt Unisia Inc. v. International Union, United Automobile, et al.
09-4001
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Joseph S. Van Bokkelen.
Civil. Affirms summary judgment in favor of International Union, et al., on their counterclaim to compel arbitration. The collective bargaining agreement’s arbitration clause creates a presumption that the union’s grievance is arbitrable. Because the CBA does not expressly exclude the grievance from arbitration and Karl Schmidt Unisia has not shown the most forceful evidence of the parties’ intent to exclude the grievance from arbitration, Karl Schmidt Unisia has not rebutted the presumption of arbitrability.

United States of America v. Charles Tanner
09-2370
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms convictions of and life sentence for conspiracy to possess cocaine with intent to distribute and attempted possession of 5 kilograms or more of cocaine with intent to distribute. There was no error in the prosecutor’s closing argument. Except for certain testimony regarding Tanner’s possession of a firearm on one occasion, all of the complained-of evidence was clearly admissible. The one exception was harmless. As for the jury instructions, the District Court’s only error was in giving an “ostrich” instruction lacking sufficient factual support in the trial record. That error was also harmless. The District Court properly calculated Tanner’s sentence, and a life sentence was reasonable under these circumstances.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals

Harold J. Klinker v. First Merchants Bank, N.A.
01A04-1003-PL-247
Civil plenary. Affirms summary judgment for First Merchants Bank in its complaint for fraud and seeking damages. The trial court should have considered Klinker’s affidavit in opposition to the bank’s summary judgment motion, but summary judgment for the bank was still appropriate.

Office of the Trustee of Wayne Township v. Deborah Brooks
49A05-1005-PL-341
Civil plenary. Affirms preliminary injunction ordering the Wayne Township Trustee to continue providing poor relief to Brooks. The trial court applied the proper standard of review – de novo – and the evidence is sufficient to support the decision in favor of Brooks.

Tara Simpson, et al. v. OP Property Management, LLC, et al.
49A05-1006-CT-355
Civil tort. Reverses summary judgment for Metropolitan School District of Wayne Township in Simpson’s suit following an accident with a school bus driver. Simpson’s notice of tort claim was sufficient, the school district isn’t entitled to immunity and there are genuine issues of material fact as to whether the school district and driver were negligent and whether Simpson was contributorily negligent or incurred the risk.

Edward Dawson v. State of Indiana
49A02-1001-CR-155
Criminal. Dismisses appeal of the grant of leave to Dawson to file a belated notice of appeal of his probation revocation order. Post-Conviction Rule 2 is available for direct appeals of convictions and sentences only and not for belated appeals of probation revocation orders.

Kelly Brockmann v. Robert Brockmann
02A04-1003-DR-246
Domestic relation. Reverses order compelling arbitration of a petition to modify custody filed by Robert. Concludes that the parties did not intend for Robert’s petition for modification of legal custody to be submitted to arbitration, or to otherwise submit to arbitration any and all possible future disputes that might arise between the parties.

Charles Saffold v. State of Indiana
49A05-1003-CR-180
Criminal. Affirms denial of Saffold’s motion to dismiss the charge of carrying a handgun without a license. It was not a violation for the officer to conduct a second pat-down search to determine whether Saffold had a gun after discovering ammunition on him and in his car.

Thomas W. Conrad v. State of Indiana
20A03-1004-CR-188
Criminal. Affirms conviction of criminal deviate conduct as a Class B felony. The trial court did not err in excluding evidence of Conrad’s victim’s past sexual conduct under Evidence Rules 412 and 403. Conrad’s rights under the United States and Indiana constitutions to effectively impeach and cross-examine witnesses were also not infringed upon by the trial court’s rulings.

Quintez Deloney v. State of Indiana
22A01-0906-CR-273
Criminal. Affirms conviction of and sentence for Class A felony burglary resulting in bodily injury. Remands to the trial court to reduce Deloney’s conviction of and sentence for attempted robbery from a Class A felony to a Class C felony.

John Eric Warren v. State of Indiana (NFP)
03A01-1005-CR-265
Criminal. Affirms sentence following guilty plea to two counts of Class B felony armed robbery and one count of Class C felony robbery.

Tyree L. Thomas v. State of Indiana (NFP)
49A02-1002-CR-173
Criminal. Grants rehearing to clarify holding on Thomas’ claim of mental illness and reaffirms prior decision.

Judd Ponsler v. State of Indiana (NFP)
49A05-1003-CR-179
Criminal. Affirms two Class C felony child solicitation convictions.

Rodney Waye v. State of Indiana (NFP)
85A02-1003-PC-393
Post conviction. Affirms denial of petition for post-conviction relief.

Doris Coffman v. State of Indiana (NFP)
31A04-1004-CR-240
Criminal. Affirms order revoking probation and that Coffman serve all of her suspended sentences.

Michael A. Gilbert v. State of Indiana (NFP)
49A02-1005-CR-564
Criminal. Affirms conviction of Class C felony dealing marijuana in an amount in excess of 10 pounds.

Term. of the Parent-Child Rel. of S.W., et al.; M.C. v. I.D.C.S. (NFP)
55A01-1003-JT-196
Juvenile. Affirms termination of parental rights.

James R. Robison v. State of Indiana (NFP)
45A03-1006-CR-291
Criminal. Affirms sentence following guilty plea to two counts of Class B felony child molesting.

Darren R. Locke v. State of Indiana (NFP)
82A01-1008-CR-374
Criminal. Affirms sentence for Class C felony operating a motor vehicle after the forfeiture of Locke’s license for life.

Jason L. Hatchett v. State of Indiana (NFP)
49A04-0912-CR-718
Criminal. Affirms convictions of Class B felony attempted robbery, three counts of Class B felony criminal confinement, and one count of Class C felony carrying a handgun without a license.

Martie Allen Henderson v. State of Indiana (NFP)
71A03-1004-CR-207
Criminal. Affirms convictions of Class D felony possession of marijuana and Class A misdemeanor resisting law enforcement, and the revocation of probation.

Donald Davis v. State of Indiana (NFP)
45A04-1003-CR-168
Criminal. Affirms convictions of two counts of Class A felony dealing in cocaine, three counts of Class A felony dealing in narcotics, Class B felony cocaine possession, and Class D felony maintaining a common nuisance.

Saul R. Cruz v. State of Indiana (NFP)
03A01-1004-CR-175
Criminal. Affirms sentence following guilty plea to Class A felony dealing in cocaine.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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