ILNews

Opinions Dec. 17, 2010

December 17, 2010
Keywords
Back to TopE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. 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)

  2. "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.

  3. 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.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

ADVERTISEMENT