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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 gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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