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Opinions Feb. 14, 2011

February 14, 2011
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The following opinion was posted after IL deadline Friday.
Indiana Supreme Court
In the Matter of Heather McClure O'Farrell
29S00-0902-DI-76
Discipline. Publicly reprimands O’Farrell for engaging in misconduct by making agreements for and charging unreasonable fees in violation of Indiana Professional Conduct Rule 1.5(a). She violated the rule by including an improper nonrefundability provision in her flat fee agreements and by charging and collecting flat fees that were nonrefundable regardless of the circumstances. Chief Justice Shepard and Justice Rucker dissent as to the sanction, finding a period of suspension without automatic reinstatement necessary for the protection of clients.

Today’s opinions
7th Circuit Court of Appeals
Cynthia Kartman, et al. v. State Farm Mutual Automobile Insurance Co., et al.
09-1725
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Reverses District Court ruling that a class claim for injunctive relief could proceed under Federal Rules of Civil Procedure Rule 23(b)(2) and certification of a class to determine whether State Farm should be required to re-inspect policyholders’ roofs pursuant to a uniform and objective standard. There is no contract or tort-based duty requiring the insurer to use a particular standard for assessing hail damage. Also, the requested injunction is neither appropriate nor final.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Ryan J. Goens v. State of Indiana
41A01-1006-CR-277
Criminal. Reverses denial of Goens’ motion to suppress. The traffic stop that resulted in his arrest for driving while intoxicated wasn’t supported by reasonable suspicion.

DBL Axel, LLC v. LaSalle Bank National Association, et al.
15A01-1003-PL-205
Civil plenary. Grants rehearing on the issue of whether the trial court’s order directing turnover of funds in favor of LaSalle Bank violated DBL’s due process rights to the extent that it had not been determined whether DBL was still in possession of the funds at the time the trial court issued the order. Holds that, where in question, the court must first make a factual determination as to the whereabouts of the property. Vacates original opinion, reverses, and remands.

Jeremy James Lahr v. State of Indiana (NFP)
02A03-1006-CR-337
Criminal. Affirms convictions of three counts of Class A felony child molesting, two counts of Class C felony child molesting, one count of Class D felony fondling in the presence of a minor, and one count of Class D felony dissemination of matter harmful to minors.

Charles Summers v. State of Indiana (NFP)
49A02-1006-CR-707
Criminal. Affirms conviction of Class D felony strangulation and reverses conviction of Class A misdemeanor battery. Remands for trial court to vacate battery conviction.

Jeruan L. Brown v. State of Indiana (NFP)
02A04-1006-CR-368
Criminal. Affirms conviction of Class B felony dealing in cocaine.

Michael P. Singh v. State of Indiana (NFP)
71A03-1007-CR-532
Criminal. Affirms conviction of Class D felony intimidation.

Sandra McDaniel v. State of Indiana (NFP)
24A01-1005-CR-264
Criminal. Affirms sentence following guilty plea to Class D felony operating a vehicle while under the influence of a controlled substance.

Jerry Williams v. State of Indiana (NFP)
49A02-1006-CR-708
Criminal. Affirms convictions of four counts of Class A felony criminal deviate conduct.

Auditor of Clark Ct., et al. v. JP Morgan Chase Bank N.A. (NFP)
10A05-1007-PL-418
Civil plenary. Reverses grant of summary judgment for JP Morgan Chase on the county’s complaint seeking recovery of penalties that the IRS had assessed against it for Chase’s refusal to honor the electronic funds transfer payment requests. Remands for further proceedings. Judge Baker concurs in result.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court granted four transfers and denied 34 for the week ending Feb. 11, 2011.
 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. 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

  3. 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

  4. 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

  5. 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.

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