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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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