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Opinions Feb. 15, 2013

February 15, 2013
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Indiana Court of Appeals
South Shore Baseball, LLC d/b/a Gary South Shore Railcats, and Northwest Sports Venture, LLC v. Juanita DeJesus
45A03-1205-CT-222
Civil tort. Reverses denial of summary judgment for South Shore Baseball on DeJesus’ lawsuit filed after she was hit by a foul ball at a game. As a matter of law, the appellants can’t be held liable for her injuries. Remands with instructions for the court to issue summary judgment in favor of South Shore Baseball.

Amanda Vaughn v. State of Indiana

49A02-1207-CR-544
Criminal. Reverses order Vaughn perform 40 hours of community service in lieu of paying court costs and a fine after pleading guilty to Class A misdemeanor criminal trespass. The trial court lacked statutory authority to impose a community service requirement in lieu of costs and fees. Remands for the court to address the imposition of costs and fees in this case. Judge Baker dissents.  

Amy Jean Kristoff v. Centier Bank
45A03-1204-TR-186
Trust. Affirms grant of summary judgment for the bank, the trustee of the Amy Jean Kristoff Exempt Trust, in Kristoff’s action to modify the terms of the trust established by her late mother. Rejects the premise of Kristoff’s argument that the purpose of the trust was to provide for Sally Kristoff’s non-existent grandchildren.

VFW Post 2953, et al. v. City of Evansville and Evansville Common Council (NFP)
82A01-1206-PL-255
Civil plenary. Affirms denial of the fraternal organizations’ petition for injunctive relief and a declaratory judgment that a city ordinance prohibiting smoking violates the Indiana Constitution.

Shawn J. Lee v. State of Indiana (NFP)

32A01-1207-CR-329
Criminal. Vacates conviction of Class D felony theft and remands for further proceedings.

Misty DeMoss v. Toby Dolan (NFP)

55A04-1209-SC-458
Small claim. Affirms finding that DeMoss acted in direct contempt of court.

Tasha Parsons v. State of Indiana (NFP)
16A01-1208-CR-356
Criminal. Affirms murder sentence.

Larry J. Briski v. Peoples Bank (NFP)

45A03-1208-PL-343
Civil plenary. Affirms summary judgment in favor of the bank on the bank’s action to enforce a guaranty for $50,000 against Briski.

Courtney A. Wuethrich v. State of Indiana (NFP)

66A03-1206-CR-276
Criminal. Affirms convictions of Class C misdemeanors illegal consumption of alcohol and operating a vehicle with a blood alcohol concentration equivalent to at least 0.08 but less than 0.15.

Dennis White v. State of Indiana (NFP)

48A02-1207-CR-588
Criminal. Affirms order of maximum and consecutive sentences following a guilty plea to one count each of Class C felony criminal confinement, Class D felony criminal confinement and Class D felony torturing or mutilating a vertebrate animal.

In Re: The Paternity of K.D.; M.G. v. S.D. (NFP)

32A01-1209-JP-432
Juvenile. Affirms modification of custody in favor of father, but reverses order mother must pay $750 toward father’s attorney fees.

Clarence E. Smith v. State of Indiana (NFP)
47A04-1206-CR-315
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Pie Kitchen, LLC d/b/a Homemade Ice Cream and Pie Kitchen v. Merchant, LLC (NFP)
10A01-1207-CC-322
Civil collection. Affirms summary judgment in favor of the merchant, awarding it more than $48,000 in damages and interest in a lease dispute.

Brian Williams v. State of Indiana (NFP)
49A05-1206-CR-301
Criminal. Affirms conviction of Class B felony aggravated battery.

Jesse L. Rose v. State of Indiana (NFP)
09A05-1205-CR-251
Criminal. Affirms four convictions of Class A felony child molesting and 200-year sentence.

Paul Stieler Enterprises, Inc. d/b/a Harbor Bay, et al. v. City of Evansville and Evansville Common Council (NFP)

82A01-1205-CT-242
Civil tort. Affirms denial of the tavern owners request for injunctive relief and a declaratory judgment that an Evansville ordinance prohibiting smoking in certain locations violates the Indiana Constitution.

The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline. The Indiana Supreme Court and Tax Court posted no opinions by IL deadline.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. 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)

  4. "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.

  5. 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.

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