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Opinions Feb. 20, 2014

February 20, 2014
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Indiana Supreme Court
James T. Mitchell v. 10th and The Bypass, LLC and Elway, Inc.
53S01-1303-PL-222
Civil plenary. Evidence obtained after the entry of an order granting a motion for partial summary judgment may not form the basis for vacating that order on the grounds that a non-final order is subject to revision at any time before the entry of a final judgment. Also concludes that relief from judgment under Ind. Trial Rules is not limited only to final judgments.

Indiana Court of Appeals
Magic Circle Corporation, d/b/a Dixie Chopper, The Kelch Corporation, et al. v. Kris Schoolcraft as Personal Representative of the Wrongful Death Estate of Rickie D. Schoolcraft, Deceased
29A02-1303-CT-273
Civil tort. Affirms grant of Kris Schoolcraft’s motion to amend the wrongful death action brought against Magic Circle by adding new defendants. Declines to follow caselaw from Court of Appeals and instead applies the majority rule decided in a 1990 Vermont case.

Michael W. Stevenson v. County Commissioners of Gibson County, Indiana, Bob Townsend, Don Whitehead, Gerald Bledsoe, County Council of Gibson County, Indiana, Tony Wolfe, Jeremy Overton, et al.  
26A01-1212-PL-540
Civil plenary. Affirms judgment for the Gibson County Commissioners and County Council regarding Stevenson’s salary as county surveyor and additional compensation. The county council followed statute by establishing a salary level for a surveyor without a license and Stevenson is not entitled to additional compensation for surveying the county corners.

Clark's Sales and Service, Inc v. John D. Smith and Ferguson Enterprises, Inc.
49A02-1306-PL-552
Civil plenary. Affirms denial of Clark’s motion for a preliminary injunction. Clark’s attempt to protect a customer base spanning the entire term of Smith’s employment is overly broad and unreasonable, as is the scope of activities prohibited in the restrictive covenant.

Jonathan D. Carpenter v. State of Indiana
02A05-1304-CR-207
Criminal. Affirms admission of evidence obtained from a warrantless search of Carpenter’s house. The trial court did not err when it denied Carpenter’s motion to suppress the evidence against him because the officers had reasonable suspicion to believe a violent crime might have occurred, properly executed a search of the premises for that purpose, and the search did not violate Carpenter’s Fourth Amendment rights. The warrantless search of Carpenter’s house did not violate his rights under Article 1, Section 11 of the Indiana Constitution because the officers had reasonable suspicion there was an injured person inside the house.

Kevin Hoskins v. State of Indiana (NFP)
49A02-1307-CR-566
Criminal. Affirms convictions of Class B felony dealing in cocaine and Class C felony possession of cocaine.

Clyde Williams, Jr. v. State of Indiana (NFP)
27A04-1305-CR-253
Criminal. Affirms conviction of Class D felony operating a motor vehicle while privileges are suspended.

Inner Circle Properties, LLC v. George Lease (NFP)
35A02-1309-SC-764
Small claim. Reverses award of $180 in attorney fees and collection costs against Lease and remands for order that Inner Circle receive $371.86 in collection attorney fees that Lease agreed to pay.

In the Matter of the Termination of the Parent-Child Relationship of: P.M., M.F.E., and E.T., T.T. (Mother) and B.T. (Father of E.T.) v. The Indiana Department of Child Services (NFP)
40A01-1306-JT-275
Juvenile. Affirms termination of parental rights.

Andre L. Garrett v. State of Indiana (NFP)
71A03-1305-PC-199
Post conviction. Affirms denial of petition for post-conviction relief.

C.C. v. Review Board of the Indiana Department of Workforce Development and Wal-Mart Associates (NFP)
93A02-1304-EX-375
Agency action. Affirms determination C.C. is ineligible for unemployment compensation benefits.

Marcus Buba v. State of Indiana (NFP)
10A01-1306-CR-287
Criminal. Affirms denial of motion to reduce bond to zero.

Juan Concepcion v. State of Indiana (NFP)
49A02-1306-CR-557
Criminal. Affirms convictions of Class A misdemeanor operating while intoxicated and Class C misdemeanor operating with a blood-alcohol content greater than 0.08 percent.

Stephen M. Coil v. Review Board of the Indiana Department of Workforce Development, International Truck & Engine Group, TALX UCExpress, Inc. (NFP)
93A02-1309-EX-747
Agency action. Reverses determination Coil is ineligible for unemployment benefits.

Bruce Foster v. State of Indiana (NFP)
53A01-1301-CR-36
Criminal. Affirms conviction and sentence for murder.

In Re the Matter of the Termination of the Parent-Child Relationship of L.T.W.B., Minor Child, and S.A.B., Mother, and H.L.B., Father, H.L.B., Father v. The Indiana Department of Child Services (NFP)

79A02-1307-JT-669
Juvenile. Affirms termination of parental rights.

Antonio Hughley, $3,861.00 in U.S. Currency and One (1) Buick, VIN# 4V37J7E133835 v. State of Indiana, The Consolidated City of Indianapolis/Marion County,et al. (NFP)
49A04-1307-MI-352
Miscellaneous. Affirms summary judgment for the state regarding forfeiture of cash.

Tanner Howard v. State of Indiana (NFP)
34A02-1304-CR-392
Criminal. Affirms denial of motion to dismiss.

Bobby Wine v. State of Indiana (NFP)
85A02-1307-CR-610
Criminal. Affirms in part four findings of contempt and reverses one finding. Remands for further proceedings.

David Hedgecraft v. State of Indiana (NFP)
48A05-1303-CR-141
Criminal. Affirms convictions of Class D felony maintaining a common nuisance and Class B felony dealing in methamphetamine.

Sarah Cartner v. State of Indiana (NFP)
49A04-1307-CR-332
Criminal. Affirms conviction of Class A misdemeanor battery.

Forest Lamar, Jr. v. State of Indiana (NFP)
71A03-1306-CR-208
Criminal. Affirms conviction and sentence for Class A felony attempted murder.

Fabrianne Cloud v. State of Indiana (NFP)
49A02-1309-CR-745
Criminal. Affirms conviction of Class D felony operation of a vehicle while suspended as a habitual traffic violator.

Katie L. Miller v. State of Indiana (NFP)
02A03-1306-CR-229
Criminal. Affirms convictions of Class C felony battery, Class A misdemeanor criminal recklessness and Class D felony failure to stop after an accident resulting in injury or death.

Charlie Hamby and Michael Zenk v. James Farmer (NFP)
33A01-1307-CT-325
Civil tort. Affirms denial of Hamby’s and Zenk’s motion for summary judgment against Farmer on inmate Farmer’s “notice of a lawsuit” resulting from a fall in the shower.

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

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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