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Opinions Feb. 23, 2011

February 23, 2011
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Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Debra K. Sands v. Helen HCI, LLC
06A01-1005-CC-231
Civil collections. Reverses denial of Sands’ motion to enforce a settlement agreement between herself, Helen HCI LLC and two other companies, providing for dismissal with prejudice of Helen HCI’s complaint against Sands in Indiana and dismissal with prejudice of Sands’ complaint against Helen HCI and the other companies in a Wisconsin suit. The parties entered into a binding contract which required the subsequent execution of a document memorializing their agreement and there is no uncertainty as to any substantial term of the settlement contract.

Sutton Funding, LLC v. Janusz Jaworski, First Midwest, et al./First Midwest Bank v. Sutton Funding
49A02-1006-MF-709
Mortgage foreclosure. Reverses summary judgment for First Midwest Bank and Janusz Jaworski in its complaint to foreclose on the 2004 mortgage and its assertion that it was in first lien position on the property. Sutton Funding also filed a complaint to foreclose against Jaworski and First Midwest on the 2007 mortgage, which it had financed on the same property, and note. Indiana Code Section 32-29-6-13 requires Sutton Funding be provided with a release of the mortgage at issue and that summary judgment be granted in its favor.  

Steven E. Coates v. Heat Wagons, Inc., et al.
64A03-1004-PL-232
Civil plenary. Affirms grant of a preliminary injunction against Coates and in favor of Heat Wagons and Manufacturers Products (MPI). The trial court did not err in determining that MPI faced a risk of irreparable harm and lacked adequate remedy at law as a result of any breach by Coates of the covenant not to compete. It also did not err in determining that MPI has a reasonable likelihood of success on the merits of its case. Reverses part of order enjoining any use by Coates of the Web address www.heatersandparts.com and the red “H&P” logo because restrictions are overly broad. Judge James Kirsch dissents.

Ronald A. Steenbeke v. State of Indiana (NFP)
20A03-1006-CR-344
Criminal. Affirms convictions of Class A misdemeanor operating a vehicle while intoxicated and Class B misdemeanor failure to stop after damage to property other than a vehicle.

Roy Kresel v. State of Indiana (NFP)
52A02-1010-CR-1190
Criminal. Affirms sentence following guilty plea to Class B felony aggravated battery.

Dorris Merriweather, III v. State of Indiana (NFP)
02A05-1008-CR-514
Criminal. Affirms sentence following guilty plea to one count of Class A felony attempted murder and two counts of Class A felony child molesting.

Michael S. Polites v. State of Indiana (NFP)
68A01-1004-CR-150
Criminal. Affirms partial denial of Polites’ motion to suppress.

State of Indiana v. Jason Patton (NFP)
66A03-1008-CR-476
Criminal. Reverses grant of Patton’s motion for discharge and remands for further proceedings.

Oscar Delatorre v. State of Indiana (NFP)
49A04-1008-CR-471
Criminal. Affirms conviction of Class B felony robbery.

Robert Beeler v. State of Indiana (NFP)
49A04-1007-CR-456
Criminal. Affirms conviction of Class D felony intimidation.

Daniel W. Myers v. State of Indiana (NFP)
52A05-1007-CR-540
Criminal. Affirms sentence following guilty plea to Class D felony operating a motor vehicle as a habitual traffic violator and Class D felony invasion of privacy.

M.C. v. State of Indiana (NFP)
49A02-1007-JV-843
Juvenile. Affirms determination that M.C. committed what would be Class B felony robbery if committed by an adult.

Billy James Huff, Jr. v. State of Indiana (NFP)
16A05-1010-CR-659
Criminal. Revises Huff’s sentence following guilty plea to Class D felonies possession of methamphetamine and possession of paraphernalia. Remands for his two-year sentences to be served consecutively.

William Smith v. Arbor Woods Apartments (NFP)
25A03-1005-CT-262
Civil tort. Reverses summary judgment for Arbor Woods Apartments in Smith’s suit after he fell on ice in front of his apartment. Remands for further proceedings. Judge Brown dissents.

James C. Gaskill v. State of Indiana (NFP)
86A03-1008-CR-563
Criminal. Affirms sentence following guilty plea to Class B felony aggravated battery.

Indiana Tax Court had posted no opinions at 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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