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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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. 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

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