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Opinions Jan. 11, 2012

January 11, 2012
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7th Circuit Court of Appeals had posted no Indiana opinions at IL deadline.

Indiana Supreme Court and Indiana Tax Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Daniel E. Serban v. State of Indiana
02A03-1106-CR-285
Criminal. Declines to revise Serban’s 11-year sentence following guilty plea to Class C felony corrupt business influence and Class D felony theft. Serban failed to demonstrate his sentence is inappropriate, and his stealing from his clients injured not only them, but also the legal profession.

Nicholas Williams v. State of Indiana
49A02-1103-CR-266
Criminal. Reverses trial court’s grant of the Indiana Board of Pharmacy’s motion to quash Williams’ subpoena for a certified copy of “any and all” of Williams’ prescription records. The confidentiality provisions of the applicable statute were enacted to protect Williams’ physician-patient privilege and pharmacist-patient privilege and he waived those privileges by requesting his prescription records in the exercise of his constitutional right to present a complete defense to the charged crimes. Williams’ request is sufficiently particular, the requested information is material to his defense, not all the information requested would be available from his doctors and the board has failed to show a paramount interest in not disclosing the information.

Dave's Excavating, Inc. and Liberty Mutual Insurance Co. v. City of New Castle, Indiana
33A04-1104-PL-199
Civil plenary. Affirms two orders entered granting summary judgment to New Castle in its suit against Dave’s Excavating on breach of a construction contract and against Liberty Mutual under a performance bond. Dave’s refusal to resume work on the project constituted a breach of construction contract, and Liberty Mutual did not show that it asserted its rights to elect how to mitigate damages “promptly.”

Anthony J. Rehl, Sr. and Bessie A. Rehl v. Robert V. Billetz and Joy A. Billetz
52A05-1105-PL-246
Civil plenary. Affirms judgment in favor of the Billetzes regarding an access easement. The trial court did not err in making its findings of facts related to the relative use or increased use of the easement area and interference with the use of the Rehl property.

Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg
10A05-1102-PL-68
Civil plenary. Affirms in part and reverses in part summary judgment for Isgrigg. Isgrigg, in his official capacity as county surveyor, had standing to seek declaratory relief from the Clark County Drainage Board’s actions. The drainage board’s subdivision project didn’t establish a regulated drain under Indiana Code, and therefore, the board wasn’t required to utilize the county surveyor. The board’s removal of an obstruction from a natural watercourse without the county surveyor’s participation did violate Indiana Code.

Charles Lawrence, Sr. v. State of Indiana
02A03-1105-CR-194
Criminal. Affirms murder conviction. The state presented sufficient substantive evidence to establish that Lawrence was in his sister’s apartment around the time of the shooting and had the opportunity to commit murder.

Shandaleigha M. Tharp v. State of Indiana (NFP)
48A05-1105-CR-292
Criminal. Vacates Tharp’s aggregate 27-year sentence following a guilty plea for various offenses, including forgery, burglary, and theft and imposes an aggregate sentence of 19.5 years, with 14.5 executed and five years suspended.

Diyon Evans v. State of Indiana (NFP)
49A04-1104-CR-227
Criminal. Affirms convictions of Class B felony rape and Class B felony criminal deviate conduct.

Arnold W. Cook v. Consolidated Roofing, Inc. (NFP)
34A02-1104-CC-339
Civil collection. Affirms judgment substantially in favor of Consolidated Roofing on Cook’s complaint for injunctive and declaratory relief and damages.

Vincent Barrett and Sarah Barrett v. City of Logansport, Indiana; Michael Nicoll, in his capacity as Sexton of Mount Hope Cemetery; and James McDonald (NFP)
09A02-1103-PL-252
Civil plenary. Affirms judgment in favor of Logansport, Nicoll and McDonald on the Barretts’ claims for negligence, breach of contract, fraud and injunctive relief.

R.W. v. Indiana Department of Child Services (NFP)
71A03-1107-JT-309
Juvenile. Affirms involuntary termination of parental rights.
 

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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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