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Opinions July 25, 2014

July 25, 2014
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The following Indiana Supreme Court opinion was issued after IL deadline Thursday:

Carol Sparks Drake v. Thomas A. Dickey, Craig Anderson, Charles E. Podell, and Duke Realty Corp.
29S02-1407-CT-483
Civil tort. Summarily affirms Court of Appeals ruling reversing summary judgment in favor of defendants, finding that attorney Carol Sparks Drake presented a genuine item of material fact as to whether defendants intentionally induced her employer, Parr Richey Obremskey & Morton, to terminate her partnership agreement. Remands to the trial court for proceedings.


Friday’s opinions
Indiana Court of Appeals
Chris T. Collins v. State of Indiana
49A02-1310-PC-887
Post conviction. Affirms denial of post-conviction relief, concluding that the post-conviction court’s denial of Collins’ request of subpoenas was not an abuse of discretion and that denial of his petition was proper.

Jennifer L. Patch v. State of Indiana
68A05-1309-CR-460
Criminal. Affirms conviction of Class B felony conspiracy to commit burglary. The evidence was sufficient to convict Patch, and the trial court did not abuse its discretion in denying Patch’s motion for a mistrial.

Michael B. Eliseo v. State of Indiana
90A04-1307-CR-370
Criminal. Affirms trial court order that Eliseo pay $300 for a supplemental public defender service fee and $166 in court costs. The court has discretion under I.C. 33-40-3-6 and I.C. 33-37-2-3 to order payment of fees above the statutory $100 public defender cap after a finding of indgency, and no hearing is required, the majority opinion held. In a concurring opinion, Judge Patricia Riley found the trial court did not abuse its discretion, but she wrote the court is obligated to conduct a hearing on ability to pay at the time the costs are due.

Joseph D. Barnette, Jr., and Charlene Barnette, and City of Carmel Department of Community Services, Division of Building and Code Services, et al. v. US Architects, LLP, Albert D. Bowen, et al.
29A02-1304-PL-309
Civil plenary. Affirms in part, reverses in part and remands for proceedings. The trial court erred in granting summary judgment to the Bowens because they had not exhausted their administrative remedies before suing the city. Remands with instructions to dismiss U.S. Architects’ and the Bowens’ declaratory judgment complaint, and holds U.S. Architects lacks standing to seek a declaratory judgment.

Phyllis Dodson, as Special Administrator of the Estate of Eboni Dodson, Deceased v. Curt D. Carlson, Carmel Hotel Company, d/b/a Grille 39, Seven Corners, Inc., et al.
49A04-1305-CT-267
Civil tort. Affirms summary judgment for Seven Corners. Finds the “going and coming” limitation to the doctrine of respondeat superior absolves Seven Corners of any liability in an accident caused by its employee Carlson. Concludes even though Carlson had dinner and drinks with a client prior to the accident, he was not acting in the scope of his employment at the time of the accident.

Andrew Prairie v. State of Indiana (NFP)
29A02-1309-CR-841
Criminal. Affirms convictions of Class D felony attempted theft, three counts of Class D felony receiving stolen property, and a count of Class B misdemeanor unauthorized entry of a motor vehicle.

Kelsey Lynn Wilson v. State of Indiana (NFP)
82A01-1310-CR-454
Criminal. Affirms conviction of Class A felony dealing in cocaine.

Merrill C. Roberts v. Unlimited, LLC d/b/a Remax Unlimited and Matthew A. Gunning (NFP)
49A05-1306-PL-294
Civil plenary. Affirms denial of an award of attorney fees sought by Roberts.

The Indiana Supreme Court and 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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