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Opinions July 3, 2012

July 3, 2012
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7th Circuit Court of Appeals posted no Indiana opinions prior to IL deadline.

Indiana Supreme Court and Tax Court posted no opinions prior to IL deadline.

Indiana Court of Appeals

In Re: The Matter of the Paternity of S.C.: K.C. (Appellant), and C.C. (Appellee), and B.H. (Appellee-Intervenor)
30A01-1107-JP-322
Juvenile paternity. Reaffirms original opinion affirming Hancock Circuit Court’s ruling vacating a finding of paternity for C.C. because another paternity action on behalf of B.H. was pending in Fayette Circuit. The decision grants rehearing in Hancock Circuit, finding that mother, S.C., did not inform the Hancock court of B.H’s pending paternity proceeding.

Julie Winslow v. Larry D. Fifer
84A04-1109-DR-518
Domestic relations/educational support. Affirms trial court ruling finding the plaintiff/mother in contempt of court, ordering her to pay defendant/father’s attorney fees and computing her proportional share of a daughter’s educational expenses. The court found the trial court did not abuse its discretion in sanctions for the plaintiff’s violation of court orders regarding educational support.

James Mies and Janice Mies v. Steuben County Board of Zoning Appeals
76A03-1112-PL-564
Civil plenary/zoning. Affirms the trial court order reversing the Steuben County Board of Zoning Appeals’ variance and remands the case to the BZA for a new hearing, holding that the board could not issue a post-construction variance for a lakeside deck that included waterfront setback requirements that would make the variance a legal nullity.

Ronald B. Hawkins v. State of Indiana
20A03-1112-CR-579
Criminal. Affirms in part, reverses in part and remands in a split decision trial court convictions and sentences for two counts of Class C felony non-support of a dependent child. The appeals court held that the trial court erred in entering both convictions as Class C felonies and instructed the court to reduce one conviction to a Class D felony and enter the advisory sentence.

Wells Fargo Bank, N.A., f/k/a Wachovia Commercial Mortgage, Inc. v. PNC Bank, N.A., f/k/a National City Bank of Indiana
49A02-1111-PL-1004
Civil plenary. Affirms the trial court’s grant of summary judgment in favor of defendants on plaintiff’s suit alleging breach of contract, promissory estoppel, unjust enrichment, breach of duty to deal in good faith, tortious injury to property interest, slander of title and bad faith. The court held that the trial court did not err when it ruled the claims were barred by res judicata.

Leonard Dewitt v. Unsafe Building Department, City of Greendale, Indiana, Doug Hedrick, et al. (NFP)
15A04-1110-MI-567
Miscellaneous/inverse condemnation. Affirms trial court dismissal of action for inverse condemnation due to untimely filing of appeal of the Unsafe Building Department’s decision.

Stephen R. Harvey, Jr. v. State of Indiana (NFP)
02A04-1201-CR-43
Criminal. Affirms trial court’s application of sentencing as a habitual offender.

Antonio Martell Twiggs v. State of Indiana (NFP)
45A03-1111-CR-538
Criminal. Affirms trial court’s sentence of 10 years with eight years executed for a Class B felony conviction of burglary.

Jack D. Tiller v. Review Board of the Indiana Dept. of Workforce Development, IDWD U.I. Claims Adjudication, and the Town of Walkerton (NFP)
93A02-1110-EX-961
Executive administration/unemployment. Affirms Review Board of the Indiana Department of Workforce Development ruling that plaintiff failed to disclose or falsified facts in applying for unemployment insurance.

Paul Roell v. American Senior Communities, LLP d/b/a East Lake Nursing & Rehabilitation Center, and Harry Scribner (NFP)
20A03-1111-CT-524
Civil Tort. Affirms in a split decision the trial court’s dismissal of plaintiff’s assault claim and denial of defendant’s motion for summary judgment.

Kevin Cortez Brown v. State of Indiana (NFP)
45A03-1107-CR-320
Criminal. Affirms interlocutory appeal of trial court’s denial of motion to suppress his confession in a fatal shooting.

Darryl Shepherd v. State of Indiana (NFP)
49A05-1111-CR-600
Criminal. Affirms trial court conviction of Class B felony possession of a firearm by a serious violent felon.

Richard B. Gonon v. Wright & Lerch, David M. Wright, Stephen J. Lerch, William C. Butler, and Stephen J. Shumlas (NFP)
49A04-1111-CC-576
Civil collection. Affirms trial court’s order granting motion for transfer of venue and denies defendants’ request for appellate attorney fees.

Aaron Isby v. Lee Hoefling, David Gilstrap, James Basinger, Roger Randall Jr., Kevin Ewers, Edwin Buss, and David Sloan (NFP)
49A05-1110-MI-592
Miscellaneous. Affirms trial court ruling dismissing plaintiff’s suit on basis it failed to state a claim on which relief could be granted.

J.R. v. State of Indiana (NFP)
71A03-1203-JV-105
Juvenile. Affirms trial court ruling that placed J.R., a 17-year-old pregnant girl who was on probation, in a residential program to learn parenting skills and provide a safe environment for the child.

Kyle E. Bowers v. State of Indiana (NFP)
73A01-1110-CR-464
Criminal. Affirms trial court convictions of three counts of dealing in a schedule I or II narcotic as Class B felonies, and three counts of reckless homicide as Class C felonies, pursuant to a guilty plea.

Antwuan Brown v. State of Indiana (NFP)
49A02-1108-CR-726
Criminal. Affirms trial court convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct.

Scott D. Wampler, Jr. v. State of Indiana (NFP)
09A02-1201-CR-61
Criminal. Affirms trial court convictions and sentence for Class B felony burglary and criminal confinement.
 
Holly Fuhrman v. State of Indiana (NFP)
65A01-1108-CR-357
Criminal. Affirms trial court sentence for Class C felony forgery.

Jonathan S. Gardiner v. Review Board of the Indiana Dept. of Workforce Development, and Audio Video International Limited (NFP)
93A02-1110-EX-1052
Executive administration/unemployment. Affirms defendant’s denial of unemployment compensation benefits.
 
In the Matter of the Involuntary Commitment of A.B. (NFP)
10A01-1109-MH-483
Mental health/involuntary commitment. Affirms trial court’s continuation of involuntary commitment after a review hearing.
 
In the Matter of the Involuntary Term. of the Parent-Child Rel. of S.W.; H.L. v. The Indiana Dept. of Child Services (NFP)
15A01-1112-JT-623
Juvenile termination of parental rights. Affirms trial court’s termination of plaintiff mother’s termination of parental rights.
 
Dontay Foster v. State of Indiana (NFP)
49A02-1111-CR-1036
Criminal. Affirms trial court convictions of Class D felony criminal confinement, criminal confinement by removal and residential entry; and Class A misdemeanor battery.
 
Ronnie Smith v. State of Indiana (NFP)
15A04-1108-PC-445
Criminal/post-conviction relief. Affirms trial court denial of post-conviction relief
 

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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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