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Opinions June 29, 2010

June 29, 2010
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The following opinion was posted after IL deadline Monday.
Indiana Supreme Court
Sylvia B. Piven, et al. v. ITT Corporation, Inc., et al.
94S00-0911-CQ-508
Certified question. The District Court of New York correctly applied instructive Delaware caselaw to determine the demand futility standards that Indiana would apply. Holds that the Indiana Business Corporation Law employs the same standard for showing - lack of disinterestedness - both as to the composition of special board committees under Indiana Code Section 23-1-32-4 and to the requirement that a shareholder must make a demand that the corporation‘s board act unless the demand would be futile.

Today’s opinions
Indiana Supreme Court
Andre Peoples v. State of Indiana
79S02-0912-CR-549
Criminal. Affirms finding Peoples is a habitual offender. People’s instant dealing offense is to be counted in calculating the total number of unrelated felony convictions an individual has for drug dealing. While a single felony drug conviction is not enough to qualify a person for habitual offender status, a second such conviction is, be it a prior conviction or the instant offense.

Myron Owens v. State of Indiana
49S02-0910-CR-429
Criminal. Affirms Owens’ convictions of and sentence for dealing cocaine and obstruction of justice, and that he has accumulated two unrelated convictions to be sentenced under the habitual offender statute. Holds conspiracy to deal conviction is not equivalent to a dealing conviction for purposes of the Indiana habitual offender statute.

Indiana Court of Appeals
Randy Edward Johnson v. State of Indiana
53A01-1002-CR-38
Criminal. Affirms conviction of Class A felony child molesting. No actual conflict existed that required the defense attorney to make a choice advancing his own interests to the detriment of his client’s interests, but only a potential conflict occurred between Johnson and his counsel. Finds that the trial court’s action of formally noting Johnson’s displeasure on the chronological case history and forwarding his request to the Monroe County Public Defender Officer reasonable. The State did not commit prosecutorial misconduct during closing arguments.

Paternity of H.S.; P.S. v. R.F.
91A02-1003-JP-334
Juvenile. Affirms summary judgment in favor of R.F. in P.S. and H.S.’s paternity action against him and the denial of their request for genetic testing of R.F. Any objections to Judge Overbeck’s presiding over the adoption were waivable and H.S. and P.S. have done just that due to mother P.S.’s failure to raise the issue in 1975. Concludes that a mere desire to know the identity of one’s biological father, whatever the reason, is insufficient once establishing legal paternity is not possible. The trial court correctly denied H.S and P.S.’s motion to compel genetic testing on R.F.

Paternity of K.D.; T.N. v. B.D.
49A02-0907-JV-693
Juvenile. Reverses juvenile court order prohibiting mother T.N. from discussing legal proceedings with the media following the establishment of paternity of her child K.D. The order is an invalid prior restraint on mother’s free speech rights, and the confidentiality provisions in Indiana Code and Administrative Rule 9 don’t prohibit her from talking to others about the case based on her knowledge obtained independent of the juvenile proceedings. Remands with instructions.

Lorenzo A. Taylor v. State of Indiana

29A02-0912-CR-1212
Criminal. Reverses conviction of conspiracy to commit dealing in cocaine as a Class A felony and remands with instructions to enter as a Class B felony and resentence accordingly. Taylor’s convictions and sentences for both dealing in cocaine and conspiracy to commit dealing in cocaine don’t violate the prohibition against double jeopardy.

City of Indianapolis v. Olive Duffitt

49A04-0911-CV-661
Civil. Reverses denial of City of Indianapolis’ motion for summary judgment in Duffitt’s tort action for damages arising out of injuries sustained from falling on a sidewalk. Given the budgetary considerations and cost-benefit analyses that produced the city’s prioritization scheme, Indianapolis’ designated evidence demonstrates that its decisions are discretionary under the “planning-operational test” as it is interpreted in Pairsh and Rutherford. In cases where certain policy decisions have been delegated to individual employees, discretionary immunity may be established through affidavits. Remands with instructions to enter summary judgment in favor of the city.

Michael Harrison v. Veolia Water Indianapolis, LLC
49A04-0912-CV-722
Civil. Reverses summary judgment in favor of Veolia Water Indianapolis on the basis that Harrison failed to provide Veolia with notice of his injury pursuant to the Indiana Tort Claims Act. Concludes after considering the evident purposes of ITCA and the development of the common law predating Indiana Tort Claims Act’s adoption that Veolia is not a governmental entity or a political subdivision of the State entitled to ITCA’s protections. Remands for further proceedings

Adam Gibson v. State of Indiana (NFP)
47A01-1001-CR-28
Criminal. Affirms sentence following guilty plea to two counts of Class B felony burglary.

Kathy Hardesty v. Larry Vickery (NFP)

08A04-1001-PO-117
Order of protection. Affirms order of protection against Hardesty.

Christopher Deardorff v. State of Indiana (NFP)
02A03-0911-CR-550
Criminal. Affirms conviction of Class D felony theft.

James Daugherty v. State of Indiana (NFP)
21A01-1001-CR-55
Criminal. Affirms sentence following guilty plea to public intoxication as a Class B misdemeanor.

Term. of Parent-Child Rel. of L.C. & G.C.; G.C. v. Marion County Dept. of Child Services and Child Advocates (NFP)

49A02-0912-JV-1253
Juvenile. Affirms termination of parental rights.

Saundra and Clyde Smithson v. Howard Regional Health System (NFP)

34A02-1001-CT-73
Civil. Reverses and remands summary judgment in favor of Howard Regional Health System that it was immune from liability under the Indiana Tort Claims Act.

S.C. v. State of Indiana (NFP)

49A02-0912-JV-1186
Juvenile. Affirms adjudication for false informing, a Class A misdemeanor if committed by an adult.

Sheldon Fogleman v. State of Indiana (NFP)
30A01-1002-CR-62
Criminal. Affirms sentence following guilty plea to Class D felony theft.

Billy Dix v. Indiana State Department of Health, et al. (NFP)
03A01-1001-MI-13
Miscellaneous. Affirms order on judicial review affirming the Indiana State Department of Health’s administrative determination that Dix’s involuntary transfer was in compliance with Indiana’s regulations.

Spencer Jones v. State of Indiana (NFP)
49A05-0912-CR-719
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Donald Fisher v. Tower Bank and Trust Co. (NFP)
02A05-1002-MF-97
Mortgage foreclosure. Affirms summary judgment in favor of Tower Bank upon the court’s determination that the bank’s lien on property owned by Stauffer Development was first in priority.

L.M. v. State of Indiana (NFP)
49A02-1001-JV-15
Juvenile. Affirms adjudication for Class B felony child molesting if committed by an adult.

Cynthia Sericati v. State of Indiana (NFP)
49A04-0911-CR-673
Criminal. Affirms conviction of Class D felony neglect of a dependent.

Alvino Pizano v. State of Indiana (NFP)
45A04-1002-CR-128
Criminal. Affirms denial of motion to remove defendant from Indiana’s Sex Offender Registry Act’s Residency Restriction Portion.

Kevin Holloway v. State of Indiana (NFP)
49A05-0911-CR-649
Criminal. Affirms conviction of Class C felony child solicitation.

Indiana Tax Court had posted no opinions at IL deadline.

 

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. 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.

  5. 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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