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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. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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