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Opinions June 9, 2014

July 9, 2014
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Indiana Supreme Court
Veolia Water Indianapolis, LLC, City of Indianapolis, Department of Waterworks, and City of Indianapolis v. National Trust Insurance Company and FCCI Insurance Company a/s/o Ultra Steak, Inc., et al.
49S04-1301-PL-8
Civil plenary. Grants petition for rehearing on the issue of whether the insurers are third-party beneficiaries to the management agreement between Veolia and the city of Indianapolis. As to all issues not expressly addressed in the principal opinion, the Court of Appeals is summarily affirmed.

Indiana Court of Appeals
George Moss v. State of Indiana
49A02-1311-CR-961
Criminal. Affirms convictions of burglary, two counts of robbery, criminal confinement and carrying a handgun without a license. The trial court did not err in refusing to reopen the case to admit a transcript of a statement Moss intended to use to prove his duress defense. Affirms 40-year sentence.

John Lane-El v. Michael Spears, in his official capacity of Chief of Police, and the Indianapolis Police Department
49A05-1306-PL-289
Civil plenary. Affirms in part and reverses in part summary judgment in favor of the defendants on Lane-El’s request for public records with the IPD. The trial court erred in determining that the Indiana Tort Claims Act barred suit against Spears, but he is not a proper party to the suit. It also erred in determining the IPD was not a suable entity under the Indiana Access to Public Records Act and therefore not a proper party for the suit. The trial court did not commit clear error in denying Lane-El’s motion for in camera review.

David J. Markey v. Estate of Frances S. Markey, Deceased; Stephen L. Routson, Personal Representative under the Last Will and Testament of Frances S. Markey, Deceased; Stephen L. Routson, et al.
89A05-1402-ES-62
Estate.  Affirms summary judgment in favor of the estate regarding David Markey’s claim that Frances Markey had violated a contract with his father to make mutual wills. Finds that a three-month period of limitation applies to Markey’s action and that there is no genuine issue of material fact.

Salvino Verta, et al. v. Salvino Pucci
45A03-1309-PL-387
Civil plenary. Reverses the trial court’s order denying Verta’s combined motion to reconsider/motion to correct error/motion for relief from judgment, in which he challenged the court order that required him to pay $11,400 in damages to Pucci. Remands for the trial court for a hearing to further determine what, if any, monetary damages should be awarded given the chronological case summary’s lack of an entry to indicate that the clerk had sent notice to Verta of a January 2013 order.

William M. Belcher v. Catherine Kroczek, D.D.S.
45A03-1311-CT-436
Civil tort. Reverses denial of Belcher’s motion to transfer venue of Kroczek’s complaint from Lake County to Marion County, where he lives. Kroczek’s alleged injury to her reputation, privacy and identity are not transferrable, so they are not considered chattels under Indiana Trial Rule 75(A)(2).

Darwin Wilson v. State of Indiana (NFP)
49A02-1311-CR-981
Criminal. Affirms convictions and sentence for Class A felony dealing in cocaine and Class A misdemeanors possession of marijuana and resisting law enforcement.

Marion County Health Department v. Edward Hill (NFP)
93A02-1402-EX-69
Agency action. Affirms the decision by the full Worker’s Compensation Board to award Hill employee compensation and benefits related to his unauthorized medical care.

Jerry D. White v. State of Indiana (NFP)
20A03-1306-PC-238
Post conviction. On rehearing, discusses ineffective assistance of counsel claim and affirms previous decision in all respects.

Louis Timothy Whyde v. Black Diamond Construction, LLC (NFP)
02A04-1402-CT-64
Civil tort. Affirms summary judgment in favor of Black Diamond Construction on Whyde’s lawsuit alleging negligence.

Keith R. Chaney v. Laura C. Chaney (NFP)
84A04-1312-DR-648
Domestic relation. Reverses denial of Keith Chaney’s motion for relief from judgment.

Richard Burrington v. State of Indiana (NFP)
20A05-1401-CR-40
Criminal. Dismisses the pro se appeal of the revocation of probation.

Derrek T. Berryhill v. State of Indiana (NFP)
32A04-1310-CR-527
Criminal. Affirms convictions and sentence for Class A misdemeanor possession of marijuana and Class B felony aiding, inducing or causing the commission of a robbery.

Victor Glenn v. State of Indiana (NFP)
49A02-1309-PC-774
Post conviction. Affirms denial of petition for post-conviction relief.

The Indiana Tax Court issued no opinions by IL deadline. The 7th Circuit Court of Appeals issued no Indiana decisions by IL deadline.
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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