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Opinions March 30, 2011

March 30, 2011
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Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Tywan D. Griffin v. State of Indiana
49A02-1007-CR-774
Criminal. Affirms conviction of Class A misdemeanor possession of marijuana, ruling the state proved beyond a reasonable doubt that Griffin committed the charge.

George F. Evans, Jr. v. Peggy A. Evans
12A02-1008-DR-895
Domestic relation. Affirms trial court’s grant of motion to compel payment in favor of James C. Michael, personal representative for the estate of Peggy A. Evans, pursuant to an amended dissolution decree. States that Peggy’s counsel advised George’s counsel that his pension plan administrator had rejected the qualified domestic relations order (QRDO) from the court, as the QRDO must state that benefits to Peggy would terminate upon her death. Peggy died before she had received a single payment from the QRDO. Michael then filed a motion to compel payment as outlined in the QRDO, or an alternative payment. Judge Riley dissents in part.

Trust of William H. Riddle; Linda Goins v. Patricia Riddle
41A04-1007-TR-447
Trust. Affirms trial court’s ruling that Goins had breached her duties as trustee for William H. Riddle by paying for expenses not allowable under specific provisions of the trust. With respect to the cross-appeal, remands to trial court to determine reasonable trial and appellate attorney fees. Statute allows that if a beneficiary successfully maintains an action to compel a trustee to perform his duties, the beneficiary is entitled to reasonable attorney fees, which includes appellate attorney fees.

Estate of Nathaniel Kappel v. Margaret Kappel
32A01-1008-ES-462
Estate, supervised. Affirms Hendricks Superior Court’s order requiring the estate of Nathaniel Kappel to pay a survivor’s allowance to his widow, Margaret Kappel, stating Margaret’s demand was not untimely, as a surviving spouse is not required to file a demand for payment, and is therefore not subject to the nine-month time period prescribed by Indiana Code Section 29-1-14-1(d).

Sheila K. Granger v. State of Indiana
10A01-1002-CR-39
Criminal. Affirms convictions of five counts of child molesting as Class A felonies, three counts of child molesting as Class C felonies and one count of Class D felony child solicitation. While some admitted evidence was not relevant to the case, other items collected from Granger’s house corroborated the testimony of witnesses, and provided sufficient evidence for a jury to base credibility findings. Finds the admission of the irrelevant evidence to be harmless. Reduces her 60-year executed sentence, citing Granger’s lack of a criminal record, her role in the community, and relative lack of substantial physical harm to the victims.

Jerry and Mary Kwolek v. Rodney and Jennifer Swickard
64A05-1006-PL-372
Civil plenary. Reverses trial court’s judgment in favor of Rodney and Jennifer Swickard, stating the trial court erred when it concluded the Swickards were entitled to park on an “ingress-egress” easement in front of Jerry and Mary Kwolek’s garage. An agreement between the couples does not state the Swickards were entitled to use the easement beyond ingress and egress. The Kwoleks later made improvements to the easement, which the trial court had ordered removed. But the appeals court dismissed that order, stating the improvements did not interfere with the Swickards’ ability to access their own property.

Leslie A. McCormick v. State of Indiana (NFP)
45A05-1007-CR-431
Criminal. Affirms conviction of Class D felony battery.

D.J. v. Review Board (NFP)
93A02-1006-EX-683
Civil. Dismisses appeal of decision in favor of the city on D.J.’s claim for unemployment insurance benefits, citing noncompliance with the Indiana Rules of Appellate Procedure.

Samuel D. Manley v. State of Indiana (NFP)
82A01-1008-CR-372
Criminal. Affirms sentence for Class B felony resisting law enforcement and Class C felony causing death when operating a motor vehicle with a schedule I or II controlled substance in the blood.

James Whitaker, et al. v. Sandra Maskell, et al. (NFP)
60A04-1008-PL-463
Civil plenary. Affirms trial court’s award of attorney fees to Maskell and other defendants.

Gregory Proffitt v. State of Indiana (NFP)
24A01-1006-CR-357
Criminal. Affirms trial court’s decision to deny motions for discharge pursuant to Criminal Rule 4(B).

James A. Love, et al. v. Meyer & Najem Construction, LLC (NFP)
32A01-1006-CT-317
Civil tort. Reverses trial court’s grant of partial summary judgment in favor of Meyer & Najem Construction in a suit filed after James was injured.

Ro.C. v. Ry.C. (NFP)
32A01-1009-DR-435
Domestic relation. Affirms trial court’s order denying mother’s request to relocate to New York with the parties’ children. Dismisses mother’s appeal regarding her motion to modify child support.

Indiana Tax Court had posted no opinions at 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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