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Opinions Nov. 15, 2010

November 15, 2010
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7th Circuit Court of Appeals
United States of America v. Lorenzo Tavarez
09-3879
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Affirms convictions of two counts of distributing 50 grams or more methamphetamine. Tavarez failed to show that the confidential informant was available only to the government. The District Court therefore did not err by refusing the missing witness instruction. Concludes that the jury could reasonably reach its guilty verdict on the circumstantial evidence presented here.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Paternity of C.H.; K.L. v. M.H.
41A01-1003-JP-145
Juvenile. Affirms parenting time schedule regarding father M.H.’s time and the appointment of a parenting coordinator. The evidence showed that C.H. had bonded well with both parents and needs time with both of them, and the trial court’s assessment of M.H.’s time is not an error. The trial court didn’t error in appointing the parent coordinator given the ongoing communication difficulties the parents have had regarding the parenting time schedule.

Mary Booher, et al. v. Sheeram, LLC

20A03-1005-CT-338
Civil tort. Affirms summary judgment in favor of Sheeram LLC on the Boohers’ negligence complaint. Having failed to file a formal request with the trial court for an extension of time, the trial court was without discretion to accept the technically late-filed documents.

Tony A. Holmes v. Celadon Trucking of Indiana, et al.
49A02-1007-PL-714
Civil plenary. Reverses grant of Celadon Trucking’s motion for judgment on the pleadings. Holmes began the instant suit against Celadon within the statutorily allotted time. Remands for further proceedings.

City of Jeffersonville v. Hallmark at Jeffersonville

10A01-1001-PL-22
Civil plenary. Affirms judgment in favor of Hallmark of Jeffersonville on its complaint for refund of sewer tap fees. Affirms the court’s findings and conclusion as to the proper total amount of $15,000 that Hallmark should have been assessed as a sewer tap or connection fee for the three buildings. Concludes the voluntary payment doctrine is inapplicable in this case.

In the Matter of the Unsupervised Estate of Dwight M. Wilson v. Phyllis Steward
70A01-1003-EU-104
Estate unsupervised. Affirms Steward’s claim against the estate for unpaid child support is not barred by Indiana Code Section 34-11-2-12. The evidence was sufficient to overcome the presumption of satisfaction of the judgment.

Robert L. Comer v. State of Indiana
46A05-0912-CR-718
Criminal. Affirms revocation of probation and order Comer serve the balance of his sentences. The appellate court doesn’t have jurisdiction to entertain Comer’s challenge, if any, to the sentence originally imposed.

Donald G. Kistler v. State of Indiana

35A04-1004-PC-245
Post conviction. Affirms denial of petition for post-conviction relief. Kistler did not demonstrate that he wouldn’t have pled guilty even if properly advised and his claim of ineffective assistance fails.

Wayne & Susan Vanderwier v. Joshua & Stephannie Baker

45A03-1003-CC-129
Civil collection. Affirms judgment in favor of the Bakers on their claims for fraud arising from their purchase of the Vanderwiers’ home. This evidence supports the trial court’s judgment that the Bakers established, by a preponderance of the evidence, that the Vanderwiers made fraudulent misrepresentations on the Sales Disclosure Form and that the Bakers justifiably relied on the Vanderwiers’ fraudulent disclosure of only “minor garage seepage.”

Robert Guy v. Commissioner, Indiana BMV
30A01-1001-PL-186
Civil plenary. Vacates trial court’s denial of Guy’s verified petition for order to renew his Indiana operator’s license. Because Guy only served the commissioner of the BMV and not the attorney general, as required by both the Indiana Administrative Orders and Procedures Act and Indiana Trial Rule 4.6(A)(3), the trial court did not have personal jurisdiction.

Charlotte Manns v. Amos J. Richie, et al.

37A03-1006-CT-294
Civil tort. Affirms summary judgment for Richie on Manns’ complaint for unjust enrichment. As a matter of law, Manns did not confer any benefit upon Richie.

Clarence Seeley, Jr. v. State of Indiana
21A05-1003-CR-167
Criminal. Affirms refusal to tender Seeley’s jury instruction. The evidence unequivocally demonstrated that Seeley was not “briefly” within 1,000 feet of school property when he illegally sold a controlled substance from his residence. As such, there was no evidence in the record to support the giving of the proffered jury instruction on the statutory defense. The state presented sufficient evidence that St. Gabriel’s School was “school property” for purposes of the statutory enhancement. Reverses habitual offender finding and remands for re-sentencing.

Dewayne E. Rhye v. State of Indiana (NFP)

82A05-1004-CR-215
Criminal. Affirms sentence for Class D felony conspiracy to commit theft, Class D felony criminal recklessness resulting in serious bodily injury, and Class B misdemeanor criminal recklessness.

Raymond Lee v. State of Indiana (NFP)

49A04-1001-CR-47
Criminal. Affirms habitual offender adjudication and sentence for Class C felony burglary and Class D felony theft.

Stephen Quick, II v. State of Indiana (NFP)
23A05-1005-CR-292
Criminal. Affirms denial of motion for change of judge and 125-year sentence for three counts of Class A felony child molesting.

Jose L. Macias v. State of Indiana (NFP)

20A03-1004-CR-237
Criminal. Affirms conviction of Class A felony dealing in cocaine.

Term. of Parent-Child Rel. of J.A.; S.J.M. and J.A. v. I.D.C.S. (NFP)

20A03-1004-JT-228
Juvenile. Affirms involuntary termination of parental rights.

In Re: The Guardianship of Patrick Hill; Kristin S. Hill v. Michael W. Hill (NFP)
49A04-0906-CV-339
Civil. Affirms probate court’s order appointing Michael Hill as guardian over son Patrick.

In the Matter of I.D.; T.D. v. IDCS (NFP)

49A05-1003-JC-198
Juvenile. Affirms finding that I.D. is a child in need of services.

Sharla Hackney and Raymond Hackney, Sr. v. Stacy G. Toole (NFP)

41A01-1003-CC-121
Civil collection. Affirms summary judgment for Toole in Sharla Hackney’s suit for negligence.

Ronald Fisher v. State of Indiana (NFP)
49A02-1004-CR-411
Criminal. Affirms conviction of Class D felony theft.

Gerardo Delao v. State of Indiana (NFP)
15A01-1004-CR-228
Criminal. Affirms sentence imposed following admission to violating probation.

James R. Stephens v. Brenda K. Stephens (NFP)

33A05-1006-DR-434
Domestic relation. Dismisses James Stephens’ appeal of the order regarding his child support arrearage because his appeal is untimely.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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