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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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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. 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)

  4. "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.

  5. 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.

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