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Opinions Nov. 24, 2010

November 24, 2010
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Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Samuel Neal, Delores Neal and Hometown Transmissions, Inc. v. William J. Cure, et al.
49A04-0908-CV-468
Civil. Affirms summary judgment for the Cures on the Neals’ claims of environmental contamination under the Environmental Legal Act, nuisance, trespass, and negligence. The designated evidence does not, in light of the Cures' lack of involvement in or knowledge of Masterwear’s actions, give rise to a genuine issue of material fact regarding the Cures' liability for nuisance, trespass, negligence, or an ELA violation.

Estate of Doris P. Jackson, John Cox, et al. v. George R. Jackson, II, et al.
77A04-1005-ES-331
Estate. Affirms order that objectors to a sale of property, who are beneficiaries of the land, post a $100,000 cash bond. Concludes the trial court didn’t abuse its discretion by ordering a cash bond simply because it might pose a hardship and be more expensive than another form of surety.

Allied Property and Casualty Ins. v. Linda Good and Randall Good
85A04-0905-CV-240
Civil. Reverses denial of Allied’s motion for summary judgment because misrepresentations on the application for insurance made Linda Good’s policy void ab initio. Because the uncontradicted evidence indicates Linda misrepresented the Goods’ cancellation history on the application for homeowners insurance and Allied would not have issued the policy if it had known the truth about their history, the trial court erred by denying Allied’s motion for summary judgment.

Bradley Peaver v. State of Indiana
02A03-1004-PC-255
Post conviction. Affirms denial of petition for post-conviction relief. Peaver can’t prevail on his ineffective assistance of trial counsel claim. He waived the issue on appeal as to whether the trial court abused its discretion when it admitted testimony under the Protected Person Statute and there is sufficient evidence to support his conviction of Class C felony child exploitation.

St. Joseph Hospital v. Richard Cain
02A05-1006-PL-386
Civil plenary. Reverses grant of Fort Wayne Metropolitan Human Rights Commission’s motion to dismiss St. Joseph’s petition for judicial review of the HRC’s decision for lack of subject matter jurisdiction. Because the trial court had subject matter jurisdiction over St. Joseph’s unverified petition for judicial review, it improperly granted the HRC’s motion to dismiss and declined to rule on the other outstanding motions, namely St. Joseph’s motion to amend. The alleged lack of a quorum, however, was not properly raised in St. Joseph’s motion to dismiss. Remands for consideration of St. Joseph’s motion to amend.

City of Indianapolis, Metropolitan Development Commission and Indiana Sports Corporation v. Clarke Kahlo and Howard Elder, et al.
49A05-0912-CV-722
Civil. Affirms the trial court’s grant of summary judgment on the issue of whether Kahlo and Elder have standing, although on different reasoning, and reverses the denial of summary judgment on the issues of the nature of the 1985 Agreement, the applicability of Indiana Code Section 36-1-11-3, and whether the execution of the Amendment triggered the buyout provision in the restrictive covenant of the 1985 Agreement. Remands with instructions for the trial court to enter summary judgment for the City of Indianapolis and other defendants accordingly.

John P. Donovan v. State of Indiana
71A05-1003-CR-276
Criminal. Affirms conviction of Class D felony auto theft because there is sufficient evidence to support the conviction.

J.B. & J.G. v. State of Indiana (NFP)
18A02-1006-JV-679
Juvenile. Affirms adjudications for committing what would be child molesting as Class C felonies if committed by an adult.

Christopher Brinker v. State of Indiana (NFP)
33A04-1007-CR-433
Criminal. Affirms revocation of probation.

M.N. v. A.N. (NFP)
49A02-1002-DR-152
Domestic relation. Affirms order dissolving the parties’ marriage.

Tyrone A. Saunders v. State of Indiana (NFP)
35A05-0910-PC-607
Post conviction. Affirms denial of petition for post-conviction relief.

Latrina Strader v. State of Indiana (NFP)
49A05-1004-CR-235
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Roger Sloan v. State of Indiana (NFP)
49A02-1002-CR-195
Criminal. Affirms conviction of and sentence for Class B felony battery and being a habitual offender.

J.D.S. v. Review Board (NFP)
93A02-1006-EX-698
Civil. Affirms decision of the Review Board in favor M.H. on claims for unemployment benefits.

Term. of Parent-Child Rel. of J.J.; V.B. and K.J. v. I.D.C.S. (NFP)
20A04-1004-JT-226
Juvenile. Affirms termination of parent-child relationship.

MacLellan Integrated Services, Inc.v. Domineck P. Marano, II (NFP)

26A01-1006-CT-296
Civil tort. Affirms denial of MacLellan’s motion for summary judgment in Marano’s negligence action against the company.

Robert Perry v. State of Indiana (NFP)
71A03-1004-PC-266
Post conviction. Affirms denial of petition for post-conviction relief.

Term. of Parent-Child Rel. of M.Y., et al.; R.W.-S. v. I.D.C.S. (NFP)
45A04-1001-JT-217
Juvenile. Affirms involuntary termination of parental rights.

Tonya Peete v. State of Indiana (NFP)
49A05-1004-CR-220
Criminal. Affirms convictions of two counts of Class A misdemeanor invasion of privacy.

Indiana Tax Court had posted no opinions at 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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