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Opinions Sept. 18, 2013

September 18, 2013
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Indiana Supreme Court

The following opinion was issued after IL deadline Tuesday.


Kevin M. Clark v. State of Indiana
20S05-1301-CR-10
Criminal. Reverses conviction and 45-year sentence for Class A felony attempted dealing in methamphetamine, holding that police violated the Fourth Amendment protections of Kevin Clark when a late-night call regarding someone allegedly living improperly at a 24-hour self-storage unit instead became a “fishing expedition” for narcotics based on an officer’s hunch. Officers saw nothing illegal or appearing to constitute narcotics use, and evidence gathered from resulting search must be suppressed as fruit of the poison tree, a 4-1 majority ruled. Justice Mark Massa dissented, holding that when Clark dropped a bag as police approached, it provided reasonable suspicion, as did Clark’s subsequent admission that the bag contained marijuana.

Indiana Court of Appeals

Mario A. Allen v. State of Indiana
46A04-1203-CR-143
Criminal. Affirms conviction for attempted robbery, a Class B felony, attempted robbery, a Class B felony, and adjudication as a habitual offender. Finds the trial court did not abuse its discretion by admitting into evidence Allen’s arrest report and a co-defendant’s handwritten statement to police. Also rules the trial court properly excluded Allen’s proffered exhibit of an undated taxi cab receipt. Concludes the evidence was sufficient to sustain Allen’s conviction and that Allen abandoned his request for an early trial.

Anonymous, M.D. and Life Care Centers of America, Inc., d/b/a Lane House v. Evelyn Hendricks
79A04-1304-CT-185        
Civil tort. Reverses and remands the denial of Lane House’s motion to stay the proceedings and compel arbitration. Rules although Hendricks did not sign the arbitration agreement herself, she expressly authorized her health care representative to sign and she is now bound by that signing. Also finds that language in the agreement clearly indicates while the National Arbitration Forum is the preferred arbitrator, another arbitration service or method can be used.  

Lifeline Youth & Family Services v. Installed Building Products, Inc. d/b/a Momper Insulation
02A03-1211-CT-502
Civil tort. Affirms trial court denial of motion to correct error over a jury’s award of damages resulting from a fire. Lifeline sought an order to increase the jury’s award of damages from 55 percent of the loss to 100 percent, but the panel ruled that evidence Lifeline relied on to make its argument was not properly before the court because no transcript had been provided.

Brenda Hall v. Dallman Contractors, LLC, Shook, LLC and AT&T Services, Inc.
49A02-1210-CT-806
Civil tort. Reverses and remands a trial court grant of summary judgment in favor of AT&T Services Inc. The court found there are issues of material fact concerning whether AT&T Services was Hall’s employer or a joint employer, and that the company has not established that Hall’s negligence claim against it was barred by the exclusive remedy provision of the Worker’s Compensation Act.

Anthony Michael Davis v. State of Indiana (NFP)
45A05-1302-CR-57
Criminal. Affirms six-year sentence for conviction of Class C felony operating a vehicle after a lifetime suspension.

David Barbee v. State of Indiana (NFP)
49A04-0907-CR-370
Criminal. Affirms denial of motion to correct error challenging his convictions of murder and Class C felony carrying a handgun without a license.

Billye D. Gaulden v. State of Indiana (NFP)
02A04-1212-CR-651
Criminal. Affirms conviction and 50-year sentence for conviction of Class B felony robbery and two counts of Class D felony resisting law enforcement.

Carlos Lamonte Minor v. State of Indiana (NFP)
45A05-1302-CR-85
Criminal. Affirms 12-year sentence for conviction of Class B felony voluntary manslaughter.

Jennifer Barber v. State of Indiana (NFP)
49A04-1208-CR-395
Criminal. Affirms convictions of Class A misdemeanor operating a vehicle while intoxicated and Class C misdemeanor failure to stop and remain at the scene of an accident.

Sanders Johnson v. State of Indiana (NFP)
49A02-1211-CR-904
Criminal. Affirms conviction of murder and being a habitual offender.

Ryan Schonabaum v. State of Indiana (NFP)
82A04-1302-CR-44
Criminal. Affirms 50-year sentence for conviction of two counts of Class A felony child molesting.

Certain Properties Being Sold for Delinquent Taxes; Tax Sale Certificate #3910192 Parcel #39-0-17-114-024.000-007; Norman Eggers v. MLP Services, LLP and Jefferson County, IN. Auditor, et al. (NFP)
39A01-1211-MI-527
Miscellaneous. Affirms issuance of a tax deed to MLP Services and remands to the trial court to determine damages for an appeal brought in bad faith.

The Indiana Supreme Court and Tax Court issued no opinions prior to IL deadline. The 7th Circuit Court of Appeals issued no Indiana decisions prior to IL deadline.

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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