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Opinions Sept. 9, 2010

September 9, 2010
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Indiana Supreme Court
Matter of the Estate of Harry L. Rickert
18S04-1002-CV-118
Civil. Reverses judgment in favor of Taylor, who was Rickert’s power of attorney, that she receive the money from accounts in which she was a joint holder. The presumption is that Taylor’s use of her power of attorney to benefit herself made those accounts invalid, and she failed to overcome that presumption to allow her to inherit the money. Remands with direction to order restoration to the estate of bank accounts owned of record by Rickert and Taylor that were created through use of Taylor’s power of attorney from Rickert and lacking any support documentation indicating participation by Rickert.

Indiana Court of Appeals
Mark Kinsel v. Robert and Dolores Schoen
25A05-0910-CV-615
Civil. Affirms denial of Kinsel’s motion to correct error following a judgment in favor of the Schoens for damages and injunctive relief against Kinsel for negligence, nuisance, and trespass. The trial court correctly determined the common enemy doctrine doesn’t apply and Kinsel may be held liable for his leaking pond.

Robert C. Bergstrom, Jr. v. State of Indiana
92A05-1003-IF-170
Infraction. Dismisses appeal because Bergstrom failed to timely file his notice of appeal within 30 days from the date his motion to correct error was deemed denied. Bergstrom did not file his notice of appeal until March 4, 2010, which, while within 30 days from the date the trial court issued an order denying Bergstrom’s motion to correct error, was not within 30 days from the date his motion was deemed denied under Indiana Trial Rule 53.3(A).

Wolverine Mutual Insurance Company v. Jeremy Oliver
20A03-1003-SC-162
Small claim. Affirms judgment in favor of Oliver in an action against him arising from an uninsured motor vehicle accident. The relaxed rules in the small-claims setting in Indiana, coupled with the provision in S.C.R. 4(A) that places the statute of limitations at issue without the need for the defendant to raise it, allows a small-claims court to decide a case based upon the statute of limitations where the defendant failed to raise or mention it at trial, but the matter was discussed during trial.

Thomas C. Temperly v. State of Indiana
49A02-1001-CR-52
Criminal. Remands with instructions to vacate the Class A misdemeanor conviction and sentence for operating a vehicle while intoxicated and enter judgment and an appropriate sentence for Class A misdemeanor operating with a blood alcohol content of 0.15 or more. There was insufficient evidence Temperly operated his vehicle while intoxicated in a manner that endangered a person. Finds the consensual chemical test was reasonable under the state and federal constitutions. The BAC evidence was validly obtained pursuant to Indiana Code Section 9-30-7-3, complied with the requirements of I.C. Section 9-30-6-2, and was admissible in Temperly’s prosecution under Chapter 9-30-5

Steve Brown v. State of Indiana (NFP)
49A02-1002-PC-227
Post conviction. Affirms denial of petition for post-conviction relief.

Wilfred V. Rhea, III v. State of Indiana (NFP)
82A01-0910-CR-485
Criminal. Vacates conviction of operating a vehicle with a BAC of at least 0.08 but less than 0.15 as a Class C misdemeanor. Remands for further proceedings.

M.S., Alleged to be C.H.I.N.S.; J.F. v. I.D.C.S. (NFP)
42A01-1001-JC-32
Juvenile. Affirms adjudication of M.S. as a child in need of services.

Ricardo A. Telfer v. State of Indiana (NFP)
20A05-1001-CR-106
Criminal. Affirms conviction of and sentence for Class B felony dealing in cocaine.

David D. Lewis v. State of Indiana (NFP)
49A02-1002-CR-139
Criminal. Affirms the search warrant issued justified the search that turned up the drugs and affirms convictions of Class A felony dealing in cocaine and Class A misdemeanor possession of marijuana. Reverses conviction of Class C felony possession of cocaine and a firearm and remands to the trial court with instructions to vacate it and the sentence.

Fred Mott v. Ed Buss, et al. (NFP)

46A04-1003-SC-170
Small claim. Affirms dismissal of Mott’s small-claims action.

State of Indiana v. Charles Boyle (NFP)
49A05-0911-PC-627
Post conviction. Reverses order granting Boyle’s petition to modify his conviction of operating a motor vehicle while a habitual traffic violator as a Class D felony to a Class A misdemeanor.

Courtney E. Terhune v. State of Indiana (NFP)
49A02-1003-CR-228
Criminal. Affirms convictions of Class B felony burglary and Class D felony theft.

Kevin D. Duncan v. State of Indiana (NFP)
49A02-1003-CR-244
Criminal. Affirms conviction of Class B felony burglary.

Indiana Tax Court had posted no opinions at IL deadline.
 

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  1. Hello currently just withdrew from laporte county drug court and now I have lost the woman I love which also was in drugcourt and was put in jail without a,lawyer presentfor her own safety according to the judge and they told her she could have a hearing in two weeks and now going on 30days and still in jail no court date and her public defender talks like he,s bout to just sell her up the river.

  2. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  3. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  4. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  5. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

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