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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. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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