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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. The $320,000 is the amount the school spent in litigating two lawsuits: One to release the report involving John Trimble (as noted in the story above) and one defending the discrimination lawsuit. The story above does not mention the amount spent to defend the discrimination suit, that's why the numbers don't match. Thanks for reading.

  2. $160k? Yesterday the figure was $320k. Which is it Indiana Lawyer. And even more interesting, which well connected law firm got the (I am guessing) $320k, six time was the fired chancellor received. LOL. (From yesterday's story, which I guess we were expected to forget overnight ... "According to records obtained by the Journal & Courier, Purdue spent $161,812, beginning in July 2012, in a state open records lawsuit and $168,312, beginning in April 2013, for defense in a federal lawsuit. Much of those fees were spent battling court orders to release an independent investigation by attorney John Trimble that found Purdue could have handled the forced retirement better")

  3. The numbers are harsh; 66 - 24 in the House, 40 - 10 in the Senate. And it is an idea pushed by the Democrats. Dead end? Ummm not necessarily. Just need to go big rather than go home. Nuclear option. Give it to the federal courts, the federal courts will ram this down our throats. Like that other invented right of the modern age, feticide. Rights too precious to be held up by 2000 years of civilization hang in the balance. Onward!

  4. I'm currently seeing someone who has a charge of child pornography possession, he didn't know he had it because it was attached to a music video file he downloaded when he was 19/20 yrs old and fought it for years until he couldn't handle it and plead guilty of possession. He's been convicted in Illinois and now lives in Indiana. Wouldn't it be better to give them a chance to prove to the community and their families that they pose no threat? He's so young and now because he was being a kid and downloaded music at a younger age, he has to pay for it the rest of his life? It's unfair, he can't live a normal life, and has to live in fear of what people can say and do to him because of something that happened 10 years ago? No one deserves that, and no one deserves to be labeled for one mistake, he got labeled even though there was no intent to obtain and use the said content. It makes me so sad to see someone I love go through this and it makes me holds me back a lot because I don't know how people around me will accept him...second chances should be given to those under the age of 21 at least so they can be given a chance to live a normal life as a productive member of society.

  5. It's just an ill considered remark. The Sup Ct is inherently political, as it is a core part of government, and Marbury V Madison guaranteed that it would become ever more so Supremely thus. So her remark is meaningless and she just should have not made it.... what she could have said is that Congress is a bunch of lazys and cowards who wont do their jobs so the hard work of making laws clear, oftentimes stops with the Sups sorting things out that could have been resolved by more competent legislation. That would have been a more worthwhile remark and maybe would have had some relevance to what voters do, since voters cant affect who gets appointed to the supremely un-democratic art III courts.

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