ILNews

Supreme Court grants 3 transfers

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court granted three transfers Thursday to cases involving what manner an appellate court could reverse a revocation of probation, how to calculate guardian ad litem fees, and whether there is a rebuttable presumption that children ages 7 through 14 can't be found contributorily negligent.

At issue in Cornelius Cooper v. State of Indiana, No. 49A02-0709-CR-780, is whether Cornelius Cooper's probation should have been revoked and by what manner the appellate court was authorized to reverse a revocation. A majority believed Cooper was denied due process as a fundamental error, allowing the appellate court to review his untimely appeal of the revocation order. Judge Nancy Vaidik, in her concurring result in a separate opinion, believed Cooper's appeal should have been reviewed under Indiana Post-Conviction Rule 2. Judge Vaidik also noted in her opinion the disagreement in the Court of Appeals on whether a probation revocation order is appealable under Post-Conviction Rule 2, but she believed that right existed.

In the issue of first impression in the case In re: The paternity of N.L.P., No. 45A03-0805-JV-226, the appellate court ruled on guardian ad litem fees and ruled a GAL must differentiate between attorney and non-legal work when billing in a paternity case. The trial court in the case reduced court-appointed GAL Jill Swope's fees from $34,800 to $20,000 but didn't explain why it chose to reduce the fees to $20,000. The Court of Appeals remanded for further analysis of the fees based on the appellate opinion, which instructed trial courts to consider guidelines set out in Indiana Professional Conduct Rule 1.5 when deciding how to compensate for fees and expenses.

In Clay City Consolidated School Corp. v. Ronna Timberman and John Pipes II, No. 11A04-0802-CV-96, the Court of Appeals found a trial court committed reversible error in a suit against a school for the death of a student when it instructed a jury that Indiana law has a rebuttable presumption that children ages 7 through 14 can't be found contributorily negligent. Timberman and Pipes sued the school corporation after their 13-year-old son died during a basketball practice. He had fainted two days earlier during practice but hadn't seen a doctor before his next practice. His death was attributed to ventricular fibrillation. His parents sued under Indiana's Child Wrongful Death Statute and won $300,000 following an order on remittitur from the court reducing the damages.

Noting that the trial court "reopened the proverbial can of worms" with this issue, the appellate court examined Indiana caselaw to conclude that state law doesn't conclusively contain a presumption either in favor or against 7- to 14-year-olds with respect to whether they can be found liable for negligent acts. The trial court misstated Indiana law when it informed the jury that state law contains a rebuttable presumption that children between the ages of 7 and 14 can't be found contributorily negligent. The Court of Appeals remanded for a new trial.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

ADVERTISEMENT