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Legislators meet for Organization Day

Today is the 2011 Organization Day for Indiana lawmakers, typically a ceremonial day. But one tradition was slightly altered due to Secretary of State Todd Rokita’s absence.

Dismissal of delinquency petition doesn’t endanger public

A juvenile court didn’t err in dismissing a delinquency petition against a teen who was found to be incompetent to stand trial, the Indiana Court of Appeals ruled today. The judges also found dismissing the petition did not unduly endanger the public.

Opinions Nov. 15, 2010 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Paternity of C.H.; K.L. v. M.H.
41A01-1003-JP-145
Juvenile. Affirms parenting time schedule regarding father M.H.’s time and the appointment of a parenting coordinator. The evidence showed that C.H. had bonded well with both parents and needs time with both of them, and the trial court’s assessment of M.H.’s time is not an error. The trial court didn’t error in appointing the parent coordinator given the ongoing communication difficulties the parents have had regarding the parenting time schedule.

Tony A. Holmes v. Celadon Trucking of Indiana, et al.
49A02-1007-PL-714
Civil plenary. Reverses grant of Celadon Trucking’s motion for judgment on the pleadings. Holmes began the instant suit against Celadon within the statutorily allotted time. Remands for further proceedings.

City of Jeffersonville v. Hallmark at Jeffersonville
10A01-1001-PL-22
Civil plenary. Affirms judgment in favor of Hallmark of Jeffersonville on its complaint for refund of sewer tap fees. Affirms the court’s findings and conclusion as to the proper total amount of $15,000 that Hallmark should have been assessed as a sewer tap or connection fee for the three buildings. Concludes the voluntary payment doctrine is inapplicable in this case.

In the Matter of the Unsupervised Estate of Dwight M. Wilson v. Phyllis Steward
70A01-1003-EU-104
Estate unsupervised. Affirms Steward’s claim against the estate for unpaid child support is not barred by Indiana Code Section 34-11-2-12. The evidence was sufficient to overcome the presumption of satisfaction of the judgment.

Robert L. Comer v. State of Indiana
46A05-0912-CR-718
Criminal. Affirms revocation of probation and order Comer serve the balance of his sentences. The appellate court doesn’t have jurisdiction to entertain Comer’s challenge, if any, to the sentence originally imposed.

Donald G. Kistler v. State of Indiana
35A04-1004-PC-245
Post conviction. Affirms denial of petition for post-conviction relief. Kistler did not demonstrate that he wouldn’t have pled guilty even if properly advised and his claim of ineffective assistance fails.

Wayne & Susan Vanderwier v. Joshua & Stephannie Baker
45A03-1003-CC-129
Civil collection. Affirms judgment in favor of the Bakers on their claims for fraud arising from their purchase of the Vanderwiers’ home. This evidence supports the trial court’s judgment that the Bakers established, by a preponderance of the evidence, that the Vanderwiers made fraudulent misrepresentations on the Sales Disclosure Form and that the Bakers justifiably relied on the Vanderwiers’ fraudulent disclosure of only “minor garage seepage.”

Robert Guy v. Commissioner, Indiana BMV
30A01-1001-PL-186
Civil plenary. Vacates trial court’s denial of Guy’s verified petition for order to renew his Indiana operator’s license. Because Guy only served the commissioner of the BMV and not the attorney general, as required by both the Indiana Administrative Orders and Procedures Act and Indiana Trial Rule 4.6(A)(3), the trial court did not have personal jurisdiction.

Charlotte Manns v. Amos J. Richie, et al.
37A03-1006-CT-294
Civil tort. Affirms summary judgment for Richie on Manns’ complaint for unjust enrichment. As a matter of law, Manns did not confer any benefit upon Richie.

Dewayne E. Rhye v. State of Indiana (NFP)
82A05-1004-CR-215
Criminal. Affirms sentence for Class D felony conspiracy to commit theft, Class D felony criminal recklessness resulting in serious bodily injury, and Class B misdemeanor criminal recklessness.

Raymond Lee v. State of Indiana (NFP)
49A04-1001-CR-47
Criminal. Affirms habitual offender adjudication and sentence for Class C felony burglary and Class D felony theft.

Stephen Quick, II v. State of Indiana (NFP)
23A05-1005-CR-292
Criminal. Affirms denial of motion for change of judge and 125-year sentence for three counts of Class A felony child molesting.

Jose L. Macias v. State of Indiana (NFP)
20A03-1004-CR-237
Criminal. Affirms conviction of Class A felony dealing in cocaine.

Term. of Parent-Child Rel. of J.A.; S.J.M. and J.A. v. I.D.C.S. (NFP)
20A03-1004-JT-228
Juvenile. Affirms involuntary termination of parental rights.

In Re: The Guardianship of Patrick Hill; Kristin S. Hill v. Michael W. Hill (NFP)
49A04-0906-CV-339
Civil. Affirms probate court’s order appointing Michael Hill as guardian over son Patrick.

In the Matter of I.D.; T.D. v. IDCS (NFP)
49A05-1003-JC-198
Juvenile. Affirms finding that I.D. is a child in need of services.

Sharla Hackney and Raymond Hackney, Sr. v. Stacy G. Toole (NFP)
41A01-1003-CC-121
Civil collection. Affirms summary judgment for Toole in Sharla Hackney’s suit for negligence.

Ronald Fisher v. State of Indiana (NFP)
49A02-1004-CR-411
Criminal. Affirms conviction of Class D felony theft.

Gerardo Delao v. State of Indiana (NFP)
15A01-1004-CR-228
Criminal. Affirms sentence imposed following admission to violating probation.

James R. Stephens v. Brenda K. Stephens (NFP)
33A05-1006-DR-434
Domestic relation. Dismisses James Stephens’ appeal of the order regarding his child support arrearage because his appeal is untimely.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions Nov. 15, 2010

7th Circuit Court of Appeals
United States of America v. Lorenzo Tavarez
09-3879
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Affirms convictions of two counts of distributing 50 grams or more methamphetamine. Tavarez failed to show that the confidential informant was available only to the government. The District Court therefore did not err by refusing the missing witness instruction. Concludes that the jury could reasonably reach its guilty verdict on the circumstantial evidence presented here.

Court rejects man’s explanation of ‘briefly’

A man charged with a drug dealing offense near a school wasn’t entitled to a jury instruction stating he was only “briefly” within 1,000 feet of school property because the drug transaction was short in time even though it happened at his house, the Indiana Court of Appeals ruled today.

Despite out-of-court agreement, COA upholds motion to strike

The Indiana Court of Appeals encourages collegiality among attorneys when it comes to resolving issues outside of court, but it had to uphold the striking of documents because they were not timely filed with the trial court. The parties’ attorneys agreed to an extension of time to reply outside of court, but the trial court had no choice but to not allow the late reply.

ICJI awards grant for study of juvenile courts

Two Indiana University School of Public and Environmental Affairs professors at Indiana University-Purdue University Indianapolis have received a $200,000 grant from the Indiana Criminal Justice Institute to study the records of juvenile delinquents in Indiana to determine if juvenile court personnel treated defendants differently based on race, the school announced today.

Court upholds juvenile placement with DOC

The Indiana Court of Appeals upheld placing a juvenile with the Indiana Department of Correction over his objections that there was a less restrictive alternative available.

COA affirms Avon ordinance invalid

The Town of Avon’s attempt to regulate by ordinance a township and conservancy district’s ability to remove and sell groundwater located in a park failed because the ordinance violated Indiana law, the Indiana Court of Appeals held today.

Justices disbar attorney

The Indiana Supreme Court chose to disbar a Marion County attorney due to his pattern of neglect in clients’ cases.

Opinions Nov. 12, 2010 ILD

Indiana Court of Appeals
Michael McAllister, et al. v. Loretta A. Sanders, et al.
76A03-1006-MI-306
Miscellaneous. Affirms summary judgment in favor of intervenors Williamson and the Grays in which the court concluded there had been a common law dedication of the disputed parcel of land – an alley between the Williamson and Grays’ lots. The trial court did not err when it found that Loretta Sanders intended to make a common law dedication of the disputed alley and that the McAllisters and Zirkle had not acquired fee simple title by adverse possession.  

Brian McNeill v. State of Indiana
71A05-1003-CR-219
Criminal. Affirms conviction of Class B felony aggravated battery because there was sufficient evidence to support the conviction. McNeill was at the crime scene and participated in the crime by firing his gun.

Tracie Burton v. Donna Bridwell, et al.
47A01-1003-CT-185
Civil tort. Reverses jury’s determination that Burton, as a passenger in a car, was at 50 percent fault for an auto accident, but rules the error was harmless. Affirms the damage award because it was within the bounds of the evidence that was presented at trial.

Jimmy Morris v. State of Indiana
49A04-1003-CR-165
Criminal. Affirms denial of motion to modify sentence placement. The 2001 modification of Ind. Code Section 35-38-1-17(b) did not give the trial court authority to modify Morris’ 1998 sentence.

Lucio Garcia v. State of Indiana
49A02-1005-PC-597
Post conviction. Affirms denial of petition for post-conviction relief. Garcia didn’t meet his burden to prove he received ineffective assistance of counsel.

Leo Machine & Tool Inc., et al. v. Poe Volunteer Fire Dept. Inc., et al.
02A03-1003-PL-143
Civil plenary. Affirms summary judgment ruling that Poe Volunteer Fire Department is immune from liability under the Indiana Tort Claims Act and denial of Leo Machine’s complaint for damages suffered as a result of a fire. The Poe Fire Department’s actions are entitled to immunity as these were undertaken after a conscious and informed risk/benefit analysis based upon the specific challenges and threats caused by this particular fire.

Joseph L. Haskett v. State of Indiana (NFP)
52A02-1004-CR-505
Criminal. Affirms sentence following guilty plea to Class B felony dealing in methamphetamine.

Randy L. Labresh v. State of Indiana (NFP)
45A05-1004-CR-229
Criminal. Affirms sentence following guilty plea to Class C felony operating a vehicle while intoxicated causing death.

John F. Minter v. State of Indiana (NFP)
49A05-0911-CR-666
Criminal. Affirms convictions of Class A felony dealing in cocaine, Class C felony possession of cocaine, and Class B felony unlawful possession of a firearm by a serious violent felon.

Samuel D. Clark, Jr. v. State of Indiana (NFP)
33A01-1004-CR-236
Criminal. Affirms revocation of home detention and suspended sentence.

Roman Warner v. Alan Finnan, et al. (NFP)
77A05-0905-CV-251
Civil. Affirms order denying Warner’s motion for extension of time to file his reply brief. Warner waived his claims for failure to develop the record on appeal.

Donielle S. Sims v. State of Indiana (NFP)
45A03-1003-CR-140
Criminal. Affirms conviction of and sentence for Class A felony attempted robbery.

W.T. v. State of Indiana (NFP)
49A02-1002-JV-120
Juvenile. Affirms trial court valuation of one of the items W.T. stole.

David Lee Wright v. State of Indiana (NFP)
19A01-1003-PC-161
Post conviction. Affirms denial of petition for post-conviction relief.

Paul Hagedorn v. Dennis Talboom (NFP)
71A03-1002-SC-48
Small claims. Affirms finding Talboom’s damages were $2,593 plus costs.

Walter A. Griffin v. State of Indiana (NFP)
49A05-1003-CR-199
Criminal. Affirms conviction of Class A misdemeanor criminal trespass.

Timothy Martin v. State of Indiana (NFP)
35A05-1005-CR-333
Criminal. Affirms denial of motion to withdraw plea of guilty but mentally ill to Class B felony burglary.

Simon Allen v. State of Indiana (NFP)
67A01-1005-CR-245
Criminal. Affirms convictions of Class C felony conspiracy to commit trafficking with an inmate and Class D felony possession of cocaine. Remands for clarification of the sentence imposed.

Charles E. Gould v. State of Indiana (NFP)
49A02-1004-CR-430
Criminal. Affirms conviction of Class A felony burglary.

D.M. v. State of Indiana (NFP)
49A02-1005-JV-551
Juvenile. Affirms finding D.M. delinquent for committing what would be Class B felony burglary and Class D felony theft if committed by an adult.

Christopher Upton v. State of Indiana (NFP)
49A04-1003-CR-135
Criminal. Affirms conviction of invasion of privacy but reverses the enhancement to a Class D felony and remands for entry of and sentencing for the conviction as a Class A misdemeanor.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions Nov. 12, 2010

Indiana Supreme Court
In the Matter of William J. Rawls
49S00-0908-DI-355
Discipline. Disbars Rawls for violating Indiana Professional Conduct Rules 1.2(a), 1.3, 1.4(a), 1.16(d), 8.1(a), 8.1(b), 8.4(b), and 8.4(c). Rawls has demonstrated a pattern of neglect of his clients' cases, resulting in adverse dispositions, suspension of one client's driver's license, a missed opportunity to settle, and undue delay.

Plaintiff attorney chosen to serve on judicial commissions

An Indianapolis plaintiff attorney has received the most votes from colleagues to join the Indiana Judicial Nominating and Judicial Qualifications commissions, and he’ll take a spot on a seven-person panel in January.

Judge denies summary judgment in legal malpractice suit

A federal judge denied summary judgment for an attorney and his law firm on legal malpractice and other claims, ruling the defendants failed to present a coherent argument to support summary judgment.

Northern District Local Rules amended

Four local rules have been amended in the U.S. District Court of Indiana, Northern District. Changes have been made to Local Rule 7.1, Motion Practice; Length and Form of Briefs; L.R. 56.1 Summary Judgment Procedure; L.R. 200.1, Bankruptcy Cases and Proceedings; and Appendix C, Notice to Pro Se Litigant.