Opinions June 29, 2010

The following opinion was posted after IL deadline Monday.
Indiana Supreme Court
Sylvia B. Piven, et al. v. ITT Corporation, Inc., et al.
94S00-0911-CQ-508
Certified question. The District Court of New York correctly applied instructive Delaware caselaw to determine the demand
futility standards that Indiana would apply. Holds that the Indiana Business Corporation Law employs the same standard for
showing – lack of disinterestedness – both as to the composition of special board committees under Indiana Code Section 23-1-32-4
and to the requirement that a shareholder must make a demand that the corporation‘s board act unless the demand would
be futile.

Today’s opinions
Indiana Supreme Court
Andre
Peoples v. State of Indiana
79S02-0912-CR-549
Criminal. Affirms finding Peoples is a habitual offender. People’s instant dealing offense is to be counted in calculating
the total number of unrelated felony convictions an individual has for drug dealing. While a single felony drug conviction
is not enough to qualify a person for habitual offender status, a second such conviction is, be it a prior conviction or the
instant offense.

Myron
Owens v. State of Indiana
49S02-0910-CR-429
Criminal. Affirms Owens’ convictions of and sentence for dealing cocaine and obstruction of justice, and that he has
accumulated two unrelated convictions to be sentenced under the habitual offender statute. Holds conspiracy to deal conviction
is not equivalent to a dealing conviction for purposes of the Indiana habitual offender statute.

Indiana Court of Appeals
Randy
Edward Johnson v. State of Indiana
53A01-1002-CR-38
Criminal. Affirms conviction of Class A felony child molesting. No actual conflict existed that required the defense attorney
to make a choice advancing his own interests to the detriment of his client’s interests, but only a potential conflict
occurred between Johnson and his counsel. Finds that the trial court’s action of formally noting Johnson’s displeasure
on the chronological case history and forwarding his request to the Monroe County Public Defender Officer reasonable. The
State did not commit prosecutorial misconduct during closing arguments.

Paternity
of H.S.; P.S. v. R.F.
91A02-1003-JP-334
Juvenile. Affirms summary judgment in favor of R.F. in P.S. and H.S.’s paternity action against him and the denial
of their request for genetic testing of R.F. Any objections to Judge Overbeck’s presiding over the adoption were waivable
and H.S. and P.S. have done just that due to mother P.S.’s failure to raise the issue in 1975. Concludes that a mere
desire to know the identity of one’s biological father, whatever the reason, is insufficient once establishing legal
paternity is not possible. The trial court correctly denied H.S and P.S.’s motion to compel genetic testing on R.F.

Paternity
of K.D.; T.N. v. B.D.
49A02-0907-JV-693
Juvenile. Reverses juvenile court order prohibiting mother T.N. from discussing legal proceedings with the media following
the establishment of paternity of her child K.D. The order is an invalid prior restraint on mother’s free speech rights,
and the confidentiality provisions in Indiana Code and Administrative Rule 9 don’t prohibit her from talking to others
about the case based on her knowledge obtained independent of the juvenile proceedings. Remands with instructions.


Lorenzo A. Taylor v. State of Indiana
29A02-0912-CR-1212
Criminal. Reverses conviction of conspiracy to commit dealing in cocaine as a Class A felony and remands with instructions
to enter as a Class B felony and resentence accordingly. Taylor’s convictions and sentences for both dealing in cocaine
and conspiracy to commit dealing in cocaine don’t violate the prohibition against double jeopardy.


City of Indianapolis v. Olive Duffitt
49A04-0911-CV-661
Civil. Reverses denial of City of Indianapolis’ motion for summary judgment in Duffitt’s tort action for damages
arising out of injuries sustained from falling on a sidewalk. Given the budgetary considerations and cost-benefit analyses
that produced the city’s prioritization scheme, Indianapolis’ designated evidence demonstrates that its decisions
are discretionary under the “planning-operational test” as it is interpreted in Pairsh and Rutherford.
In cases where certain policy decisions have been delegated to individual employees, discretionary immunity may be established
through affidavits. Remands with instructions to enter summary judgment in favor of the city.

Michael
Harrison v. Veolia Water Indianapolis, LLC
49A04-0912-CV-722
Civil. Reverses summary judgment in favor of Veolia Water Indianapolis on the basis that Harrison failed to provide Veolia
with notice of his injury pursuant to the Indiana Tort Claims Act. Concludes after considering the evident purposes of ITCA
and the development of the common law predating Indiana Tort Claims Act’s adoption that Veolia is not a governmental
entity or a political subdivision of the State entitled to ITCA’s protections. Remands for further proceedings

Adam
Gibson v. State of Indiana (NFP)
47A01-1001-CR-28
Criminal. Affirms sentence following guilty plea to two counts of Class B felony burglary.


Kathy Hardesty v. Larry Vickery (NFP)
08A04-1001-PO-117
Order of protection. Affirms order of protection against Hardesty.

Christopher
Deardorff v. State of Indiana (NFP)
02A03-0911-CR-550
Criminal. Affirms conviction of Class D felony theft.

James
Daugherty v. State of Indiana (NFP)
21A01-1001-CR-55
Criminal. Affirms sentence following guilty plea to public intoxication as a Class B misdemeanor.

Term.
of Parent-Child Rel. of L.C. & G.C.; G.C. v. Marion County Dept. of Child Services and Child Advocates (NFP)

49A02-0912-JV-1253
Juvenile. Affirms termination of parental rights.

Saundra
and Clyde Smithson v. Howard Regional Health System (NFP)
34A02-1001-CT-73
Civil. Reverses and remands summary judgment in favor of Howard Regional Health System that it was immune from liability
under the Indiana Tort Claims Act.

S.C.
v. State of Indiana (NFP)
49A02-0912-JV-1186
Juvenile. Affirms adjudication for false informing, a Class A misdemeanor if committed by an adult.

Sheldon
Fogleman v. State of Indiana (NFP)
30A01-1002-CR-62
Criminal. Affirms sentence following guilty plea to Class D felony theft.

Billy
Dix v. Indiana State Department of Health, et al. (NFP)
03A01-1001-MI-13
Miscellaneous. Affirms order on judicial review affirming the Indiana State Department of Health’s administrative determination
that Dix’s involuntary transfer was in compliance with Indiana’s regulations.

Spencer
Jones v. State of Indiana (NFP)
49A05-0912-CR-719
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Donald
Fisher v. Tower Bank and Trust Co. (NFP)
02A05-1002-MF-97
Mortgage foreclosure. Affirms summary judgment in favor of Tower Bank upon the court’s determination that the bank’s
lien on property owned by Stauffer Development was first in priority.

L.M.
v. State of Indiana (NFP)
49A02-1001-JV-15
Juvenile. Affirms adjudication for Class B felony child molesting if committed by an adult.

Cynthia
Sericati v. State of Indiana (NFP)
49A04-0911-CR-673
Criminal. Affirms conviction of Class D felony neglect of a dependent.

Alvino
Pizano v. State of Indiana (NFP)
45A04-1002-CR-128
Criminal. Affirms denial of motion to remove defendant from Indiana’s Sex Offender Registry Act’s Residency Restriction
Portion.

Kevin
Holloway v. State of Indiana (NFP)
49A05-0911-CR-649
Criminal. Affirms conviction of Class C felony child solicitation.

Indiana Tax Court had posted no opinions at IL deadline.