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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.

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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.

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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.

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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.

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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.

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Justices disbar attorney

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

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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.
 

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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.

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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.

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Opinions Nov. 10, 2010 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Scott D. Wells v. Herman Bud Bernitt, et al.
53A01-0910-CV-494
Civil. Affirms summary judgment in favor of the Bernitts on Wells’ claim against them for defamation because there was no admissible evidence before the court to establish actual malice, an element of defamation. Affirms summary judgment in favor of J.D. Maxwell and Travis Coryea as to Wells’ claim for negligent and intentional torts finding the evidence establishes the officers didn’t use excessive force. Affirms summary judgment for Wells on the Bernitts’ cross appeal alleging abuse of process.

Robert J. Blanford v. Judy D. Blanford
65A01-1004-DR-181
Domestic relation. The trial court erred in calculating Robert’s child support obligations on two worksheets and treating each son as an only child without an explanation of its reasons. Affirms determination and allocation of extraordinary educational expenses as part of Robert’s support obligations related to college education. Reverses assigning funds in his 401(k) to his children rather than Robert and Judy upon S.B.’s completion of a bachelor’s degree because this assignment was a post-dissolution modification of the division of marital assets. Remands with instructions.

C & R Realty, LLC v. Jerry Tooley (NFP)
26A01-1007-PL-391
Civil plenary. Affirms denial of C&R Realty’s motion to set aside a default judgment under Trial Rule 60(B).

Quentin L. Taylor v. State of Indiana (NFP)
02A04-1006-CR-388
Criminal. Affirms sentence following guilty pleas to three counts of Class B felony robbery, one count of Class B felony criminal confinement, and two counts of Class C felony battery.

Mamadou Sow v. State of Indiana (NFP)
49A02-1004-CR-516
Criminal. Affirms Class A misdemeanor conviction of resisting law enforcement.
 
Damon A. Myers v. State of Indiana (NFP)
49A02-1001-PC-154
Post conviction. Affirms denial of petition for post-conviction relief.

Kenneth J. DeBord v. State of Indiana (NFP)
87A01-1006-PC-290
Post conviction. Reverses denial of petition for post-conviction relief. Remands for further proceedings.
 
Paul Catterall v. James Donbrock d/b/a Donbrock Enterprises (NFP)
76A04-1004-SC-219
Small claims. Affirms conclusion Donbrock could collect maintenance fees from Catterall from Jan. 5, 2002, to July 12, 2002. The court erred by ordering Donbrock to pay fees for months prior to Jan. 5 and prejudgment interest. Reverses ruling regarding fees prior to Jan. 5 and remands for an order consistent with the opinion.

Jean D. Schoknecht v. Susan E. Dunlap (NFP)
49A04-0912-CV-745
Civil. Reverses Schoknecht’s claims as a landlord against tenant Dunlap.
 
R.B. v. Review Board (NFP)
93A02-1005-EX-589
Civil. Reverses denial of claim for unemployment benefits.
 
Indiana Tax Court had posted no opinions at IL deadline.
 

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Opinions Nov. 10, 2010

Indiana Court of Appeals
Scott D. Wells v. Herman Bud Bernitt, et al.
53A01-0910-CV-494
Civil. Affirms summary judgment in favor of the Bernitts on Wells’ claim against them for defamation because there was no admissible evidence before the court to establish actual malice, an element of defamation. Affirms summary judgment in favor of J.D. Maxwell and Travis Coryea as to Wells’ claim for negligent and intentional torts finding the evidence establishes the officers didn’t use excessive force. Affirms summary judgment for Wells on the Bernitts’ cross appeal alleging abuse of process.

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COA: State could charge man for leaving scene of fatal accident

The Indiana Court of Appeals affirmed a man’s conviction for failing to return to the scene of a fatal accident, finding the state wasn’t barred under collateral estoppel principles from prosecuting him for the same crime as another man who had already been convicted of causing the victim’s death.

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