Opinions

Opinions May 27, 2016

May 27, 2016
Indiana Court of Appeals
J.B. v. State of Indiana
49A02-1509-JV-1372
Juvenile. Rules a trial court cannot order a juvenile to pay restitution as a civil judgment after the court ordered $1,250 in fees for breaking probation in four causes. The order was rescinded so the matter was moot, but the court ruled on the case for public interest.
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Opinions May 26, 2016

May 26, 2016
Indiana Court of Appeals
John Doe #1, et al. v. Indiana Department of Child Services
49A02-1506-CT-682
Civil tort. Reverses and remands summary judgment in favor of Indiana Department of Child Services after court found in a 2-1 decision DCS had the duty under common law to protect the identity of a caller who reported children as being in need of services. Chief Judge Nancy Vaidik dissents, noting she doesn’t think the code which DCS broke by identifying him supplies a private right of action.  
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Opinions May 25, 2016

May 25, 2016
Indiana Court of Appeals
Kelly C. Mullen v. State of Indiana
02A05-1511-CR-1959
Criminal. Affirms on interlocutory appeal the denial of Kelly C. Mullen’s motion to suppress evidence of a gun obtained during a search of his person. Rules that the officer who stopped him had sufficient reason, including the increased drug and gun violence in the area, the fact the apartment complex asked the police department to help with loitering issues, and Mullen’s actions during the stop.
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Opinions May 24, 2016

May 24, 2016
Indiana Court of Appeals
Tresa Megenity v. David Dunn
22A04-1506-CT-722
Civil tort. Reverses and remands summary judgment for David Dunn after the majority ruled Dunn’s kick while Tresa Megenity was holding a bag during a karate drill constituted an issue of material fact. The COA ruled the type of kick Dunn did may not have been normal activity for the drill the two were involved in at the time. Judge Patricia Riley dissented, saying the majority ruled too narrowly. She thought the kick was normal behavior in the sport of karate itself and would have ruled to uphold summary judgment.
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Opinions May 23, 2016

May 23, 2016
Indiana Court of Appeals
Douglas Costella and Profit Search Inc. v. Gersh Zavodnik
49A04-1504-PL-163.
Civil plenary. Reverses and remands summary judgment for Gersh Zavodnik for $30,044.07 after Court of Appeals ruled Zavodnik abused Trial Court Rule 36(B) which governs the withdrawal of admissions, using it for his own gain. Remands for trial court to determine whether case should be dismissed because of Trial Rule 41(E) which provides for dismissal when a plaintiff does not diligently prosecute a case or comply with court rules.
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Opinions — May 20, 2016

May 20, 2016
Indiana Tax Court Miller Pipeline Corporation v. Indiana Department of State Revenue
49T10-1012-TA-00064. Tax. Remands six out of 11 issues Miller pipeline claimed after Miller appealed the Department of Revenue’s denial of Miller’s claim for refund of sales and use taxes remitted for the 2006 and 2007 tax years.
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Opinions — May 18, 2016

May 19, 2016
Indiana Supreme Court
In the matter of: Elton D. Johnson
71S00-1408-DI-544
Discipline. Disbars Johnson after he committed attorney misconduct by providing incompetent representation, converting client funds and failing to cooperate with the disciplinary process. Johnson violated 13 different Indiana Professional Conduct Rules as well as three Indiana Admission and Discipline Rules.
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Opinions — May 18, 2016

May 18, 2016
Indiana Court of Appeals
Joshua Schaaf v. State of Indiana
85A04-1506-CR-796.
Criminal. Affirms Joshua Schaff’s convictions but reduces his sentence for two counts of dealing heroin. Finds sufficient evidence for his convictions even though he didn’t participate in one of the transactions and didn’t know he was near a park in the second. Reduces Schaff’s sentence from 15 years for the first count and 40 for the second count to 10 for the first count and 30 for the second, finding the sentence was too harsh. Judge Paul Mathias dissents in opposition to the sentence reduction in one-paragraph opinion.
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Opinions — May 17, 2016

May 17, 2016
7th Circuit Court of Appeals
Samaron Corp. D/B/A Troyer Products v. United of Omaha Life Insurance Company
15-3446
Appeal from the United States District Court for the Northern District of Indiana, Judge Rudy Lozano.
Civil. Affirms United of Omaha does not have to pay Troyer Products after it mistakenly paid the wrong party a death benefit. Rules Troyer knew the money was going to the wrong party and let it happen anyway.
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Opinions May 16, 2016

May 16, 2016
Indiana Court of Appeals

BSA Construction LLC v Jimmie E. Johnson
49A02-1506-CT-749
Civil Tort. Affirms summary judgment for Jimmie Johnson after the Court of Appeals found Johnson did not owe BSA a duty of care after he appraised a property for less than the agreed-upon purchase price. Johnson cannot serve both the bank that hired him and BSA because of conflicting interests.

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Opinions May 13, 2016

May 13, 2016
Indiana Court of Appeals
David Simons v. State of Indiana
20A03-1512-CR-2158
Criminal. Affirms David Simons’ 29-year aggregate sentence after court ruled even though trial court did notify Simons of his earliest and maximum possible release dates the error was harmless.
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Opinions May 12, 2016

May 12, 2016
Indiana Court of Appeals
Brandon T. Black v. State of Indiana
02A03-1511-PC-1875
Post conviction. Denies Brandon Black’s petition for post-conviction relief as the COA found the failure of Black’s attorney to tell him about sentence maximums did not affect his decision to plead guilty to Class A felony neglect of a dependent.
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Opinions May 11, 2016

May 11, 2016
Indiana Court of Appeals
Korie M. Leslie v. Jeremy D. Farmer
87A01-1508-JP-1164
Juvenile. Affirms father can have child’s last name changed to his paternal name. He was up-to-date on child support, has spent time with the child and been active in the child’s life. The name will serve as a reminder that the child has two parents who care.
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Opinions May 10, 2016

May 10, 2016

Indiana Court of Appeals
Michael Pugh v. State of Indiana
49A02-1506-CR-483
Criminal. Affirms Michael Pugh’s convictions of two counts of rape, one count of attempted criminal deviate conduct, one count of robbery and one count of burglary as Class A felonies; one count of robbery and three counts of carjacking as Class B felonies; and one count of robbery as a Class C felony. Finds Pugh’s three convictions of robbery do not violate the single larceny rule and his two convictions of rape do not violate the continuing crime doctrine.
 

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Opinions May 9, 2016

May 9, 2016
7th Circuit Court of Appeals
Polycon Industries Inc. v. National Labor Relations Board
15-3675, 15-3859
NLRB. Enforces National Labor Relations Board order that Polycon Industries must sign a collective bargaining agreement with Teamsters Union Local 142. Polycon negotiated the agreement with the Teamsters, but then refused to sign it.

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Opinions May 6, 2016

May 6, 2016
Indiana Court of Appeals
Barbara Hill, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor, et al. v. Erich E. Gephart, City of Indianapolis, et al.
49A02-1509-CT-1288
Civil tort. Reverses summary judgment in favor of city of Indianapolis defendants on the Hills’ claim of negligence and intentional infliction of emotional distress arising from Erich Gephart driving a jail transport vehicle that struck and injured Charles Hill. Remands for proceedings.
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Opinions May 5, 2016

May 5, 2016
7th Circuit Court of Appeals
United States of America v. David A. Resnick
14-3791
United States District Court for the Northern District of Indiana, Hammond Division. James T. Moody, judge.
Criminal. Affirms David Resnick’s convictions of aggravated sexual abuse of a minor, interstate transportation of child pornography, brandishing a firearm in furtherance of a crime of violence and being a felon in possession of a firearm. Finds admission of Resnick’s refusal to take a polygraph test into evidence does not violate his Fifth Amendment rights, and the evidence was sufficient to uphold his firearm conviction. Judge Baurer dissents.
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Opinions May 4, 2016

May 4, 2016
Indiana Court of Appeals
Scott Schuck v. State of Indiana
73A01-1507-CR-981
Criminal. Reverses decision and remands to trial court to determine amount of investigatory expenses law firm representing Schuck should get after COA found investigation was necessary even though Schuck pleaded guilty after trial began.
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Opinions May 3, 2016

May 3, 2016
7th Circuit Court of Appeals
Knauf Insulation, Inc. v Southern Brands, Inc. and Albert and Rosemary Dowd
15-3157
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms Southern Brands needs to pay more than $3.5 million to Knauf Insulation after SBI filed a counterclaim in a price-gouging suit too late to be considered.

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Opinions May 2, 2016

May 2, 2016
Indiana Tax Court
The following opinion was issued after IL deadline Friday.
Hamilton Southeastern Utilities v Indiana State Department of Revenue

49T10-1210-TA-00068.
Tax. Grants summary judgment to Hamilton Southeastern on challenge that the company’s connection fees are not subject to utility rate tax. The company separated its fees from its taxable receipts on its return.

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Opinions April 29, 2016

April 29, 2016
Indiana Court of Appeals
P & P Home Services, LLC v. Review Board of the Indiana Dept. of Workforce Development and Cynthia Hutcherson
93A02-1511-EX-1818
Agency action. Reverses Department of Workforce Development Review Board determination that a former employee of P&P Home Services is eligible for unemployment benefits. Remands to the board for a determination of whether the worker’s employment relationship was voluntarily severed by the employee.
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Opinions April 28, 2016

April 28, 2016
Indiana Supreme Court
Kathy L. Siner, Personal Representative of the Estate of Geraldine A. Siner, Deceased, et al. v. Kindred Hospital Limited Partnership, d/b/a Kindred Hospital of Indianapolis, et al.
49S05-1604-CT-219
Civil tort. Reverses find of summary judgment for Kindred Hospital and Mohammed Majid after the Supreme Court found genuine issues of material fact in the case.
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Opinions April 27, 2016

April 27, 2016
Indiana Supreme Court
Ronald Sanford Jr. v. State of Indiana
49S05-1604-PC-210
Post conviction. Reverses trial court and Court of Appeals decisions and finds Ronald Sanford can file a belated notice of appeal of his sentence after he pleaded guilty to two counts of murder, among other charges, because of “unique circumstances.”
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Opinions April 26, 2016

April 26, 2016
Indiana Supreme Court
William Bowman v. State of Indiana
 21S04-1510-CR-604
Criminal. Affirms conviction of Class A felony dealing in a narcotic drug within 1,000 feet of a school property and being a habitual substance offender. The evidence was sufficient to sustain William Bowman’s conviction despite a second baggie of evidence not being tested to prove it was heroin after a first bag of heroin was tested.
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Opinions April 25, 2016

April 25, 2016
Indiana Court of Appeals
Kelly E. Culver v. State of Indiana (mem. dec.)
84A01-1511-PC-1964
Post conviction. Affirms denial of Kelly Culver’s petition for post-conviction relief.
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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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