Opinions

Opinions May 9, 2017

May 9, 2017
Indiana Court of Appeals
Matthew Ward v. Lowe's
93A02-1609-EX-2133
Agency. Affirms the Indiana Worker’s Compensation Board’s denial of Matthew Ward’s application for workers’ compensation benefits. Finds the board did not abuse its discretion in denying his application. Chief Judge Nancy Vaidik dissents with separate opinion.
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Opinions May 8, 2017

May 8, 2017
Indiana Court of Appeals
David Earl Ison v. State of Indiana

24A04-1607-PC-1618
Post-conviction. Grants rehearing to delete the second paragraph of footnote three in the Indiana Court of Appeals’ original opinion. Finds that the footnote erroneously concluded that Indiana Code section 35-50-2-9 contains a technical error. Affirms the original opinion in all other respects.

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Opinions May 5, 2017

May 5, 2017
Indiana Supreme Court
Trondo L. Humphrey v. State of Indiana
48S02-1609-PC-480
Post-conviction. Reverses denial of petition for post-conviction relief. Finds Trondo Humphrey has shown the evidence leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Remands for a new trial. Justices Mark Massa and Geoffrey Slaughter concur with separate opinion.
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Opinions May 4, 2017

May 4, 2017
Indiana Supreme Court
Marcus Zanders v. State of Indiana
15S01-1611-CR-571
Criminal. Affirms Marcus Zanders’ convictions of two counts of robbery with a deadly weapon and two counts of unlawful possession of a firearm by a serious violent felon, and his adjudication as a habitual offender. Chief Justice Loretta Rush writes for the majority that under federal precedent, the Fourth Amendment does not require police to obtain a search warrant to gather information an individual has voluntarily relinquished to a third party — in this case, cellphone historical location data.
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Opinions May 3, 2017

May 3, 2017
Indiana Court of Appeals
Mohinder Singh v. State of Indiana (mem. dec.)
41A05-1606-CR-1405
Criminal. Affirms Mohinder Singh’s conviction of operating a motor vehicle while intoxicated in a manner endangering a person as a Class A misdemeanor. Finds the Johnson Superior Court did not abuse its discretion in admitting evidence.
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Opinions May 2, 2017

May 2, 2017
Indiana Court of Appeals
J.P., et al. v. Indiana Department of Child Services (mem. dec.)
71A03-1610-JT-2441
Juvenile termination of parental rights. Affirms the termination of J.P.’s parental rights to her three children. Finds the St. Joseph Probate Court’s findings — there was a reasonable probability that the conditions leading to the children’s removal and continued placement outside J.P.’s care would not be remedied and that the termination of J.P.’s parental rights was in the children’s best interests — were supported by evidence.
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Opinions April 28, 2017

April 28, 2017
Indiana Court of Appeals
Robert C. Mills v. Indiana Department of Child Services, Shirley Starks, Kristen L. Sparks, Melanie Reising, and Elizabeth Herrmann
82A01-1606-PL-1482
Civil plenary. Affirms the Vanderburgh Superior Court’s rulings in favor of the Indiana Department of Child Services on Robert Mills’ various claims for discrimination on the basis of sex and age, and for retaliation. Finds the trial court did not err in ruling against Mills.
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Opinions April 27, 2017

April 27, 2017
7th Circuit Court of Appeals
Lois Marie Trask v. Edgar Rodriguez, et al.
14-2601
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge Rudy Lozano.
Civil. Affirms the award of summary judgment to the casino employee defendants. Finds that if Lois Trask never received a copy of the defendants’ motion for summary judgment, she should have asked for a copy, which she failed to do. Also finds the district court did not err in enforcing a settlement between Trask and the defendants.
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Opinions April 26, 2017

April 26, 2017
Indiana Court of Appeals
State of Indiana, Indiana Department of Correction, and Indiana State Employees' Appeals Commission v. Debra Mills, et al.
49A02-1605-PL-998
Civil plenary. Affirms and reverses in part the Marion Superior Court’s order on petition for judicial review granting judgment in favor of Debra Mills, Thomas Bird, and other DOC teachers. Finds the Indiana State Employees’ Appeals Commission and an administrative law judge properly determined that the state calculated the employees’ retention scores and adhered to statutory layoff rights in accordance with Indiana Code 4-15-2-32(a)-(b).
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Opinions April 25, 2017

April 25, 2017
Indiana Court of Appeals
Dugniqio Forest v. State of Indiana (mem. dec.)
82A04-1609-CR-1980
Criminal. Affirms Dugniqio Forest’s conviction of Level 4 felony possession of cocaine and sentence to 11 years. Finds the Vanderburgh Superior Court did not abuse its discretion by granting the state’s motion for continuance and that Forest’s sentence is not inappropriate.
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Opinions April 24, 2017

April 24, 2017
Indiana Court of Appeals
Willie Dixon v. State of Indiana (mem. dec.)
49A02-1606-CR-1400
Criminal. Affirms Willie Dixon’s conviction for resisting law enforcement as a Class A misdemeanor. Finds Officer Babacar Diouf’s action of pulling his car in front of Dixon’s and trying to “cut him off” constituted an order to stop under Indiana Code 35-44.1-3-1(a)(3). Also finds that given the fact that Dixon was violating Indiana Code 9-21-17-14, his argument that he did not have a duty to stop when Diouf ordered him to do so necessarily fails.
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Opinions April 19, 2017

April 19, 2017
Indiana Court of Appeals
Matthew L. Johnson v. State of Indiana
32A05-1604-CR-703
Criminal. Reverses the Hendricks Superior Court order overruling Matthew L. Johnson’s objections to the habitual offender enhancement charges. Finds that “convictions from which the offender was released more than 10 years before the current offense do not count for habitual offender purposes under Section 8(d).” Remands for review.
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Opinions April 18, 2017

April 18, 2017
Indiana Court of Appeals
Wanda Roberts, et al. v. Anthony W. Henson
10A01-1607-PL-1647
Civil plenary. Reverses summary judgment in favor of Anthony Henson on the Robertses’ lawsuit claiming the construction of his home on a lot in their subdivision violated the neighborhood’s restrictive covenants. Affirms Henson’s home did not violate the covenants against barns or other outbuildings being used a residence, but finds questions of material fact regarding whether his home’s height and garage size violate the covenants.
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Opinions April 17, 2017

April 17, 2017
Indiana Court of Appeals
Rueth Development Company and Rueth Development Company d/b/a Superior Lumber Company v. H&H Rueth, Inc. (mem. dec.)
45A03-1608-CP-1821
Civil plenary. Affirms the grant of summary judgment to H&H Rueth Inc. in complaint that it owed money to Rueth Development Co. The Lake Superior Court correctly found that Rueth Development’s untimely response to H&H’s motion for summary judgment and corresponding documents could not be considered.
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Opinions April 14, 2017

April 14, 2017
The following Indiana Tax Court opinion was posted after IL deadline Thursday:
Zimmer, Inc. v. Indiana Department of State Revenue
49T10-1507-TA-25
Tax. Grants summary judgment in favor of Zimmer Inc. on its exhibition booth components that were stored in Indiana for subsequent use solely outside Indiana, but grants summary judgment to the Indiana Department of State Revenue on the exhibition booth components that were repaired in Indiana during the 2009, 2010 and 2011 tax years. Finds the undisputed material facts establish that Zimmer stores its exhibition booth components in Indiana for subsequent use solely at out-of-state trade shows, but that it repaired some exhibition booth components in its Indiana warehouse on an as-needed basis.
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Opinions April 13, 2017

April 13, 2017
Indiana Court of Appeals
Wyatt Severance v. New Castle Community School Corporation a/k/a New Castle Career Center, and Turner Melton
33A01-1609-CT-2088
Civil tort. Reverses the Henry Circuit Court’s grant of New Castle Community School Corp.’s motion to strike Wyatt Severance’s expert affidavit and the grant of summary judgment to the school. The trial court erred in granting the school’s motion to strike. Finds there are genuine issues of material fact as to whether the school breached its duty and whether Severance was contributorily negligent precluding summary judgment. Remands for further proceedings.
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Opinions April 12, 2017

April 12, 2017
Indiana Court of Appeals
C.H. v. A.R.
29A05-1607-PO-1625
Order of protection. Affirms the Hamilton Circuit Court order dismissing C.H.’s protective order petition and its ex parte protective order that she sought against A.R. for the protection of A.R.’s son, H.L.. Affirms grant of A.R.’s petition for attorney fees. Finds the trial court did not err.
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Opinions April 11, 2017

April 11, 2017
Indiana Court of Appeals
Jalen Lee, A Minor Child, by and through his Next Friend, Crystal Estes and Crystal Estes, Individually v. Bartholomew Consolidated School Corporation, City of Columbus, et al.
03A01-1608-CT-1900
Civil tort. Reverses the Bartholomew Circuit Court’s grant of summary judgment in favor of the city of Columbus. Finds the trial court erred in granting summary judgment on the basis of contributory negligence, but that the city is entitled to statutory immunity. However, summary judgment is improper because there are genuine issues of material fact as to whether the city breach its duty of reasonable care and whether such a breach, if any, proximately caused the accident. Remands for further proceedings. Judge Terry Crone dissents with separate opinion.
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Opinions April 10, 2017

April 10, 2017
7th Circuit Court of Appeals
Thom D. Howell v. Shawn Smith
16-1988
Appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division. Judge James T. Moody.
Civil. Reverses the district court’s decision to deny Officer Shawn Smith’s motion for summary judgment on the grounds of qualified immunity. Smith’s decision to keep Thom Howell in handcuffs until he was satisfied that he was not a threat did not violate the Fourth Amendment, so under the doctrine of qualified immunity, Howell’s complaint must be dismissed. Remands for further proceedings.
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Opinions April 7, 2017

April 7, 2017
Indiana Court of Appeals
In the Matter of: Ce.B. and Co.B. (Minor Children) and C.K. (Custodian) v. The Indiana Department of Child Services
82A01-1610-JC-2442
Juvenile CHINS. Affirms the juvenile court’s determination that Co.B. and Ce.B. were children in need of services. Finds the juvenile court did hold a fact-finding hearing in the case at which the custodian of the children, C.K., chose to stipulate that the facts contained in the CHINS petitions and reports of preliminary inquiry were true. Also finds C.K. does not make any argument that his stipulation should be withdrawn for cause.
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Opinions April 6, 2017

April 6, 2017
Indiana Court of Appeals
Aaron D. Murray v. State of Indiana
36A04-1608-CR-1841
Criminal. Affirms Aaron Murray’s sentence to an aggregate of 21 years executed for three counts of Level 4 felony child molesting. Finds that Murray’s sentence is not inappropriate in light of the nature of the offenses and his character. Judge Terry Crone concurs in result with separate opinion, stating he would have consider a more severe sentence had the state requested.
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Opinions April 5, 2017

April 5, 2017
Indiana Court of Appeals
Citizens Action Coalition of Indiana, Inc., Indiana Association for Community and Economic Development, Indiana Coalition for Human Services, et al. v. Indianapolis Power & Light Company, et al.
93A02-1604-EX-804
Agency. Affirms the Indiana Utility Regulatory Commission’s approval of Indianapolis Power & Light Co.’s petition for approval of an increase to its base rates for provision of electricity, which had been in effect since 1995. Finds the joint intervenors have not shown that the commission decision approving a rate design that includes declining block rate is unsupported by requisite findings.
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Opinions April 4, 2017

April 4, 2017
Indiana Court of Appeals
Joseph Lee Pierson v. State of Indiana
89A05-1306-CR-311
Criminal. Affirms Joseph Pierson’s conviction for neglect of a dependent resulting in death as a Class A felony. There is sufficient evidence from which a jury could find that Pierson acted in a knowing and voluntary manner. Also finds the parties in a criminal case are permitted to agree to use a video deposition. Finally, finds the full context of the experts’ remarks did not mislead the jury of the applicable legal standards.
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Opinions March 30, 2017

March 30, 2017
Indiana Court of Appeals
Luke M. Warren v. State of Indiana
87A01-1606-CR-1399
Criminal. Affirms Luke M. Warren’s convictions of Class B felony dealing in methamphetamine and Class D felony possession of chemical reagents or precursors with the intent to manufacture a controlled substance.
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Opinions March 29, 2017

March 29, 2017
7th Circuit Court of Appeals
Eric Mains v. Citibank, N.A., et al.
16-1985
Appeal from U.S. District Court for the Southern District of Indiana, New Albany Division. Judge Sarah Evans Barker.
Civil. Affirms dismissal of Eric Mains’ litigation challenging the impending foreclosure of his home. The state courts had resolved the claims he brought in the federal suit, so the district court properly dismissed the case. Modifies the judgment to show that most of his federal and state law claims are dismissed without prejudice and the remainder are dismissed with prejudice.
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  1. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

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  3. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  4. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

  5. From the article's fourth paragraph: "Her work underscores the blurry lines in Russia between the government and businesses . . ." Obviously, the author of this piece doesn't pay much attention to the "blurry lines" between government and businesses that exist in the United States. And I'm not talking only about Trump's alleged conflicts of interest. When lobbyists for major industries (pharmaceutical, petroleum, insurance, etc) have greater access to this country's elected representatives than do everyday individuals (i.e., voters), then I would say that the lines between government and business in the United States are just as blurry, if not more so, than in Russia.

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