Opinions

Opinions June 1, 2015

June 1, 2015
7th Circuit Court of Appeals
Shane Kervin v. La Clair Barnes, et al.
14-2983
U.S. District Court, Northern District of Indiana, South Bend Division, Judge James T. Moody. Affirms dismissal of Kervin’s 42 U.S.C. § 1983 suit alleging that as a prisoner, his rights were violated when he was placed in solitary confinement and denied privileges as punishment for complaining about a delay in being allowed to see his attorney. The court ruled Kervin’s backtalk to guards was the basis for his punishment, which was neither “atypical,” “significant,” nor “a dramatic departure from the basic conditions” of his sentence as required for such claims under Sandin v. Conner, 515 U.S. 472, 484-85 (1995).

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Opinions May 29, 2015

May 29, 2015
Indiana Court of Appeals
State of Indiana v. Scott Zerbe

49A05-1410-MI-463
Criminal. Reverses a trial court ruling granting Zerbe’s petition to remove his name from the Sex Offender Registry. Zerbe was required to register as a sex offender for a Michigan offense committed in 1992 when he moved to here in 2012. Indiana’s Sex Offender Registry, enacted in 1994, is not unconstitutional as applied to Zerbe.
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Opinions May 28, 2015

May 28, 2015
Indiana Court of Appeals
Terry Huber v. Roger Hamilton
54A01-1404-PL-154
Civil plenary. Affirms trial court ruling that the buyer of land, Terry Huber, breached the land contract when he failed to make the balloon payment when it was originally due. The oral agreement between the parties to modify the written land contract is unenforceable because it was not reduced to writing.
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Opinions May 27, 2015

May 27, 2015
Indiana Court of Appeals
Tommy Lampley v. State of Indiana
48A04-1405-CR-231
Criminal. Affirms revocation of probation. Lampley admitted to participating in unlawful conduct during his probationary period.
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Opinions May 26, 2015

May 26, 2015
Indiana Tax Court
Marion County Auditor v. State of Indiana
49T10-1406-TA-25
Tax. Grants the state’s motion to dismiss the auditor’s action challenging the constitutionality of I.C. 6-1.1-15-12. The auditor does not have statutory or common law standing to appeal the PTABOA’s decision on Grandville’s Forms 133 to the Tax Court.
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Opinions May 22, 2015

May 22, 2015
Indiana Court of Appeals
Charles D. Howard v. State of Indiana
14A04-1406-CR-286
Criminal. Affirms convictions of two counts of Class A misdemeanor resisting law enforcement, Class B misdemeanor harassment, Class B misdemeanor public intoxication, and Class B misdemeanor disorderly conduct. The trial court issued a ruling on Howard’s motion to suppress/dismiss. Howard did not object to the admission of evidence at trial; (2) the state did not introduce or seek to admit into evidence any of Howard’s post-arrest statements; and (3) Howard did not file a motion for discharge under Criminal Rule 4 or object to the trial court’s setting of any of his trial dates.
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Opinions May 21, 2015

May 21, 2015
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Opinions May 20, 2015

May 20, 2015
7th Circuit Court of Appeals
University of Notre Dame v. Sylvia Mathews Burwell, Secretary of U.S. Department of Health & Human Services, et al., and Jane Doe 3
13-3853
U.S. District Court, Northern District of Indiana, Chief Judge Philip P. Simon.
Civil. Affirms denial of preliminary relief requested by Notre Dame against having to comply with the Affordable Care Act’s contraception mandate pending a trial. Notre Dame has not yet established its right to the injunctive relief it is seeking before trial and majority believes a trial on the merits is necessary. Judge Hamilton concurs in separate opinion; Judge Flaum dissents in separate opinion.
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Opinions May 19, 2015

May 19, 2015
Indiana Supreme Court
In the Matter of: Thomas R. Philpot
45S00-1304-DI-224
Attorney discipline. Suspends Thomas Philpot from the practice of law for four years without automatic reinstatement. Finds he violated the Indiana Rules of Professional Conduct by committing crimes that reflect adversely on his honesty, trustworthiness and fitness as a lawyer.
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Opinions May 18, 2015

May 18, 2015
Indiana Court of Appeals
Gary P. Byers v. Robert E. Moredock and Rhoda S. Moredock
34A04-1412-CT-560
Civil tort. Affirms summary judgment in favor of the Moredocks and against Byers. Finds the Moredocks as owners of the property and landlords did not have a duty to ensure their tenant’s dog was properly restrained.
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Opinions May 15, 2015

May 15, 2015
Indiana Tax Court
Lee and Sally Peters v. Lisa Garoffolo, Boone County Assessor, and the Indiana Board of Tax Review
49T10-1207-TA-42
Tax. Affirms the Indiana Board of Tax Review’s 2010 assessment of a Zionsville office building owned by Lee and Sally Peters. The Indiana Board of Tax Review did no err in upholding the 2010 real property assessment.
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Opinions May 14, 2015

May 14, 2015
Indiana Supreme Court
The Board of Commissioners of the County of Jefferson v. Teton Corporation, Innovative Roofing Solutions, Inc., Gutapfel Roofing, Inc., and Daniel L. Gutapfel
72S04-1410-CT-642
Civil tort. Affirms summary judgment in favor of the contractors on the county’s subrogation claim to recover damages caused to the courthouse outside the scope of the renovation work. The plain meaning of the contract defines the scope of the AIA contract waiver based on the extent and source of coverage, not the nature of the property damaged. Agrees with the majority of jurisdictions that have applied this plain meaning to bar recovery for all damages covered by the same property insurance policy used to cover construction-related damages – commonly referred to as the “any insurance” approach. Because contractors have shown that the property owner’s insurance covered all damages, the subrogation waiver applies to bar the property owner’s claim.
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Opinions May 13, 2015

May 13, 2015
Indiana Supreme Court
Daniel Lee Pierce v. State of Indiana
78S05-1407-CR-460
Criminal. Affirms Pierce’s convictions for molesting his three young granddaughters. Finds his abuse of the girls in his care was sufficiently connected, so he is not entitled to new and separate trials. Remands for the purpose of resentencing on one count of Class A felony child molesting because the trial court erred by suspending six years of Pierce’s 30-year sentence for that count. Justices Robert Rucker and Brent Dickson concur in a separate opinion.
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Opinions May 12, 2015

May 12, 2015
7th Circuit Court of Appeals
United States of America v. Michael A. Knoll and Dax G. Shephard; Appeal of: Bob Henson
14-3027
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms summary judgment in favor of the government on Henson’s claim he had a legal right, title or interest in the Indianapolis or Fort Wayne properties forfeited to the government after Outlaw members Knoll and Shephard pleaded guilty to racketeering charges. But Henson did not present evidence showing he had a legal right, title or interest, and his statement indicated his interest did not begin until after the raid occurred in 2012.
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Opinions May 11, 2015

May 11, 2015
Indiana Court of Appeals
Mary K. Davis v. State of Indiana
20A03-1411-PC-408
Post conviction. Reverses denial of petition for post-conviction relief. Orders Davis immediately released pending resolution of this appeal. The post-conviction court’s findings and conclusions were contrary to law. The state’s notice of violation was filed on the day Davis’ probation ended such that there was no period of probation to be tolled, which means the trial court could not continue her terms of probation pursuant to Ind. Code § 35-38-2-3(c).
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Opinions May 8, 2015

May 8, 2015
Indiana Court of Appeals
Jay R. Thompson v. State of Indiana
31A01-1408-PC-350
Post conviction. Affirms grant of the state’s motion to dismiss Thompson’s post-conviction relief petition pursuant to the doctrine of laches. The state was prejudiced by his 22-year delay in prosecuting his PCR petition.
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Opinions May 7, 2015

May 7, 2015
Jonathan Grott, Sr. v. State of Indiana
64A04-1408-CR-395
Criminal. Affirms conviction of Class D felony auto theft. There is sufficient evidence to sustain the conviction, which stems from Grott's failure to return a rental car on a specific date.
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Opinions May 5, 2015

May 5, 2015
7th Circuit Court of Appeals
United States of America v. Christopher Boultinghouse
14-2764
Chief Judge Richard Young, U.S. District Court for the Southern District of Indiana, Evansville Division
Criminal. Affirms revocation of Boultinghouse’s supervised release. Finds Boultinghouse knowingly and intelligently made his decision to waive his right to counsel. Vacates sentence and remands for resentencing. Rules the District Court erred by not explaining the reasons behind its decision to impose a 24-month term of imprisonment.
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Website domain dispute pulled from justices’ calendar

May 5, 2015
Dave Stafford
A dispute over a website address that had been scheduled for oral arguments Wednesday before the Indiana Supreme Court has been settled, an attorney involved in the case said.
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Opinions May 4, 2015

May 4, 2015
7th Circuit Court of Appeals
Bruce Carneil Webster v. Charles A. Daniels
14-1049
Judge William T. Lawrence, District Court for the Southern District of Indiana, Terre Haute Division.
Criminal. In a 6-5 decision, En banc review reverses 7th Circuit panel judgment that new evidence can never satisfy the habeas corpus standard of 28 U.S.C. § 2255(e). Remands for proceedings allowing Webster to present new evidence that may demonstrate categorical and constitutional ineligibility for the death penalty. Circuit Judge Frank Easterbrook dissented, arguing Webster’s new evidence did not meet the “clear and convincing” language required for relief. Easterbrook was joined in dissent by Circuit Judges William J. Bauer, Michael S. Kanne, Diane S. Sykes and John Tinder.
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Court OKs admission of tweets, reverses criminal gang activity conviction

April 30, 2015
Jennifer Nelson
In a case of first impression regarding the authentication of social media posts, the Indiana Court of Appeals held that the testimony from the defendant's girlfriend that the Twitter account belonged to her boyfriend, as well as content from that account, sufficiently showed the defendant was the author of its tweets.
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Opinions April 30, 2015

April 30, 2015
Indiana Court of Appeals
Bruce Angelo Evans v. State of Indiana
48A02-1407-CR-496
Criminal. Affirms conviction of Class B felony dealing in a narcotic drug and pleading to being a habitual substance offender. Evans waived his challenge regarding the instruction on jury unanimity by failing to object to the jury instruction or offer one of his own, and any error does not rise to the level of fundamental error. Affirms admission into evidence a large amount of cash found on Evans when he was searched by law enforcement officers after the controlled drug buy.
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Man’s conviction from controlled drug buy upheld

April 30, 2015
Jennifer Nelson
An Anderson man who was criminally convicted for selling drugs to a confidential informant waived both his arguments on appeal, the Indiana Court of Appeals ruled Thursday. And, the judges found no fundamental error in a jury instruction given or the admission of cash found on the defendant by police.
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Opinions April 29, 2015

April 29, 2015
 Indiana Supreme Court
James Bogner v. Teresa Bogner
45S04-1501-DR-23
Domestic relation. Affirms modification of child support that deviated from what was found under the child support guidelines of $59 a week paid by the father to $105 per week paid by the father, in addition to order that mother could claim the child each year on her taxes. The trial court did not err in determining that given the parents’ circumstances, the guideline amount was unjust and unreasonable. Finds father waived his challenge to the form of the summary proceeding when he failed to make a contemporaneous objection to that procedure. 
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Opinions April 28, 2015

April 28, 2015

Indiana Court of Appeals
Dawn Warrick and Nathan Parrish v. Steve and Mitzi Stewart
92A03-1407-CC-257
Civil collection. Affirms grant of Steve Stewart’s motion to set aside the jury’s verdict and orders a new trial on his negligence claim against the Parrishes. The trial court did not abuse its discretion when it weighed the evidence presented regarding Stewart’s speed and concluding he was not speeding. There was also ample evidence represented that the Warricks negligently failed to restrain the dog that Stewart hit, which caused his accident.

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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