Opinions

Opinions June 27, 2016

June 27, 2016
Indiana Court of Appeals
BC Osaka, Inc. and City Inn, Inc. v. Kainan Investment Groups, Inc.
45A03-1510-CT-1587
Civil Tort. Reverses decision granting Kainan Investment’s cross-claim on summary judgment that BC Osaka indemnify them against a woman’s personal injury claims. Finds the lease agreement did not specify whether the indemnification extended to negligence by the landlord and the landlord controlled the parking lot where the injury happened. Remands for jury trial.
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Opinions June 24, 2016

June 24, 2016
Indiana Court of Appeals
Willis G. Heck v. State of Indiana (mem. dec.)
84A01-1601-CR-126
Criminal. Affirms Willis Heck’s five-year sentence after he pleaded guilty to Level 5 felony burglary.
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Opinions June 23, 2016

June 23, 2016
Indiana Court of Appeals
Trondo L. Humphrey v. State of Indiana
48A02-1508-PC-1238
Post conviction. Reverses and remands denial of Trondo Humphrey’s petition for post-conviction relief after the court found Humphrey’s counsel was ineffective for not objecting to the use of statement for impeachment only. Also finds that Humphrey’s appeal was not barred by laches.
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Opinions June 22, 2016

June 22, 2016
Indiana Court of Appeals
Ricky E. Arion v. State of Indiana
08A02-1508-CR-1278
Criminal. Dismisses burglary, sexual battery and criminal confinement charges against Ricky Arion. COA rules the fact that the trial court never received a return of the arrest warrant did not absolve the trial court of following Arion’s motion for a speedy trial.
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Opinions June 21, 2016

June 21, 2016
Indiana Court of Appeals
In the Termination of the Parent-Child Relationship of N.C. (Minor Child) and A.C. (Father) v. The Indiana Department of Child Services
49A02-1510-JT-1711
Juvenile. Affirms termination of father’s parental rights after COA found the Americans with Disabilities Act cannot be used as a defense and the father waived his right to appeal on these grounds by not bringing up the issue at the trial court level.
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Opinions June 20, 2016

June 20, 2016
Indiana Court of Appeals
Town of Cedar Lake v. Review Board of the Indiana Department of Workforce Development, and Nicole Hoekstra (mem. dec.)
93A02-1512-EX-2165
Agency action. Affirms the Department of Workforce Development Review Board’s ruling that Nicole Hoekstra was fired without just cause.
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Opinions June 17, 2016

June 17, 2016
Indiana Court of Appeals
Richard C. Gallops and Patricia A. Gallops v. Shambaugh Kast Beck & Williams, LLP
02A03-1509-CT-1401
Civil tort. Dismisses Richard and Patricia Gallopses’ appeal of orders preceding their agreed judgment with Shambaugh Kast Beck & Williams on their legal malpractice suit because agreed judgments are not appealable.
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Opinions June 16, 2016

June 16, 2016
Indiana Supreme Court
Thomas L. Hale v. State of Indiana
35S02-1601-CR-37
Criminal. Reverses conviction of dealing in methamphetamine, holding that the trial court abused its discretion by failing to grant Hale depositions of two state witnesses at public expense. Advises trial courts denying an indigent defendant’s motion to depose state witnesses at public expense should issue findings supporting the denial.
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Opinions June 15, 2016

June 15, 2016
Indiana Court of Appeals
Northeastern Rural Electric Membership Corporation v. Wabash Valley Power Association, Inc.
49A02-1508-PL-1312
Civil plenary. Affirms summary judgment for Wabash Valley Power Association after Northeastern Rural Electric Membership Corp. challenged Wabash’s statute of limitations defense. Finds that the breach of contract would have happened in 2004, when Wabash switched regulations from state to federal and not 2008, when Wabash’s rates began to increase.
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Opinions June 14, 2016

June 14, 2016
Indiana Court of Appeals
Gregory Schafer v. Kathryne Borchert d/b/a Southlake Realty.
56A04-1507-CP-977
Civil plenary. Affirms judgment for Kathryne Borchert after Gregory Schafer appealed the judgment on Schafer’s claims that a tax sale notice was sent to him one day late when Borchert filed for a quiet title. Schafer had filed on cross-appeal to have the tax deeds set aside. The Court of Appeals found the trial court misinterpreted Trial Rule 6(A), counting the number of days between the notice and sale incorrectly.
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Opinions June 13, 2016

June 13, 2016
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday.

Matthew D. Claussen, et al. v. Michael R. Pence, Governor of the State of Indiana, et al.
16-1003
United States District Court for the Northern District of Indiana, Hammond Division, Philip P. Simon, chief judge.
Civil. Affirms Indiana Code 3-5-9-5, which states that a government employee may not also hold an elected position in the municipality they work in, does not violate the First Amendment or the Equal Protection Clause of the 14th Amendment. The 7th Circuit held that the interest Indiana has in avoiding corruption or the appearance of corruption outweighs any First Amendment violations the plaintiffs’ may suffer by not being able to serve in elected office.
 

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Opinions June 10, 2016

June 10, 2016
Indiana Court of Appeals
Timothy A. Williamson v. U.S. Bank National Association
49A05-1506-MF-521
Mortgage foreclosure. Affirms summary judgment for U.S. Bank after the court found a mistake in making the deed for the property didn’t mean Timothy Williamson did not own the property at the time of a modification agreement. Williamson’s name was not on the deed after it was accidentally included in the sheriff’s sale and sold to the bank but the bank rectified the issue.
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Opinions June 9, 2016

June 9, 2016
Indiana Court of Appeals
Edwin Guzman v. State of Indiana (mem. dec.)
20A05-1509-CR-1548
Criminal. Affirms denial of Edwin Guzman’s motion to correct error following his conviction as a habitual traffic offender, a Level 6 felony.
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Opinions June 8, 2016

June 8, 2016
7th Circuit Court of Appeals
Anastazia Schmid v. Steven McCauley, superintendent, Indiana Women’s Prison
14-2974
United States District Court for the Southern District of Indiana, Indianapolis Division, William T. Lawrence, judge.
Civil. Rules mentally ill woman appealing her murder conviction and sentence should have had an attorney appointed to her in District Court. Remands for court to appoint her one, as well as hold a possible evidentiary hearing.  
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Opinions June 7, 2016

June 7, 2016
Indiana Court of Appeals
Otter Creek Trading Company Inc. and Daniel Pohle v. PCM Enviro PTY, LTD.
40A01-1509-MI-1432
Miscellaneous. Affirms $147,000 default judgment for PCM after COA found the trial court did not abuse its discretion when it ruled Otter Creek’s reply to the complaint was too short after PCM sued for breach of contract because Otter Creek did not send a smelter PCM paid for. Also finds it didn’t matter that PCM did not have a certificate of authority and was not a full business, Otter Creek still needed to fulfill its contractual obligations.
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Opinions June 3, 2016

June 3, 2016
Indiana Tax Court
John and Sylvia Von Ermannsdorff v. Indiana Department of State Revenue
49T10-1112-TA-93
Tax. Denies the Department of State Revenue’s motion for summary judgment with respect to whether the von Erdmannsdorffs rebutted the presumption of correctness afforded to the department’s best information available assessments. Grants the von Erdmannsdorffs’ counter-motion for partial summary judgment with respect to whether the department erred in calculating their adjusted gross income by combining the gross receipts but failing to account for the additional business expense deductions.
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Opinions June 2, 2016

June 2, 2016
Indiana Court of Appeals
Tahj R. Thomas v. State of Indiana (mem. dec.)
02A04-1511-CR-2069
Criminal. Affirms Tahj R. Thomas’ aggregate eight-year sentence after he pleaded guilty to rape and criminal deviate conduct as Class A felonies.
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Opinions June 1, 2016

June 1, 2016
Indiana Supreme Court
David  P. Allen v. Kimberly W. Allen
13S01-1601-DR-00053
Domestic relations. Rules that divorced parents without an agreement to pay college expenses do not have to pay their children’s graduate or professional school expenses. Postsecondary in Indiana Code 31-16-6-2 means a technical or undergraduate school.
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Opinions May 31, 2016

May 31, 2016
Indiana Court of Appeals
Tracy K. Barber v. Amy Henry
87A01-1510-JP-1639
Juvenile. Affirms calculation of weekly child support owed by father after imputing just minimum wage to mother. The record shows mother, who is a doctor, is unemployed with just cause based on the special needs of her sons.  Reverses the order with respect to the civil attorney fees father is ordered to pay in his son’s juvenile case and remands with instructions to determine which part of the total amount claimed can be attributed to the protective order petition.
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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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  1. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

  5. To Bob- Goooooood, I'm glad you feel that way! He's alive and happy and thriving and out and I'm his woman and we live in West Palm Beach Florida, where his parents have a sprawling estate on an exclusive golf course......scum bag

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