Opinions

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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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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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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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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Opinions April 27, 2015

April 27, 2015
Indiana Court of Appeals
Adegoke Adetokunbo aka Robert Adesanoye, and Grace Itaniyi v. State of Indiana
49A02-1407-CR-511
Criminal. Affirms Adetokunbo’s convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor battery, and affirms Itaniyi’s convictions of Class A misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct. Reverses Itaniyi’s conviction of Class B misdemeanor battery based on insufficient evidence and remands with instructions to vacate that conviction.
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Opinions April 24, 2015

April 24, 2015
Tax. Affirms the Indiana Department of Local Government Finance did not err in denying the Clark County Board of Commissioners' request to increase the county's Cumulative Capital Development Fund tax rate for the 2012 budget year. The DLGF's consideration of the board's purpose for requesting an increase to the CCDF's tax rate was proper, and neither I.C. 6-1.1-41 nor 36-9-14.5-2 authorize an increase to the CCDF tax rate for the purposes Clark County intended.
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Opinions April 23, 2015

April 23, 2015
J.B. v. State of Indiana 
49A02-1409-JV-688
Juvenile. Affirms determination that J.B. committed what would be Class A misdemeanor dangerous possession of a firearm if committed by an adult. There were no federal or state constitutional violations by admitting evidence obtained during J.B.’s encounter with a police officer.  
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Opinions April 22, 2015

April 22, 2015
Indiana Court of Appeals
William I. Babchuk, M.D., P.C., d/b/a Babchuk Imaging, P.C., and William I. Babchuk v. Indiana University Health Tipton Hospital, Inc., d/b/a Indiana University Health Tipton Hospital
80A04-1409-PL-447
Civil plenary. Reverses order dismissing Babchuk’s complaint of breach of contract for failure to prosecute under Trial Rule 41(E).  While the trial court would have had discretion to dismiss Babchuk’s case for failure to prosecute had a timely motion been filed, the hospital did not file its motion to dismiss before Babchuk had resumed prosecution of his case. Remands for further proceedings.
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Opinions April 21, 2015

April 21, 2015
7th Circuit Court of Appeals
United States of America v. Kenneth Sandidge
14-1492
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Rudy Lozano.
Criminal. Affirms four-level enhancement for conviction of felon in possession of a firearm because it was in connection with another felony, and denial of three-level reduction for accepting responsibility. Remands to the trial court to vacate conditions of supervised release, which in accord with recent 7th Circuit holdings must be imposed to fit the particular circumstances of the defendant being sentenced.
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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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