Opinions

Opinions March 19, 2015

March 19, 2015
Indiana Court of Appeals
Indiana Alcohol and Tobacco Commission v. Lebamoff Enterprises, Inc.
49A02-1408-MI-529
Miscellaneous. Reinstates and affirms the ATC’s final order sanctioning Lebamoff Enterprises for using a common carrier to deliver alcohol to customers. ATC’s interpretation of the relevant statutory authority was reasonable and its order did not reflect an improper attempt to create an agency rule, but rather was a proper exercise of the ATC’s adjudicatory function. Remands with instructions.
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Opinions March 18, 2015

March 18, 2015
Indiana Supreme Court
Ball State University v. Jennifer Irons; In Re the Marriage of: Jennifer Irons and Scott Irons
45S03-1503-DR-134
Domestic relation. Reverses trial court’s order granting mother’s motion to join supplemental defendant, Ball State, and order release of transcript. Mother has not carried her burden in demonstrating that Ball State was a necessary party under Trial Rule 19. Remands with instructions to enter an appropriate order dismissing Ball State from this action.
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Opinions March 17, 2015

March 17, 2015
Indiana Tax Court
Blue Chip Casino, LLC v. LaPorte County Treasurer, and LaPorte County Convention & Visitors Bureau
49T10-1008-TA-37
Tax. Dismisses the casino’s appeal of the LaPorte County treasurer’s failure to respond to its request for a refund of innkeeper’s tax that it paid to the treasurer between January 2007 and August 2009 for lack of subject matter jurisdiction. All pending motions are hereby deemed moot.
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Opinions March 16, 2015

March 16, 2015
Indiana Court of Appeals
Redevelopment Commission of the Town of Munster, Indiana v. Indiana State Board of Accounts and Paul D. Joyce, State Examiner of State Board of Accounts
45A04-1408-PL-404
Civil plenary. Affirms summary judgment in favor of the state Board of Accounts. Holds the commission had standing to bring its declaratory judgment and the trial court did not err in determining that Indiana statute does not permit the use of TIF funds for the continued maintenance of completed redevelopment projects.
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Opinions March 13, 2015

March 13, 2015
7th Circuit Court of Appeals
United States of America v. Jackie H. Richardson
14-1901
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Criminal. Affirms denial of motion to dismiss the federal prosecution against Richardson. Holds that Richardson’s speedy trial right under the Sixth Amendment was not violated. Judge Hamilton concurs in separate opinion.
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Opinions March 12, 2015

March 12, 2015
Indiana Supreme Court
Indiana Restorative Dentistry, P.C. v. The Laven Insurance Agency, Inc. and ProAssurance Indemnity Co., Inc. F/K/A the Medical Assurance Co., Inc.
49S05-1407-PL-491
Civil plenary. Affirms summary judgment against IRD regarding Laven’s contractual duty to procure full coverage. Reverses summary judgment regarding Laven’s duty to advise. Holds that the designated evidence supports conflicting inferences on whether the parties enjoyed a special relationship that created a duty to advise. As for the implied contract to procure full coverage, holds that the record does not show any discussion between the parties on the matter, much less a meeting of the minds. Remands for further proceedings.
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Opinions March 11, 2015

March 11, 2015
Indiana Court of Appeals
Matthew Marcus, II v. State of Indiana
45A03-1407-CR-230
Criminal. Strikes Marcus’ appeal brief and remands the matter to the trial court for appointment of competent counsel. His public defender advocated for a review of his client’s sentence under the manifestly unreasonable standard, which was replaced more than a decade ago. And he failed to present a cogent argument with citation within relevant authority.
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Opinions March 10, 2015

March 10, 2015
Indiana Court of Appeals
J.B. v. State of Indiana
53A01-1408-CR-367
Criminal. Reverses denial of a petition for expungement of a conviction of Class A misdemeanor battery. The trial court erred when it denied J.B.’s petition to have records relating to his conviction expunged, citing the dismissal of the conviction after J.B. completed a one-year probation sentence. Holds that an earned dismissal of a conviction does not disqualify someone from expungement of the conviction.
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Opinions March 9, 2015

March 9, 2015
Indiana Court of Appeals
Stuart Reed and Michael Reed v. Michael Cassady
49A05-1405-PL-220
Civil plenary. Affirms order granting Cassady’s motion to enforce a $30,000 sanction as well as a finding that Distinctive Transportation Services, Inc. in contempt and imposition of a $10,000 fine. Reversal is not warranted on the order enforcing the $30,000 sanction and Reeds are jointly and severally liable. Also found reversal is not warranted of the $10,000 sanction.
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Opinions March 6, 2015

March 6, 2015
Indiana Court of Appeals
John Norris v. State of Indiana
34A04-1410-CR-499
Criminal. Remands to the trial court to reduce the sentence following a guilty plea to Class B felony dealing in a controlled substance from 20 years executed to 12 years with eight years executed. The panel concluded the sentence was excessive in light of the offense of selling 10 hyrdocodone pills for a total of $60.
 
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Opinions March 5, 2015

March 5, 2015
Indiana Supreme Court
Kenneth Griesemer v. State of Indiana
49S04-1408-CR-564
Criminal. Affirms conviction of patronizing a prostitute. Finds the undercover detective merely presented Griesemer with an opportunity to patronize a prostitute and there was no inducement and therefore no entrapment. Justices Dickson and Rucker dissent with separate opinion.
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Opinions March 4, 2015

March 4, 2015
Indiana Court of Appeals
David Bisard v. State of Indiana
02A03-1312-CR-492
Criminal. Affirms convictions and sentence for Class B felony operating a vehicle with a BAC of 0.15 or higher causing death and two counts of Class D felony operating a vehicle with a BAC of more than 0.08 percent causing serious bodily injury. The trial court did not abuse its discretion in denying Bisard’s motion for a mistrial based upon issues relating to juror misconduct and the statement by the court that admitting testimony from Bisard regarding his drinking habits would open the door to a subsequent drunken-driving conviction did not amount to denial of due process.
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Opinions March 3, 2015

March 3, 2015
Indiana Court of Appeals
Gordon A. Etzler v. Indiana Department of Revenue
50A04-1406-PL-285
Civil plenary. Reverses summary judgment in favor of the revenue department on Etzler’s complaint for breeder’s award funds. Because the judgment resulting from the department’s Marshall County tax warrant only creates a lien on property “in the county,” I.C. 6-8.1-8-2(e), and because the department did not take measures to establish a lien on property located in any other county, the department’s ability to levy on Dale Dodson’s property was limited to Marshall County. Etzler filed a valid UCC financing statement that perfected his interest in the breeder’s awards.
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Opinions March 2, 2015

March 2, 2015
7th Circuit Court of Appeals
Mir S. Iqbal v. Tejaskumar M. Patel, et al.
14-1959
U.S. District Court, Northern District of Indiana, Hammond Division. Judge James T. Moody.
Civil. Reverses dismissal of Iqbal’s complaint for want of jurisdiction because it is barred by the Rooker-Feldman doctrine since it challenges state court judgment. Because he seeks damages for activity that (he alleges) predates the state litigation and cause injury independently of it, the Rooker-Feldman doctrine does not block his suit.
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Opinions Feb. 27, 2015

February 27, 2015
Indiana Court of Appeals
Tyrone Shelton v. State of Indiana
71A03-1408-CR-309
Criminal. Affirms convictions of Class A misdemeanor possession of marijuana, Class C felony possession of cocaine, and Class D felony possession of a Schedule I controlled substance. The anonymous tip exhibited sufficient indicia of reliability to create reasonable suspicion for the search in accordance with the Fourth Amendment.
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Opinions Feb. 26, 2015

February 26, 2015
7th Circuit Court of Appeals
Betty Ruth Nelson v. Peggy Holinga Katona, individually and in her official capacity as Lake County Auditor, et al.
13-1652
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph S. Van Bokkelen.
Civil. Affirms judgment entered against Nelson on her lawsuit that she was unlawfully terminated from her job in the auditor’s office because of her political support of Barack Obama. Nelson failed to file any post-verdict motions.
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Opinions Feb. 25, 2015

February 25, 2015
Indiana Court of Appeals
Gordon L. Peak, Jr. v. State of Indiana
27A04-1406-CR-260
Criminal. Affirms conviction of Class D felony possession of marijuana in excess of 30 grams. Trial counsel was not deficient for failing to file a motion to suppress the marijuana or for not objecting at trial to the admission of it on the grounds the traffic stop was illegal.
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Opinions Feb. 24, 2015

February 24, 2015
Indiana Court of Appeals
Meridian North Investments LP v. Anoop Sondhi DDS, MS
49A02-1405-PL-311
Civil plenary. Affirms on interlocutory appeal denial of Meridian North’s motion for summary judgment on Sondhi’s negligence claim arising from injuries sustained after a fall caused by slipping on ice as he attempted to enter his office. While Sondhi signed a lease as an officer of a partnership, a landlord exculpatory clause in the lease contract limiting Meridian’s liability did not bind Sondhi personally from pursuing a negligence claim.
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Opinions Feb. 20, 2015

February 20, 2015
7th Circuit Court of Appeals
Timothy W. Austin v. Andrew Pazera
14-2574
United States District court for the Northern District of Indiana, Hammond Division,
Judge James Moody.
Criminal. Reverses the denial of Austin’s petition for federal habeas corpus and remands with instructions to order the relief sought by the appellant. Austin was punished in a prison disciplinary proceeding for having attempted to traffic in tobacco. However, he appealed and the 7th Circuit agreed that he had been denied due process of law by being convicted without sufficient evidence.
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Opinions Feb. 19, 2015

February 19, 2015
Indiana Court of Appeals
In re the Paternity of Snyder, M.S. v. D.A.
79A02-1407-JP-497
Juvenile. Affirms in part, reverses in part and remands. The trial court erred when it denied father M.S.'s motion to permit him to tell his daughter that he is her father. Because a finding of physical endangerment or emotional impairment was not made prior to imposing the restriction, the trial court erred in denying father's request, and that portion of the trial court's orders is reversed. Affirms trial court ruling on modification of parenting time order, holding that father has not demonstrated there was a change in circumstances to warrant a change in the parenting time that now permits him to talk with his daughter once weekly in 15-minute supervised Skype sessions.
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Opinions Feb. 18, 2015

February 18, 2015
Indiana Supreme Court
Jeffrey A. Weisheit v. State of Indiana
10S00-1307-DP-492
Death penalty. Affirms two convictions of murder and one conviction of Class A felony arson resulting in serious bodily injury and sentence to death. There is sufficient evidence to support the convictions. The trial court did not err in excluding a prison administration expert’s testimony that Weisheit could be safely incarcerated in prison nor did it err in refusing to excuse 12 jurors for cause.
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Opinions Feb. 17, 2015

February 17, 2015
Indiana Tax Court
Alloy Custom Products, Inc. v. Indiana Department of State Revenue
49T10-1102-TA-17
Tax. Grants summary judgment in favor of the Department of State Revenue and denies Alloy Custom Products’ motion for summary judgment regarding a refund of sales tax paid on utilities Alloy consumed while “rehabilitating” cryogenic tanker trailers between September 2006 and March 2010. Alloy’s rehabilitation process does not produce other, or new, tangible personal property.
 
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Opinions Feb. 16, 2015

February 16, 2015
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
United States of America v. Anthony Wilbourn
13-3610
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms imposition of a two-level enhancement after the judge determined Wilbourn committed obstruction of justice by pretending to be mentally incompetent in an effort to derail or delay his prosecution. An evaluation by medical professionals found he was competent to stand trial. Holds when a judge has doubts about the bona fides of a defendant’s behavior at the competence hearing, the judge should not find an obstruction of justice.
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Opinions Feb. 13, 2015

February 13, 2015
Indiana Court of Appeals
Kevin A. Mathews v. State of Indiana
73A04-1406-CR-288
Criminal. Affirms conviction of Class B felony robbery. Finds Mathews waived his right to a face-to-face confrontation with the victim by failing to attend her deposition. Her deposition, conducted through Skype, was given under oath and transcribed by a court reporter.

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Opinions Feb. 12, 2015

February 12, 2015
The following Indiana Supreme Court decision was posted after IL deadline Wednesday:
Brandon Brummett v. State of Indiana
49S02-1502-CR-69
Criminal. Clarifies that Ryan v. State, 9 N.E.3d 663 (Ind. 2014), a case involving prosecutorial misconduct, did not alter the doctrine of fundamental error. Summarily affirms Court of Appeals reversal of several of Brummett’s convictions due to prosecutorial misconduct.
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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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