Opinions

Opinions Dec. 2, 2014

December 2, 2014
7th Circuit Court of Appeals
Emily Herx v. Diocese of Fort Wayne – South Bend, Inc. and St. Vincent de Paul School
14-3057
U.S. District Court, Northern District of Indiana, Fort Wayne Division.
Judge Robert Miller Jr.
Civil. Grants Emily Herx’s motion to dismiss for lack of appellate jurisdiction. Rejects the argument from the diocese for a collateral-order review, finding the church’s interest will not be irreparably harmed by waiting for the District Court to issue a final judgment.
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Opinions Dec. 1, 2014

December 1, 2014
7th Circuit Court of Appeals
United States of America v. William Boswell
13-3641
Appeals from the U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Criminal. Affirms conviction and 235-month sentence for being a felon in possession of a firearm in violation of the Armed Career Criminal Act. The admission of evidence that Boswell had a gun tattoo on his neck was not an abuse of discretion because it served to impeach his testimony, and the sentence under the ACCA did not have to be alleged in the indictment.
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Opinions Nov. 26, 2014

November 26, 2014
Indiana Court of Appeals
Crystal Valley Sales Inc., Charles Kline, and Nancy Kline v. Jonathan Anderson, National Sales Company Inc., Rodger Anderson, Camco Manufacturing, and Norm Geible
20A04-1402-PL-83
Civil Plenary. Affirmed trial court’s dismissal of civil conspiracy claims against National Sales Company Inc., Rodger Anderson, Camco Manufacturing Inc. and Norm Geible for failure to state a claim upon which relief can be granted. Finds Crystal Valley did not provide sufficient facts to show that the co-defendants engaged in unlawful actions. Rejects Crystal Valley’s argument that its civil conspiracy count is sufficient by itself to claim the co-defendants helped Jonathan breach his contractual or fiduciary duties.
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Opinions Nov. 25, 2014

November 25, 2014
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Opinions Nov. 24, 2014

November 24, 2014
Indiana Court of Appeals
Antonio Smith v. State of Indiana
71A04-1312-CR-609
Criminal. Reverses conviction of Class C felony burglary, finding the state knowingly proffered perjured testimony from a witness who had previously pleaded guilty to the break-in of a Dollar General store that Smith also was charged with. The state had a duty to correct perjured testimony and should have joined in the defense’s request for a mistrial. The court referred the case to the Indiana Supreme Court Disciplinary Commission with a caution: “We also note that instances of prosecutorial misbehavior continue to come before us on appeal notwithstanding our admonishments.”
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Opinions Nov. 21, 2014

November 21, 2014
Indiana Court of Appeals
Deriq Watters v. State of Indiana
34A02-1403-CR-215
Criminal.  Reverses revocation of probation. The evidence used to revoke Watters’ probation was inadmissible.
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Opinions Nov. 20, 2014

November 20, 2014
Indiana Tax Court
The City of Greenfield and the Greenfield Fire Protection Territory v. The Ind. Dep't of Local Government Finance
49T10-1111-TA-67
Tax.  Reverses reduction by the Department of Local Government Finance of the Greenfield Fire Protection Territory’s general fund levy for the 2012 budget year. Public Law 172-2011, Section 164 contravenes the special legislation provisions set forth in Article 4, Section 23 of the Indiana Constitution.
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Opinions Nov. 19, 2014

November 19, 2014
Indiana Court of Appeals
Sharon Handy v. P.C, Building Materials, Inc., PC Properties, LLC, David A. Stemler, and Karen L. Stemler
22A01-1403-CT-125
Civil tort. Reverses summary judgment in favor of P.C. Building Materials and other defendants on Handy’s negligence claim. There are genuine issues of material fact that remain for a determination by a jury. Remands for further proceedings.
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Opinions Nov. 18, 2014

November 18, 2014
Indiana Court of Appeals
In the Matter of the Termination of the Parent-Child Relationship of E.P. III and E.P. Jr. (Father) v. Indiana Dept. of Child Services
15A04-1403-JT-134
Juvenile. Affirms father’s termination of parental rights. Father did not object to the same judge who presided in his Class B felony child molesting and neglect convictions presiding in his termination of parental rights proceedings, therefore the argument first raised on appeal is waived. There also was sufficient evidence to support the termination of parental rights.
 
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Opinions Nov. 17, 2014

November 17, 2014
Indiana Court of Appeals
In the Matter of the Walter Penner Trust Under Agreement Created by the Grantor, Walter Penner on April 13, 2010, Stanley Penner v. Ronald Penner
45A03-1212-TR-516
Trust. Affirms trial court’s denial of Stanley Penner’s Petition for Trustee’s Accounting, for Order to Sell Real Estate, and Related Matters. Also affirmed trial court’s order that Stanley pay $13,166 in attorney fees to the Penner Trust. Remands for the trial court to determine and order Stanley to pay the appellate attorney fees for the trust. Finds Ronald did not breach the trust. The language of the trust is unambiguous and, therefore, overrides the state statutes that require trusts to provide access to an accounting. 
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Opinions Nov. 14, 2014

November 14, 2014
Indiana Court of Appeals
Timothy W. Paul v. Stone Artisans, Ltd.
29A04-1406-PL-258
Civil plenary. Affirms finding that Paul breached his contract with Stone Artisans. Finds that although the contact did not include measurements, the contract is still enforceable because it is reasonably certain in the terms and conditions. Also rules the contract did comply with the Home Improvement Contract Act despite missing two of the required nine elements.
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Opinions Nov. 13, 2014

November 13, 2014
7th Circuit Court of Appeals
United States of America v. Evelyn Rivera Borrero, et al.

13-3430, 13-3468, 13-3516, 13-3517, 13-3559
U.S. District Court, Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio.
Criminal. Reverses convictions of conspiring to violate 8 U.S.C. Section 1324 (a)(1)(A)(iii) and (iv) by shielding unauthorized aliens from detection and encouraging them to live in the United States; and vacates convictions of conspiracy to commit mail or wire fraud. Remands for entry of acquittal on the first count. The government’s legal argument that vehicle tiles and license plates are “property” from the perspective of Indiana is a legal error.
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Opinions Nov. 12, 2014

November 12, 2014
Indiana Court of Appeals
Jeffrey Z. Hayden v. State of Indiana
55A04-1403-CR-116
Criminal. Affirms sufficient evidence to convict Hayden of burglary, theft and residential entry. Remands with instructions to vacate guilty verdict on residential entry as it is a lesser-included offense of burglary and to clarify the entry of judgment as to whether to enter judgment and sentence on the theft conviction or to vacate the jury’s guilty verdict.
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Opinions Nov. 11, 2014

November 11, 2014
All courts are closed Nov. 11 in observance of Veterans Day.
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Opinions Nov. 10, 2014

November 10, 2014
Indiana Court of Appeals
Christa Allen v. Richard Hinchman, M.D.; Richard Tanner, M.D.; and Jeffery Smith, M.D.
49A02-1311-PL-975
Civil plenary. Reverses summary judgment in favor of the doctors on Allen’s medical malpractice claim. Holds that the standard of care for doctors practicing in prisons is the same as the standard of care for doctors practicing outside of prison.
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Opinions Nov. 7, 2014

November 7, 2014
Indiana Supreme Court
Gregory F. Zoeller, Attorney General and Rick J. Ruble, Commissioner of the In. Dept. of Labor v. James M. Sweeney, David A. Fagan, Charles Severs et. al.
45S00-1309-PL-596
Civil plenary. Reverses finding by Lake Superior Court that I.C. 22-6-6-8 and 22-6-6-10 violate Article I, Section 21 of the Indiana Constitution. Any compulsion to provide services does not constitute a demand made by the state. Justice Rucker concurs in result with separate opinion.
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Opinions Nov. 6, 2014

November 6, 2014
Indiana Court of Appeals
Victor Keeylen v. State of Indiana
49A05-1308-CR-419
Criminal. Grants rehearing and affirms original opinion in all respects. Clarifies point from original opinion and still holds that it is unlikely the detective attempted to mislead the judicial officer into issuing the search warrant.
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Opinions Nov. 5, 2014

November 5, 2014
Indiana Court of Appeals
Erie Insurance Exchange v. Troy Sams and Teresa Sams
44A03-1403-CT-97
Civil tort. Affirms judgment ordering Erie Insurance to pay the Samses $63,924.89 for losses they suffered after a storm damaged their home. The trial court did not err in finding the policy covered the storm damage to the home and the judgment amount was not clearly erroneous.
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Opinions Nov. 3, 2014

November 3, 2014
Indiana Court of Appeals
In the Matter of the Termination of the Parent-Child Relationship of D.B.M. and H.B. (Father) v. Indiana Department of Child Services
02A03-1405-JT-171
Juvenile. Affirms trial court’s order to terminate father’s parental rights. Rules the testimony of Allen County Department of Child Services supervisor was cumulative of the other evidence so any error in admitting the testimony was harmless. Also finds the evidence presented at the hearing supports the trial court’s conclusion that the conditions which necessitated the child’s removal from the father’s care would not be remedied.
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Opinions Oct. 31, 2014

October 31, 2014
Indiana Court of Appeals
Michael Dwain Neal v. Amanda Lee Austin
49A02-1404-DR-225
Domestic relation. Reverses grant of Austin’s petition for post-secondary education expenses on behalf of her and Neal’s adult child. The trial court did not have authority to issue an order for educational support. Holds that I.C. 31-16-6-6(c) and -6(d) necessitates that where the most recent order establishing a child support obligation was issued after June 30, 2012, the child must file a petition for educational needs before he or she becomes 19 years of age.
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Opinions Oct. 30, 2014

October 30, 2014
Indiana Supreme Court
Wayne A. Campbell v. State of Indiana
13S05-1410-PC-682
Post conviction. Affirms denial of petition for post-conviction relief, finding no ineffective assistance by trial counsel for, in part, failing to object to an instruction on the definition of “intentionally.” The second sentence of the contested instruction serves to emphasize the heavy burden placed on the state to prove that a defendant acted intentionally.
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Opinions Oct. 29, 2014

October 29, 2014
7th Circuit Court of Appeals
Marshall G. Welton v. Shani J. Anderson, et al.
13-3336
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Civil. Affirms dismissal of Welton’s claims of malicious prosecution, violations of the Fourth and 14th amendments and state law violations. Welton failed to state a predicate constitutional violation in support of his malicious prosecution claim and failed to show the requisite malice.
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Opinions Oct. 28, 2014

October 28, 2014
7th Circuit Court of Appeals
United States of America v. Trevor Hinds
13-3543
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Criminal. Affirms two-level sentencing enhancement for production or trafficking under U.S.S. G. 2B1.1(b)(11)(B)(i). Hinds’ crime involved the production of counterfeit access devices (credit cards) and the court did not err in applying the enhancement. Vacates the two special conditions imposed: that Hinds pay a portion of the court-ordered substance abuse treatment and drug testing and that he submit to suspicionless searches and seizures. The court did not make a finding whether Hinds could pay for the testing, and the government concedes that the search and seizure condition is unlawfully broad and invasive.
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Opinions October 27, 2014

October 27, 2014
Indiana Court of Appeals
In Re the Adoption of K.W.: M.W. v. S.L. and T.L.
10A04-1309-AD-469
Adoption. Reverses decree granting S.L. and T.L.’s petition to adopt K.W. The trial court violated father’s due process rights when it failed to rule on his request for appointed counsel. Remands for the trial court to determine whether father, who is incarcerated, is indigent, and if so, to appoint counsel to represent him at a new adoption hearing.
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Opinions Oct. 24, 2014

October 24, 2014
Indiana Court of Appeals
219 Kenwood Holdings, LLC v. Properties 2006, LLC
45A03-1401-MI-49
Miscellaneous. Affirms finding that Properties 2006 LLC substantially complied with the requirements of I.C. 6-1.1-25-4.5(e), which requires the purchaser of property sold at a tax sale to notify the owner of record of, among other things, the purchaser’s intent to petition for a tax deed on or after a specified date.
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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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