Opinions

Opinions Jan. 19, 2015

January 19, 2015
The state and federal courts are closed Monday in observance of Martin Luther King Jr. Day.
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Opinions Jan. 16, 2015

January 16, 2015
Indiana Supreme Court
Jeffrey A. Cleary v. State of Indiana
45S03-1404-CR-295
Criminal. Affirms multiple convictions and a 14-year sentence in a fatal drunken-driving crash imposed when Cleary was retried after a first jury deadlocked on greater criminal charges and convicted Cleary on misdemeanor and infraction counts. Justices found no statutory or constitutional double-jeopardy violations.
 
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Opinions Jan. 15, 2014

January 15, 2015
Indiana Court of Appeals
David Paul Brown v. State of Indiana
32A01-1405-CR-194
Criminal. Affirms conviction of Class D felony theft. Finds trial counsel was not ineffective for failing to object to a portion of Brown’s videotaped interview with a detective as hearsay and for not tendering a jury instruction on criminal conversion as a lesser-included offense.
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Opinions Jan. 14, 2015

January 14, 2015
7th Circuit Court of Appeals
United States of America v. Dwan Rashid Taylor
14-1981
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Criminal. Affirms denial of motion to suppress drugs and guns found by police in Taylor’s storage locker pursuant to a search warrant. The police learned of the storage location using a GPS unit that it attached to Taylor’s car without a warrant in 2011, a year before the Supreme Court of the United States held that attaching a GPS device to a car for purposes of gathering information was a search under the Fourth Amendment. Because the officers used the GPS monitor in objectively reasonable reliance on binding appellate precedent in effect at that time, the suppression motion was properly denied.
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Opinions Jan. 13, 2015

January 13, 2015
Indiana Court of Appeals
Thrasher Buschmann & Voelkel, P.C. v. Adpoint, Inc., Joel Hall, and Mary Hall
49A02-1406-CC-430
Collections. Affirms trial court denial of Thrasher Buschmann & Voelkel’s motion for summary judgment and reverses the grant of Adpoint’s motion for summary judgment and order that the amount of legal fees owed by Adpoint to the law firm was $11,085.50. The court erred in granting summary judgment to Adpoint based on res judicata and collateral estoppel. Remands to the trial court to determine the amount Adpoint owes TBV for its representation in underlying litigation.
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Opinions Jan. 12, 2015

January 12, 2015
Indiana Court of Appeals
David Anderson, Comm., Joe Wray, Comm., and Board of Trustees, Brown Co. Fire. Prot. Dist. v. Susanne Gaudin, Janet Kramer, And Ruth Reichmann
07A01-1406-PL-265
Civil plenary. Affirms trial court order invalidating the Brown County commissioners’ amendment of an ordinance creating a countywide fire district. In creating the district, the commissioners expressly granted it and its board of trustees the powers and authority enumerated in the ordinance, thereby relinquishing power to amend the ordinance.
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Opinions Jan. 9, 2015

January 9, 2015
Indiana Court of Appeals
Jerome Sheckles v. State of Indiana
10A04-1405-CR-204
Criminal. Affirms conviction of Class A felony dealing in cocaine and adjudication of Sheckles as a habitual substance offender. Sheckles was not deprived of his right to a speedy trial under Criminal Rule 4(C), the trial court did not err when it denied Sheckles’ request for disclosure of a confidential informant’s identity, nor were Sheckles’ confrontation rights violated. The trial court did not abuse its discretion when it admitted into evidence a police video recording of the controlled buy.
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Opinions Jan. 8, 2015

January 8, 2015
7th Circuit Court of Appeals
Daniel P. Minnick v. Carolyn W. Colvin, acting commissioner of Social Security
13-3626
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Joseph S. Van Bokkelen.
Civil. Reverses judgment of the District Court upholding the acting commissioner’s decision to deny benefits to Minnick and remands for further proceedings. The administrative law judge did not fully develop the record before drawing any conclusions and did not adequately articulate her analysis so that the appellate court could follow her reasoning.
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Opinions Jan. 7, 2015

January 7, 2015
Indiana Court of Appeals
In the Matter of the Mental Health Proceedings of B.M. v. Indiana University Health Hospital
53A04-1405-MH-210
Mental health. Affirms order involuntarily committing B.M. to a mental health facility. The trial court’s finding that B.M. is a danger to others is supported by sufficient evidence. Judge Riley dissents with opinion.
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Opinions Jan. 6, 2015

January 6, 2015
Indiana Supreme Court
Fishers Adolescent Catholic Enrichment Society, Inc. v. Elizabeth Bridgewater o/b/o Alyssa Bridgewater
93S02-1310-EX-704
Civil. Vacates the final order from the Indiana Civil Rights Commission regarding a dispute over a dinner menu. The commission had found that the Fishers Adolescent Catholic Enrichment Society Inc. did not discriminate against Bridgewater when it did not provide a special meal for her daughter who suffered from food allergies. However, the commission did rule that FACES did commit an unlawful discriminatory practice when it expelled the Bridgewater family from the group after they filed the disability discrimination complaint. The Supreme Court concluded because the activities of FACES fell outside education, the commission lacked the statutory authority to take any action other than the dismissal of these claims. Remands with instructions to grant the motion to dismiss filed by FACES on both claims. Justice Robert Rucker dissented, maintaining the commission does have the authority to act on the retaliation claim.
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Opinions Jan. 5, 2015

January 5, 2015
7th Circuit Court of Appeals
State Farm Life Insurance Co. v. Troy Jonas et al.
14-1464
Civil tort. Vacates judgment of District Court and remands with instructions to dismiss for lack of subject-matter jurisdiction. Finds no justiciable controversy existed when Jonas filed his lawsuit against State Farm. Concluded that the disputes about the rate of interest and whether the insurance company must pay the attorney fees that Jonas has incurred in this litigation do not retroactively create jurisdiction.
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Opinions Dec. 31, 2014

December 31, 2014
Indiana Court Appeals
Alfredo D. Rodriguez, as Permanent Guardian of the Person and Estate of Miriam Rodriguez, and Alfredo D. Rodriguez, Individually v. United States Steel Corporation
45A04-1407-CT-350
Civil tort. Affirms summary judgment in favor of U.S. Steel on Alfredo Rodriguez’s negligence claim. Miriam Rodriguez was injured in an auto accident caused by an employee of U.S. Steel as he drove home from work. U.S. Steel did not owe Miriam Rodriguez a duty of reasonable care.
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Opinions Dec. 30, 2014

December 30, 2014
Indiana Court of Appeals
Jeffrey Hewitt v. Westfield Washington School Corp; Board of School Trusties of Westfield Washington School Corp. et al.
29A04-1403-PL-130
Civil plenary. Reverses grant of summary judgment in favor of Westfield Washington School Corp. and related defendants, holding they had not met the onerous burden of showing there are no issues of material fact entitling them to judgment as a matter of law. Hewitt, a former school principal, was fired for a sexual relationship with a teacher he supervised. He then sued the school system for breach of contract and denial of due process. His suit is remanded for further proceedings.
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Opinions Dec. 29, 2014

December 29, 2014
Indiana Court of Appeals
Charles P. White v. State of Indiana

29A05-1312-PC-641
Post conviction. Affirms White’s convictions for perjury, voting in the wrong precinct and theft. Finds White was convicted twice for the same actions in violation of double jeopardy. Reverses White’s other convictions for perjury and voting in the wrong precinct as well as another perjury conviction for putting the wrong address on his marriage license application. Remands with instructions that the trial court vacate those three convictions. Concludes White’s attorney, Carl Brizzi, was not ineffective. Holds White’s sentence to one-year of home detention remains.
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Opinions Dec. 24, 2014

December 24, 2014
Indiana Court of Appeals
Lloyd G. Perry v. Anonymous Physican 1, Alias Medical Group 1, Inc., Anonymous Physican 2, et al.
02A03-1401-CT-43
Civil Tort. Affirms summary judgment in favor of healthcare providers. Finds Perry did not submit expert testimony as required by court rules to support his medical malpractice claim.  
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Opinions Dec. 23, 2014

December 23, 2014
Indiana Supreme Court
In Re the Adoption of B.C.H.
41S04-1408-AD-515
Adoption. Vacates the trial court’s decision to grant stepfather’s petition to adopt B.C.H. and remands for a hearing on the child’s best interests in the adoption and other proceedings consistent with this opinion. At this hearing, the grandparents, who had primary custody of B.C.H. for the first four years of her life, shall be given the opportunity to give or withhold consent to the child’s adoption. They were not served with legal notice of the adoption.
 
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Opinions Dec. 22, 2014

December 22, 2014
7th Circuit Court of Appeals
United States of America v. Milford J. Clark
12-1417
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms conviction for bank robbery. Clark was not deprived of his Sixth Amendment right to proceed pro se. Any errors in admission of evidence were harmless since Clark met the physical description of the robber and his DNA was found at the bank.
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Opinions Dec. 19, 2014

December 19, 2014
Indiana Court of Appeals
Christopher Duncan v. State of Indiana
09A05-1312-CR-613
Criminal. Reverses conviction of identity deception because the state did not prove that the name and birth date Duncan falsely gave to police belonged to a real person. Remands with instructions to vacate that conviction and sentence as well as the conviction and sentence for Class D felony pointing a firearm because of double jeopardy principles. Also remands for the court to reduce his resisting law enforcement conviction to a Class A misdemeanor due to double jeopardy principles.
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Opinions Dec. 18, 2014

December 18, 2014
Indiana Supreme Court
Rodregus Morgan v. State of Indiana
49S02-1405-CR-325
Criminal. Vacates conviction of Class B misdemeanor public intoxication as the requirements for conviction under Indiana’s public intoxication statute have not been met. An objective reasonable person standard should be read into Indiana’s public intoxication statute when applying the term “annoys.” Under that reading, the statute is not unconstitutionally vague.
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Opinions Dec. 17, 2014

December 17, 2014
Indiana Supreme Court
Shawn Blount v. State of Indiana
49S02-1405-CR-338
Criminal. Affirms conviction of being a serious violent felon in possession of a firearm. A detective’s testimony that a witness identified Blount as the suspect was inadmissible hearsay, but it was a harmless error. There was no variance between the charging information and the evidence presented at trial.
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Opinions Dec. 16, 2014

December 16, 2014
Indiana Supreme Court
Mark Rolley v. Melissa Rolley
87S01-1412-DR-739
Domestic relation. Affirms modification of child support order. Rules in a per curiam decision that ruling by Indiana Court of Appeals that an order of child support could be modified either because a substantial and continuing change in circumstances or, after 12 months, a 20 percent deviation.
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Opinions Dec. 15, 2014

December 15, 2014
Indiana Court of Appeals
Goodrich Quality Theaters, Inc. and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc., et. al.
64A03-1308-PL-318
Civil plenary. Reaffirms previous ruling by the Indiana Court of Appeals that the trial court erred in awarding attorney fees to Fostcorp Heating and Cooling, Wilson Iron Works and Johnson Carpet. Since the general contractor, Roncelli Inc., was not the property owner, it is not liable for payment of attorney fees. Judge Patricia Riley voted to deny rehearing.
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Opinions Dec. 12, 2014

December 12, 2014
Indiana Court of Appeals
Central Mutual Insurance Company v. Motorists Mutual Insurance Company
49A04-1405-CT-214
Civil tort. Affirms on interlocutory appeal the trial court order denying Central’s motion for partial summary judgment and granting Motorists’ motion for partial summary judgment. The trial court did not err in finding that Central provided primary coverage to a truck driver injured in a crash and that the Motorists policy provided excess coverage only when the limits of the Central policy had been reached.
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Opinions Dec. 11, 2014

December 11, 2014
7th Circuit Court of Appeals
Kevin L. Harold v. Christopher C. Steel and Peters & Steel LLC
14-1875
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms dismissal of Harold’s lawsuit under the Fair Debt Collection Practices Act, contending Steel and his law firm had violated 15 U.S.C. Section 1692e by making false statements. Harold sought to challenge a garnishment order entered in state court. The Rooker-Feldmen doctrine bars his lawsuit.
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Opinions Dec. 10, 2014

December 10, 2014
7th Circuit Court of Appeal
Robert D. DeLee v. City of Plymouth, Indiana
14-1970
U.S. District Court, Northern District of Indiana, Judge James T. Moody.
Civil. Reverses summary judgment in favor of the city on police officer DeLee’s lawsuit that he is entitled to his full longevity payment from the city for the year he served in the U.S. Air Force Reserves for eight months. Plymouth’s longevity benefit is more appropriately characterized as a reward for lengthy service rather than as compensation for work performed the preceding year, so the Uniformed Services Employment and Reemployment Rights Act guarantees DeLee a fully longevity payment for his 12th year of employment. Remands for further proceedings.
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  5. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

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