Opinions

Opinions Feb. 2, 2016

February 2, 2016
Indiana Court of Appeals
State of Indiana and Indiana Bureau of Motor Vehicles v. Nicholas Hargrave
82A01-1504-CR-137
Criminal. Reverses denial of state’s motion to correct error after the trial court granted Hargrave’s petition asking it to order the BMV to reinstate his driving privileges without requiring him to provide proof of SR22 insurance. The BMV properly interpreted federal regulations adopted by Indiana statutes to mean that a person who holds a CDL at the time he commits a traffic violation may not participate in a diversion program. And because Hargrave’s driving privileges were suspended under I.C. 9-30-6-9, he is required to file proof of financial responsibility for three years following the termination of his suspension under I.C. 9-30-6-12.
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Opinions Feb. 1, 2016

February 1, 2016

The following Indiana Tax Court opinion was posted after IL deadline Friday:
DeKalb County Assessor v. Paul L. and Joan E. Chavez
49T10-1502-TA-6
Tax. Affirms the final determination by the Indiana Board of Tax Review to reclassify 2.72 acres of the Chavezes’ land from excess residential to agricultural for the 2013 tax year. The guidelines provide several factors to consider when determining whether land is woodland and is therefore devoted to an agricultural use under Indiana Code § 6-1.1-4-13(a). The Indiana Board did not act contrary to law when it analyzed these very factors to determine that the Chavezes’ 2.72 acres were devoted to an agricultural use.

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Opinions Jan. 29, 2016

January 29, 2016
Indiana Court of Appeals
Kimberly Y. Morgan v. State of Indiana
34A05-1509-CR-1323
Criminal. Affirms in part and reverses in part restitution order. The trial court properly concluded Morgan must pay restitution to Selective Insurance, but to the extent the order provides for the amount to the Visitors Commission in excess of its $250 deductible is an abuse of discretion. Remands with instructions for the court to enter a restitution order for the payment of $11,455.48 to Selective Insurance and $250 to the commission.

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Opinions Jan. 28, 2016

January 28, 2016
7th Circuit Court of Appeals
United States of America v. Terry Joe Smith
14-3744, 14-3721
U.S. District Court, Southern District of Indiana, Terre Haute Division. Judge William Lawrence.
Criminal. Affirms two convictions of excessive force against two individuals who were in police custody. Vacates 14-month sentence followed by two years of supervised release after finding the sentence to be light in comparison to similar cases. The judge was also required to give the entire sentence orally. Remands for full resentencing.
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Opinions Jan. 27, 2016

January 27, 2016
Indiana Court of Appeals
In Re the Marriage of: Courtney Carr v. Beth E. Carr
03A01-1505-DR-436
Domestic relation. Affirms in part and reverses in part dissolution order. The survivor benefit plan feature of Courtney Carr’s military pension should have been counted as a marital asset. Remands with instructions to count the survivor benefit plan as a marital asset and either make findings justifying a 65/35 split in favor of wife or reallocate the marital assets in accordance with the 60/40 split previously determined by the trial court.
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Opinions Jan. 26, 2016

January 26, 2016
Indiana Court of Appeals
Jerry E. Johnson v. State of Indiana (mem. dec.)
27A02-1507-CR-793
Criminal. Affirms conviction of Class D felony theft.  
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Opinions Jan. 25, 2016

January 25, 2016
Indiana Supreme Court
Shane Keller v. State of Indiana
88S04-1506-CR-354
Criminal. Reverses the two convictions of Class B felony burglary for breaking and entering into a farmhouse. Remands for entry of two replacement convictions for burglary as Class C felonies and for resentencing accordingly. Finds the jury instructions which included language from a Court of Appeals decision erroneously expanded the statutory definition of “dwelling.” Justice Massa dissents, joined by Chief Justice Rush.
 

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Opinions Jan. 22, 2016

January 22, 2016
The following Indiana Supreme Court opinion was posted after IL deadline Thursday:
Antonio Garcia v. State of Indiana
49S05-1505-CR-335
Criminal. Affirms denial of Garcia’s motion to suppress the admission of a pill container found during a quick pat-down search following a lawful arrest. Opening the pill container, which had one narcotic pill for which Garcia did not have a valid prescription, during the course of the pat-down search incident to his arrest for driving without a valid driver’s license was a reasonable search under Article 1, Section 11 of the Indiana Constitution.
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Opinions Jan. 21, 2016

January 21, 2016
Indiana Supreme Court
Kastin E. Slaybaugh v. State of Indiana
79S02-1601-CR-28
Criminal. Grants transfer to expressly adopt and incorporate by reference the Court of Appeals opinion in which it affirmed the denial of Slaybaugh’s motion for a mistrial. He alleged juror misconduct because a juror who had denied knowing the victim or her family was a “Facebook” friend with a relative of the victim. The juror testified she was a Realtor and had many “Facebook” friends for networking purposes and did not know the victim or her family, which the trial court accepted she was being truthful.
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Opinions Jan. 20, 2016

January 20, 2016
Indiana Court of Appeals
Indiana Professional Licensing Agency and Indiana State Board of Dentistry v. Irfan A. Atcha, D.D.S.
49A02-1504-MI-197
Miscellaneous. Affirms in part and reverses in part the trial court’s finding that three dental advertising regulations are unconstitutional. The state properly restricted Dr. Atcha’s false and misleading claims implying he had a particular dental specialty and could provide better materials or superior service than other dentists. But the state may not compel a dentist to list on his advertisements every dentist in his practice. Remands for the board to reassess the penalty in light of this decision.
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Opinions Jan. 19, 2016

January 19, 2016
Indiana Court of Appeals
Cary R. Coleman v. State of Indiana
47A01-1506-IF-659
Infraction. Reverses speeding infraction, finding the trial court erred in concluding that the altered speed limit established by Lawrence County Ordinance 5-2-1 was effective in the absence of signage giving motorists notice of the altered speed limit.
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Opinions Jan. 15, 2016

January 15, 2016
Indiana Court of Appeals
Debra R. Sorrells v. Karen Reid-Renner, M.D.
53A01-1506-CT-534
Civil tort. Reverses summary judgment in favor of Dr. Reid-Renner on Sorrell’s medical malpractice complaint. Finds Sorrells met her burden to survive summary judgment on the issue of causation as a doctor’s expert testimony is sufficient to demonstrate a genuine issue of material fact.
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Opinions Jan. 14, 2016

January 14, 2016
Indiana Court of Appeals
David R. Neal v. Mark Sevier and the Indiana Department of Correction (mem. dec.)
52A02-1410-SC-735
Small claims. Affirms judgment in favor of Department of Correction.
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Opinions Jan. 13, 2016

January 13, 2016
Indiana Court of Appeals
Ashlee A. Trammel v. Jeffery S. Trammel (mem. dec.)
92A04-1507-DR-933
Domestic relation. Affirms denial of petition for mother to relocate children to North Carolina and award of parenting time to her according to the Indiana Parenting Time Guidelines. Reverses order that mother pay father $1,500 in attorney fees. Chief Judge Vaidik concurs in part and dissents in part with separate opinion.
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Opinions Jan. 12, 2016

January 12, 2016
Indiana Court of Appeals
Michael G. Hays v. Shanna Hays
62A04-1501-DR-33
Domestic relation. Reverses a court order that declared a Wyoming court order on father’s child support arrearage null and void. Vacates a trial court order precluding either party from taking the dependent exemption on their income taxes and remands for proceedings.
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Opinions Jan. 11, 2016

January 11, 2016
Indiana Court of Appeals
John W. Kimbrough, III v. State of Indiana (mem. dec.)
45A05-1506-PC-687
Post-conviction. Affirms denial of Kimbrough’s petition for post-conviction relief.
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Opinions Jan. 8, 2016

January 8, 2016
Indiana Court of Appeals
In the Matter of Ordinance #2013-09, as amended, the South and West Area Annexation Ordinance, et al. v. The City of Logansport, Indiana, acting by and through Ted Franklin, et al. (mem. dec.)
09A05-1504-PL-170
Civil plenary. Affirms order that annexation take place. Disagrees with remonstrators’ arguments that: the judgment is clearly erroneous because the ordinance does not adequately describe the annexation territory’s boundaries; the city of Logansport did not present sufficient evidence regarding the requisite contiguity of its boundaries with those of the annexation territory; the city did not present sufficient evidence that the annexation territory is needed and can be used for its development in the reasonably near future; the city’s fiscal plan is inadequate; and the remonstrators established that the annexation will have a significant financial impact on residents or landowners.
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Opinions Jan. 7, 2016

January 7, 2016
The following opinions were posted after IL deadline Wednesday:
Indiana Supreme Court
R.E. v. M.S.

49S05-1601-PO-6
Protective order.Grants R.E.’s transfer for the purpose of substituting her initials for her name in the Indiana Supreme Court opinion. R.E. had asked for the Court of Appeals to redact her full name from its decision and only identify her by her initials. Summarily affirms the COA’s decision in all other respects, which upheld the issuance of a protective order against R.E.
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Opinions Jan. 6, 2016

January 6, 2016
Indiana Court of Appeals
Anthony Fisher v. Charles Nightingale (mem. dec.)
64A04-1502-SC-83
Small claim. Reverses dismissal of Fisher’s complaint for failure to prosecute. By foreclosing any alternative avenue for Fisher, an inmate, to maintain his claim, the small claims court denied his constitutional right to prosecute his claim.

 
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Opinions Jan. 5, 2016

January 5, 2016
7th Circuit Court of Appeals
Tracy Williams v. Brandon Brooks, et al.
15-1763
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Civil. Affirms summary judgment in favor of the law enforcement defendants on Williams’ lawsuit alleging false arrest, excessive force and failure to protect in violation of the Fourth Amendment. The district court correctly determined that it was not bound by the state court’s findings in Williams’ criminal case for resisting law enforcement. In addition, the arresting officer had probable cause to conduct the traffic stop, so he could arrest Williams without violating the Fourth Amendment even if Williams was not resisting law enforcement.
 
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Opinions Dec. 31, 2015

December 31, 2015
Indiana Court of Appeals
Nathan Polson v. State of Indiana
55A01-1504-CR-135
Criminal. Affirms conviction of Level 5 felony carrying a handgun without a license, rejecting Polson’s argument on appeal that the trial court abused its discretion because he claims the gun was seized by police in violation of the Fourth Amendment of the Constitution.
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Opinions Dec. 30, 2015

December 30, 2015
Indiana Court of Appeals
Charles S. Whitham v. State of Indiana

39A01-1504-CR-134
Criminal.  Affirms Whitham’s conviction of Class A felony attempted murder but sua sponte reverses his remaining convictions of Class B felony aggravated battery, Class B felony battery, Class C felony battery and Class D felony strangulation because each of these were a lesser-included offense to his conviction for attempted murder. Remands for the trial court to vacate these offenses.
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Opinions Dec. 29, 2015

December 29, 2015
Indiana Court of Appeals
John Barker and Specialty Limos, LLC v. Jason Price
24A02-1506-PL-626
Civil plenary. Reverses in part and affirms in part summary judgment in favor of Price in a contract dispute concerning the sale of a van. The trial court did not err when it concluded Price delivered a valid certificate of title even though the title was not in his name. Reverses summary judgment on the issue of whether a discrepancy in the model year of the van created a material issue. On remand, the court will consider not only the $2,000 deposit agreement but also extrinsic evidence to determine whether the model year of the van was material to their agreement.     
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Opinions Dec. 28, 2015

December 28, 2015
Indiana Court of Appeals
Douglas L. Krasnoff v. The Education Resources Institute
49A04-1501-CC-3
Civil collection. On rehearing, reaffirms original opinion that affirmed judgment the trial court in favor of The Education Resources Institute. Clarifies Krasnoff’s liability may be repaid to TERI Loan Holdings as the post-bankruptcy successor in interest and that any additional claims seeking a second judgment on a promissory note would be barred by the doctrine of res judicata.  

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Opinions Dec. 23, 2015

December 23, 2015
Indiana Court of Appeals
Raymond Kerr v. City of South Bend
71A03-1502-CT-49
Civil tort. Affirms in part and reverses in part summary judgment for the city on Kerr’s complaint alleging that noxious gases from its sewer lines had been forced into his home. Finds Kerr’s claims are barred by the statute of limitations insofar as they relate to injury to his health. A portion of his claims may proceed insofar as they relate to damage to his property. Remands for further proceedings.
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  1. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  2. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  3. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  4. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  5. "...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.

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