Opinions

Opinions Jan. 11, 2017

January 11, 2017
7th Circuit Court of Appeals
Stephen H. Perron and the United States Bankruptcy Trustee for the Southern District of Indiana on behalf of Christine M. Jackson v. J.P. Morgan Chase Bank N.A.
15-2206
U.S. District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for Chase Bank in ex-couple Perron and Jackson’s lawsuit claiming the bank’s response to a misapplied insurance payment, seeking more than $300,000 in damages, caused their divorce. To the extent that any requested information was missing, Perron and Jackson suffered no actual damages and thus have no viable claim, nor did the bank breach the duty of good faith and fair dealing.
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Opinions Jan. 10, 2017

January 10, 2017
Indiana Court of Appeals
Jacob Skipworth v. State of Indiana

49A02-1605-CR-973
Criminal. Affirms the Marion Superior Court’s decision to order Jacob Skipworth to complete 26 weeks of domestic violence counseling as a condition of his probation for his convictions of criminal confinement and strangulation, both Level 6 felonies. Finds that the trial court did not abuse its discretion in ordering domestic violence counseling. Also finds that the trial court’s sentencing order and abstract of judgment contain clerical errors. Remands with instructions to correct the clerical errors.
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Opinions Jan. 9, 2017

January 9, 2017
Indiana Court of Appeals
William Groth v. Mike Pence, as Governor of the State of Indiana

49A04-1605-PL-1116
Civil plenary.  Affirms the Marion Superior Court decision finding former Gov. Mike Pence’s response to William Groth’s Access to Public Records Act request for records related to his decision to join a Texas lawsuit against the President of the United States was proper under the Access to Public Records Act. Finds that Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236 (Ind. 2016), does not apply to the request for public records directed to the governor. Also finds that the trial court did not violate Groth’s due process rights. Finally, affirms on the merits the governor’s decision to withhold the white paper from public disclosure and to partially redacted the invoices because the white paper contains legal theories in contemplation of litigation and that the governor’s redactions were within his discretion under APRA. Rejects Pence’s claim that executive privilege renders his response to APRA requests immune from judicial review. Chief Judge Nancy Vaidik concurs in part and dissents in part in separate opinion.
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Opinions Jan. 6, 2017

January 6, 2017
Indiana Court of Appeals
Mario Deon Watkins v. State of Indiana
82A01-1510-CR-1624
Criminal. Reverses Mario Deon Watkins’ convictions for two counts of possession of a controlled substance as Class A misdemeanors, possession of cocaine as a Level 6 felony, possession of marijuana as a Class B misdemeanor and maintaining a common nuisance as a Level 6 felony. Finds that while there was a considerable degree of suspicion, the extent of law enforcement needs for a military-style assault was low and the degree of intrusion was unreasonably high. Judge Melissa May dissents with separate opinion.
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Opinions Jan. 3, 2017

January 3, 2017

Indiana Supreme Court
Kennedy Tank & MFG. Co., Inc., and Hemlock Semiconductor Operations LLC and Hemlock Semiconductor, LLC v. Emmert Industrial Corporation d/b/a Emmert International
49S02-1608-CT-431
Civil tort. Finds on an issue of first impression that Indiana’s 10-year statute of limitations is not preempted by the federal statute of limitations in the Interstate Commerce Commission Termination Act. Finds that Congress’ purpose was not to preempt state statutes of limitations and that Indiana’s statute of limitations does not do major damage to the ICCTA’s deregulatory purpose. Thus, Emmert Industrial Corp.’s collection claim against Kennedy Tank & Manufacturing Co. can proceed.

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Opinions Dec. 29, 2016

December 29, 2016
Indiana Court of Appeals
Angela R. Neal v. State of Indiana
20A04-1606-CR-1326
Criminal. Affirms that the Elkhart Superior Court’s advisement of the consequences of Angela R. Neal’s status as a credit-restricted felon complied with Indiana Code 35-38-1-7.8(c). Finds there is no particular language that a trial court must use in order to comply with the statute.
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Opinions Dec. 28, 2016

December 28, 2016
Indiana Court of Appeals
Stardust Ventures, LLC v. Gary Roberts and Teresa Roberts
33A01-1603-PL-604
Civil plenary. Reverses the Henry Circuit Court’s denial of Stardust Ventures LLC’s motion to dismiss a suit brought by Gary and Teresa Roberts to recover $75,000 paid to Stardust. Finds that the purchase agreement is a valid and binding contract between the parties and that Stardust did not waive its right to request arbitration. Remands to the trial court to enter an order compelling arbitration.

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Opinions Dec. 27, 2016

December 27, 2016
Indiana Court of Appeals
P. Kevin Barkal, M.D. and Pemcor, Inc. v. Gouveia & Associates
45A03-1607-CT-1601
Civil tort. Affirms the Lake Circuit Court’s grant of summary judgment to Gouveia & Associates, concluding that Dr. P. Kevin Barkal and Pemcor Inc. failed to designate expert testimony establishing that Gouevia breached the standard of care in his legal representation of Pemcor in the underlying bankruptcy case.
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Opinions Dec. 22, 2016

December 22, 2016
Indiana Court of Appeals
M.T.V. v. State of Indiana
36A05-1607-JV-1681
Juvenile. Affirms M.T.V.’s adjudication of delinquency for conspiracy to commit aggravated battery, a Level 3 felony if committed by an adult. Finds that the Jackson Superior Court did not abuse its discretion in admitting Facebook conversations containing statements made by M.T.V. and his co-conspirator and that the evidence is sufficient to support his delinquency adjudication.
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Opinions Dec. 21, 2016

December 21, 2016
7th Circuit Court of Appeals
United States of America v. Bruce Jones
15-1792
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Criminal. Affirms Bruce Jones’ convictions of three counts of possessing firearms and ammunition and one count of health care fraud. Finds that because Jones never objected to the restraint on his life insurance policies, the district court had no reason to probe those matters in an evidentiary hearing. Also finds that the judge did not abuse her discretion in denying Jones’ request for appointment of new counsel and that the judge apprised Jones of his constitutional right to testify, which he waived. Finally, finds that the judge did not miscalculate the sentencing guideline range for his firearms offenses by taking into account his 1985 felony conviction for a controlled substance offense.
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Opinions Dec. 20, 2016

December 20, 2016
Indiana Tax Court
Orbitz, LLC v. Indiana Department of Revenue
49T10-0903-TA-10
Tax. Grants summary judgment in favor of Orbitz LLC and against the Indiana Department of Revenue. Finds that during the period at issue, the department erred in issuing sales and innkeeper’s tax assessments against Orbitz based on the retail rate of Indiana hotel rooms as a matter of law because the hoteliers, as the retail merchants, were liable for the taxes, not Orbitz.
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Opinions Dec. 19, 2016

December 19, 2016
Indiana Court of Appeals
Tyrone D. Payton v. State of Indiana (mem. dec.)
22A01-1605-CR-980
Criminal. Affirms the revocation of Tyrone Payton’s probation. The trial court properly revoked his probation and ordered him to serve four years of his previously suspended sentence.
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Opinions Dec. 16, 2016

December 16, 2016
Indiana Court of Appeals
The Board of Commissioners of Union County, Indiana v. Brandye Hendrickson, in her official capacity as Commissioner of the Ind. Dept. of Transportation, and the State of Indiana
81A01-1603-PL-696
Civil plenary. Reverses the dismissal of the Board of Commissioners of Union County’s complaint against Brandye Hendrickson in her official capacity as commissioner of the Indiana Department of Transportation. The Indiana Court of Appeals reviewed the case as a Trial Rule 12(B)(6) dismissal of a complaint, not a granting of summary judgment, and accordingly disregarded Ron Parker’s affidavit in considering the merits of the Union Circuit Court’s ruling. Finds that the trial court erred in dismissing the Union County’s action for declaratory judgment and injunctive relief against INDOT and that the county has standing to pursue those claims. Remands for further proceedings.
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Opinions Dec. 15, 2016

December 15, 2016
Indiana Court of Appeals
Robert W. Adams v. State of Indiana (mem. dec.)
02A03-1512-CR-2149
Criminal. Affirms the denial of Robert W. Adams’ motion for jail-time credit against his sentence in the New Castle prison. Finds that whatever merit Adams’ claim has lies beyond the record he submitted and beyond what a court may consult when reviewing a motion to correct an erroneous sentence. Thus, the Allen Superior Court judge did not abuse her discretion by denying Adams’ motion to additional credit time.
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Opinions Dec. 14, 2016

December 14, 2016
Indiana Court of Appeals
In the Matter of the Marriage of: Mark A. Del Priore v. Jill E. Del Priore
02A03-1603-DR-605
Domestic relation. Affirms in part and reverses in part the trial court’s decree of dissolution and distribution of the marital estate. Reverses trial court order that the parties be responsible for a child’s educational expenses beyond undergraduate school. Remands to amend the decree to reflect parties are ordered to pay only for educational expenses that pertain to the child obtaining a bachelor’s degree.
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Opinions Tuesday, Dec. 13, 2016

December 13, 2016
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
United States of America v. Shaft Jones
15-3547
Appeal from the United State District Court for the Northern District of Indiana, Fort Wayne Division. Judge Theresa L. Springmann.
Criminal. Affirms Shaft Jones’ convictions of conspiring to possess, with intent to distribute, five or more kilograms of cocaine and of related crimes, including carrying a gun in connection with drug trafficking, and his sentence to 270 months in prison.
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Opinions Dec. 12, 2016

December 12, 2016
Indiana Court of Appeals
Richard Dobeski v. State of Indiana
49A02-1603-CR-440
Criminal. Reverses Richard Dobeski’s conviction for failure to register as a sex offender. Finds that Dobeski’s conviction is not supported by the evidence.  Remands with instructions to vacate his conviction.
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Opinions Dec. 9, 2016

December 9, 2016
7th Circuit Court of Appeals
Sherry Katz-Crank v. Kimberly Haskett
15-1809
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms the dismissal of charges against Marion County and Indiana state and county officials in their individual and official capacities. Finds that broad immunity provides protections against most charges brought by Sherry Katz-Crank and that Katz-Crank failed to establish constitutional claims. Judge Richard Posner concurs and dissents with separate opinion.
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Opinions Dec. 8, 2016

December 8, 2016
Indiana Court of Appeals
In re the Expungement/Sealing of Records of H.M. v. State of Indiana and Marion County Sheriff
49A02-1604-MI-700
Miscellaneous. Reverses dismissal of H.M.’s contempt petition. Finds that the Marion Superior Court did not err when it denied H.M.’s motion to strike but did err when it dismissed H.M.’s contempt petition. Remands for further proceedings. Judge Michael Barnes concurs with separate opinion.
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Opinions Dec. 7, 2016

December 7, 2016
Indiana Court of Appeals
Reginald Webster v. State of Indiana
49A05-1603-CR-417
Criminal. Reverses Reginald Webster’s conviction for Class A misdemeanor carrying a handgun without a license. Finds that the Marion Superior Court clearly erred in denying Webster’s motion for involuntary dismissal.
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Opinions Dec. 6, 2016

December 6, 2016
7th Circuit Court of Appeals
Gillian Berger, et al. v. National Collegiate Athletic Association, et al.
16-1558
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Affirms district court decision to grant the appellees’ motion to dismiss, holding that student-athletes are not employees and are not entitled to a minimum wage under the Fair Labor Standards Act. Judge David Hamilton concurs with separate opinion.
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Opinions Dec. 5, 2016

December 5, 2016
Indiana Court of Appeals
Andre Anderson v. State of Indiana
49A02-1511-CR-1947
Criminal. Reverses Andre Anderson’s conviction of Level 5 felony carrying a handgun without a license after he appealed the admission at trial of a handgun found pursuant to a search of his car following his arrest. Finds that the search of Anderson’s jacket was not lawful as a search incident to arrest or an inventory search and, thus, the Marion Superior Court abused its discretion when it admitted the handgun into evidence.
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Opinions Dec. 2, 2016

December 2, 2016
Indiana Court of Appeals
First American Title Insurance v. Stephen W. Robertson, Insurance Commissioner of the state of Indiana, in his official capacity, on behalf of the Indiana Department of Insurance
49A05-1512-PL-2309
Civil plenary. Affirms the Marion Superior Court’s dismissal of First American Title Insurance Co.’s complaint against Stephen Robertson, in his official capacity as Indiana insurance commissioner. Finds that the trial court properly granted IDOI’s motion to dismiss because FATIC’s claims are barred by res judicata.
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Opinions Dec. 1, 2016

December 1, 2016
Corey Middleton v. State of Indiana
32A01-1603-PC-592
Post conviction. Affirms denial of petition for post-conviction relief. While Corey Middleton’s defense attorney used the word ‘Negro’ to describe him during voir dire, the offending language does not entitle him to post-conviction relief because of the considerable evidence against him that led to his conviction and 40-year sentence on drug and gun charges. Middleton was also not entitled to PCR when his attorney, who has since been disbarred, failed to inform him of a plea agreement that Middleton said he would have accepted or on other grounds.
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Opinions Nov. 30, 2016

November 30, 2016
Indiana Court of Appeals
Mark Vinup v. Joe's Construction, LLC and Joe Getz and Property-Owners Insurance Company v. Joe's Construction, LLC and Joe Getz
58A04-1602-CT-502
Civil tort. Affirms the Ohio Circuit Court’s grant of summary judgment in favor of Property-Owners Insurance Co. and Joe’s Construction. Finds that Mark Vinup failed to establish that a genuine issue of material fact exists on the issue of whether his status was that of an employee at the time he was injured. Also finds that under the plain language of the policy, Vinup was not a temporary worker, and the trial court did not err when it granted Property-Owners’ motion for summary judgment.
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  2. 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.

  3. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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