Opinions

Opinions Oct. 18, 2016

October 18, 2016
Indiana Court of Appeals
State of Indiana ex rel. Indiana Department of Transportation v. Joshua Dehaven and FBi Buildings, Inc.
37A05-1603-CC-648
Civil collection. Affirms denial of the State of Indiana, ex rel. Indiana Department of Transportation’s motion for summary judgment in lawsuit against Joshua DeHaven and FBi Buildings, Inc. INDOT is not entitled to recover, as a matter of law, the actual cost incurred to repair the bridge after DeHaven struck it with his trailer.
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Opinions Oct. 17, 2016

October 17, 2016
Indiana Court of Appeals
Charles J. Davis Sr. v. Jay Phelps, Bartholomew County Clerk

03A01-1604-PL-928
Civil plenary. Reverses Bartholomew Circuit Court’s order dismissing Charles J. Davis Sr.’s complaint for failure to make a timely payment of fees. Finds that Davis should have been given 45 days to make the payment, but was only given 30 days. Remands with instructions for Davis to re-send the filing fee of $17.18 within 45 days.

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Opinions Oct. 14, 2016

October 14, 2016
Indiana Court of Appeals
Kent R. Blair, Sr. v. State of Indiana
02A05-1604-CR-832
Criminal. Affirms Kent Blair’s convictions of invasion of privacy as a Level 6 felony and criminal trespass as a Class A misdemeanor, and his sentence to 1 ½ years executed in the Indiana Department of Correction. Finds the evidence is sufficient to sustain Blair’s convictions, that the Allen Superior Court did not abuse its discretion in sentencing him and that his sentence is not inappropriate in light of the nature of the offenses and his character.
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Opinions Oct. 13, 2016

October 13, 2016
Indiana Court of Appeals
Danny Sims v. Andrew Pappas and Melissa Pappas
45A03-1509-CT-1424
Civil tort. Majority reverses jury award of $2 million in favor of the Pappases in a lawsuit following a crash caused by Sims, an intoxicated driver. The trial court erred in admitting Sims’ prior decades-old convictions for alcohol-related offenses that neither proved nor disproved any facts that were central to the questions the jury decided, and were therefore irrelevant and unfairly prejudicial. Judge Robert Altice dissents, arguing admission of the evidence of past convictions was for the sole purpose of establishing punitive damages and bear on the reprehensibility of his actions and state of mind.  

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Opinions Oct. 12, 2016

October 12, 2016
7th Circuit Court of Appeals
James Blasius v. Angel Automotive, Inc.
15-2994
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Joseph S. Van Bokkelen.
Civil. Reverses district court decision to grant summary judgment in favor of Angel Automotive Inc. after James Blasius accused the company of negligence. Finds that a genuine issue of material fact exists as to the proximate cause of the fire that consumed Blasius’ vehicle and that Blasius is entitled to rely on the doctrine of res ipsa loquitur. Remands for further proceedings.
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Opinions Oct. 11, 2016

October 11, 2016
Indiana Court of Appeals
Allen County Plan Commission, et al. v. Olde Canal Place Association, et al.
02A03-1412-PL-441
Civil plenary. Reverses Allen Superior Court’s order granting Olde Canal Place Association and its members relief from judgment. Finds that the association cannot establish a meritorious claim. Remands with instructions to vacate the judgment setting aside its dismissal of the association’s petition for judicial review.

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Opinions Oct. 6, 2016

October 6, 2016
Indiana Court of Appeals
In the Matter of the Involuntary Termination of the Parent-Child Relationship of N.G. (Minor Child), and N.R.G. (Mother) v. The Indiana Department of Child Services
71A04-1602-JT-346
Juvenile termination of parental rights. Remands with instructions to provide more specific findings of fact and conclusions of law to support the termination of N.R.G.’s parental rights to her daughter, N.G.
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Opinions Oct. 5, 2016

October 5, 2016
Indiana Tax Court
Hamilton Square Investment, LLC. v. Hamilton County Assessor
49T10-1505-TA-00018
Tax. Reverses the final determination of the Indiana Board of Tax Review. Remands to the Indiana Board of Tax Review to instruct the appropriate officials to take action. Finds that Hamilton Square Investment LLC was correct in its claim that the board erred in upholding the classification of its real property and the allocation of its tax cap credits for the 2012 tax year.
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Opinions Oct. 4, 2016

October 4, 2016
Indiana Supreme Court
Robert Lewis, III v. State of Indiana
45S00-1601-LW-32
Life without parole. Resentences Robert Lewis to a total of 88 years’ imprisonment for his convictions of murder, criminal deviate conduct as a Class B felony and resisting law enforcement as a Class D felony. Remands to the trial court for the imposition of the sentences.
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Opinions Oct. 3, 2016

October 3, 2016
7th Circuit Court of Appeals
Exodus Refugee Immigration, Inc. v. Michael R. Pence, in his official capacity as Governor of Indiana, et al.
16-1509
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms preliminary injunction barring Gov. Mike Pence from ordering federal money to assist the resettlement of Syrian refugees be withheld because of potential terror threats. The district judge was correct in granting the injunction because Exodus is likely to prevail in a trial on the merits.
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Opinions Sept. 30, 2016

September 30, 2016
Indiana Court of Appeals
Robert Kadrovach v. State of Indiana
49A02-1510-CR-1738
Criminal. Affirms conviction of Class A felony attempted murder for a hotdog vendor who stabbed a man in the head in downtown Indianapolis. The court did not commit fundamental error when it instructed the jury as to the mens rea necessary to convict him of attempted murder.
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Opinions Sept. 29, 2016

September 29, 2016
Indiana Court of Appeals
Jakob Robinson v. State of Indiana
79A02-1603-CR-522
Criminal. Affirms eight year sentence, with five years in the Department of Correction and three suspended to probation, following Robinson’s guilty plea to five counts of child seduction as Level 5 felonies. His sentence is not inappropriate given his manipulation of his victim, a student at the school where he taught and coached, and his abuse of his position of trust over her.
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Opinions Sept. 28, 2016

September 28, 2016
Indiana Court of Appeals
Susan E. Sturdivant v. State of Indiana
08A02-1601-CR-186
Criminal. Affirms trial court’s decision to allow Susan Sturdivant to conduct her own defense. Finds that there was no evidence that Sturdivant was suffering from severe mental illness.
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Opinions Sept. 27, 2016

September 27, 2016
Indiana Court of Appeals
Dale Sedam, Kim Sedam, and Bryan Norris, as co-personal representatives of the Estate of David C. Hamblin, deceased v. 2JR Pizza Enterprises, LLC doing business as Pizza Hut #013413, et al.
39A05-1602-CT-296
Civil tort. Reverses partial summary judgment in favor of Pizza Hut after its employee, Amanda Parker, was involved in a car accident that killed David C. Hamblin while she was acting within the scope of her employment. Finds that an employer’s admission that its employee committed the alleged negligent act within the scope of her employment does not preclude an action for negligent hiring, training, supervision and retention. Remands for further proceedings.
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Opinions Sept. 26, 2016

September 26, 2016
Indiana Court of Appeals
Jon A. Arnold v. State of Indiana
88A01-1603-PC-677
Post conviction. Affirms trial court’s decision to deny Jon A. Arnold’s petition for post-conviction relief. Arnold has not established that a defense overlooked by trial counsel would have likely changed the outcome of the proceeding.
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Opinions Sept. 23, 2016

September 23, 2016
Indiana Court of Appeals
In Re: The Adoption of: J.S.S. and K.N.S., Rayburn and Beth Robinson v. M.R.S.
02A04-1603-AD-545
Adoption. Affirms trial court’s decision to deny B.R. and R.R.’s motion to correct error after the trial court found that they had not established clear and convincing evidence necessary to dispense with parental consent. B.R. and R.R., foster parents, had petitioned to adopt J.S.S. and K.N.S. without the consent of their father, M.S.
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Opinions Sept. 22, 2016

September 22, 2016
Indiana Court of Appeals
Darwick Young v. State of Indiana (mem. dec.)
49A02-1602-CR-216
Criminal. Affirms Darwick Young’s conviction for Level 2 felony dealing in cocaine, Class A misdemeanor carrying a handgun without a license, Level 6 felony maintaining a common nuisance and Class B misdemeanor possession of marijuana. Remands with instructions to vacate Young’s Level 3 felony possession of cocaine conviction and to revise his sentence.
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Opinions Sept. 21, 2016

September 21, 2016
Indiana Court of Appeals
Andre C. Coleman v. State of Indiana
49A02-1511-CR-1999
Criminal. Vacates imposition of supplemental public defender and probation fees against Andre Coleman. Remands for further proceedings.
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Opinions Sept. 20, 2016

September 20, 2016
Indiana Court of Appeals
Christina Schermerhorn v. State of Indiana
49A02-1510-CR-1643
Criminal. Affirms Christina Schermerhorn’s convictions of criminal recklessness, a Class A misdemeanor, and domestic battery, a Class A misdemeanor.

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Opinions Sept. 16, 2016

September 16, 2016
Indiana Court of Appeals
Bradley Starr by Next Friend Heather Starr-Haller and Heather Starr-Haller v. State Farm Automobile Insurance Company and the Indiana Bureau of Motor Vehicles
32A05-1605-PL-976
Civil plenary. Affirms summary judgment for State Farm on Starr-Haller’s complaint seeking coverage for an auto accident. State Farm did not waive its right to deny Starr-Haller the coverage she now claims for an accident that occurred after her coverage had lapsed.
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Opinions Sept. 15, 2016

September 15, 2016
Indiana Court of Appeals
Mindy M. Cline v. State of Indiana
38A04-1512-XP-2221
Expungement petition. Reverses and remands denial of Mindy Cline’s petition for expungement, finding trial court abused its discretion in denying her petition. Judge Michael Barnes dissents with separate opinion.
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Opinions Sept. 14, 2016

September 14, 2016
Indiana Court of Appeals
Meridian Health Services Corporation v. Thomas Martin Bell

71A04-1511-DR-2005
Domestic relation. Affirms trial court’s order finding Meridian Health Services Corporation in contempt of court for failure to comply with a subpoena duces tecum and appear at a deposition and awarding attorney fees as a sanction. The trial court did not abuse its discretion in holding Meridian in contempt.
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Opinions Sept. 13, 2016

September 13, 2016
7th Circuit Court of Appeals
William Hinesley, III v. Wendy Knight, superintendent, Correctional Industrial Facility

15-2122
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Jane E. Magnus?Stinson, Judge.
Civil. Affirms district court’s decision to deny William Hinesley’s petition for writ of habeas corpus. Finds that Hinesley’s counsel was not ineffective in a prejudicial manner.
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Opinions Sept. 12, 2016

September 12, 2016
Indiana Court of Appeals
Marc Lindsey v. State of Indiana (mem. dec.)
20A03-1508-CR-1086
Criminal. Affirms Marc Lindsey’s conviction of Class D felony operating a vehicle while intoxicated.
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Opinions Sept. 9, 2016

September 9, 2016
Indiana Court of Appeals
Julie R. Waterfield v. Richard D. Waterfield
92A03-1511-PL-1968
Civil plenary. Affirms trial court’s order denying Julie R. Waterford’s request to set aside her divorce decree entered in 1997 based on the allegation of fraud committed by Richard D. Waterfield while negotiating a settlement leading to the dissolution of the marriage. Finds that Julie Waterfield failed to establish that Richard Waterfield committed fraud. Finds that Richard Waterfield is entitled to an award of attorney fees.
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  4. 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.

  5. 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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