Opinions

Opinions June 14, 2017

June 14, 2017
Indiana Supreme Court
In the Matter of: Everett E. Powell, II
49S00-1504-DI-231
Disciplinary. Disbars Everett Powell. Finds Powell committed attorney misconduct by falsifying evidence and knowingly making false statements to the Supreme Court and the Disciplinary Commission in an attempt to be reinstated to the practice of law.
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Opinions June 13, 2017

June 13, 2017
7th Circuit Court of Appeals
United States of America v. Anthony J. Minney
16-4057
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Larry J. McKinney.
Criminal. Affirms denial of Anthony Minney’s motion to suppress evidence of guns found during a search of his apartment. Finds the plain-view doctrine is controlling and the discovery of the guns falls under that doctrine.
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Opinions June 12, 2017

June 12, 2017
Indiana Court of Appeals
David L. Jenner and Vickie Jenner v. Bloomington Cellular Services, Inc. and Crown Castle South LLC.
53A05-1606-MI-1415
Miscellaneous. Divided panel affirms a trial court ruling finding the Jenners’ tax deed for a Bloomington property housing a cell tower void for lack of statutory compliance.
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Opinions June 9, 2017

June 9, 2017
Indiana Court of Appeals
Lawrence Benton Roper v. State of Indiana
53A04-1607-CR-1691
Criminal. Affirms Lawrence Benton Roper’s convictions of two counts of Level 4 felony dealing cocaine and one count each of Level 5 felonies dealing cocaine and dealing a narcotic drug. Finds Roper waived his request for a speedy trial by conduct inconsistent with seeking a speedy trial.
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Opinions June 8, 2017

June 8, 2017
7th Circuit Court of Appeals
John Lee Futrell v. United States of America
16-3079
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms the dismissal of John Lee Futrell’s claim against the U.S. government under the Federal Tort Claims Act. Finds the case of Feres v. United States, 340 U.S. 135 (1950), is still controlling law.
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Opinions June 7, 2017

June 7, 2017
7th Circuit Court of Appeals
Gregory L. Cripe and Tammy Cripe v. Henkel Corporation and National Starch & Chemical, Co.
17-1231
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Philip P. Simon.
Civil. Affirms the district court’s grant of summary judgment to Henkel Corp. Finds that Henkel provided reasons to think methylene diphenyl diisocyanate could not have caused Gregory Cripe’s symptoms, and Cripe offered no contrary evidence.

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Opinions June 6, 2017

June 6, 2017
The following Indiana Tax Court opinion was posted after IL deadline Monday:
Evansville Courier Company Inc. v. Vanderburgh County Assessor
02T10-1611-TA-55
Tax. Affirms the denial of Evansville Courier Co. Inc’s petitions for abnormal obsolescence on its 2011, 2013 and 2014 tax returns. Finds the Indiana Board of Tax Review erred by admitting an untimely exhibit. Also finds the board did not err by finding Evansville Courier has not met its burden of establishing a prima facie case or by denying its petitions.  
 

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Opinions June 5, 2017

June 5, 2017
7th Circuit Court of Appeals
Charles B. Douglas v. United States of America
17-1104
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio
Civil. Affirms Charles Douglas’ conviction of possession of a firearm by a violent felon and his sentence to 110 months. Finds Douglas was properly classified as an armed career criminal.
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Opinions June 2, 2017

June 2, 2017
Friday’s opinions
Indiana Court of Appeals

Illini State Trucking, Inc. a/k/a IST Holdings, LLC, and RLB International, LLC. v. Navistar, Inc., et al. (mem. dec.)
45A03-1608-PL-1860
Civil plenary. Affirms the trial court’s dismissal of Illini's claims of fraud and fraudulent concealment against Navistar, Inc. (Navistar), Chicago International Trucks, LLC and CIT, Inc., and Rush Truck Centers of Indiana, Inc. Affirms trial court denial of Navistar and Chicago International's motions to dismiss on cross-appeal Illini’s claims of breach of express warranty, breach of implied warranty, and breach of contract. The motions were properly denied and the trial court is affirmed in all respects.
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Opinions June 1, 2017

June 1, 2017
The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:
Keyaunna Hurley v. State of Indiana
49S05-1705-CR-346
Criminal. Reverses the suspension of Keyaunna Hurley’s driving privileges. Finds the procedures for administering a chemical breath test required a second test on this record after Hurley’s first test produced an insufficient sample. Also finds unless a subject clearly manifests an unwillingness to submit to a chemical breath test, Title 260, Section 2-4- of the Indiana Administrative Code requires law enforcement to administer a second test if the first returns an “insufficient sample” message.
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Opinions May 31, 2017

May 31, 2017
Indiana Court of Appeals
Latorrea Denise Ware v. State of Indiana
20A03-1610-PC-2297
Post conviction. Affirms the denial of Latorrea Denise Ware’s petition for post-conviction relief. Finds Ware did not receive ineffective assistance of trial counsel because had her counsel moved to suppress evidence seized by officers who had entered her home with a valid warrant but without first clearly announcing their presence, the motion would not have been successful.
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Opinions May 30, 2017

May 30, 2017
Indiana Court of Appeals
McKinley, Inc a/k/a McKinley Associates, Inc. d/b/a Summer Wood Apartment Homes v. Michelle Skyllas
45A05-1612-CT-2853
Civil tort. Reverses the Lake Superior Court’s grant of Michelle Skyllas’ motion to correct error, which sat aside the trial court’s prior grant of summary judgment to McKinley, Inc., a/k/a McKinley Associates, Inc., d/b/a Summer Wood Apartment Homes, and the trial court’s grant of Skyllas’ motion to withdraw and amend admissions. Finds Skyllas did not establish she was entitled to relief from judgment with respect to the grant of summary judgment or the admissions. Remands with instructions to reinstate the judgment in favor of McKinley and against Skyllas.
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Opinions May 26, 2017

May 26, 2017
Indiana Court of Appeals
Indiana Department of Child Services v. J.D., R.B., et al.
71A03-1611-JC-2627
Juvenile CHINS. Reverses the St. Joseph Probate Court’s denial of the Indiana Department of Child Services’ petition alleging M.B. was a child in need of services. Finds DCS’ evidence tending to establish the elements of Indiana Code 31-34-12-4, or the Presumption Statute, was competent and probative and, thus, sufficient to trigger the application of the Presumption Statute and shift the burden of producing evidence to rebut the presumption to M.B.’s parents. Remands with instructions.
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Opinions May 25, 2017

May 25, 2017
Indiana Court of Appeals
Caleb Sullivan v. State of Indiana
52A02-1610-CR-2499
Criminal. Affirms Caleb Sullivan’s convictions for Level 4 felony burglary, Level 6 felony conspiracy to commit dealing in a controlled substance and level 6 felony theft. Finds there is sufficient evidence to support Sullivan’s convictions for burglary and theft. Also finds no double jeopardy violation.
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Opinions May 24, 2017

May 24, 2017
Indiana Court of Appeals
Clara Briggs v. Kolb Roellgen & Kirchoff, LLP (mem. dec.)
42A01-1610-CC-2235
Civil collection. Affirms and reverses in part the Knox Superior Court’s entry of summary judgment in favor of Kolb Roellgen & Kirchoff LLP in its action against Clara Briggs for the recovery of unpaid legal fees, collection costs and prejudgment interest. Finds the trial court did not abuse its discretion in denying Briggs’ motion for change of venue or motion for summary judgment, or in granting the firm’s motion for summary judgment to the extent the firm is entitled to unpaid legal fees in the amount of $36,188.41.
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Opinions May 23, 2017

May 23, 2017
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
Chijioke B. Ben-Yisrayl v. Ron Neal
16-1013
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms the district court’s denial of Chijioke B. Ben-Yisrayl’s petition for habeas relief. Finds Ben-Yisrayl did not raise a claim of ineffective assistance of resentencing counsel in his habeas petition, and his failure to do so is a waiver.
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Opinions May 22, 2017

May 22, 2017
Indiana Court of Appeals
Tyler R. Browder v. State of Indiana
49A04-1608-CR-1857
Criminal. Affirms Tyler Browder’s conviction for Class A misdemeanor possession of paraphernalia. Finds Officer Brady Ball’s decision to prolong the traffic stop did not violate the Fourth Amendment or Article 1, Section 11 of the Indiana Constitution. Also finds Browder’s consent to search the vehicle was voluntary.
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Opinions May 19, 2017

May 19, 2017
Indiana Court of Appeals
The Estate of George A. Henry, Deceased v. Nadene Woods
49A05-16-PL-810
Civil plenary. Affirms the Marion Superior Court’s decision to partially allow Nadene Woods’ claim for services against the estate of George Henry. Finds the probate court was not required to evaluate Woods’ claim in a manner that presumed the services to be gratuitous. Also finds there is not a complete lack of evidentiary support for the challenged findings as to Henry’s expression of intent.
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Opinions May 18, 2017

May 18, 2017
Indiana Court of Appeals
Deundre Rashad Kearney v. State of Indiana (mem.dec.)
45A03-1611-CR-2657
Criminal. Affirms Deundre R. Kearney’s conviction of Level 3 felony armed robbery. Finds the evidence sufficiently established Kearney committed the robbery.
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Opinions May 17, 2017

May 17, 2017
Indiana Supreme Court
In the Matter of: Joseph M. Johnson III
01S00-1604-DI-188
Disciplinary. Suspends Joseph M. Johnson III from the practice of law for at least one year without automatic reinstatement. Finds Johnson committed attorney misconduct by violating Professional Conduct Rules 8.4(b), 8.4(d) and 8.4(e) in connection with his pattern of harassment of an ex-girlfriend.
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Opinions May 16, 2017

May 16, 2017
Indiana Court of Appeals
Tommy R. Pruitt v. State of Indiana
15A05-1606-CR-1235
Criminal. Affirms Tommy R. Pruitt’s sentence to an aggregate term of 180 years for the murder of a law enforcement officer acting in the line of duty. Finds the trial court would have imposed the same sentence of 65 years for Pruitt’s murder charge had it only considered the aggravators that complied with Blakely v. Washington. Also finds Pruitt’s sentence is not inappropriate in light of the nature of the offense and his character.
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Opinions May 15, 2017

May 15, 2017
The following Indiana Court of Appeals opinion was posted after IL deadline Friday: DS v. AR (mem. dec.) 29A05-1608-PO-1893 Protective order. Affirms the Hamilton Superior Court’s issuance of a protective order. Finds the evidence supports the trial court’s order and D.S. has not presented a case of prima facie error.
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Opinions May 12, 2017

May 12, 2017
Indiana Court of Appeals
Tyler Allen Whitesell v. State of Indiana (mem. dec.)
90A02-1612-CR-2768
Criminal. Affirms Tyler Allen Whitesell’s aggregate sentence of six years following his guilty pleas to dealing in a narcotic drug as a Level 5 felony, two counts of dealing in a substance represented to be a controlled substance as Level 6 felonies, and theft as a Class A misdemeanor. Finds the sentence is not inappropriate.
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Opinions May 11, 2017

May 11, 2017
Indiana Supreme Court
Danny Sims v. Andrew Pappas and Melissa Pappas
45S03-1701-CT-26
Civil tort. Affirms the judgment of the Lake Superior Court in favor of Andrew and Melissa Pappas for compensatory and punitive damages. Finds the remoteness of a prior offense does not affect the admissibility of the evidence. Also finds the compensatory damages were within the evidence and the punitive damages were not unconstitutionally excessive.
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Opinions May 10, 2017

May 10, 2017
Indiana Court of Appeals
Shelly M. Phipps v. State of Indiana
28A05-1609-CR-2097
Criminal. Reverses Shelly M. Phipps’ conviction of Level 6 felony invasion of privacy. Finds the state failed to prove that Phipps contacted K.G. by sending an email. Remands for further proceedings. Judge Rudolph Pyle dissents with separate opinion.
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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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