Opinions

Opinions March 3, 2017

March 3, 2017
Indiana Court of Appeals
Caleb Riggen v. Tammy Riggen
67A04-1606-DR-1312
Domestic relation. Reverses the Putnam Superior Court’s grant of Tammy Riggen’s motion to correct error on its earlier grant of Caleb Riggen’s motion to modify custody of their child. Finds that the trial court abused its discretion when it granted the motion to correct error without providing a reason for doing so, contrary to Trial Rule 59(J). Remands with instructions to the trial court to comply with Trial Rule 59 when considering the motion to correct error.
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Opinions March 2, 2017

March 2, 2017
Indiana Court of Appeals
Larenda Jones v. State of Indiana
49A05-1606-CR-1433
Criminal. Reverses the Marion Superior Court’s order revoking Larenda Jones’ placement in community correction and sentencing her to serve the remainder of her executed sentence in the Department of Correction. Finds that the trial court did not err in failing to inform Jones of her release date, but did err by refusing to let Jones speak in allocution. Remands. Judge John Baker concurs with separate opinion.
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Opinions Feb. 28, 2017

February 28, 2017
Indiana Court of Appeals
State of Indiana v. C.K.
49A02-1607-JV-1506
Juvenile. Reverses the juvenile court’s denial of the state’s petition for the court to waive jurisdiction over C.K. in two cases. Finds that C.K.’s felony conviction qualified as a prior felony for purposes of Indiana Code 31-30-3-6 and that when both elements of that statute have been established, the “juvenile court shall waive jurisdiction.” Remands for further proceedings.
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Opinions Feb. 27, 2017

February 27, 2017
Indiana Court of Appeals
Ronnie D. Ball, Jr. v. State of Indiana (mem. dec.)
02A03-1609-CR-2117
Criminal. Affirms Ronnie D. Ball’s three-year sentence for corrupt business influence as a Level 5 felony. Finds Ball’s sentence is not inappropriate in light of the nature of his offense and his character.
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Opinions Feb. 24, 2017

February 24, 2017
Indiana Court of Appeals
Emmett Reece Sandoval v. State of Indiana
21A01-1609-CR-2027
Criminal. Reverses the Fayette Circuit Court’s order that the balance of Emmett Reece Sandoval’s $2,000 bond be held in trust to be applied toward possible future appellate public defender fees. Finds it was an error for the trial court to hold the balance of Sandoval’s bond in trust. Remands with instructions to the clerk of the Fayette County Court to return the balance of Sandoval’s bond immediately.

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Opinions Feb. 23, 2017

February 23, 2017
Indiana Court of Appeals
Jay F. Vermillion v. State of Indiana (mem. dec.)
84A04-1604-PC-900
Post-conviction. Reverses the dismissal of Jay Vermillion’s petition for post-conviction relief. Finds the post-conviction court abused its discretion in dismissing Vermillion’s action without holding a hearing as required by Trial Rule 41(E). Remands for either a Trial Rule 41(E) hearing or reinstatement of his action.
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Opinions Feb. 22, 2017

February 22, 2017
Indiana Court of Appeals
Thomas E. Stettler v. State of Indiana
18A04-1607-CR-1638
Criminal. Affirms Thomas E. Stettler’s conviction of child molesting as a Class B felony. Finds the Delaware Circuit Court’s admission of evidence barred by Evidence Rule 404(b) was harmless error. Also finds the prosecution did not engage in misconduct during closing arguments, so there was accordingly no fundamental error.
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Opinions Feb. 21, 2017

February 21, 2017
Indiana Court of Appeals
Otis Sams, Jr. v. State of Indiana
67A01-1604-CR-814
Criminal. Vacates Otis Sams’ conviction of Level 4 felony possession of methamphetamine. Finds the state did not carry its burden to show that the inventory search of Sams’ truck was sufficiently regulated. Also finds that all fruits of the inventory search of the truck were inadmissible. Remands with instructions to grant Sams’ motion to suppress and for any further proceedings.
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Opinions Feb. 20, 2017

February 20, 2017
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Opinions Feb. 17, 2017

February 17, 2017
Indiana Supreme Court
In the Matter of the Termination of the Parent-Child Relationship of Bi.B. And Br.B, D.B. and V.G. v. Indiana Department of Child Services
54S01-1612-JT-630
Juvenile termination of parental rights. Reverses the trial court’s decision to terminate D.B.’s parental rights to his daughters, Bi.B. and Br.B. Finds the Department of Child Services failed to allege the one of the statutorily required three waiting periods for terminating parental rights that had, in fact, passed – the father’s daughters had been removed from him for at least six months under a dispositional decree. Also finds that DCS failed to prove the other two waiting periods applied to its petition.
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Opinions Feb. 16, 2017

February 16, 2017
Indiana Supreme Court
Tresa Megenity v. David Dunn
22S04-1609-CT-465.
Civil tort. Affirms summary judgment in for David Dunn in a case arising from an injury to Tresa Megenity during a karate class. Extending and clarifying Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), holds that when a sports participant injures someone while engaging in conduct ordinary in the sport, and without intent or recklessness, the participant does not breach a duty.
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Opinions Feb. 15, 2017

February 15, 2017

Indiana Supreme Court
J.D.M. v. State of Indiana
21S01-1702-JV-84
Juvenile. Reverses J.D.M.’s adjudication as a delinquent for committing acts which, if committed by an adult, would constitute Class C felony child molestation, and the subsequent order for him to register as a sex offender Finds that the statutory prerequisites for placing a juvenile on the sex offender registry were not met. Remands to the juvenile court for further proceedings.

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Opinions Feb. 14, 2017

February 14, 2017
Indiana Court of Appeals
School City of Hammond District v. Chad Rueth
45A03-1603-CT-450
Civil tort. Reverses judgment pursuant to a jury verdict in favor of Chad Rueth on his claims of defamation and blacklisting, finding there is insufficient evidence to support a verdict in his favor, and the trial court abused its discretion by denying the School City of Hammond District’s motion to correct error.
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Opinions Feb. 13, 2017

February 13, 2017
Indiana Court of Appeals
Lori A. Spang v. Timothy R. Spang (mem. dec.)
02A03-1608-DR-1876
Domestic relation. Affirms the grant of Timothy Sprang’s objection to the relocation of his 12-year-old daughter, E.S., with her mother, Lori Sprang, and his petition for modification of custody. Finds the Allen Superior Court did not abuse its discretion because it properly considered all factors and Timothy Sprang met his burden of proof to demonstrate that the proposed location was not in E.S.’s best interest.
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Opinions Feb. 10, 2017

February 10, 2017
Indiana Court of Appeals
Tradale Jones v. State of Indiana (mem. dec.)
49A04-1608-CR-1833
Criminal. Affirms Tradale Jones’ aggregate sentence of 50 years imposed for two counts of Level 1 felony rape and one count each of Level 3 felony robbery with a deadly weapon, Level 3 felony kidnapping while armed with a deadly weapon and Level 3 felony criminal confinement while armed with a deadly weapon. Finds that Jones’ sentence is not inappropriate in light of his character or the nature of his offense.
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Opinions Feb. 9, 2017

February 9, 2017
Indiana Court of Appeals
Andy A. Shinnock v. State of Indiana
18A05-1606-CR-1258
Criminal. Reverses Andy A. Shinnock’s conviction of bestiality as a Level 6 felony. Finds the Delaware Circuit Court erred in admitting Shinnock’s confessions at trial because the corpus delicti of the crime charged was not established. Remands.
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Opinions Feb. 8, 2017

February 8, 2017
Indiana Supreme Court
City of Lawrence Utilities Service Board, City of Lawrence, Indiana, and Mayor Dean Jessup, Individually and in his Official Capacity v. Carlton E. Curry
49S02-1609-CT-481
Civil tort. Affirms the Marion Superior Court’s grant of summary judgment in favor of Carlton Curry on his wrongful discharge claim and in favor of the city of Lawrence on Curry’s Wage Payment Statute claim. Also affirms the denial of Curry’s tortious interference claim. Finds that based on the clear and unambiguous language of Indiana Code 8-1.5-3-5(d), the Utilities Service Board had the sole authority to terminate Curry after notice and a hearing. Also finds that any other method for termination is up to the Legislature to determine as a matter of policy. Justice Steve David dissents with separate opinion.
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Opinions Feb. 7, 2017

February 7, 2017
Indiana Supreme Court
In Re: The Matter of D.J. and G.J., Children in Need of Services; Gr.J. (Mother) and J.J. (Father) v. Ind. Dept. of Child Services

02S03-1610-JC-548
Juvenile. Reverses the Allen Superior Court’s finding that Gr.J. and J.J.’s two minor children, D.J. and G.J., were children in need of services. Finds the record does not support the trial court’s finding that Gr.J. and J.J. needed the court’s coercive intervention to provide for their boys’ needs at the time of the dispositional hearing. Exercises the Indiana Supreme Court’s discretion to decide the parents’ case on its merits, despite their forfeited appeal.
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Opinions Feb. 6, 2017

February 6, 2017
Indiana Tax Court
The University of Phoenix, Inc. v. Indiana Department of State Revenue
49T10-1411-TA-65
Tax. Grants in part the University of Phoenix, Inc.’s motion with respect to the previously withheld documentation regarding House Bill 1349 and orders the Indiana Department of State Revenue to provide the documentation to the University within seven days. Denies the university’s motion with respect to all other matters regarding HB 1349, the report, the presentation and the designation of another 30(B)(6) witness.
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Opinions Feb. 3, 2017

February 3, 2017
7th Circuit Court of Appeals
United States of America v. Abel Covarrubias
16-3402
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Criminal. Affirms the district court’s denial of Abel Covarrubias’ motion to suppress drugs found in a car being delivered to him from across the country. Finds that the district court correctly decided that Covarrubias lacked standing to contest the admission of the drugs into evidence.
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Opinions Feb. 2, 2017

February 2, 2017
Indiana Court of Appeals
Rachel Neal v. IAB Financial Bank, f/k/a Grabill Bank
02A03-1604-CT-1002
Civil tort. Affirms summary judgment in favor of IAB Financial Bank. Finds because all three Webb factors lean against imposing a duty here, the Allen Superior Court did not err in concluding the bank owed no duty to Neal.

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Opinions Feb. 1, 2017

February 1, 2017
Indiana Court of Appeals
Menard, Inc. v. Reba Lane
45A03-1606-CT-1283
Civil tort. Affirms the denial of Menard Inc.’s motion to set aside the default judgment entered in favor of Reba Lane when Menard failed to appear or defend itself against her personal injury suit. Finds the Lake Circuit Court did not abuse its discretion in denying Menard’s motion. Also finds Lane attempted service of her compliant and summons in multiple ways, all of which conformed with the requirements of the Indiana Trial Rules and that Lane’s attorney did not engage in misconduct when she did not notify the two law firms who had represented Menard in the past. Finally, finds that the breakdown in communication between Menard employees regarding the summons and complaint was not excusable neglect.
 
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Opinions Jan. 31, 2017

January 31, 2017
7th Circuit Court of Appeals
Estate of William A. Miller, by its representatives Patrick T. Chassie and Linda Wilkerson v. Helen J. Marberry and Gary Rogers.

15-1497.
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Chief Judge Jane Magnus-Stinson.
Prisoner. Affirms the grant of summary judgment to Helen Marberry and Gary Rogers. Judge Richard Posner dissents with separate opinion.
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Opinions Jan. 30, 2017

January 30, 2017
7th Circuit Court of Appeals
Legato Vapors, LLC, et al and Right to be Smoke-Free Coalition, Inc. v. David Cook, et al
16-3071
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Reverses the judgment of the district court dismissing the case. Remands with instructions to enjoin enforcement of the challenged provisions of the Vapor Pens and E-Liquids Act against the plaintiffs and to declare the challenged provisions unenforceable against out-of-state manufacturers. Finds that Indiana may not try to achieve health and safety goals by directly regulating out-of-state factories and commercial transactions. Also finds that as applied to out-of-state manufacturers, the challenged provisions of the act violate the dormant Commerce Clause prohibition against extraterritorial legislation.
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Opinions Jan. 27, 2017

January 27, 2017
7th Circuit Court of Appeals
Lana Canen v. Dennis Chapman, in his individual capacity as Deputy for the Elkhart County Sheriff Department
16-1621
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Rudy Lozano.
Civil. Affirms the U.S. District Court for the Northern District of Indiana’s dismissal of Lana Canen’s case at summary judgment on the grounds that Dennis Chapman was entitled to qualified immunity. Finds that Detective Chapman's failure to disclose that he was not trained as a latent print examiner cannot be characterized as a violation of any clearly established right and, accordingly, the doctrine of qualified immunity protects him. Also finds that to the degree that this action is premised on the preparation or presentation of his trial testimony, absolute immunity protects Chapman.
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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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