Opinions

Opinions Dec. 8, 2015

December 8, 2015
Indiana Supreme Court
Stacy Knighten v. East Chicago Housing Authority, Individually and d/b/a West Calumet Complex, Davis Security Service, LLC, and Donnell Caldwell

45S04-1512-CT-686
Civil tort. Reverses summary judgment in favor of Davis Security on Knighten’s complaint under the theory of respondeat superior. There is conflicting evidence as to the scope and extent of Caldwell’s duties and responsibilities as an employee of Davis Security.
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Paralyzed woman’s claim against security guard’s company proceeds

December 8, 2015
Jennifer Nelson
Whether a security guard, who shot a woman during an argument while he was on duty, was acting to further his employer’s business when he shot her is a matter that should be decided by a judge or jury, the Indiana Supreme Court held Tuesday.
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Opinions Dec. 7, 2015

December 7, 2015
Indiana Court of Appeals
Phillip Whitley v. State of Indiana
49A02-1501-CR-50
Criminal. Affirms on interlocutory appeal the denial of Whitley’s motion to suppress evidence found during an inventory search of the vehicle Whitley was driving. Even though officers did not follow police procedure for inventorying a vehicle, there is nothing to indicate the search was a pretext for a narcotics investigation.
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Court erred in dividing husband’s accounts

December 7, 2015
Jennifer Nelson
The Indiana Court of Appeals agreed with a man that a dissolution court’s valuation and division of his pension and deferred tax savings plan was incorrectly calculated, but rejected his other claims stemming from his divorce.
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COA upholds vehicle search despite noncompliance with protocol

December 7, 2015
Jennifer Nelson
Even though two Indianapolis police officers did not follow the department’s general order on towing and impounding vehicles after a traffic stop, the Indiana Court of Appeals upheld a man’s drug convictions.
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Opinions Dec. 4, 2015

December 4, 2015
The following Indiana Tax Court opinion was posted after IL deadline Thursday.
Marion County Assessor v. Gateway Arthur, Inc.

49T10-1212-TA-82
Tax. Affirms the decision by the Indiana Board of Tax Review to reduce Gateway Arthur Inc.’s real property assessment for the 2006 tax year. The board did not err in determining that the assessor rather than Gateway Arthur bore the burden of proof regarding the assessment, in determining that the assessor’s evidence lacked probative value, or in valuing the subject property at $10.5 million for the 2006 tax year.
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Erroneous jury instruction leads to DWI conviction reversal

December 4, 2015
Jennifer Nelson
A jury instruction given at a man’s drunken-driving trial resulted in fundamental error because it contained a constitutionally impermissible evidentiary presumption, the Indiana Court of Appeals concluded. As such, the court reversed the man’s conviction.
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Opinions Dec. 3, 2015

December 3, 2015
Indiana Court of Appeals
Roger S. Blackman v. Karen A. Gholson and James W. Blackman
52A02-1412-ES-883
Estate, supervised. Affirms dismissal of Roger Blackman’s will contest action and subsequent denial of his motion to correct error. Finds the trial court erred in dismissing the suit based on lack of subject matter jurisdiction, as it did have jurisdiction over Blackman’s attempted will contest action. But it was appropriate to dismiss the action due to his failure to comply with the statutes and rules for initiating such an action. His failure to pay the filing fee for the action precludes reliance upon the Journey’s Account Statute to allow him to re-file. Denies Karen Gholson and James Blackman’s request for appellate attorney fees.
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Opinions Dec. 2, 2015

December 2, 2015
Indiana Supreme Court
Christopher Schmidt v. Indiana Insurance Company, C&F Insurance Group, LLC, and Bart Stith
22S01-1507-PL-412
Civil plenary. Reverses in part the trial court's entry of summary judgment for the insurance agency and insurance agent to the extent that it may apply to the Schmidt’s claim for negligent procurement of insurance, but directs the entry of partial summary judgment for the agents as to Schmidt’s claim alleging the agents failed to accurately report dwelling fire policy information to the insurance company. The agents failed to exclude the possibility that other types of fire insurance coverage for Schmidt’s rental property could have been obtained and issued. Affirms summary judgment for Indiana Insurance Co.
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Opinions Dec. 1, 2015

December 1, 2015
Indiana Supreme Court
In the Matter of: David J. Steele
49S00-1509-DI-527    
Attorney discipline. Disbars David J. Steele, who had been under emergency interim suspension since Sept. 4, for eight counts detailed in a verified complaint. Steele is accused of stealing about $150,000 from clients, disclosing client confidences for purposes of both retaliation and amusement, threatening and intimidating his office staff and lying pervasively to all comers. Disbarment is warranted based on the seriousness and brazenness of the conduct.
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Opinions Nov. 30, 2015

November 30, 2015
Indiana Court of Appeals
In the Matter of S.M., J.M., A.M., H.G., Children in Need of Services, A.M. (Mother) v. The Indiana Department of Child Services
49A02-1505-JC-377
Juvenile. Reverses CHINS adjudication of S.M., J.M., A.M. and H.G. Finds no evidence that the children were ever in danger or ever lacked food, shelter or love and care. Although mother has a history of sporadic marijuana use, she has passed every drug test given by DCS and her substance abuse assessment did not recommend her for substance abuse treatment. 
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Opinions Nov. 25, 2015

November 25, 2015
Indiana Court of Appeals
Bryant Lamonte White v. State of Indiana (mem. dec.)
53A01-1501-CR-42
Criminal. Affirms 40-year sentence and conviction of Class A felony conspiracy to commit dealing in a Schedule I controlled substance.
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Opinions Nov. 24, 2015

November 24, 2015
Indiana Court of Appeals
Amit Shah and Tim Dugle v. Apex Pallet, Inc., Duro, Inc. d/b/a Recycled New Pallets, Duro Realty, Inc., Duro Transport, Inc., and Terry Rodino (mem. dec.)
44A05-1503-PL-115
Civil plenary. Reverses the grant of a motion to dismiss with prejudice made by defendants-appellees Apex Pallet Inc., Duro Inc., Duro Realty Inc., Duro Transport Inc. and Terry Rodino. Finds Dugle and Shah’s amended complaint filing was timely as it complied with the 30-day deadline set forth by the court.
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Opinions Nov. 23, 2015

November 23, 2015
Indiana Court of Appeals
Ralph Jackson v. State of Indiana
34A02-1505-CR-453
Criminal. Reverses 20-year sentence following guilty plea to Class B felony dealing in a Schedule II controlled substance. The trial court does not have the option of selecting a sentence based solely on the defendant’s conduct apart from the circumstances of the crime. Because the trial court did not issue an adequate sentencing statement, it abused its sentencing discretion.
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Opinions Nov. 20, 2015

November 20, 2015
Indiana Court of Appeals
Tyrone Causey v. State of Indiana
49A02-1503-CR-185
Criminal. Reverses Causey’s conviction of Class D felony intimidation. The state failed to present sufficient evidence from which a jury could find beyond a reasonable doubt that Causey communicated a threat to the officers that was intended to place them in fear of retaliation for responding to a call at his residence. 
 
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Opinions Nov. 19, 2015

November 19, 2015
Indiana Court of Appeals
Mary K. Patchett v. Ashley N. Lee
29A04-1501-CT-1
Civil tort. Affirms on interlocutory appeal the grant of a motion in limine filed by Lee and order that evidence of payments made by the Healthy Indiana Plan to reimburse Lee’s medical providers in full satisfaction of her bills was barred by the collateral source statute and is not admissible under Indiana case law. Determines that the rule of Stanley applies only to lower paid amounts when those amounts are the result of negotiated discounts and therefore are probative of a medical service’s reasonable value.
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Opinions Nov. 18, 2015

November 18, 2015
Indiana Court of Appeals
Ada Brown v. Indiana Family and Social Services Administration
87A01-1501-PL-38
Civil plenary. Reverses imposition of a transfer penalty by FSSA against Brown, after finding she is eligible for Medicaid benefits, based on the sale of Brown’s home in 2010. Evidence shows the proceeds from the sale of the home were placed back in her irrevocable trust and the fair market value of her home was $75,000, not $91,900 as FSSA had valued it.
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Opinions Nov. 17, 2015

November 17, 2015
Indiana Court of Appeals
Luis Fuerte v. State of Indiana (mem. dec.)
45A03-1501-CR-15
Criminal. Affirms aggregate 19-year executed sentence and convictions of Class B felony attempted incest, Class C felony child molesting and Class D felony sexual battery.
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Opinions Nov. 16, 2015

November 16, 2015
Indiana Court of Appeals
John Belork v. Robin Latimer, Davis Township Trustee and DMK&H Farms, Inc.
75A04-1503-MI-100
Miscellaneous. Affirms grant of appellees’ motion for judgment. Rules the fences that Belork wants his neighbors to help build along the southern and eastern boundaries of his property do not constitute partition fences under Indiana Code 32-26-9. Finds the statute does not apply in this situation because the neighbors would not derive a benefit from the fences.  
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Opinions Nov. 13, 2015

November 13, 2015
Indiana Court of Appeals
Jay Classroom Teachers Association v. Jay School Corporation and Indiana Education Employment Relation Board
49A05-1412-PL-586
Civil plenary. Reverses trial court order affirming the order of the Indiana Education Employment Relation Board and remands to the board for proceeding. A provision of the Jay Classroom Teachers Association contract allowing additional compensation for ancillary duties, including covering another teacher’s class, was not impermissible and should not have been stricken by the board. The board also erred in allowing a provision permitting the superintendent to set salaries of teachers hired after the start of the school year. The provision was impermissible and should have been stricken by the board.
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Opinions Nov. 12, 2015

November 12, 2015
Indiana Court of Appeals
Madison County Board of Commissioners and Madison County Highway Department v. American Federation of State County and Municipal Employees Local 3609
33A05-1505-PL-409
Civil plenary. Affirms summary judgment in favor of the union on the county’s motion to correct or vacate the arbitrator’s award, in which it reduced two union workers’ discipline from termination to a five-day unpaid layoff. The county circumvented the collective bargaining agreements’ progressive discipline scheme and the CBA does not require discharge for the infractions committed by the employees or prohibit the arbitrator from reducing an employee’s punishment.
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Opinions Nov. 10, 2015

November 10, 2015
Indiana Supreme Court
John Hernandez v. State of Indiana
49S02-1511-CR-644
Criminal. Holds it was an error for the trial court to have refused giving Hernandez’s tendered final jury instruction on the defense of necessity because Hernandez presented some evidence to support the instruction. Vacates Hernandez’s Class A misdemeanor conviction of carrying a handgun without a license and remands for a new trial.
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Opinions Nov. 9, 2015

November 9, 2015
Indiana Court of Appeals
Robert L. Woods v. State of Indiana (mem. dec.)
27A05-1502-CR-61
Criminal. Affirms Woods’ convictions of two counts of Class A felony child molesting and 100-year sentence.
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Opinions Nov. 6, 2015

November 6, 2015
7th Circuit Court of Appeals
BRC Rubber & Plastics Inc. v. Continental Carbon Company
14-1416, 14-1555
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Magistrate Judge Roger B. Cosbey.
Civil. Vacates judgment for BRC on its lawsuit that Continental Carbon had breached and repudiated the contract for it to supply carbon black to BRC. The agreement did not obligate BRC to buy any or all of its carbon black from Continental, so the trial court erred in concluding the contract was a requirements contract. Remands without reaching BRC’s cross-appeal related to damages.  
 
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Opinions Nov. 5, 2015

November 5, 2015
Indiana Supreme Court
Latoya Lee v. State of Indiana
49S02-1511-CR-638
Criminal. Reverses Lee’s conviction of attempted aggravated battery as a lesser included offense of a murder charge dismissed by the court and remands with instructions to enter a judgment of acquittal. Charging murder, or conspiracy to commit murder, by shooting does not, without more, give fair notice of lesser included charges based on a beating. It was fundamental error to convict her based on a critical operative fact the state never pleaded and in fact disclaimed at trial.
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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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