Opinions

Opinions Sept. 3, 2014

September 3, 2014
Indiana Supreme Court
Natural Resources Defense Council v. Poet Biorefining- North Manchester, LLC, Poet Biorefining- Cloverdale, LLC, Central Indiana Ethanol, Inc., et al.
49S02-1405-MI-313
Miscellaneous. IDEM was not required to formally amend Indiana’s state implementation plan with the EPA to effectuate its change in how it interprets the regulatory phrase “chemical process plant.” IDEM’s interpretation to exclude fuel ethanol plants under the definition of “chemical process plant” is legally permissible.
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Opinions Sept. 2, 2014

September 2, 2014
7th Circuit Court of Appeals
James M. Sweeney, et al. v. Gov. Michael Pence, et al.
13-1264
U.S. District Court, Northern District of Indiana, Hammond Division, Chief Judge Philip P. Simon.
Civil. Affirms dismissal of union’s lawsuit arguing the Right to Work Act violates union members’ rights under the U.S. Constitution and is preempted by federal labor legislation. The legislation is not preempted by the scheme of federal labor law and does not violate any constitutional rights. Judge Tinder for the majority writes that the controversy of the law needs to be addressed legislatively, not through the courts. Chief Judge Wood dissents.
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Opinions Aug. 29, 2014

August 29, 2014
Indiana Court of Appeals
C.H. v. State of Indiana
49A02-1310-JV-904
Juvenile. Affirms officer’s stop of C.H. because he was believed to be a suspect in a crime and the order of restitution because C.H. never objected to the order he pay restitution. Reverses adjudication of what would be Class B misdemeanor unlawful entry of a motor vehicle because the same evidence was used to adjudicate C.H. of that charge and what would be Class A misdemeanor trespass. Remands for further proceedings.
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Opinions Aug. 28, 2014

August 28, 2014
Indiana Court of Appeals
Nightingale Home Healthcare, Inc. v. Carey Helmuth and Physiocare Home Healthcare, LLC
29A04-1403-PL-121
Civil plenary. Affirms summary judgment in favor of Helmuth and Physiocare Home Healthcare LLC, in which the trial court concluded that Helmuth’s 10-day break in employment with Nightingale served as the starting point of his limited non-competition and non-disclosure agreement.
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Opinions Aug. 27, 2014

August 27, 2014
7th Circuit Court of Appeals
Kenneth Owen Scrogham v. Carolyn W. Colvin, acting commissioner of Social Security
13-3601
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Civil. Reverses denial of application for disability benefits and remands for further proceedings. The administrative law judge’s methodology was flawed in several respects. Three logical errors – overstating the significance of Scrogham’s daily activities, overreliance on his rehabilitative efforts as proof of his fitness for full-time work, and misinterpreting the significance of his extensive treatment – had a material effect on the ALJ’s credibility and residual functional capacity assessments.
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Opinions Aug. 26, 2014

August 26, 2014
7th Circuit Court of Appeals
Roy Smith v. Richard Brown
12-3731
U.S. District Court, Northern District of Indiana, South Bend Division.
Judge James T. Moody
Criminal. Affirms the denial of Smith’s habeas petition. Finds although Smith’s counsel appeared to be particularly deficient, Smith failed to demonstrate how his lawyer’s substandard effort prejudiced his case since there was overwhelming evidence against him.

 
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Opinions Aug. 25, 2014

August 25, 2014
Indiana Supreme Court
Indiana Department of State Revenue v. Caterpillar, Inc.
49S10-1402-TA-79
Tax. Reverses judgment of the Indiana Tax Court in favor of Caterpillar, holding the company may not deduct foreign-source dividend income when calculating net operating losses based on plain statutory meaning. Caterpillar also did not meet its burden to prove the conclusion violated the Foreign Commerce Clause. Remands to the Tax Court with instructions to grant summary judgment in favor of the Department of Revenue.
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Opinions Aug. 22, 2014

August 22, 2014
Indiana Tax Court
Indianapolis Racquet Club, Inc. v. Marion County Assessor
49T10-1201-TA-1
Property tax. Affirms Indiana Board of Tax Review finding that Indianapolis Racquet Club Inc. failed to establish a prima facie case that its 2002 assessments were excessive or that they were not uniform and equal.
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Opinions Aug. 21, 2014

August 21, 2014
Indiana Court of Appeals
James S. Littrell v. State of Indiana
79A02-1401-CR-24
Criminal.  Affirms conviction of Class B felony possession of cocaine. Finds Littrell’s right to a fast and speedy trial was not violated, the evidence is sufficient to support his conviction, and his sentence is appropriate. Remands for the sole purpose of correcting a typographical error in the guilty plea and sentencing orders.
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Opinions Aug. 20, 2014

August 20, 2014
Indiana Court of Appeals
Goodrich Quality Theaters, Inc. and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc., Johnson Carpet, Inc., d/b/a Johnson Commercial Interiors
64A03-1308-PL-318
Civil plenary. Affirms ruling in favor of Fostcorp Heating and Cooling and other appellees on various breach of contract claims and foreclosure of mechanic’s liens stemming from the construction of a movie theatre. Roncelli’s appeal was timely filed and the judgments are supported by the findings. It was an abuse of discretion for the trial court to award attorney fees, so reverses those fees in favor of the appellees.
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Opinions Aug. 19, 2014

August 19, 2014
Indiana Court of Appeals
In the Matter of the Adoption of M.H., W.M. & S.K. v. N.B. & R.B.
82A01-1310-AD-449
Adoption.  Affirms order denying W.M. and S.K.’s petition for adoption of M.H. and granting the petition of adoption filed by R.B. and N.B. The appellants did not overcome the presumption that the judge acted impartially when he ruled in favor of N.B. and R.B. The judge received an email from a former fraternity brother in favor of the adoptive family, but he refused to recuse himself in the case because he said he would not consider the person’s argument, stopped reading the email quickly, and had not recently socialized or interacted with the fraternity brother. Finds evidence supports adoption by N.B. and R.B. in the best interests of the child.
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Opinions Aug. 18, 2014

August 18, 2014
Indiana Court of Appeals
Linda D. McIntire, and those similarly situated v. Franklin Township Community School Corporation
49A02-1401-PL-2
Civil plenary. Affirms summary judgment in favor of the school corporation on McIntire’s lawsuit challenging certain fees charged to students in high school. The trial court erred in concluding her claim was subject to the notice requirements of the Indiana Tort Claims Act, but affirms because McIntire may not maintain a claim for monetary damages under Article I, Section 8 of the Indiana Constitution.
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Opinions Aug. 15, 2014

August 15, 2014
7th Circuit Court of Appeals
United States of America v. Randall Ray Fletcher Jr.
12-3104
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Joseph S. Van Bokkelen.
Criminal. Affirms 30-year sentence in prison plus a lifetime of supervised release following a guilty plea to five counts involving child pornography that occurred over a seven-year period. Because his crimes spanned a range of years during which the guidelines for child pornography offenses underwent significant changes, his sentencing posed complex calculations and raised potential constitutional problems. Any errors the court made in calculating the guidelines sentence for Fletcher were harmless.
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Opinions Aug. 14, 2014

August 14, 2014
7th Circuit Court of Appeals
Elliott D. Levin, as trustee in bankruptcy for Irwin Financial Corp. v. William I. Miller, et al.
12-3474
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms dismissal with respects to counts 1, 2, 4 and 5 that claim bank managers violated their fiduciary duties to Irwin because those claims are now owned by the FDIC.  Vacates dismissal of counts 3 – that managers allowed Irwin to pay dividends in amounts that left it short of capital - and 7 – that two of the managers breach their duties of care and loyalty – and and remands for further proceedings because those claims are categorized as direct claims that must be pursued by the bank, not the FDIC. Judge Hamilton concurs in result.
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Opinions Aug. 13, 2014

August 13, 2014
Indiana Supreme Court
Joshua Gomillia v. State of Indiana
49S02-1408-CR-521
Criminal. Affirms total executed sentence of 40 years imposed following a plea agreement to one count of Class A felony criminal deviate conduct and one count of Class B felony robbery. The nature and circumstances of the crime included the trial court’s discussion of the leadership role Gomillia played in the commission of the offenses, as well as the terror the victim suffered. Both are appropriate reasons justifying a sentence greater than the advisory term.
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Opinions Aug.12, 2014

August 12, 2014
Indiana Court of Appeals
In re the Termination of the Parent-Child Relationship of C.A., L.A., and M.A. (Minor Children) and B.A. (Mother) and J.A. (Father) v. The Indiana Department of Child Services
55A04-1401-JT-37
Juvenile. Affirms termination of parental rights for mother and father to their three minor children following father’s conviction of Class B felony dealing methamphetamine and mother’s conviction of Class D felony neglect of a dependent. While mother neither received nor signed a case plan negotiated with the Department of Child Services, the record shows mother didn’t lack knowledge of what she needed to do to get her children back, but rather she didn’t participate. Evidence also was sufficient to support termination of mother’s and father’s parental rights.
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Opinions Aug. 11, 2014

August 11, 2014
Indiana Court of Appeals
Dwight Hayes v. State of Indiana
49A04-1312-CR-619
Criminal. Affirms conviction for Class A misdemeanor pointing a firearm. Finds the trial court properly rejected Hayes’ proposed jury instructions based on Indiana’s stand-your-ground law because there was no evidence that his property was being attacked when he pointed two handguns at a woman trying to serve him with legal documents.
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Opinions Aug. 8, 2014

August 8, 2014
Indiana Court of Appeals
Geico Insurance Company, as subrogee of Ralph Heitkamp v. Dianna Graham
49A02-1310-CT-898
Civil tort. Affirms order setting aside summary judgment in favor of Geico on grounds that its claim in Marion Superior Court is barred by the doctrine of res judicata because it is derivative of a judgment in St. Joseph County in favor of Graham. 
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Opinions Aug. 7, 2014

August 7, 2014
Indiana Tax Court
Howard County Assessor v. Kokomo Mall, LLC
49T10-1109-TA-56
Tax. Affirms the final determination of the Indiana Board of Tax Review that reduced Kokomo Mall LLC’s commercial property assessments for the 2007, 2008 and 2009 tax years. Court declines to reweigh the evidence presented to the board and rejects the assessor’s claim that the mere presentation of a USPAP appraisal establishes a prima facie case.
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Opinions Aug. 6, 2014

August 6, 2014
Indiana Court of Appeals
Kevin Davis v. State of Indiana
49A05-1310-CR-523
Criminal. Affirms conviction of Class A felony robbery resulting in serious bodily injury. L.H.’s statements to police identifying Davis as participating in the beating and robbery were properly admitted, the trial court did not err when it determined two witnesses had made themselves unavailable and therefore allowed their depositions to be admitted into evidence at trial, and there is sufficient evidence supporting the conviction.
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Opinions Aug. 5, 2014

August 5, 2014
7th Circuit Court of Appeals
Marilyn R. Boley v. Carolyn W. Colvin, acting commissioner of Social Security
13-1252
U.S. District Court, Southern District of Indiana, Evansville Division. Chief Judge Richard L. Young.
Civil. Vacates District Court’s dismissal of Boley’s petition for judicial review of the decision by an administrative law judge that denied her request for a hearing on the denial of benefits. Remands with instructions to decide whether substantial evidence and appropriate procedures underlie the decision that she lacks “good cause” for her delay in seeking intra-agency review. Overrules Watters v. Harris, 656 F. 2d 234 (7th Cir. 1980).
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Opinions Aug. 4, 2014

August 4, 2014
7th Circuit Court of Appeals
Bruce Carneil Webster v. John F. Caraway, Warden, United States Penitentiary, Terre Haute
14-1049
U.S. District Court, Southern District of Indiana, Terre Haute Division. Judge William T. Lawrence.
Civil. Affirms dismissal of Webster’s petition for collateral relief under 28 U.S.C. Section 2241. Agrees with District Court’s decision that the petition is blocked by Section 2255(e), under which Webster had previously sought collateral relief in the Fifth Circuit Court of Appeals, the circuit where he had committed his crime.

Indiana Court of Appeals
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Opinions Aug. 1, 2014

August 1, 2014
7th Circuit Court of Appeals
United States of America v. Constantino Cejas and Nicholas Ceja
12-3896 & 13-1034
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Jane E. Magnus-Stinson
Criminal. Affirms brothers’ convictions for conspiring to distribute drugs, possessing and distributing 50 grams or more of methamphetamine and possessing a firearm to further their drug activity. Also affirms Constantino’s sentence of 480 months imprisonment. Rules the video taken outside the home where the drug deal occurred was properly authenticated and was not barred by Federal Rule of Evidence 403. Finds there was sufficient evidence to convict Nicholas for possession with intent to distribute and distribution of methamphetamine. Finally, concludes Constantino’s second firearm possession conviction did not violate double jeopardy and congressional intent.
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Opinions July 31, 2014

July 31, 2014
Indiana Court of Appeals
William T. Calvert v. State of Indiana
32A01-1312-CR-535
Criminal. Reversed conviction of illegal consumption of alcohol by a minor, a Class C misdemeanor. Rules the trial court should have granted a continuance rather than try Calvert in absentia. Calvert, a private in the U.S. Army, was denied his constitutional right to be present at his trial because he was on deployment in Afghanistan when his hearing was held. Remands for a new trial.
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Opinions July 30, 2014

July 30, 2014
Indiana Court of Appeals
Bartholomew County, Indiana v. Review Board of the Indiana Department of Workforce Development, and Robert L. Amos
93A02-1311-EX-986
Agency action. Affirms administrative law judge’s determination that Robert Amos was entitled to unemployment benefits after he was discharged for playfully shooting another participant with a nonlethal bullet after a training exercise. The review board did not err in finding that the merit board unevenly applied rules to the class of other officers who had playfully shot others in training exercises, Amos was not collaterally estopped from contesting the merit board determination that he was fired for cause, and the administrative law judge did not abuse discretion by denying the county’s request to submit the transcript of the merit board hearing as additional evidence.
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  1. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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