Opinions

Opinions Jan. 17, 2017

January 17, 2017

Indiana Court of Appeals
In Re: the Grandparent Visitation of G.S., J.S. v. M.S.
30A01-1608-DR-1801
Domestic relation. Reverses in part a Hancock Circuit Court order mandating G.S. be permitted to have contact with other paternal relatives when participating in grandparent visitation with M.S. Finds there is no statutory authority for a trial court to order a child to have visitation with anyone other than a grandparent in the face of a parent’s objections.

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Opinions Jan. 13, 2017

January 13, 2017
Indiana Court of Appeals
Rodney Tyms-Bey v. State of Indiana
49A05-1603-CR-439
Criminal. Affirms the trial court’s order granting the state’s motion to strike Rodney Tyms-Bey’s notice of defense under Indiana’s Religious Freedom Restoration Act. Finds as a matter of law that the state’s compelling interest in a uniform and mandatory taxation system falls into the statutory exception such that RFRA affords no relief to Tyms-Bey. Remands for proceedings. Judge Edward Najam dissents with separate opinion.
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Opinions Jan. 12, 2017

January 12, 2017
The following Indiana Tax Court opinion was posted after IL deadline Wednesday:
Merchandise Warehouse Co., Inc. v. Indiana Department of State Revenue

49T10-1302
Tax. Grants summary judgment in favor of the Indiana Department of State Revenue and against Merchandise Warehouse Co., Inc. Finds that Merchandise Warehouse’s purchase of freezer equipment and electricity to power that equipment was not exempt from Indiana sales tax under Indiana Code 6-2.5-5-3 and 6-1.5-5-5.1. Also finds that Merchandise Warehouse does not produce other tangible personal property in an integrated production process when it freezes its customers’ food products.
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Opinions Jan. 11, 2017

January 11, 2017
7th Circuit Court of Appeals
Stephen H. Perron and the United States Bankruptcy Trustee for the Southern District of Indiana on behalf of Christine M. Jackson v. J.P. Morgan Chase Bank N.A.
15-2206
U.S. District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for Chase Bank in ex-couple Perron and Jackson’s lawsuit claiming the bank’s response to a misapplied insurance payment, seeking more than $300,000 in damages, caused their divorce. To the extent that any requested information was missing, Perron and Jackson suffered no actual damages and thus have no viable claim, nor did the bank breach the duty of good faith and fair dealing.
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Opinions Jan. 10, 2017

January 10, 2017
Indiana Court of Appeals
Jacob Skipworth v. State of Indiana

49A02-1605-CR-973
Criminal. Affirms the Marion Superior Court’s decision to order Jacob Skipworth to complete 26 weeks of domestic violence counseling as a condition of his probation for his convictions of criminal confinement and strangulation, both Level 6 felonies. Finds that the trial court did not abuse its discretion in ordering domestic violence counseling. Also finds that the trial court’s sentencing order and abstract of judgment contain clerical errors. Remands with instructions to correct the clerical errors.
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Opinions Jan. 9, 2017

January 9, 2017
Indiana Court of Appeals
William Groth v. Mike Pence, as Governor of the State of Indiana

49A04-1605-PL-1116
Civil plenary.  Affirms the Marion Superior Court decision finding former Gov. Mike Pence’s response to William Groth’s Access to Public Records Act request for records related to his decision to join a Texas lawsuit against the President of the United States was proper under the Access to Public Records Act. Finds that Citizens Action Coalition of Indiana v. Koch, 51 N.E.3d 236 (Ind. 2016), does not apply to the request for public records directed to the governor. Also finds that the trial court did not violate Groth’s due process rights. Finally, affirms on the merits the governor’s decision to withhold the white paper from public disclosure and to partially redacted the invoices because the white paper contains legal theories in contemplation of litigation and that the governor’s redactions were within his discretion under APRA. Rejects Pence’s claim that executive privilege renders his response to APRA requests immune from judicial review. Chief Judge Nancy Vaidik concurs in part and dissents in part in separate opinion.
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Opinions Jan. 6, 2017

January 6, 2017
Indiana Court of Appeals
Mario Deon Watkins v. State of Indiana
82A01-1510-CR-1624
Criminal. Reverses Mario Deon Watkins’ convictions for two counts of possession of a controlled substance as Class A misdemeanors, possession of cocaine as a Level 6 felony, possession of marijuana as a Class B misdemeanor and maintaining a common nuisance as a Level 6 felony. Finds that while there was a considerable degree of suspicion, the extent of law enforcement needs for a military-style assault was low and the degree of intrusion was unreasonably high. Judge Melissa May dissents with separate opinion.
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Opinions Jan. 3, 2017

January 3, 2017

Indiana Supreme Court
Kennedy Tank & MFG. Co., Inc., and Hemlock Semiconductor Operations LLC and Hemlock Semiconductor, LLC v. Emmert Industrial Corporation d/b/a Emmert International
49S02-1608-CT-431
Civil tort. Finds on an issue of first impression that Indiana’s 10-year statute of limitations is not preempted by the federal statute of limitations in the Interstate Commerce Commission Termination Act. Finds that Congress’ purpose was not to preempt state statutes of limitations and that Indiana’s statute of limitations does not do major damage to the ICCTA’s deregulatory purpose. Thus, Emmert Industrial Corp.’s collection claim against Kennedy Tank & Manufacturing Co. can proceed.

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Opinions Dec. 29, 2016

December 29, 2016
Indiana Court of Appeals
Angela R. Neal v. State of Indiana
20A04-1606-CR-1326
Criminal. Affirms that the Elkhart Superior Court’s advisement of the consequences of Angela R. Neal’s status as a credit-restricted felon complied with Indiana Code 35-38-1-7.8(c). Finds there is no particular language that a trial court must use in order to comply with the statute.
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Opinions Dec. 28, 2016

December 28, 2016
Indiana Court of Appeals
Stardust Ventures, LLC v. Gary Roberts and Teresa Roberts
33A01-1603-PL-604
Civil plenary. Reverses the Henry Circuit Court’s denial of Stardust Ventures LLC’s motion to dismiss a suit brought by Gary and Teresa Roberts to recover $75,000 paid to Stardust. Finds that the purchase agreement is a valid and binding contract between the parties and that Stardust did not waive its right to request arbitration. Remands to the trial court to enter an order compelling arbitration.

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Opinions Dec. 27, 2016

December 27, 2016
Indiana Court of Appeals
P. Kevin Barkal, M.D. and Pemcor, Inc. v. Gouveia & Associates
45A03-1607-CT-1601
Civil tort. Affirms the Lake Circuit Court’s grant of summary judgment to Gouveia & Associates, concluding that Dr. P. Kevin Barkal and Pemcor Inc. failed to designate expert testimony establishing that Gouevia breached the standard of care in his legal representation of Pemcor in the underlying bankruptcy case.
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Opinions Dec. 22, 2016

December 22, 2016
Indiana Court of Appeals
M.T.V. v. State of Indiana
36A05-1607-JV-1681
Juvenile. Affirms M.T.V.’s adjudication of delinquency for conspiracy to commit aggravated battery, a Level 3 felony if committed by an adult. Finds that the Jackson Superior Court did not abuse its discretion in admitting Facebook conversations containing statements made by M.T.V. and his co-conspirator and that the evidence is sufficient to support his delinquency adjudication.
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Opinions Dec. 21, 2016

December 21, 2016
7th Circuit Court of Appeals
United States of America v. Bruce Jones
15-1792
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Criminal. Affirms Bruce Jones’ convictions of three counts of possessing firearms and ammunition and one count of health care fraud. Finds that because Jones never objected to the restraint on his life insurance policies, the district court had no reason to probe those matters in an evidentiary hearing. Also finds that the judge did not abuse her discretion in denying Jones’ request for appointment of new counsel and that the judge apprised Jones of his constitutional right to testify, which he waived. Finally, finds that the judge did not miscalculate the sentencing guideline range for his firearms offenses by taking into account his 1985 felony conviction for a controlled substance offense.
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Opinions Dec. 20, 2016

December 20, 2016
Indiana Tax Court
Orbitz, LLC v. Indiana Department of Revenue
49T10-0903-TA-10
Tax. Grants summary judgment in favor of Orbitz LLC and against the Indiana Department of Revenue. Finds that during the period at issue, the department erred in issuing sales and innkeeper’s tax assessments against Orbitz based on the retail rate of Indiana hotel rooms as a matter of law because the hoteliers, as the retail merchants, were liable for the taxes, not Orbitz.
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Opinions Dec. 19, 2016

December 19, 2016
Indiana Court of Appeals
Tyrone D. Payton v. State of Indiana (mem. dec.)
22A01-1605-CR-980
Criminal. Affirms the revocation of Tyrone Payton’s probation. The trial court properly revoked his probation and ordered him to serve four years of his previously suspended sentence.
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Opinions Dec. 16, 2016

December 16, 2016
Indiana Court of Appeals
The Board of Commissioners of Union County, Indiana v. Brandye Hendrickson, in her official capacity as Commissioner of the Ind. Dept. of Transportation, and the State of Indiana
81A01-1603-PL-696
Civil plenary. Reverses the dismissal of the Board of Commissioners of Union County’s complaint against Brandye Hendrickson in her official capacity as commissioner of the Indiana Department of Transportation. The Indiana Court of Appeals reviewed the case as a Trial Rule 12(B)(6) dismissal of a complaint, not a granting of summary judgment, and accordingly disregarded Ron Parker’s affidavit in considering the merits of the Union Circuit Court’s ruling. Finds that the trial court erred in dismissing the Union County’s action for declaratory judgment and injunctive relief against INDOT and that the county has standing to pursue those claims. Remands for further proceedings.
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Opinions Dec. 15, 2016

December 15, 2016
Indiana Court of Appeals
Robert W. Adams v. State of Indiana (mem. dec.)
02A03-1512-CR-2149
Criminal. Affirms the denial of Robert W. Adams’ motion for jail-time credit against his sentence in the New Castle prison. Finds that whatever merit Adams’ claim has lies beyond the record he submitted and beyond what a court may consult when reviewing a motion to correct an erroneous sentence. Thus, the Allen Superior Court judge did not abuse her discretion by denying Adams’ motion to additional credit time.
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Opinions Dec. 14, 2016

December 14, 2016
Indiana Court of Appeals
In the Matter of the Marriage of: Mark A. Del Priore v. Jill E. Del Priore
02A03-1603-DR-605
Domestic relation. Affirms in part and reverses in part the trial court’s decree of dissolution and distribution of the marital estate. Reverses trial court order that the parties be responsible for a child’s educational expenses beyond undergraduate school. Remands to amend the decree to reflect parties are ordered to pay only for educational expenses that pertain to the child obtaining a bachelor’s degree.
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Opinions Tuesday, Dec. 13, 2016

December 13, 2016
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
United States of America v. Shaft Jones
15-3547
Appeal from the United State District Court for the Northern District of Indiana, Fort Wayne Division. Judge Theresa L. Springmann.
Criminal. Affirms Shaft Jones’ convictions of conspiring to possess, with intent to distribute, five or more kilograms of cocaine and of related crimes, including carrying a gun in connection with drug trafficking, and his sentence to 270 months in prison.
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Opinions Dec. 12, 2016

December 12, 2016
Indiana Court of Appeals
Richard Dobeski v. State of Indiana
49A02-1603-CR-440
Criminal. Reverses Richard Dobeski’s conviction for failure to register as a sex offender. Finds that Dobeski’s conviction is not supported by the evidence.  Remands with instructions to vacate his conviction.
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Opinions Dec. 9, 2016

December 9, 2016
7th Circuit Court of Appeals
Sherry Katz-Crank v. Kimberly Haskett
15-1809
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms the dismissal of charges against Marion County and Indiana state and county officials in their individual and official capacities. Finds that broad immunity provides protections against most charges brought by Sherry Katz-Crank and that Katz-Crank failed to establish constitutional claims. Judge Richard Posner concurs and dissents with separate opinion.
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Opinions Dec. 8, 2016

December 8, 2016
Indiana Court of Appeals
In re the Expungement/Sealing of Records of H.M. v. State of Indiana and Marion County Sheriff
49A02-1604-MI-700
Miscellaneous. Reverses dismissal of H.M.’s contempt petition. Finds that the Marion Superior Court did not err when it denied H.M.’s motion to strike but did err when it dismissed H.M.’s contempt petition. Remands for further proceedings. Judge Michael Barnes concurs with separate opinion.
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Opinions Dec. 7, 2016

December 7, 2016
Indiana Court of Appeals
Reginald Webster v. State of Indiana
49A05-1603-CR-417
Criminal. Reverses Reginald Webster’s conviction for Class A misdemeanor carrying a handgun without a license. Finds that the Marion Superior Court clearly erred in denying Webster’s motion for involuntary dismissal.
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Opinions Dec. 6, 2016

December 6, 2016
7th Circuit Court of Appeals
Gillian Berger, et al. v. National Collegiate Athletic Association, et al.
16-1558
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Affirms district court decision to grant the appellees’ motion to dismiss, holding that student-athletes are not employees and are not entitled to a minimum wage under the Fair Labor Standards Act. Judge David Hamilton concurs with separate opinion.
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Opinions Dec. 5, 2016

December 5, 2016
Indiana Court of Appeals
Andre Anderson v. State of Indiana
49A02-1511-CR-1947
Criminal. Reverses Andre Anderson’s conviction of Level 5 felony carrying a handgun without a license after he appealed the admission at trial of a handgun found pursuant to a search of his car following his arrest. Finds that the search of Anderson’s jacket was not lawful as a search incident to arrest or an inventory search and, thus, the Marion Superior Court abused its discretion when it admitted the handgun into evidence.
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  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

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