Opinions

Opinions: 6/29/2015

June 29, 2015
Indiana Supreme Court
Larry D. Russell, Jr. v. State of Indiana
84S01-1409-CR-583
Criminal. Affirms 10-year sentence for conviction of five counts of Class C felony neglect of a dependent and two counts of Class C felony criminal confinement. Despite an erroneous application of a particular section of Indiana Code on a perceived statutory cap on sentencing, the plea agreement is enforceable because Russell received the benefit of the bargain and there is no compelling reason to set aside the conviction, the majority held. Chief Justice Loretta Rush concurred in result only. Justice Mark Massa dissented, finding that the trial court’s acceptance of a plea agreement based on an error of law amounted to an abuse of discretion.

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Opinions June 26, 2015

June 26, 2015
7th Circuit Court of Appeals
Renato DeBartolo v. United States of America
14-3579
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller.
Reverses denial of a petition for relief from a removal order resulting in the deportation of DeBartolo to Italy. The panel held that the failure of DeBartolo’s attorney to inform him that pleading guilty to a drug charge could result in deportation proceedings was ineffective assistance of counsel.
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Opinions June 25, 2015

June 25, 2015
7th Circuit Court of Appeals
United States of America v. Pascal Sylla
14-2813
U.S. District Court, Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Criminal. Affirms 2013 conviction of attempted bank robbery stemming from an attempted robbery in 2003. Sylla’s DNA was matched to the crime scene in 2010, thus making his conviction not outside the statute of limitations.
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Opinions June 24, 2015

June 24, 2015
Indiana Supreme Court
In the Matter of: Bradley D. Hamilton
49S00-1412-DI-752
Discipline. Disbars Hamilton for abandoning his law practice and clients, stealing their money, and fleeing to Australia. Finds he violated eight rules of Professional Conduct.
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Opinions June 23, 2015

June 23, 2015
The following 7th Circuit Court of Appeals opinion was posted after IL deadline:
John W. Perotti v. Diane Quinones and Billie Kelsheimer
14-229
U.S. District Court, Southern District of Indiana, Terre Haute Division. Judge Jane Magnus-Stinson.
Civil. Affirms District Court’s denial of Perotti’s petition of habeas corpus ad testificandum and arrangement for him to participate in his alleged retaliation trial by video conferencing. The decision did not disadvantage him, and the judge did everything she could to make sure that Perotti saw as much of the trial proceeding and its participants as was possible.
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Opinions June 22, 2105

June 22, 2015
Indiana Court of Appeals
K.K. v. State of Indiana
49A02-1410-JV-687
Juvenile. Affirms adjudication as delinquent for having committed the offense of dangerous possession of a firearm, a Class A misdemeanor if committed by an adult. The odor of burnt marijuana emanating from a vehicle K.K. was a passenger in provided probable cause for officers to arrest the car’s three occupants, such that the loaded handgun found during the search of K.K. was properly admitted into evidence.
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Opinions June 19, 2015

June 19, 2015
The following Indiana Tax Court opinion was posted after IL deadline Thursday:
Muir Woods, Inc. v. Joseph P. O'Connor, Assessor of Marion County
49T10-1302-TA-38
Tax. Affirms dismissal by the Indiana Board of Tax Review of Muir Woods Inc.’s Petitions for correction of an error (Forms 133) because the forms’ alleged errors are not correctable under that appeal procedure. Finds that the Indiana Board acted within the scope of its authority and that Muir Woods did not raise a claim cognizable using the Form 133 appeal procedure.
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Opinions June 18, 2015

June 18, 2015
Indiana Court of Appeals
I-465, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company
49A05-1409-PL-403
Civil plenary. Affirms decision by the Marion County Metropolitan Board of Zoning Appeals approving a request for a property-use variance by Jeffrey R. Baumgarth and Myers Y. Cooper Co. The BZA’s decision to grant the variance was based upon its determination that Myers Cooper had established the five elements required to justify a variance, and its decision was supported by adequate findings, which in turn were supported by the evidence, and therefore not clearly erroneous.
 
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Opinions June 17, 2015

June 17, 2015
Indiana Supreme Court
Robert Lewis III v. State of Indiana
45S00-1312-LW-512
Life without parole. Affirms Lewis’ convictions of murder, murder in the perpetration of criminal deviate conduct, criminal deviate conduct and resisting law enforcement, but reverses the sentence of life without possibility of parole because the trial court’s sentencing order did not contain a personal conclusion that life without possibility of parole is the appropriate sentence for Lewis. Remands for a revised sentencing order.
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Opinions June 16, 2015

June 16, 2015
Indiana Court of Appeals
Joan Strozewski v. James Strozewski
29A02-1412-DR-885
Domestic. Affirms on interlocutory appeal trial court denial of Joan Strozewski’s motion to transfer the case to St. Joseph County. Because Hamilton County is a preferred venue for a dissolution action, change of venue cannot be granted, and the trial court did not err in denying the motion to transfer venue.
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Opinions June 15, 2015

June 15, 2015
7th Circuit Court of Appeals
Marc Shell v. Kevin Smith, in his official capacity as Mayor of the City of Anderson, et al.
14-2958
Civil. Reverses summary judgment in favor of Anderson defendants and remands Shell’s Americans with Disabilities Act claim for proceedings in the District Court. Shell, a mechanic’s helper in the City of Anderson Transit System, claimed his firing after a change of city administration violated his rights under the ADA because he’d held the position for 12 years. He was unable to obtain a commercial driver’s license due to hearing and vision impairment and was fired after a new administrator enforced a job description requirement that he obtain a CDL. Because of evidence and reasonable inferences favorable to both parties, summary judgment was inappropriate.
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Opinions June 12, 2015

June 12, 2015

Indiana Supreme Court
The following opinion was issued after IL deadline Thursday.
In the Matter of the Adoption of Minor Children: I.B. and W.B.: B.B. v. B.C. and J.L., and Indiana Department of Child Services
82S05-1502-AD-63
Adoption. Reverses trial court adoption petition in favor of maternal grandmother B.C. that had been affirmed by the Court of Appeals. Justices overturned a COA ruling that I.C. § 31-19-11-1(c)(15), which disqualifies certain felons from adoption, is unconstitutional. The law is constitutional because its prohibitions are rationally related to the classifications they draw, the court ruled. The case is remanded to the trial court to reconsider the petition in view of the absolute statutory bar to B.C. adopting.

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Opinions June 11, 2015

June 11, 2015
Indiana Court of Appeals
Michael R. Bixeman and Doreen Bixeman v. Hunter's Run Homeowners Association of St. John, Inc.
45A03-1411-PL-406
Civil plenary. Affirms trial court ruling that the sanction imposed by Hunter’s Run on the Bixemans’ was invalid because the homeowners association did not give the couple the required 10 days notice as outlined in the homeowners’ covenants. Reverses denial of the Bixemans’ claim of slander of title because Hunter’s Run knew the lien placed on their home was invalid but refused to release it. Remands for determination whether the couple was damaged by the slander of title, and if so, to what extent, as well as to enter findings on attorney fees.
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Opinions June 10, 2015

June 10, 2015
7th Circuit Court of Appeals
Michael A. Miller v. St. Joseph County, et al.
14-2989

U.S. District Court, Northern District of Indiana, Hammond Division. Judge Rudy Lozano.
Civil. Affirms dismissal of Miller’s lawsuit claiming he had been discriminated against because he’s African-American. There is no evidence that the denial of his requests to fill two spots considered promotions were based on his race and he always retained his status as sergeant and same pay and benefits when he began working in the property room.
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Opinions June 9, 2015

June 9, 2015
Indiana Supreme Court
State Farm Mutual Automobile Insurance Company v. Kimberly S. Earl and the Estate of Jerry Earl
35S05-1408-CT-562
Civil tort. Affirms admission of Jerry Earl’s uninsured motorist policy limits into evidence at a trial involving State Farm, finding no error given the substantial evidence and correct jury instructions. Declines to create a bright-line rule involving the admission of coverage limits at trial.
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Opinions June 8, 2015

June 8, 2015
Indiana Court of Appeals
Jake Gruber, Jill Sherman, & Jake Gruber b/n/f Jill Sherman v. YMCA of Greater Indianapolis, Ruth Lilly YMCA Outdoor Center, & Flat Rock River YMCA Resident Camp

49A02-1410-CT-713
Civil tort. Affirms trial court grant of summary judgment in favor of YMCA defendants in a suit brought by the parents of a child bitten by a pig at a camp. The panel declined to change the standard to strict liability for owners of animals from the general rule that owners of domestic animals are liable only if the owner knows or has reason to know that the animal has dangerous propensities.
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Opinions June 5, 2015

June 5, 2015
Indiana Court of Appeals
Bertram A. Graves, M.D. v. Indiana University Health, f/k/a Clarian Health Partners, Inc., Richard Kovacs, M.D., and Edward Ross, M.D.
49A05-1412-PL-560 
Civil plenary. Affirms summary judgment for IU Health defendants in a breach-of-contract and intentional infliction of emotional distress lawsuit brought by a cardiologist whose privileges were revoked. The trial court did not err in granting summary judgment and the court did not abuse its discretion in denying Graves’ motion to compel and in striking parts of his affidavit.
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Opinions June 4, 2015

June 4, 2015
Indiana Court of Appeals
In the Matter of the Term. of the Parent-Child Relationship of, M.W., (Minor Child) and, J.W., (Mother) v. The Ind. Dept. of Child Services
82A01-1410-JT-456
Juvenile. Affirms termination of parental rights. The trial court did not abuse its discretion in denying the mother’s motion for a continuance of the termination of the parental rights hearing.
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Opinions June 3, 2015

June 3, 2015
Indiana Supreme Court
Jason and Justina Kramer v. Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc.
71S03-1506-CT-350
Civil tort. Affirms summary judgment for Catholic Charities on the Kramers’ lawsuit alleging negligence after the baby they adopted through the agency was returned to her father eight months later after he contested the adoption. The Kramers failed to demonstrate that Catholic Charities had any duties with respect to the putative father registry in excess of its statutory obligation. Justice Dickson dissents with separate opinion.
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Opinions June 2, 2015

June 2, 2015
7th Circuit Court of Appeals
Tommy R. Pruitt v. Ron Neal, Superintendent, Indiana State Prison
13-1880
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller, Jr.
Post conviction. Reverses death sentence for Tommy Pruitt, convicted of murder for killing Morgan County Deputy Sheriff Daniel Starnes in 2001. Pruitt has established that he is intellectually disabled and categorically ineligible for the death penalty and that trial counsel were ineffective in their investigation and presentation of evidence that Pruitt suffered from schizophrenia. Remands for new penalty-phase proceeding.
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Opinions June 1, 2015

June 1, 2015
7th Circuit Court of Appeals
Shane Kervin v. La Clair Barnes, et al.
14-2983
U.S. District Court, Northern District of Indiana, South Bend Division, Judge James T. Moody. Affirms dismissal of Kervin’s 42 U.S.C. § 1983 suit alleging that as a prisoner, his rights were violated when he was placed in solitary confinement and denied privileges as punishment for complaining about a delay in being allowed to see his attorney. The court ruled Kervin’s backtalk to guards was the basis for his punishment, which was neither “atypical,” “significant,” nor “a dramatic departure from the basic conditions” of his sentence as required for such claims under Sandin v. Conner, 515 U.S. 472, 484-85 (1995).

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Opinions May 29, 2015

May 29, 2015
Indiana Court of Appeals
State of Indiana v. Scott Zerbe

49A05-1410-MI-463
Criminal. Reverses a trial court ruling granting Zerbe’s petition to remove his name from the Sex Offender Registry. Zerbe was required to register as a sex offender for a Michigan offense committed in 1992 when he moved to here in 2012. Indiana’s Sex Offender Registry, enacted in 1994, is not unconstitutional as applied to Zerbe.
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Opinions May 28, 2015

May 28, 2015
Indiana Court of Appeals
Terry Huber v. Roger Hamilton
54A01-1404-PL-154
Civil plenary. Affirms trial court ruling that the buyer of land, Terry Huber, breached the land contract when he failed to make the balloon payment when it was originally due. The oral agreement between the parties to modify the written land contract is unenforceable because it was not reduced to writing.
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Opinions May 27, 2015

May 27, 2015
Indiana Court of Appeals
Tommy Lampley v. State of Indiana
48A04-1405-CR-231
Criminal. Affirms revocation of probation. Lampley admitted to participating in unlawful conduct during his probationary period.
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Opinions May 26, 2015

May 26, 2015
Indiana Tax Court
Marion County Auditor v. State of Indiana
49T10-1406-TA-25
Tax. Grants the state’s motion to dismiss the auditor’s action challenging the constitutionality of I.C. 6-1.1-15-12. The auditor does not have statutory or common law standing to appeal the PTABOA’s decision on Grandville’s Forms 133 to the Tax Court.
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  1. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  2. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

  3. She must be a great lawyer

  4. Ind. Courts - "Illinois ranks 49th for how court system serves disadvantaged" What about Indiana? A story today from Dave Collins of the AP, here published in the Benton Illinois Evening News, begins: Illinois' court system had the third-worst score in the nation among state judiciaries in serving poor, disabled and other disadvantaged members of the public, according to new rankings. Illinois' "Justice Index" score of 34.5 out of 100, determined by the nonprofit National Center for Access to Justice, is based on how states serve people with disabilities and limited English proficiency, how much free legal help is available and how states help increasing numbers of people representing themselves in court, among other issues. Connecticut led all states with a score of 73.4 and was followed by Hawaii, Minnesota, New York and Delaware, respectively. Local courts in Washington, D.C., had the highest overall score at 80.9. At the bottom was Oklahoma at 23.7, followed by Kentucky, Illinois, South Dakota and Indiana. ILB: That puts Indiana at 46th worse. More from the story: Connecticut, Hawaii, Minnesota, Colorado, Tennessee and Maine had perfect 100 scores in serving people with disabilities, while Indiana, Georgia, Wyoming, Missouri and Idaho had the lowest scores. Those rankings were based on issues such as whether interpretation services are offered free to the deaf and hearing-impaired and whether there are laws or rules allowing service animals in courthouses. The index also reviewed how many civil legal aid lawyers were available to provide free legal help. Washington, D.C., had nearly nine civil legal aid lawyers per 10,000 people in poverty, the highest rate in the country. Texas had the lowest rate, 0.43 legal aid lawyers per 10,000 people in poverty. http://indianalawblog.com/archives/2014/11/ind_courts_illi_1.html

  5. A very thorough opinion by the federal court. The Rooker-Feldman analysis, in particular, helps clear up muddy water as to the entanglement issue. Looks like the Seventh Circuit is willing to let its district courts cruise much closer to the Indiana Supreme Court's shorelines than most thought likely, at least when the ADA on the docket. Some could argue that this case and Praekel, taken together, paint a rather unflattering picture of how the lower courts are being advised as to their duties under the ADA. A read of the DOJ amicus in Praekel seems to demonstrate a less-than-congenial view toward the higher echelons in the bureaucracy.

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