Opinions

Opinions April 13, 2017

April 13, 2017
Indiana Court of Appeals
Wyatt Severance v. New Castle Community School Corporation a/k/a New Castle Career Center, and Turner Melton
33A01-1609-CT-2088
Civil tort. Reverses the Henry Circuit Court’s grant of New Castle Community School Corp.’s motion to strike Wyatt Severance’s expert affidavit and the grant of summary judgment to the school. The trial court erred in granting the school’s motion to strike. Finds there are genuine issues of material fact as to whether the school breached its duty and whether Severance was contributorily negligent precluding summary judgment. Remands for further proceedings.
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Opinions April 12, 2017

April 12, 2017
Indiana Court of Appeals
C.H. v. A.R.
29A05-1607-PO-1625
Order of protection. Affirms the Hamilton Circuit Court order dismissing C.H.’s protective order petition and its ex parte protective order that she sought against A.R. for the protection of A.R.’s son, H.L.. Affirms grant of A.R.’s petition for attorney fees. Finds the trial court did not err.
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Opinions April 11, 2017

April 11, 2017
Indiana Court of Appeals
Jalen Lee, A Minor Child, by and through his Next Friend, Crystal Estes and Crystal Estes, Individually v. Bartholomew Consolidated School Corporation, City of Columbus, et al.
03A01-1608-CT-1900
Civil tort. Reverses the Bartholomew Circuit Court’s grant of summary judgment in favor of the city of Columbus. Finds the trial court erred in granting summary judgment on the basis of contributory negligence, but that the city is entitled to statutory immunity. However, summary judgment is improper because there are genuine issues of material fact as to whether the city breach its duty of reasonable care and whether such a breach, if any, proximately caused the accident. Remands for further proceedings. Judge Terry Crone dissents with separate opinion.
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Opinions April 10, 2017

April 10, 2017
7th Circuit Court of Appeals
Thom D. Howell v. Shawn Smith
16-1988
Appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division. Judge James T. Moody.
Civil. Reverses the district court’s decision to deny Officer Shawn Smith’s motion for summary judgment on the grounds of qualified immunity. Smith’s decision to keep Thom Howell in handcuffs until he was satisfied that he was not a threat did not violate the Fourth Amendment, so under the doctrine of qualified immunity, Howell’s complaint must be dismissed. Remands for further proceedings.
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Opinions April 7, 2017

April 7, 2017
Indiana Court of Appeals
In the Matter of: Ce.B. and Co.B. (Minor Children) and C.K. (Custodian) v. The Indiana Department of Child Services
82A01-1610-JC-2442
Juvenile CHINS. Affirms the juvenile court’s determination that Co.B. and Ce.B. were children in need of services. Finds the juvenile court did hold a fact-finding hearing in the case at which the custodian of the children, C.K., chose to stipulate that the facts contained in the CHINS petitions and reports of preliminary inquiry were true. Also finds C.K. does not make any argument that his stipulation should be withdrawn for cause.
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Opinions April 6, 2017

April 6, 2017
Indiana Court of Appeals
Aaron D. Murray v. State of Indiana
36A04-1608-CR-1841
Criminal. Affirms Aaron Murray’s sentence to an aggregate of 21 years executed for three counts of Level 4 felony child molesting. Finds that Murray’s sentence is not inappropriate in light of the nature of the offenses and his character. Judge Terry Crone concurs in result with separate opinion, stating he would have consider a more severe sentence had the state requested.
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Opinions April 5, 2017

April 5, 2017
Indiana Court of Appeals
Citizens Action Coalition of Indiana, Inc., Indiana Association for Community and Economic Development, Indiana Coalition for Human Services, et al. v. Indianapolis Power & Light Company, et al.
93A02-1604-EX-804
Agency. Affirms the Indiana Utility Regulatory Commission’s approval of Indianapolis Power & Light Co.’s petition for approval of an increase to its base rates for provision of electricity, which had been in effect since 1995. Finds the joint intervenors have not shown that the commission decision approving a rate design that includes declining block rate is unsupported by requisite findings.
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Opinions April 4, 2017

April 4, 2017
Indiana Court of Appeals
Joseph Lee Pierson v. State of Indiana
89A05-1306-CR-311
Criminal. Affirms Joseph Pierson’s conviction for neglect of a dependent resulting in death as a Class A felony. There is sufficient evidence from which a jury could find that Pierson acted in a knowing and voluntary manner. Also finds the parties in a criminal case are permitted to agree to use a video deposition. Finally, finds the full context of the experts’ remarks did not mislead the jury of the applicable legal standards.
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Opinions March 30, 2017

March 30, 2017
Indiana Court of Appeals
Luke M. Warren v. State of Indiana
87A01-1606-CR-1399
Criminal. Affirms Luke M. Warren’s convictions of Class B felony dealing in methamphetamine and Class D felony possession of chemical reagents or precursors with the intent to manufacture a controlled substance.
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Opinions March 29, 2017

March 29, 2017
7th Circuit Court of Appeals
Eric Mains v. Citibank, N.A., et al.
16-1985
Appeal from U.S. District Court for the Southern District of Indiana, New Albany Division. Judge Sarah Evans Barker.
Civil. Affirms dismissal of Eric Mains’ litigation challenging the impending foreclosure of his home. The state courts had resolved the claims he brought in the federal suit, so the district court properly dismissed the case. Modifies the judgment to show that most of his federal and state law claims are dismissed without prejudice and the remainder are dismissed with prejudice.
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Opinions March 28, 2017

March 28, 2017
Indiana Supreme Court
State of Indiana v. Wallace Irvin Smith, III
45S05-1611-CR-572
Criminal. Reverses the Lake Superior Court’s grant of Wallace Irvin Smith III’s petition to convert his Class D felony conviction of theft to a Class A misdemeanor pursuant to the amendment to Indiana Code 35-50-2-7. Finds the subsequent legislative amendment did not alter the unambiguous terms of Smith’s plea agreement, which held that he would be “precluded from asking for Misdemeanor treatment.”
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Opinions March 27, 2017

March 27, 2017
Indiana Court of Appeals
Mark H. Miller, II v. Leigh Anne Miller
49A02-1604-DR-817
Domestic relation. Affirms the Marion Superior Court’s finding Mark H. Miller II is voluntarily underemployed. Reverses the trial court’s determination of his imputed income. The trial court did not clearly err in finding that Miller was voluntarily underemployed when he was simultaneously the children’s primary caregiver and a part-time college student during his marriage to Leigh Anne Miller, but he is now no longer the children’s primary caregiver. Finds the trial court determined his imputed income without evidence of prevailing job opportunities and earnings levels in the community. Remands for a hearing.
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Opinions March 23, 2017

March 23, 2017
Indiana Court of Appeals
John E. Warner, Jr.; Rick Clay; Sam Early; Brian Goeglein; Mike Campbell; Brad Wilson; and John Zimmerman v. Chauffeurs, Teamsters, and Helpers Local Union No. 414 and Speedway Redi Mix, Inc.
02A04-1608-PL-2017
Civil plenary. Affirms in part and reverses in part. Affirms the trial court’s dismissal of drivers’ claim the union was receiving their dues in violation of Indiana’s right-to-work law and their associated claim of recovery of money had and received. The drivers’ claim based on the dues checkoffs is a claim over which Indiana courts have no jurisdiction.
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Opinions March 22, 2017

March 22, 2017
Indiana Court of Appeals
Lisa Gill, et al. v. Jeffrey B. Gill, et al.
20A03-1607-DR-1569
Domestic relation. Affirms the statutory authority allowing a trial court to order a divorced parent to contribute to his/her child’s post-secondary educational expenses is constitutional. Finds no abuse of discretion by the trial court with regard to crediting Jasen Simcox for certain nonconforming child support payments and basing his post-secondary education obligation on the cost of a public university rather than the private one his daughter attends.
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Opinions March 21, 2017

March 21, 2017
Indiana Court of Appeals
In the Matter of: N.C. (Minor Child), Child in Need of Services and J.M. (Father) v. The Indiana Department of Child Services
53A01-1610-JC-2479
Juvenile. Reverses trial court order finding that N.C. is a child in need of services and corresponding dispositional order giving wardship to the Department of Child Services and ordering father to comply with terms of a parent participation plan. DCS did not prove by a preponderance of the evidence that the coercive intervention of the court was necessary to ensure N.C.’s care, and the court clearly erred in adjudicating him a CHINS. Remands with instructions to vacate the CHINS finding.
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Opinions March 20, 2017

March 20, 2017
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
USA v. Jeffrey Rothbard
16-3996
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Criminal. Affirms Jeffrey Rothbard’s sentence of 24 months in prison for one count of wire fraud, despite the fact that he is an older man suffering from serious health problems. Finds that the district court gave sound reasons for its chosen sentence. Also finds that the evidence in the record before the district court and supplemental information requested about the Bureau of Prisons’ ability to provide appropriate care shows that the nominal 24-month sentence will not “spell doom” for Rothbard. Judge Richard Posner dissents with separate opinion.
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Opinions March 17, 2017

March 17, 2017
Indiana Supreme Court
Marvin Beville v. State of Indiana
84S01-1606-CR-347
Criminal. Reverses the Vigo Superior Court’s decision to withhold a video recording of a controlled drug buy between Marvin Beville and a confidential informant. Finds the state failed to make the threshold showing that the informer’s privilege applied to the case because it is unclear whether the video would reveal the informant’s identity.
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Opinions March 16, 2017

March 16, 2017
Indiana Court of Appeals
Admiral Insurance Company v. Joseph Banasiak, et al.
45A05-1604-PL-859
Civil plenary. Reverses the denial of Admiral Insurance Co.’s motion for summary judgment and declaratory judgment in favor of the estate of Dr. Habib Zadeh. Finds that Indiana Code 34-18-13-4 does not require coverage of Jennifer Muehlman’s claim.
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Opinions March 15, 2017

March 15, 2017
Indiana Court of Appeals
Virginia E. Mourning v. Allison Transmission, Inc.
49A02-1608-MI-1822
Miscellaneous. Reverses the Marion Superior Court’s grant of Allison Transmission Inc.’s Trial Rule 12(C) motion for judgment on the pleadings on Virginia Mourning’s claims of tortious interference with an employment contract and defamation. Finds Mourning sufficiently pleaded her defamation claim, but not her tortious interference claim. Remands to give Mourning an opportunity to amend her complaint once as of right under Trial Rule 15(A).
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Opinions March 14, 2017

March 14, 2017
Indiana Supreme Court
Lt. Henry G.L. McCullough and Princess S.D. Naro-McCullough v. CitiMortgage, Inc.
71S03-1605-MF-272
Mortgage foreclosure. Affirms the grant of summary judgment that led to the foreclosure of Henry McCullough and Princess S.D. Naro-McCullough’s family homestead. Finds there are no genuine issues of material fact precluding summary disposition.
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Opinions March 13, 2017

March 13, 2017
The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
Henry C. Wedemeyer and Martha L. Wedemeyer v. CSX Transportation, Inc.
15-3580

Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Senior Judge Larry J. McKinney.
Civil. Affirms the district court’s grant of summary judgment to CSX Transportation on Henry and Martha Wedemeyer’s lawsuit seeking removal of CSX tracks and possession of the real property underlying the rail line. Finds that the Wedemeyers’ claims are pre-empted by the Interstate Commerce Commission Termination Act.
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Opinions March 10, 2017

March 10, 2017
Indiana Court of Appeals
James E. Manley v. Keith Butts
33A05-1608-MI-1865
Miscellaneous. Reverses the Henry Circuit Court’s order dismissing James E. Manley’s petition for writ of state habeas corpus as an unauthorized successive petition for post-conviction relief. Because Manley’s habeas petition is challenging the validity of his convictions and sentence, Indiana Post-Conviction Rule 1(1)(c) requires that, under such circumstances, a trial court to transfer the petition to the court where the petitioner was convicted. Remands with instructions to the trial court to transfer the petition to Manley’s conviction court, the Monroe Circuit Court, where it shall be treated as a post-conviction petition.
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Opinions March 9, 2017

March 9, 2017
Indiana Court of Appeals
Jay Garrison v. Pamela Garrison
27A05-1603-EU-507
Estate, unsupervised. Affirms the Grant Superior Court’s order of the return of two of Thomas R. Garrison’s cars to his estate, finding that they were gifts causa mortis for which Garrison was not competent to form donative intent. Finds Jay Garrison has not rebutted the presumption of undue influence and the estate is entitled to recovery of the vehicles.
 
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Opinions March 8, 2017

March 8, 2017

Indiana Court of Appeals
Magic Circle Corp., D/B/A Dixie Chopper, Arthur Evans, Wesley Evans, and Jeffrey Haltom v. Crowe Horwath, LLP
71A03-1607-PL-1520
Civil plenary. Reverses and remands the St. Joseph Circuit Court’s grant of Crowe Horwath LLP’s motion to dismiss two counts brought against it by Magic Circle Corp. on the grounds the claims were barred by the economic loss rule and several exculpatory provisions. Finds the economic loss rule does not have the effect of barring an accountant malpractice claim at tort.

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Opinions March 7, 2017

March 7, 2017
Indiana Supreme Court
In the Matter of Donald Edward James
02S00-1607-DI-389
Disciplinary. Disbars Donald E. James. Finds that James committed attorney misconduct by mismanaging his trust account, converting client funds and failing to cooperate with the disciplinary process.
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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. 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.

  4. 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".

  5. 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.

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