Opinions

Opinions Oct. 27, 2015

October 27, 2015
Indiana Court of Appeals
Jonathan E. Powell v. State of Indiana
49A02-1503-CR-135
Criminal. Reverses conviction of Class A misdemeanor criminal trespass. The state failed to prove Powell was on the bar’s property when an off-duty police officer asked him to leave.
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Opinions Oct. 26, 2015

October 26, 2015
Indiana Court of Appeals
Robbie Lomax v. Jennie L. Michael

12A05-1503-CT-124
Civil tort. Reverses final judgment against Lomax in his wrongful death action against Michael, in which the trial court granted partial summary judgment in Michael’s favor based on its conclusion that Lomax does not qualify as a dependent next of kin as required by the General Wrongful Death Statute. A question of fact exists as to whether Lomax is a dependent next of kin to Edward Lomax. Remands for further proceedings.
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Opinions Oct. 23, 2015

October 23, 2015
Indiana Court of Appeals
Russell A. Prosser, Jr. v. State of Indiana (mem. dec.)
50A05-1502-CR-51
Criminal. Affirms convictions for 11 counts, including theft and unauthorized entry of a vehicle, following two separate jury trials. Prosser waived his challenge to a witness’s in-court identification of him, and there is sufficient evidence to support the convictions.
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Opinions Oct. 22, 2015

October 22, 2015
Indiana Court of Appeals
Eric Brazier d/b/a Brazier Painting v. Maple Lane Apartments I, LLC
71A04-1406-CC-278
Civil collection. Affirms judgment in favor of Maple Lane Apartments on Brazier’s lawsuit alleging he had performed more than $60,000 in painting services and had not been paid. The trial court also imposed sanctions against his counsel toward Maple Lane’s attorney fees because his attorney misrepresented the nature of the documents on which Brazier based his entire case.
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Opinions Oct. 21, 2015

October 21, 2015
Indiana Court of Appeals
Loren J. Adams v. Review Board of the Indiana Department of Workforce Development, and F&J Pizza III LLC (mem. dec.)
93A02-1501-EX-16
Agency action. Affirms denial of claim for unemployment benefits.
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Opinions Oct. 19, 2015

October 19, 2015
Indiana Court of Appeals
G.T. v. State of Indiana (mem. dec.)
49A02-1504-JV-239
Juvenile. Affirms restitution order.
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Opinions Oct. 16, 2015

October 16, 2015
Indiana Supreme Court
Robert A. Masters v. Leah Masters
02S04-1504-DR-156
Domestic. Affirms award of attorney fees in a dissolution of marriage case to an arbitrator under the Family Law Arbitration Act. The award of attorney fees in this case is supported by the findings, and Robert Masters failed to show clear error as prescribed by Trial Rule 52(A).
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Opinions Oct. 15, 2015

October 15, 2015
Indiana Supreme Court
In the Matter of: Anonymous
79S00-1508-DI-512
Discipline. Issues private reprimand after finding attorney engaged in misconduct by communicating ex parte with a judge without authorization to do so, a violation of Professional Conduct Rule 3.5(b).
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Opinions Oct. 14, 2015

October 14, 2015
Indiana Court of Appeals
Travis Allen v. State of Indiana
49A05-1410-CR-501
Criminal. Affirms convictions of Class A misdemeanors operating a vehicle while intoxicated and driving with a suspended license, and Class C felony driving without a license. The total days of delay charged to the state in bringing Allen to trial is 363 days, so Allen is not entitled to discharge under Criminal rule 4(C) and the trial court did not abuse its discretion when it denied his motion. Judge Barnes dissents.
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Opinions Oct. 13, 2015

October 13, 2015
Indiana Court of Appeals
Scott A. Criswell v. State of Indiana
02A03-1501-CR-22
Criminal. Reverses denial of Criswell’s motion to suppress a statement given as part of an internal police investigation into his involvement in the break in and theft of items from a home. Remands with instructions to grant the motion to suppress the statement as well as any other evidence that was directly or indirectly derived from the statement.
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Opinions Oct. 9, 2015

October 9, 2015
Indiana Court of Appeals Allen Gray Limited Partnership IV v. Bishop Mumford, Christopher Mumford, Elizabeth B. Mumford, Richardson S. Mumford, Thomas F. Mumford, Jr., and William M. Mumford
26A01-1503-MI-92
Miscellaneous. Affirms summary judgment for the Mumford family. The trial court correctly determined the reservation applied to the surface area of the “drilling unit” and did not restrict the Mumfords from making the reserved wells deeper.
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Opinions Oct. 8, 2015

October 8, 2015
Indiana Court of Appeals
Robert E. Quinn v. State of Indiana
20A03-1503-CR-82
Criminal. Affirms convictions of child molesting and criminal confinement, both Class B felonies. Under the facts and circumstances of this case, the state’s employees acted reasonably in the manner in which they maintained, discovered and tested DNA evidence that led to Quinn’s convictions, thereby establishing the due diligence requirement of I.C. 35-41-4-2(b).
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Opinions Oct. 7, 2015

October 7, 2015
7th Circuit Court of Appeals
Tom Allen Manuel v. J.A. Terris
15-1392
U.S. District Court, Southern District of Indiana, Terre Haute Division. Judge Jane Magnus-Stinson.
Civil. Affirms denial of petition for habeas corpus, directed at the prison warden, for a reduction of Manuel’s prison sentence. The period that Manuel wants credited against his federal sentence had already been credited toward his state sentence.
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Opinions Oct. 6, 2015

October 6, 2015
7th Circuit Court of Appeals
Bryana Bible, Individually and on Behalf of the Proposed Class v. United Student Aid Funds, Inc.
14-1806
Appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division
Judge Tanya Walton Pratt
Civil. Denies petition for rehearing en banc of the panel decision. The panel reversed and remanded the District Court’s dismissal of Bible’s complaint against a creditor in a student loan default case. None of the panelists who wrote three separate opinions, nor other Circuit judges, favored rehearing en banc. Judge Frank Easterbrook wrote a concurrence to underscore that deference to federal agency positions affirmed in Auer v. Robbins, 519 U.S. 452 (1997), has been assailed by recent Supreme Court rulings suggesting that decision “may not be long for this world.”
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Opinions Oct. 5, 2015

October 5, 2015
Indiana Court of Appeals
Ronald C. Weyland v. State of Indiana (mem. dec.)
48A04-1409-CR-446
Criminal. Judges L. Mark Bailey and Michael Barnes grant rehearing and remand to the trial court to resentence Weyland. Judge Patricia Riley votes to deny the petition for rehearing.
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Opinions Oct. 2, 2015

October 2, 2015
Indiana Court of Appeals
Courtney R. Robbins v. The Trustees of Indiana University and Clarian Health Partners, Inc.
49A04-1412-CT-583
Civil tort. Affirms summary judge in favor of the Trustees of Indiana University and Clarian Health Partners Inc. This suit was filed after Tiffaney DeBow, a licensed practical nurse, accessed Robbins’ medical files and posted them on the Internet. The COA ruled Clarian is not vicariously liable for DeBow’s actions because she was not directly employed by Clarian. Similarly finds IU is not subject to vicarious liability because DeBow was acting outside the scope of her employment. Holds IU is not guilty of negligent hiring. Judge Terry Crone concurs in part and concurs in result in part. He urges the Indiana Supreme Court to revisit invasion of privacy precedent in light of today’s rapidly changing technology. 

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Opinions Oct. 1, 2015

October 1, 2015
Indiana Court of Appeals
Jason Lee DeGroot v. State of Indiana (mem. dec.)
45A03-1412-CR-457
Criminal. Affirms sentence following guilty plea to Class A felony voluntary manslaughter.
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Opinions Sept. 30, 2015

September 30, 2015
Indiana Court of Appeals
In Re: The Matter of the Petition to Expunge Conviction Records of James D. Borel v. State of Indiana
41A01-1412-MI-533
Miscellaneous. Reverses denial of Borel’s motion to correct error as the denial was against logic, facts and circumstances presented. There is insufficient evidence that he still owed $37 in court costs stemming from a 1976 case.
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Opinions Sept. 29, 2015

September 29, 2015
7th Circuit Court of Appeals
Defender Security Company v. First Mercury Insurance Company
14-1805
U.S. District court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Civil. Affirms First Mercury Insurance Co.’s motion to dismiss Defender Security Co.’s lawsuit alleging breach of contract and bad faith, which sought a declaratory judgment that First Mercury owed it a duty to defend. Based on Indiana’s definition of “publication” in the defamation context, the term “publication” in the insurance policy was not susceptible to Defender’s interpretation that its recording and storing of customers’ information constitutes “publication” so as to trigger defense by First Mercury in a lawsuit.
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Opinions Sept. 28, 2015

September 28, 2015
Indiana Court of Appeals
Michael R. Pike, and Chassidy L. Pike v. Conestoga Title Insurance Co.
16A05-1501-CT-27
Civil tort. Affirms summary judgment in favor of Conestoga Title Insurance Co. The Pikes failed to promptly notify Conestoga about legal notices that their property was being placed in a tax sale.
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Opinions Sept. 25, 2015

September 25, 2015
Indiana Court of Appeals
M.L. v. M.F. and M.Fu. (mem. dec.)
33A01-1505-DR-318
Domestic relation. Reverses child support order entered upon M.L.’s petition for child support modification.
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Opinions Sept. 24, 2015

September 24, 2015
Indiana Supreme Court
William Clyde Gibson III v. State of Indiana
22S00-1206-DP-359
Death penalty. Affirms the imposing of the death penalty following Gibson’s conviction for murder. Finds the sentence is not inappropriate “in light of the horrific manner in which Gibson took (his victim’s) life and his lack of redeeming character traits.” In regards to the jury, rules the trial court did not err in refusing to dismiss the entire venire panel and did not abuse its discretion in denying Gibson’s request to ask a case-specific question during voir dire, his for-cause juror challenges and his request to instruct the jury on voluntary manslaughter. Holds the trial court also did not abuse its discretion in denying Gibson’s request for a fourth continuance.
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Opinions Sept. 23, 2015

September 23, 2015
Indiana Court of Appeals
In the Matter of Term. of the Parent-Child Relationship of: B.H. and S.H., and B.H. and M.B. v. The Ind. Dept. of Child Services
91A02-1504-JT-213
Juvenile. Affirms termination of parental rights. The trial court did not abuse its discretion by denying mother’s last-minute motions to continue termination hearings. There is no reason to conclude mother did not receive a fair hearing. The juvenile court did not err by finding that the termination of the relationship with mother and father is in the best interests of the children. The fact of father’s incarceration is not the sole evidence supporting termination.
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Opinions Sept. 22, 2015

September 22, 2015
Indiana Court of Appeals
Kile Richard Stockert v. State of Indiana
Criminal. Affirms Department of Correction designation that Stockert is a sexually violent predator and offender against children. Based on the record and Ind. Code § 35-38-1-7.5(b) and § 11-8-8-19(b), the trial court did not err in denying Stockert’s petition for declaratory judgment.
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Opinions Sept. 21, 2015

September 21, 2015
Indiana Supreme Court
Ray Clifton v. Ruby McCammack

49S02-1504-CT-228
Civil tort. Affirms trial court grant of summary judgment in favor of motorist Ruby McCammack in a negligent infliction of emotional distress lawsuit filed by Ray Clifton, the father of a moped driver struck and killed in a crash. Clifton may not recover under the bystander rule because he does not meet the three circumstantial factors -- that the scene viewed was essentially as it was at the time of the incident, that the victim was in essentially the same condition as immediately following the incident, and that the claimant was not informed of the incident before coming upon the scene.
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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. 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.

  4. 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?

  5. 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

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