Opinions March 16, 2012

March 16, 2012
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Indiana Tax Court had posted no opinions by IL deadline.

7th Circuit Court of Appeals

Harry Foster III and Linda Foster v. State Farm Fire and Casualty Company
United States District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springman.
Civil. Affirms District Court’s grant of summary judgment in favor of State Farm Fire and Casualty Company, holding the Fosters’ failure to produce requested documents was a material breach of their insurance agreement.

Indiana Supreme Court
Jesse J. Harris, Jr. v. State of Indiana
Criminal. Clarifies a matter Harris presented in his appeal, holding that a person who claims forum-shopping has occurred in a criminal case need not establish prejudice in order to prevail on appeal. Requests the judges of Howard County to draft amendments to Local Rule 29 that clear-up ambiguous areas of the law in order to prevent future challenges.

Indiana Department of State Revenue v. AOL, LLC
Tax appeal. Reverses the tax court’s determination that AOL does not owe sales tax for promotional matters distributed in Indiana. The components acquired from vendors outside of Indiana were used to make CD-ROM packages, and AOL argued that it did not acquire the CD-ROM packages and promotional materials in any retail transactions because it merely purchased assembly and printing services. But the Supreme Court held that because the assembly houses and letter shops were selling at retail, the transactions between AOL and its assembly houses and letter shops constituted retail transactions that triggered Indiana’s use tax once AOL used the property in Indiana.

Indiana Court of Appeals
Harry Kaufmann Motorcars, Inc. v. Schumaker Performance, Inc.
Miscellaneous. Reverses ruling by Johnson Superior Judge Lance Hamner to set aside a Wisconsin court’s default judgment regarding sale of a boat. Appellate court holds that Wisconsin’s long-arm statute and caselaw dictates that the state court had personal jurisdiction on the case. Remands for further proceedings.

Indiana Farm Bureau Insurance Company as subrogee of Joseph Koors d/b/a Koors Amoco v. Harleysville Insurance Company
Civil plenary. Reverses Kosciusko Superior Judge Duane Huffer’s decision that granted summary judgment for Harleysville Insurance Company regarding insurance policy coverage pertaining to a service station environmental contamination. Holds that insurance company was not entitled to summary judgment on policy exclusion and questions about notification, and remands for further proceedings.

Jack Messer v. New Albany Police Department
Miscellaneous. Affirms judgment by Floyd Superior Judge Roger Duvall, granting summary judgment for New Albany Police Department and finding there was no issue of fact as to whether police officer Jack Messer’s racially charged remarking to other officers during roll call was considered conduct unbecoming of an officer. That comment provided an appropriate basis for his 30-day suspension. Judge John Baker dissented, finding the department did not meet its burden in proving its interests in operational efficiency outweighed Messer’s First Amendment rights.

Chad M. McLain v. State of Indiana
Criminal. Affirms trial court’s decision to allow evidence obtained in a search of McLain’s car after his initial traffic stop had been completed. Holds that because the police officer told McLain he was free to go, he was not obligated to agree to the search or answer questions, and no violation of his constitutional rights occurred.

In the Matter of the Term. of the Parent-Child Rel. and Adoption of J.P.; M.P. and Z.P.; D.P. and G.P. v. Indiana Dept. of Child Services and J.H. and T.H. (NFP)
Juvenile. Affirms probate court’s denial of paternal grandparents’ petition to adopt J.P. Dismisses without prejudice the court’s decision regarding the foster parents’ adoption petition, because it was neither a final judgment nor an appealable interlocutory order.

Lesnick Jones v. State of Indiana (NFP)
Criminal. Affirms convictions of Class A felony rape, six counts Class A felony deviate conduct, Class B felony burglary, Class B felony robbery, Class B felony criminal confinement and associated charges.

Rickey Robey v. State of Indiana (NFP)
Criminal. Affirms trial court’s denial of motion to correct erroneous sentence, holding that the motion was not the appropriate vehicle for Robey to use.

Dominee M. Florence v. Review Board of the Indiana Dept. of Workforce Development and Kindred Nursing Centers LTD PTR (NFP)
Civil. Dismisses appeal, due to Florence’s numerous and substantial violations of the Indiana Rules of Appellate Procedure.

Paul J. Kinnaman v. State of Indiana (NFP)
Criminal. Affirms convictions of Class A felony dealing in methamphetamine and Class A misdemeanor possession of paraphernalia.

R.F. and I.A. v. Indiana Department of Child Services (NFP)
Juvenile. Affirms termination of parental rights for mother and father.

Andre Gonzalez v. State of Indiana (NFP)
Criminal. Reverses denial of Gonzalez’ petition to remove his sex offender designation, holding that at the time he was sentenced, Indiana law did not require lifetime registration. Remands for removal of his registration.

Rebecca A. Thieling v. State of Indiana (NFP)
Criminal. Affirms convictions of Class C felony forgery and Class D felony auto theft.

Terrell Ewell v. State of Indiana (NFP)
Criminal. Dismisses case for lack of subject matter jurisdiction, concluding Ewell did not timely file his notice of appeal.

Todd Richmond v. Erin Mager (Richmond) (NFP)
Domestic relation. Affirms denial of father’s petition for change of custody and grant of mother’s petition for modification of father’s parenting time.

B.O. v. State of Indiana (NFP)
Juvenile. Affirms J.O.’s placement with the Department of Correction.

Kimberly L. Zapalac v. State of Indiana (NFP)
Criminal. Dismisses appeal for lack of jurisdiction, as Zapalac committed several crimes and made two plea agreements 12 years ago, before absconding.

Jeffrey S. Pryor v. State of Indiana (NFP)
Criminal. Affirms conviction of Class C misdemeanor operating while intoxicated.

In Re: The Adoption of T.L.; M.J. v. D.F. and K.F. and Indiana Dept. of Child Services (NFP)
Adoption. Affirms trial court’s dismissal of M.J.’s petition to adopt his half-sister.

Olde York Potato Chips, Inc., ONAP, Inc., and Peter Margie v. Shenolikar Dwarka and Dwarka & Sons, Inc. (NFP)
Civil plenary. Dismisses Olde York’s appeal, holding it does not appear to be an interlocutory appeal that may be brought as of right and would be the subject of an interlocutory appeal only on certification by the trial court and acceptance by appeals court, and that there is no such certification or acceptance in the case.

Dathan Alexander v. State of Indiana (NFP)
Criminal. Affirms conviction of Class A misdemeanor possession of marijuana.



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  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...