Opinions June 24, 2016

June 24, 2016
KEYWORDS Opinions / neglect

The following opinions were issued after IL deadline Thursday.
7th Circuit Court of Appeals
ACF 2006 Corp v. Timothy Devereux
15-3037, 15-3048
U.S. District Court for the Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Reverses an award of $775,000 to ACF from Timothy Devereux as the quantum meruit division of legal fees Devereux earned in cases he took with him when he left Conour Law Firm. Conour was convicted of wire fraud for stealing more than $6 million from dozens of clients. ACF, a former Conour firm creditor, sued Devereux to collect on a line of credit on which Conour defaulted. The District Court barred some of Conour’s victims from intervening in this suit. The 7th Circuit held victims have priority over the lender as a matter of law where an attorney’s breach is concerned under I.C. §30-4-3-22(c)(2) and 23-1.5-2 7.  The District Court also erred in determining that the Conour Firm was entitled to 40 percent of fees from one case that generated $1.4 million in fees, when trial testimony indicated the firm was entitled to only about 10 percent. The District Court also erred in awarding prejudgment interest in this case.

Indiana Tax Court
RDM Sales and Service Inc. v. Indiana Department of State Revenue
Tax. Grants summary judgment for the Indiana Department of State Revenue that revenue generated from fruit juice and bottled water sold from vending machines at full price is subject to sales tax, but grants summary judgment for RDM after holding water and juice sold at reduced price or for free from vending machines to exempt customers is not.  Also grants summary judgment to DOR that revenue generated from heated food and food for immediate consumption is subject to sales tax and that penalties assessed against RDM for not paying its sales tax are reasonable. Finds genuine issues of material fact on whether eating utensils were provided for bakery items and whether they were taxable, and whether RDM sold two or more food ingredients as a single item it merely repackaged.

Friday’s opinions
Indiana Court of Appeals
Willis G. Heck v. State of Indiana (mem. dec.)
Criminal. Affirms Willis Heck’s five-year sentence after he pleaded guilty to Level 5 felony burglary.

Calvin Wayne Howard, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms Calvin Wayne Howard Jr.’s nine-year sentence after he pleaded guilty to Class C felony battery, Class D felony theft and Level 5 felony stalking.

Robert Tingle v. State of Indiana (mem. dec.)
Criminal. Affirms Robert Tingle’s conviction for Level 3 felony rape and his nine-year sentence.

In Re the Matter of Da.H. and Dy.H.: K.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)
Juvenile. Affirms termination of mother’s parental rights.

Angela Harris v. Eric Harris (mem. dec.)
Domestic relations. Affirms mother should pay $165 weekly in child support but remands to calculate amount of attorney fees mother should pay to exclude amounts attributable to the non-meritorious contempt claims and to calculate Eric’s child support obligation.

Troy Liggin v. State of Indiana (mem. dec.)
Criminal. Reverses and remands Troy Liggin’s termination from the Howard County Reentry Court Program.

Mauricio Martinez v. State of Indiana (mem. dec.)
Post conviction. Denies Mauricio Martinez’s petition for rehearing following the denial of his petition for post-conviction relief.

Arturo Martinez, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms Arturo Martinez’s conviction of Level 6 felony attempted residential entry.

Bradley Smith v. State of Indiana (mem. dec.)
Criminal. Affirms Bradley Smith’s conviction of operating a vehicle with an alcohol concentration equivalent to at least 0.08 gram of alcohol but less than 0.15 gram of alcohol, a Class C misdemeanor.