Opinions Sept. 8, 2016

September 8, 2016

The following Indiana Tax Court opinion was posted after IL deadline Wednesday:
Howard County Assessor v. Kohl's Indiana LP
Tax. Affirms the Indiana Board of Tax Review’s ruling reducing the property tax assessment of the Kohl’s store in Kokomo to $3.69 million for 2010, $3.82 million for 2011 and $3.68 million for 2012. The property originally was assessed at $5.98 million, $5.68 million and $5.9 million for those respective years. The Indiana Board accepted Kohl’s assessment, which employed a sales price comparison to similar vacant big-box stores, income and cost approaches to value. The assessor invites the court to reconsider and abandon its similar holdings in Meijer Stores Ltd. P’ship v. Smith, 926 N.E.2d 1134, 1137 n.6 (Ind. Tax Ct. 2010), Stinson v. Trimas Fasteners, Inc., 923 N.E.2d 496 (Ind. Tax Ct. 2010); Millennium Real Estate Inv., LLC v. Assessor, Benton Cnty., 979 N.E.2d 192 (Ind. Tax Ct. 2012), (review denied). The court finds no infirmities in those decisions and declines the invitation on the basis of stare decisis.

Thursday’s opinions
Indiana Court of Appeals
Thomas A. Carpenter, et al. v. The Cincinnati Specialty Underwriters Insurance Company
Civil tort. Affirms summary judgment and declaratory judgment in favor of Cincinnati Specialty. It had no obligation to make payments under a consent judgment in which Carpenter and Cincinnati’s insured, Lovell’s Lounge, agreed Carpenter’s injuries were caused by Lovell’s Lounge’s negligence or that Lovell’s was vicariously liable for injuries Carpenter sustained when he was punched in the jaw by patron Jerry Dean Johnson. Finds the consent judgment was obtained by bad faith or collusion, collateral estoppel does not apply, and CSU is not bound by the consent judgment.

Donald J. Burns v. State of Indiana
Criminal. Affirms Burns’ convictions for murder, a felony; two counts of forgery as Class C felonies; theft as a Class D felony; and two counts of receiving stolen property as Class D felonies. Finds the photographs of the site where the victim’s remains were discovered and of her remains as well as of her autopsy were relevant to material issues and to the testimony of the criminal investigator and the forensic pathologist. Rules the collective circumstantial evidence is sufficient to infer that Burns intended to kill his victim.

In the Matter of J.B. and L.B.: J.J. (Mother) v. The Indiana Department of Child Services
Juvenile. On rehearing, reverses child in need of services’ court’s order discharging the parties and terminating the CHINS case and remands for further proceedings consistent with the CHINS statutes, including any appropriate services for mother. The CHINS court lost jurisdiction over the custody issue as soon as the parties were discharged from the CHINS proceeding.

Jason Tibbs v. State of Indiana
Criminal. Affirms conviction for murder and the trial court’s subsequent denial of defendant’s Indiana Trial Rule 60(B) motion for relief from judgment. Finds the trial court did not abuse its discretion in prohibiting Tibbs from implicating the victim’s brother-in-law as a third-party perpetrator because Tibbs did not establish any direct connection between the brother-in-law and the murder. Rules the exclusion of the transcript from an interview with a witness did not infringe on Tibbs’ right to a fair trial. Concludes the trial court property denied Tibbs’ Trial Rule 60(B) motion because, contrary to Tibbs’ argument, there was no agreement between the state and Rickey Hammons who helped lead police to Tibbs. 

V. Ganz Builders and Development Co., Inc., and Vladimir Ganz v. Pioneer Lumber, Inc.
Civil collections. Reverses summary judgment in favor of Pioneer Lumber on its lawsuit for breach of contract and to enforce a guaranty signed by Vladimir Ganz. Pioneer has not affirmatively shown that it was prejudiced by the defendants’ raising the defense of statute of limitations on summary judgment, and Pioneer’s claims against the defendants were untimely filed. Remands with instructions to enter summary judgment in favor of V.Ganz Builders and Ganz.

Jordache White and American Transport, LLC, and Canal Insurance Company v. George Reimer
Civil tort. Affirms denial of motion to set aside default judgment entered in favor of Reimer for damages claimed in a personal injury crash involving White, a truck driver for American Transport. Reimer’s service on White at his home in Thebes, Illinois, and on American Transport through the Indiana Secretary of State’s office were consistent with due process.

Carl Wayne Montgomery v. Patricia Ann Montgomery
Domestic relations. Reverses decision to modify custody of daughter in favor of mother. Reverses decision to award attorney fees to mother. Finds that there was insufficient evidence of a substantial change in circumstances that would justify custody modification or that modification was in A.M.’s best interests. Remands for primary physical custody and sole legal custody of A.M. to be returned to father, with parenting time allowed for mother.

Royce Love v. State of Indiana
Criminal. Reverses Royce Love’s convictions for mistreatment of a law enforcement animal and resisting law enforcement as Class A misdemeanors, with Judge Pyle dissenting. Finds that there is insufficient evidence to support the convictions based on video evidence that shows that Love almost immediately complied with officers’ request to exit a vehicle, but that the officers deployed a dog on him, Tased him, kicked him and that the dog bit his arm. Finds that video evidence also shows that prior to officers’ use of force, Love had not made threatening or violent actions toward the officers.

John Johnson v. State of Indiana (mem. dec.)
Criminal. Affirms John Johnson’s conviction of attempted murder as a Level 1 felony.

Timothy C. and Sonia E. Platt v. Citimortgage, Inc. (mem. dec.)
Mortgage foreclosure. Affirms trial court’s summary judgment in favor of CitiMortgage Inc.

Robert L. Albores, Jr. v. State of Indiana (mem. dec.)
Post conviction. Affirms judgment denying Robert L. Albores Jr.’s petition for post-conviction relief.

J.B. v. Review Board of the Indiana Department of Workforce Development
Agency action. Affirms Review Board of the Indiana Department of Workforce Development’s decision to deny J.B. further unemployment insurance benefits.

Charles Gamble v. State of Indiana (mem. dec.)
Criminal. Affirms Charles Gamble's conviction of Level 6 felony impersonation of a law enforcement officer.