Opinions Aug. 19, 2019

Keywords Opinions

The following Indiana Tax Court opinion was posted after IL deadline Friday:
Convention Headquarters Hotels, LLC v. Marion County Assessor
Tax. Denies the Marion County assessor’s motion to dismiss Convention Headquarters Hotels, LLC’s appeal of the 2010 assessment of the JW Marriott Hotel in downtown Indianapolis. Finds CHH did not need to include in its Tax Court petition a request for the Indiana Board of Tax Review to prepare a certified copy of the administrative record because the appeal was brought under Indiana Code § 6-1.1-15-5(g). Also finds the civil rights claim brought under 42 U.S.C. § 1983 was not untimely, did not need to be preceded by a tort claim notice and did not need to be raised to the Indiana board before coming before the Tax Court.

Monday opinions:
7th Circuit Court of Appeals
Christopher Regan and Northwest Indiana Creative Investors Association, Inc. v. City of Hammond, Indiana

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge James T. Moody.
Civil. Affirms the entry of summary judgment against Christopher Regan and Northwest Indiana Creative Investors Association Inc. Finds the city of Hammond’s licensing ordinance does not discriminate based on the domicile of a homeowner in name or effect and has the support of a rational basis, so it poses no problem under the dormant commerce clause.

Indiana Court of Appeals
Webb Ford, Inc. v. Indiana Department of Financial Institutions
Civil plenary. Affirms the Indiana Department of Financial Institutions’ finding that a $25 convenience fee for credit customers imposed by Webb Ford Inc. was a finance charge and that the dealer failed to disclose it as such. Reverses the DFI’s finding that because the fee was not disclosed in the “Finance Charge” box, it must be an additional charge. Finds a finance charge does not cease being a finance charge merely because it is not disclosed as such. Remands to the DFI for further proceedings under the disclosure statute, allowing Webb Ford to raise any applicable defenses.

Leslie D. Hayden v. Franciscan Alliance, Inc.
Civil tort. Affirms summary judgment for Franciscan Alliance Inc. Finds the health care provider was not liable under respondeat superior for a registrar who improperly accessed a patient’s medical records, which were then posted on Facebook because the registrar was acting outside the scope of her employment. Also finds Franciscan was not liable for negligently hiring and retaining, training, and monitoring and supervising the registrar.

Garau Germano, P.C., and Faith Fenner v. Stephen W. Robertson, et al.
Civil tort. Affirms the Marion Superior Court’s grant of the motion to dismiss brought by the Indiana Patient’s Compensation Fund, the Indiana Department of Insurance and Stephen W. Robertson, the commissioner of the IDOT and the administrator of the PCF. Finds the plaintiffs’ claims are not yet ripe for declaratory judgment since Faith Fenner has yet to receive or accept any proposed settlement. Rules neither Fenner nor the law firm of Garau Germano, P.C., has standing to seek judicial mandate because they did not request the performance of a ministerial act and because neither has demonstrated they have been or will be directly harmed.

Lisiate Tavake v. State of Indiana
Criminal. Affirms Lisiate Tavake’s conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon. Finds the Montgomery Circuit Court did not abuse its discretion by failing to exclude the lead investigating officer from testifying despite a violation of Tavake’s granted separation-of-witnesses order. Also finds no abuse of discretion in admitting Tavake’s booking records from California or the Montgomery County Jail. Finally, finds the crime of robbery in California is substantially similar to the same crime in Indiana, so Tavake’s California robbery conviction therefore qualifies him as an SVF.

Edward Blackburn v. State of Indiana
Criminal. Affirms Edward Blackburn’s conviction of murder. Finds the Starke Circuit Court did not err in denying Blackburn’s motion to continue his trial based on the absence of a witness. Also finds the trial court did not abuse its discretion in refusing to instruct the jury on the alleged lesser included offense of involuntary manslaughter.

State of Indiana v. O.E.W.
18A-JV-2409Juvenile. Affirms the Lake Superior Court’s finding that there was probable cause to believe that O.E.W. committed what would be, if committed by an adult, felony murder, Level 2 felony robbery resulting in bodily injury and Class A misdemeanor theft. Also affirms the court’s suppression of a portion of his statement to police because he had not been Mirandized. Judge Elaine Brown dissents in part from the and would not find that O.E.W. was in custody at the police station.

Emmanuel J. Cain v. State of Indiana (mem. dec.)
Post-conviction. Affirms the denial of Emmanuel Cain’s petition for post-conviction relief. Finds Cain has not demonstrated his entitlement to post-conviction relief on grounds of ineffectiveness of trial or appellate counsel. Also finds the Monroe Circuit Court properly denied the petition for post-conviction relief.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of B.J. (Minor Child) and J.R. (Father) v. The Indiana Department of Child Services (mem. dec.)
Juvenile termination of parental rights. Affirms the termination of J.R.’s parental rights to his child B.J. upon the petition of the Madison County Department of Child Services. Finds DCS was not collaterally estopped from pursuing a second petition to terminate and that it established by clear and convincing evidence the requisite elements to support the termination of parental rights.

Noah W. Nevil, Sr. v. State of Indiana (mem. dec.)
Criminal. Affirms Noah Nevil Sr.’s conviction of murder. Finds the Floyd Circuit Court did not abuse its discretion by admitting Nevil’s confession to the police into evidence. Also finds sufficient evidence to support the conviction.

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