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Attorneys ask judge to recuse himself from Simon case

Attorneys for Bren Simon turned their ire toward a Hamilton County judge on Tuesday, asking him to recuse himself from a legal battle over real estate magnate Melvin Simon's $2 billion estate.

Opinions Nov. 30, 2010 ILD

The following opinion was posted after IL deadline Monday.
Indiana Tax Court
Hubler Realty Company v. Hendricks County Assessor
49T10-1001-TA-5
Tax. Affirms Indiana Board of Tax Review’s upholding of the Hendricks County Property Tax Assessment Board of Appeals’ assessment of Hubler’s commercial properties for the 2006 tax year. The assessor’s testimony doesn’t suggest that her assessments or her determination as to the propriety thereof were the products of sales chasing, spot assessments, or selective reappraisals. The PTABOA’s consideration of Hubler’s sales disclosure form doesn’t mean that it engaged in sales chasing or selectively reappraised Hubler’s properties.

Today’s opinions
Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Albert J. Hall v. State of Indiana
06A05-1003-CR-187
Criminal. Reverses conviction of operating a motor vehicle as a habitual traffic offender as a Class D felony. The trial court committed fundamental error in its instruction on the mens rea element of the Habitual Traffic Violator Statute. Remands for a new trial.

Anastacio Carrera v. State of Indiana (NFP)
49A02-1003-CR-238
Criminal. Affirms convictions of child molesting as Class A and Class B felonies, and sexual misconduct with a minor as Class B and Class C felonies.

Involuntary Commitment of B.K. (NFP)
33A01-1006-MH-301
Mental health. Affirms commitment at Logansport State Hospital.

Kevin Ware v. State of Indiana (NFP)
69A01-1004-PC-204
Post conviction. Affirms denial of petition for post-conviction relief.

Justin Robinette v. State of Indiana (NFP)
48A02-1004-CR-501
Criminal. Affirms sentence following guilty plea to three counts of Class B sexual misconduct with a minor, and one count of Class C felony sexual misconduct with a minor.

Maria Chavarria v. State of Indiana (NFP)
20A03-1007-CR-381
Criminal. Affirms sentence following guilty plea to dealing in cocaine weighing over three grams, a Class A felony.

E.H., Alleged to be C.H.I.N.S.; J.H. v. Marion County D.C.S. (NFP)
49A02-1004-JC-539
Juvenile. Affirms determination that E.H. is a child in need of services.

Brandon Phillips v. State of Indiana (NFP)
71A03-1004-CR-267
Criminal. Affirms sentence for murder and Class B felony criminal confinement resulting in serious bodily injury.

D.S. v. State of Indiana (NFP)
49A02-1004-JV-484
Juvenile. Affirms adjudications for committing what would be Class B felony burglary and Class D felony theft if committed by an adult, and that the trial court disposition is appropriate.

In the Matter of the Adoption of E.L.; J.N. v. R.J. (NFP)
49A02-1005-AD-569
Adoption. Affirms denial of the stepfather’s petition to adopt his wife’s daughter.

L.S. v. Review Board of the Indiana Dept. of Workforce Development (NFP)
93A02-0911-EX-1057
Civil. Affirms decision that L.S. is disqualified from eligibility for unemployment benefits because he was dismissed for just cause.

Kieno Austin v. State of Indiana (NFP)
49A02-1007-CR-820
Criminal. Affirms denial of motion to correct erroneous sentence.

Town v. Review Board and B.K. (NFP)
93A02-1002-EX-146
Civil. Affirms grant of B.K.’s application for unemployment benefits.

Vera D. Alsadi v. State of Indiana (NFP)
34A02-1004-CR-561
Criminal. Affirms sentence following guilty plea to Class D felony theft.

Mary E. McKinney v. Windy Lane Farms, Inc., et al. (NFP)
08A02-1001-CC-71
Civil collections. Reverses dismissal of McKinney’s third-party complaint and the grant of summary judgment in favor of third-party defendants Windy Lane Farms and others. Remands for further proceedings.

Term. of Parent-Child Rel. of N.S., et al.; D.S. v. Bartholomew County D.C.S. (NFP)
03A01-1005-JT-222
Juvenile. Affirms termination of parental rights.

Anthony B. Rias, II v. State of Indiana (NFP)
45A03-1004-CR-182
Criminal. Affirms conviction of felony murder.

DeWayne V. Adamson v. State of Indiana (NFP)
53A01-1002-CR-88
Criminal. Affirms sentence following guilty plea to Class B felony possession of a firearm by a serious violent felon and the finding Adamson is a habitual offender.

Indiana Tax Court had posted no opinions at IL deadline.

The Indiana Supreme Court denied transfer to five cases for the week ending Nov. 24.
 

Opinions Nov. 30, 2010

Indiana Court of Appeals
Albert J. Hall v. State of Indiana
06A05-1003-CR-187
Criminal. Reverses conviction of operating a motor vehicle as a habitual traffic offender as a Class D felony. The trial court committed fundamental error in its instruction on the mens rea element of the Habitual Traffic Violator Statute. Remands for a new trial.

Attorney general wants to rewrite civil forfeiture law

Indiana Attorney General Greg Zoeller is asking legislators to make changes to the state’s civil forfeiture law during the 2011 session. He wants to work with lawmakers to create and pass a bill that establishes a formula on how forfeitures would be distributed and enacts stricter regulations on the use of outside counsel to file civil forfeiture actions on behalf of prosecutors.

Circuit Court reverses stay on producing public records

A northern Indiana District Court was wrong in granting a Wisconsin city’s motion for a stay, which allowed the city to withhold public records from the bank suing it for violating securities law, the 7th Circuit Court of Appeals concluded today. The issue was whether the order issued by a state court for the city to produce the documents could be stayed by federal law because the request constituted discovery proceedings.

Opinions Nov. 29, 2010 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Donnie Salyer v. State of Indiana
75A05-1003-CR-164
Criminal. Affirms denial of Salyer’s motion to suppress evidence obtained during a search of his residence. The incorrect address information on the warrant did not invalidate it because the executing officer knew the precise location of Salyer’s home, prepared the search warrant and accompanying affidavit, and executed the search warrant.

Walker Whatley v. State of Indiana
49A02-1007-CR-839
Criminal. Affirms dismissal of motion for re-trial under Indiana Trial Rule 60(B). Based upon Whatley’s motion and the dates of his attached documents, he didn’t demonstrate that the alleged newly discovered evidence could not have been discovered by due diligence in time for him to move for a motion to correct error under Rule 59.

John D. Hemmings v. State of Indiana (NFP)
63A01-1003-CR-162
Criminal. Affirms conviction of and sentence for Class B felony sexual misconduct with a minor.

John V. Guthrie, Jr. v. State of Indiana (NFP)
45A03-1003-CR-166
Criminal. Affirms convictions of Class A felony child molesting and Class C felony child molesting.

James M. Sampson v. State of Indiana (NFP)
49A02-1003-CR-355
Criminal. Affirms sentence for Class D felony residential entry.

Rafael A. DeJesus v. State of Indiana (NFP)
20A03-1002-CR-95
Criminal. Affirms convictions of Class A felony dealing in cocaine.

Michael Nuckols v. State of Indiana (NFP)
49A02-1002-CR-202
Criminal. Affirms conviction of Class A misdemeanor invasion of privacy.

Travis W. Jackson v. State of Indiana (NFP)
33A04-1006-CR-398
Criminal. Dismisses appeal of validity of guilty plea to Class D felony stalking and Class A misdemeanor resisting law enforcement.

Bruce D. Seal v. Lori L. Seal (NFP)
48A04-0912-DR-750
Domestic relation. Affirms awarding attorney’s fees to Lori but reverses awarding a pension plan solely to Lori. Remands for further proceedings.

Paternity of F.B.; P.B. v. J.M. (NFP)
55A04-1006-JP-360
Juvenile. Reverses finding that P.B. was in contempt and remands with instructions to vacate its original order in this regard. Affirms modified support order reducing his support obligation to $54 per week. The trial court did not abuse its discretion in imputing a $400 a week income to the father based on his previous income of $470 a week.

Cody Lewellen and Cody Dallas v. Brandon Cessna (NFP)
80A05-1005-CT-330
Civil tort. Affirms denial of Lewellen’s Indiana Trial Rule 60(B) motion to set aside default judgment in a personal injury action filed by Cessna.

Eric Hall v. State of Indiana (NFP)
49A05-1003-CR-244
Criminal. Affirms conviction of Class A misdemeanor criminal trespass.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions Nov. 29, 2010

7th Circuit Court of Appeals
American Bank v. City of Menasha, et al.
10-1963
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Theresa L. Springmann.
Civil. Reverses judgment granting a stay requested by Menasha to give American Bank certain records available pursuant to Wisconsin’s Public Records Law. The bank, a plaintiff in a class-action suit charging the city violated federal securities law, requested the documents after the suit was filed. The stay is not a stay of a discovery order and can only be an injunction; only a stay of discovery is authorized by the Securities Litigation Uniform Standards Act of 1998.

AG’s involvement questioned in prosecutor forfeiture suit

The Indiana Attorney General’s Office plans to “zealously defend” 78 prosecutors being sued over civil forfeiture collection practices, meaning the state courts will likely have to analyze not only the merits of that issue but also whether two separate state statutes restrict how Indiana’s top attorney can intervene in this taxpayer-filed qui tam lawsuit.

Opinion regarding insurance company considers definition of ‘ever’

An Indiana Court of Appeals panel was split in an opinion released today that considered the definition of “ever” on a home insurance application when it came to whether the homeowners insurance coverage was ever “declined, cancelled, or non-renewed.”

Court didn’t err in ordering cash bond

The Indiana Court of Appeals affirmed a trial court’s order that the two beneficiaries of a piece of property who objected to the sale of the land must each pay a $100,000 cash bond. The case also gave the appellate court the opportunity to decide the standard of review in this type of challenge.

Opinions, Nov. 24, 2010 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Samuel Neal, Delores Neal and Hometown Transmissions, Inc. v. William J. Cure, et al.
49A04-0908-CV-468
Civil. Affirms summary judgment for the Cures on the Neals’ claims of environmental contamination under the Environmental Legal Act, nuisance, trespass, and negligence. The designated evidence does not, in light of the Cures, lack of involvement in or knowledge of Masterwear’s actions, give rise to a genuine issue of material fact regarding the Cures, liability for nuisance, trespass, negligence, or an ELA violation.

Bradley Peaver v. State of Indiana
02A03-1004-PC-255
Post conviction. Affirms denial of petition for post-conviction relief. Peaver can’t prevail on his ineffective assistance of trial counsel claim. He waived the issue on appeal as to whether the trial court abused its discretion when it admitted testimony under the Protected Person Statute and there is sufficient evidence to support his conviction of Class C felony child exploitation.

St. Joseph Hospital v. Richard Cain
02A05-1006-PL-386
Civil plenary. Reverses grant of Fort Wayne Metropolitan Human Rights Commission’s motion to dismiss St. Joseph’s petition for judicial review of the HRC’s decision for lack of subject matter jurisdiction. Because the trial court had subject matter jurisdiction over St. Joseph’s unverified petition for judicial review, it improperly granted the HRC’s motion to dismiss and declined to rule on the other outstanding motions, namely St. Joseph’s motion to amend. The alleged lack of a quorum, however, was not properly raised in St. Joseph’s motion to dismiss. Remands for consideration of St. Joseph’s motion to amend.

City of Indianapolis, Metropolitan Development Commission and Indiana Sports Corporation v. Clarke Kahlo and Howard Elder, et al.
49A05-0912-CV-722
Civil. Affirms the trial court’s grant of summary judgment on the issue of whether Kahlo and Elder have standing, although on different reasoning, and reverses the denial of summary judgment on the issues of the nature of the 1985 Agreement, the applicability of Indiana Code Section 36-1-11-3, and whether the execution of the Amendment triggered the buyout provision in the restrictive covenant of the 1985 Agreement. Remands with instructions for the trial court to enter summary judgment for the City of Indianapolis and other defendants accordingly.

John P. Donovan v. State of Indiana
71A05-1003-CR-276
Criminal. Affirms conviction of Class D felony auto theft because there is sufficient evidence to support the conviction.

J.B. & J.G. v. State of Indiana (NFP)
18A02-1006-JV-679
Juvenile. Affirms adjudications for committing what would be child molesting as Class C felonies if committed by an adult.

Christopher Brinker v. State of Indiana (NFP)
33A04-1007-CR-433
Criminal. Affirms revocation of probation.

M.N. v. A.N. (NFP)
49A02-1002-DR-152
Domestic relation. Affirms order dissolving the parties’ marriage.

Tyrone A. Saunders v. State of Indiana (NFP)
35A05-0910-PC-607
Post conviction. Affirms denial of petition for post-conviction relief.

Latrina Strader v. State of Indiana (NFP)
49A05-1004-CR-235
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Roger Sloan v. State of Indiana (NFP)
49A02-1002-CR-195
Criminal. Affirms conviction of and sentence for Class B felony battery and being a habitual offender.

J.D.S. v. Review Board (NFP)
93A02-1006-EX-698
Civil. Affirms decision of the Review Board in favor M.H. on claims for unemployment benefits.

Term. of Parent-Child Rel. of J.J.; V.B. and K.J. v. I.D.C.S. (NFP)
20A04-1004-JT-226
Juvenile. Affirms termination of parent-child relationship.

MacLellan Integrated Services, Inc.v. Domineck P. Marano, II (NFP)
26A01-1006-CT-296
Civil tort. Affirms denial of MacLellan’s motion for summary judgment in Marano’s negligence action against the company.

Robert Perry v. State of Indiana (NFP)
71A03-1004-PC-266
Post conviction. Affirms denial of petition for post-conviction relief.

Term. of Parent-Child Rel. of M.Y., et al.; R.W.-S. v. I.D.C.S. (NFP)
45A04-1001-JT-217
Juvenile. Affirms involuntary termination of parental rights.

Tonya Peete v. State of Indiana (NFP)
49A05-1004-CR-220
Criminal. Affirms convictions of two counts of Class A misdemeanor invasion of privacy.

Indiana Tax Court had posted no opinions at IL deadline.
 

Justices order Marion County traffic judge’s suspension

The Indiana Supreme Court has ordered the 30-day no pay suspension of the Marion County traffic judge who’s admitted he imposed excessive fines and treated people unfairly in his court partly because he wanted to discourage future litigants from exercising their constitutional right to trial.

Opinions Nov. 24, 2010

Indiana Court of Appeals
Samuel Neal, Delores Neal and Hometown Transmissions, Inc. v. William J. Cure, et al.
49A04-0908-CV-468
Civil. Affirms summary judgment for the Cures on the Neals’ claims of environmental contamination under the Environmental Legal Act, nuisance, trespass, and negligence. The designated evidence does not, in light of the Cures’ lack of involvement in or knowledge of Masterwear’s actions, give rise to a genuine issue of material fact regarding the Cures’ liability for nuisance, trespass, negligence, or an ELA violation.

Court erred in admitting child’s videotaped statement

A trial court improperly allowed a videotaped statement by a victim of child molesting into evidence instead of having the child participate in live direct examination, the Indiana Court of Appeals ruled today in its reversal of a man’s molesting convictions.

7th Circuit affirms attorney’s fees award under Lanham Act

Finding a plaintiff’s actions frivolous, the 7th Circuit Court of Appeals today has affirmed a District Court’s grant of attorney’s fees to a company that successfully defended itself after selling lamps to the plaintiff home health care provider. The 7th Circuit also granted the defendant’s motion for fees and costs pursuant to Rule 38 of the appellate rules.