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Opinions

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Opinions April 25, 2019

Indiana Court of Appeals
Clark Allen Hill v. State of Indiana

18A-CR-2658
Criminal. Affirms Clark Hill’s conviction of Class A misdemeanor operating a vehicle with an alcohol concentration equivalent of 0.15 or more, and his adjudication as a habitual vehicle substance offender. Finds the Hamilton Superior Court did not subject Hill to double jeopardy, nor abuse its discretion in denying his motion to correct erroneous sentence. Finds Hill failed to show that the evidence and controlling precedent lead unerringly to a different result than the one reached by the trial court.


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Opinions April 24, 2019

Indiana Court of Appeals
Derek Core v. State of Indiana

91A02-1611-PC-2604
Post conviction. Dismisses Derek Core’s belated appeal of the White Superior Court’s denial of his petition for post-conviction relief. Finds Core forfeited his right to appeal by failing to timely file his notice of appeal. Also finds Core’s right is forfeited due to Indiana Supreme Court precedent that holds Post Conviction Rule 2(1) does not permit belated consideration of an appeal from a post-conviction or other post-judgment proceeding.
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Opinions April 23, 2018

The 7th Circuit Court of Appeals posted the following opinion after IL deadline Monday.
USA v. Tom Smith, III
18-2905
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker.
Criminal. Affirms the U.S. District Court for the Southern District of Indiana’s determination that Tom Smith III is a career offender under § 4B1.1 of the United States Sentencing Guidelines. Also affirms its application of a corresponding enhancement for his two prior controlled substance convictions. Disagrees with Smith’s interpretation of the statute and denies his request to vacate his sentence for improperly including an enhancement.


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Opinions April 22, 2019

Indiana Court of Appeals
Janet L. Himsel, Martin Richard Himsel, Robert J. Lannon, Susan M. Lannon v. Samuel Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock, LLC, and Co-Alliance, LLP and State of Indiana

18A-PL-645
Civil Plenary. Affirms Hendricks Superior Court’s grant of summary judgment in favor of Samuel T. Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock LLC, and Co-Alliance LLP. Rules the plaintiffs’ nuisance and repackaged negligence and trespass claims are barred by Indiana Code section 32-30-6-9, commonly known as the Right to Farm Act. Also finds the plaintiffs’ various claims that the RTFA is unconstitutional are unavailing.
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Opinions April 18, 2019

Indiana Court of Appeals
Indiana Hotel Equities, LLC v. Indianapolis Airport Authority

18A-PL-769
Civil plenary. Affirms the Marion Superior Court’s ruling in favor of the Indianapolis Airport Authority, finding that Indiana Hotel Equities, LLC breached the parties’ lease agreement and that the Authority did not waive its ability to terminate the lease. Finds the trial court did not err by finding that the Authority did not waive its right to declare a forfeiture and terminate the lease.
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Opinions April 17, 2019

Indiana Court of Appeals
Bank of America, N.A. v. Kimberly A. Congress-Jones

18A-CC-1087
Civil collection. Affirms the Lake Superior Court’s grant of Kimberly Congress-Jones’ motion to dismiss for failure to prosecute and the trial court’s denial of Bank of America, N.A.’s motion to set aside the dismissal order. Finds the bank failed to prove prima facie error in the trial court’s grant of Jones’ motion and in its denial of the bank’s motion to set aside.
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Opinions April 15, 2019

Indiana Court of Appeals
Heraeus Medical, LLC, et al. v. Zimmer, Inc., a Delaware corporation d/b/a Zimmer Biomet, and Zimmer US, Inc., a Delaware corporation

18A-PL-1823
Civil plenary. Affirms in part the Kosciusko Superior Court’s issuance of a preliminary injunction ordering Heraeus Medical LLC to not possess, use, or disclose confidential information received from Heraeus Medical GmbH, or employ or engage the individual defendants in a way that violated their restrictive covenants with Zimmer Biomet or the trial court’s preliminary injunction. However, reverses in part after finding a noncompete and nonsolicitation covenant between Robert Kolbe and Zimmer Biomet employees to be overbroad. Remands to reform it to comply with Indiana law. Also finds in crafting its preliminary injunction, the trial court incorrectly defined the geographic scope of the Kolbe Agreement and applied the term “contact” in a way inconsistent with the Kolbe Agreement.
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Opinions April 12, 2019

Indiana Supreme Court
In the Matter of Marjonie Diane Gabriel

18S-DI-6
Attorney discipline. Suspends Carmel attorney Marjonie Gabriel for 90 days with automatic reinstatement after she committed attorney misconduct by knowingly disobeying court orders. Affirms Gabriel violated Professional Conduct Rule 3.4(c) but did not violate Rule 8.4(b), as the disciplinary commission alleged. Finds her act of making payments and withdrawals her estate to herself without obtaining the requisite court approval did not equate to criminal conversion or exploitation of an endangered adult.
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