Opinions

Indiana Court of Appeals
State of Indiana, Indiana Department of Correction, and Indiana State Employees' Appeals Commission v. Debra Mills, et al.
49A02-1605-PL-998
Civil plenary. Affirms and reverses in part the Marion Superior Court’s order on petition for judicial review granting judgment in favor of Debra Mills, Thomas Bird, and other DOC teachers. Finds the Indiana State Employees’ Appeals Commission and an administrative law judge properly determined that the state calculated the employees’ retention scores and adhered to statutory layoff rights in accordance with Indiana Code 4-15-2-32(a)-(b).

Indiana Court of Appeals
Dugniqio Forest v. State of Indiana (mem. dec.)
82A04-1609-CR-1980
Criminal. Affirms Dugniqio Forest’s conviction of Level 4 felony possession of cocaine and sentence to 11 years. Finds the Vanderburgh Superior Court did not abuse its discretion by granting the state’s motion for continuance and that Forest’s sentence is not inappropriate.

Indiana Court of Appeals
Willie Dixon v. State of Indiana (mem. dec.)
49A02-1606-CR-1400
Criminal. Affirms Willie Dixon’s conviction for resisting law enforcement as a Class A misdemeanor. Finds Officer Babacar Diouf’s action of pulling his car in front of Dixon’s and trying to “cut him off” constituted an order to stop under Indiana Code 35-44.1-3-1(a)(3). Also finds that given the fact that Dixon was violating Indiana Code 9-21-17-14, his argument that he did not have a duty to stop when Diouf ordered him to do so necessarily fails.

Indiana Court of Appeals
Matthew L. Johnson v. State of Indiana
32A05-1604-CR-703
Criminal. Reverses the Hendricks Superior Court order overruling Matthew L. Johnson’s objections to the habitual offender enhancement charges. Finds that “convictions from which the offender was released more than 10 years before the current offense do not count for habitual offender purposes under Section 8(d).” Remands for review.

Indiana Court of Appeals
Wanda Roberts, et al. v. Anthony W. Henson
10A01-1607-PL-1647
Civil plenary. Reverses summary judgment in favor of Anthony Henson on the Robertses’ lawsuit claiming the construction of his home on a lot in their subdivision violated the neighborhood’s restrictive covenants. Affirms Henson’s home did not violate the covenants against barns or other outbuildings being used a residence, but finds questions of material fact regarding whether his home’s height and garage size violate the covenants.

Indiana Court of Appeals
Rueth Development Company and Rueth Development Company d/b/a Superior Lumber Company v. H&H Rueth, Inc. (mem. dec.)
45A03-1608-CP-1821
Civil plenary. Affirms the grant of summary judgment to H&H Rueth Inc. in complaint that it owed money to Rueth Development Co. The Lake Superior Court correctly found that Rueth Development’s untimely response to H&H’s motion for summary judgment and corresponding documents could not be considered.

The following Indiana Tax Court opinion was posted after IL deadline Thursday:
Zimmer, Inc. v. Indiana Department of State Revenue
49T10-1507-TA-25
Tax. Grants summary judgment in favor of Zimmer Inc. on its exhibition booth components that were stored in Indiana for subsequent use solely outside Indiana, but grants summary judgment to the Indiana Department of State Revenue on the exhibition booth components that were repaired in Indiana during the 2009, 2010 and 2011 tax years. Finds the undisputed material facts establish that Zimmer stores its exhibition booth components in Indiana for subsequent use solely at out-of-state trade shows, but that it repaired some exhibition booth components in its Indiana warehouse on an as-needed basis.

Indiana Court of Appeals
Wyatt Severance v. New Castle Community School Corporation a/k/a New Castle Career Center, and Turner Melton
33A01-1609-CT-2088
Civil tort. Reverses the Henry Circuit Court’s grant of New Castle Community School Corp.’s motion to strike Wyatt Severance’s expert affidavit and the grant of summary judgment to the school. The trial court erred in granting the school’s motion to strike. Finds there are genuine issues of material fact as to whether the school breached its duty and whether Severance was contributorily negligent precluding summary judgment. Remands for further proceedings.

Indiana Court of Appeals
C.H. v. A.R.
29A05-1607-PO-1625
Order of protection. Affirms the Hamilton Circuit Court order dismissing C.H.’s protective order petition and its ex parte protective order that she sought against A.R. for the protection of A.R.’s son, H.L.. Affirms grant of A.R.’s petition for attorney fees. Finds the trial court did not err.

Indiana Court of Appeals
Jalen Lee, A Minor Child, by and through his Next Friend, Crystal Estes and Crystal Estes, Individually v. Bartholomew Consolidated School Corporation, City of Columbus, et al.
03A01-1608-CT-1900
Civil tort. Reverses the Bartholomew Circuit Court’s grant of summary judgment in favor of the city of Columbus. Finds the trial court erred in granting summary judgment on the basis of contributory negligence, but that the city is entitled to statutory immunity. However, summary judgment is improper because there are genuine issues of material fact as to whether the city breach its duty of reasonable care and whether such a breach, if any, proximately caused the accident. Remands for further proceedings. Judge Terry Crone dissents with separate opinion.

7th Circuit Court of Appeals
Thom D. Howell v. Shawn Smith
16-1988
Appeal from the U.S. District Court for the Northern District of Indiana, Hammond Division. Judge James T. Moody.
Civil. Reverses the district court’s decision to deny Officer Shawn Smith’s motion for summary judgment on the grounds of qualified immunity. Smith’s decision to keep Thom Howell in handcuffs until he was satisfied that he was not a threat did not violate the Fourth Amendment, so under the doctrine of qualified immunity, Howell’s complaint must be dismissed. Remands for further proceedings.

Indiana Court of Appeals
In the Matter of: Ce.B. and Co.B. (Minor Children) and C.K. (Custodian) v. The Indiana Department of Child Services
82A01-1610-JC-2442
Juvenile CHINS. Affirms the juvenile court’s determination that Co.B. and Ce.B. were children in need of services. Finds the juvenile court did hold a fact-finding hearing in the case at which the custodian of the children, C.K., chose to stipulate that the facts contained in the CHINS petitions and reports of preliminary inquiry were true. Also finds C.K. does not make any argument that his stipulation should be withdrawn for cause.

Indiana Court of Appeals
Aaron D. Murray v. State of Indiana
36A04-1608-CR-1841
Criminal. Affirms Aaron Murray’s sentence to an aggregate of 21 years executed for three counts of Level 4 felony child molesting. Finds that Murray’s sentence is not inappropriate in light of the nature of the offenses and his character. Judge Terry Crone concurs in result with separate opinion, stating he would have consider a more severe sentence had the state requested.

Indiana Court of Appeals
Citizens Action Coalition of Indiana, Inc., Indiana Association for Community and Economic Development, Indiana Coalition for Human Services, et al. v. Indianapolis Power & Light Company, et al.
93A02-1604-EX-804
Agency. Affirms the Indiana Utility Regulatory Commission’s approval of Indianapolis Power & Light Co.’s petition for approval of an increase to its base rates for provision of electricity, which had been in effect since 1995. Finds the joint intervenors have not shown that the commission decision approving a rate design that includes declining block rate is unsupported by requisite findings.

Indiana Court of Appeals
Joseph Lee Pierson v. State of Indiana
89A05-1306-CR-311
Criminal. Affirms Joseph Pierson’s conviction for neglect of a dependent resulting in death as a Class A felony. There is sufficient evidence from which a jury could find that Pierson acted in a knowing and voluntary manner. Also finds the parties in a criminal case are permitted to agree to use a video deposition. Finally, finds the full context of the experts’ remarks did not mislead the jury of the applicable legal standards.

Indiana Court of Appeals
Luke M. Warren v. State of Indiana
87A01-1606-CR-1399
Criminal. Affirms Luke M. Warren’s convictions of Class B felony dealing in methamphetamine and Class D felony possession of chemical reagents or precursors with the intent to manufacture a controlled substance.

7th Circuit Court of Appeals
Eric Mains v. Citibank, N.A., et al.
16-1985
Appeal from U.S. District Court for the Southern District of Indiana, New Albany Division. Judge Sarah Evans Barker.
Civil. Affirms dismissal of Eric Mains’ litigation challenging the impending foreclosure of his home. The state courts had resolved the claims he brought in the federal suit, so the district court properly dismissed the case. Modifies the judgment to show that most of his federal and state law claims are dismissed without prejudice and the remainder are dismissed with prejudice.

Indiana Supreme Court
State of Indiana v. Wallace Irvin Smith, III
45S05-1611-CR-572
Criminal. Reverses the Lake Superior Court’s grant of Wallace Irvin Smith III’s petition to convert his Class D felony conviction of theft to a Class A misdemeanor pursuant to the amendment to Indiana Code 35-50-2-7. Finds the subsequent legislative amendment did not alter the unambiguous terms of Smith’s plea agreement, which held that he would be “precluded from asking for Misdemeanor treatment.”

Indiana Court of Appeals
Mark H. Miller, II v. Leigh Anne Miller
49A02-1604-DR-817
Domestic relation. Affirms the Marion Superior Court’s finding Mark H. Miller II is voluntarily underemployed. Reverses the trial court’s determination of his imputed income. The trial court did not clearly err in finding that Miller was voluntarily underemployed when he was simultaneously the children’s primary caregiver and a part-time college student during his marriage to Leigh Anne Miller, but he is now no longer the children’s primary caregiver. Finds the trial court determined his imputed income without evidence of prevailing job opportunities and earnings levels in the community. Remands for a hearing.

Indiana Court of Appeals
John E. Warner, Jr.; Rick Clay; Sam Early; Brian Goeglein; Mike Campbell; Brad Wilson; and John Zimmerman v. Chauffeurs, Teamsters, and Helpers Local Union No. 414 and Speedway Redi Mix, Inc.
02A04-1608-PL-2017
Civil plenary. Affirms in part and reverses in part. Affirms the trial court’s dismissal of drivers’ claim the union was receiving their dues in violation of Indiana’s right-to-work law and their associated claim of recovery of money had and received. The drivers’ claim based on the dues checkoffs is a claim over which Indiana courts have no jurisdiction.