Opinions

Indiana Court of Appeals
Berthal O. Williams and Patricia Williams v. The Indiana Rail Road Company
77A04-1311-CC-580
Civil collection. Reverses summary judgment in favor of the Indiana Rail Road Company on the Williamses’ attempt to enforce a 1901 indenture regarding a dam on their property. Concludes the indenture was a covenant running with the land, that the terms set forth in the indenture required IRR to maintain the dam and the water level at a specific depth, and that it contained a covenant, perpetual in nature, that did not cease upon a prior breach. Remands for further proceedings.

Indiana Court of Appeals
In re: Indiana State Fair Litigation: Polet, et al. v. Mid-America Sound, et. al.
49A02-1404-CT-288
Civil tort. Majority reverses trial court order granting summary judgment in favor of the Indiana State Fair Commission on Mid-America Sound’s claim that its contract requires the commission to indemnify it against claims from the 2011 State Fair stage collapse that killed and injured patrons. The majority held the Indiana Tort Claims Act does not apply and there are genuine issues of material fact regarding the validity and enforceability of the indemnification agreement. Remands for trial. Chief Judge Nancy Vaidik dissented and would find the commission has immunity from Mid-America’s claims and that the Tort Claims Act applies.

Indiana Court of Appeals
J.B. v. State of Indiana
53A01-1408-CR-367
Criminal. Reverses denial of a petition for expungement of a conviction of Class A misdemeanor battery. The trial court erred when it denied J.B.’s petition to have records relating to his conviction expunged, citing the dismissal of the conviction after J.B. completed a one-year probation sentence. Holds that an earned dismissal of a conviction does not disqualify someone from expungement of the conviction.

Indiana Court of Appeals
Stuart Reed and Michael Reed v. Michael Cassady
49A05-1405-PL-220
Civil plenary. Affirms order granting Cassady’s motion to enforce a $30,000 sanction as well as a finding that Distinctive Transportation Services, Inc. in contempt and imposition of a $10,000 fine. Reversal is not warranted on the order enforcing the $30,000 sanction and Reeds are jointly and severally liable. Also found reversal is not warranted of the $10,000 sanction.

Indiana Court of Appeals
John Norris v. State of Indiana
34A04-1410-CR-499
Criminal. Remands to the trial court to reduce the sentence following a guilty plea to Class B felony dealing in a controlled substance from 20 years executed to 12 years with eight years executed. The panel concluded the sentence was excessive in light of the offense of selling 10 hyrdocodone pills for a total of $60.
 

Indiana Supreme Court
Kenneth Griesemer v. State of Indiana
49S04-1408-CR-564
Criminal. Affirms conviction of patronizing a prostitute. Finds the undercover detective merely presented Griesemer with an opportunity to patronize a prostitute and there was no inducement and therefore no entrapment. Justices Dickson and Rucker dissent with separate opinion.

Indiana Court of Appeals
David Bisard v. State of Indiana
02A03-1312-CR-492
Criminal. Affirms convictions and sentence for Class B felony operating a vehicle with a BAC of 0.15 or higher causing death and two counts of Class D felony operating a vehicle with a BAC of more than 0.08 percent causing serious bodily injury. The trial court did not abuse its discretion in denying Bisard’s motion for a mistrial based upon issues relating to juror misconduct and the statement by the court that admitting testimony from Bisard regarding his drinking habits would open the door to a subsequent drunken-driving conviction did not amount to denial of due process.

Indiana Court of Appeals
Gordon A. Etzler v. Indiana Department of Revenue
50A04-1406-PL-285
Civil plenary. Reverses summary judgment in favor of the revenue department on Etzler’s complaint for breeder’s award funds. Because the judgment resulting from the department’s Marshall County tax warrant only creates a lien on property “in the county,” I.C. 6-8.1-8-2(e), and because the department did not take measures to establish a lien on property located in any other county, the department’s ability to levy on Dale Dodson’s property was limited to Marshall County. Etzler filed a valid UCC financing statement that perfected his interest in the breeder’s awards.

7th Circuit Court of Appeals
Mir S. Iqbal v. Tejaskumar M. Patel, et al.
14-1959
U.S. District Court, Northern District of Indiana, Hammond Division. Judge James T. Moody.
Civil. Reverses dismissal of Iqbal’s complaint for want of jurisdiction because it is barred by the Rooker-Feldman doctrine since it challenges state court judgment. Because he seeks damages for activity that (he alleges) predates the state litigation and cause injury independently of it, the Rooker-Feldman doctrine does not block his suit.

Indiana Court of Appeals
Tyrone Shelton v. State of Indiana
71A03-1408-CR-309
Criminal. Affirms convictions of Class A misdemeanor possession of marijuana, Class C felony possession of cocaine, and Class D felony possession of a Schedule I controlled substance. The anonymous tip exhibited sufficient indicia of reliability to create reasonable suspicion for the search in accordance with the Fourth Amendment.

7th Circuit Court of Appeals
Betty Ruth Nelson v. Peggy Holinga Katona, individually and in her official capacity as Lake County Auditor, et al.
13-1652
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph S. Van Bokkelen.
Civil. Affirms judgment entered against Nelson on her lawsuit that she was unlawfully terminated from her job in the auditor’s office because of her political support of Barack Obama. Nelson failed to file any post-verdict motions.

Indiana Court of Appeals
Gordon L. Peak, Jr. v. State of Indiana
27A04-1406-CR-260
Criminal. Affirms conviction of Class D felony possession of marijuana in excess of 30 grams. Trial counsel was not deficient for failing to file a motion to suppress the marijuana or for not objecting at trial to the admission of it on the grounds the traffic stop was illegal.

Indiana Court of Appeals
Meridian North Investments LP v. Anoop Sondhi DDS, MS
49A02-1405-PL-311
Civil plenary. Affirms on interlocutory appeal denial of Meridian North’s motion for summary judgment on Sondhi’s negligence claim arising from injuries sustained after a fall caused by slipping on ice as he attempted to enter his office. While Sondhi signed a lease as an officer of a partnership, a landlord exculpatory clause in the lease contract limiting Meridian’s liability did not bind Sondhi personally from pursuing a negligence claim.

7th Circuit Court of Appeals
Timothy W. Austin v. Andrew Pazera
14-2574
United States District court for the Northern District of Indiana, Hammond Division,
Judge James Moody.
Criminal. Reverses the denial of Austin’s petition for federal habeas corpus and remands with instructions to order the relief sought by the appellant. Austin was punished in a prison disciplinary proceeding for having attempted to traffic in tobacco. However, he appealed and the 7th Circuit agreed that he had been denied due process of law by being convicted without sufficient evidence.

Indiana Court of Appeals
In re the Paternity of Snyder, M.S. v. D.A.
79A02-1407-JP-497
Juvenile. Affirms in part, reverses in part and remands. The trial court erred when it denied father M.S.'s motion to permit him to tell his daughter that he is her father. Because a finding of physical endangerment or emotional impairment was not made prior to imposing the restriction, the trial court erred in denying father's request, and that portion of the trial court's orders is reversed. Affirms trial court ruling on modification of parenting time order, holding that father has not demonstrated there was a change in circumstances to warrant a change in the parenting time that now permits him to talk with his daughter once weekly in 15-minute supervised Skype sessions.

Indiana Supreme Court
Jeffrey A. Weisheit v. State of Indiana
10S00-1307-DP-492
Death penalty. Affirms two convictions of murder and one conviction of Class A felony arson resulting in serious bodily injury and sentence to death. There is sufficient evidence to support the convictions. The trial court did not err in excluding a prison administration expert’s testimony that Weisheit could be safely incarcerated in prison nor did it err in refusing to excuse 12 jurors for cause.

Indiana Tax Court
Alloy Custom Products, Inc. v. Indiana Department of State Revenue
49T10-1102-TA-17
Tax. Grants summary judgment in favor of the Department of State Revenue and denies Alloy Custom Products’ motion for summary judgment regarding a refund of sales tax paid on utilities Alloy consumed while “rehabilitating” cryogenic tanker trailers between September 2006 and March 2010. Alloy’s rehabilitation process does not produce other, or new, tangible personal property.
 

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
United States of America v. Anthony Wilbourn
13-3610
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms imposition of a two-level enhancement after the judge determined Wilbourn committed obstruction of justice by pretending to be mentally incompetent in an effort to derail or delay his prosecution. An evaluation by medical professionals found he was competent to stand trial. Holds when a judge has doubts about the bona fides of a defendant’s behavior at the competence hearing, the judge should not find an obstruction of justice.

Indiana Court of Appeals
Kevin A. Mathews v. State of Indiana
73A04-1406-CR-288
Criminal. Affirms conviction of Class B felony robbery. Finds Mathews waived his right to a face-to-face confrontation with the victim by failing to attend her deposition. Her deposition, conducted through Skype, was given under oath and transcribed by a court reporter.

The following Indiana Supreme Court decision was posted after IL deadline Wednesday:
Brandon Brummett v. State of Indiana
49S02-1502-CR-69
Criminal. Clarifies that Ryan v. State, 9 N.E.3d 663 (Ind. 2014), a case involving prosecutorial misconduct, did not alter the doctrine of fundamental error. Summarily affirms Court of Appeals reversal of several of Brummett’s convictions due to prosecutorial misconduct.