Opinions

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.

7th Circuit Court of Appeals
Howard Piltch, et al. v. Ford Motor Company, et al.
14-1965
U.S. District court, Northern District of Indiana, South Bend Division. Judge James T. Moody.
Civil. Affirms summary judgment for Ford on the Piltches’ claim that their 2003 Mercury Mountaineer was defective because the airbags didn’t deploy in an accident. Without expert testimony provided by the Piltches, a jury would only be able to speculate as to the viability of their Indiana Products Liability Act claims.

Indiana Supreme Court
In the Matter of the Honorable Dianna L. Bennington, Judge of the Muncie City Court
18S00-1412-JD-733
Judicial discipline. Formalizes the conditional agreement for discipline jointly submitted by Bennington and the Commission on Judicial Qualifications in which the former Muncie City Court judge admitted to 10 of 13 alleged violations of the Rules of Judicial Conduct.

Indiana Court of Appeals
Shane L. Keller v. State of Indiana
88A04-1404-CR-168
Criminal. Affirms in part, reverses in part and remands the 50-year aggregate sentence for convictions of two counts of Class B felony burglary, one count of Class C felony burglary, three counts of Class D felony theft, two counts of Class D felony receiving stolen property, and enhancement for habitual offender. Remands with instructions to vacate two receiving stolen property convictions and the sentences for them because they violate the prohibition against double jeopardy with respect to the theft convictions.

Indiana Court of Appeals
Kirk R. Jocham v. Melba Sutliff
29A02-1406-DR-424
Domestic relation. Reverses order granting Sutliff grandparent visitation. The court ruled that Sutliff, the maternal grandmother, had no standing to petition for visitation when she did because her former son-in-law had remarried and the couple had adopted the grandchild after the death of Sutliff’s daughter, the grandchild’s mother.

7th Circuit Court of Appeals
Richard Wagoner v. Bruce Lemon, commissioner of the Indiana Department of Corrections, and Indiana Department of Corrections
13-3839
U.S. District Court, Northern District of Indiana, South Bend Division, Magistrate Judge Christopher A. Nuechterlein.
Civil. Affirms summary judgment in favor of the commissioner and DOC on Wagoner’s claims of violations of Section 1983 and Title II of the ADA and the Rehabilitation Act. Wagoner did not show that he was denied access to any service or program because of his disability. Stresses it is better practice to hold a Pavey hearing separate from and before considering a motion for summary judgment.

Indiana Court of Appeals
Loren H. Fry v. State of Indiana
09A05-1404-CR-178
Criminal. Affirms felony murder conviction. Concludes the state properly corroborated the hearsay evidence it submitted in support of its request for a search warrant for Fry’s home, circumstantial evidence supports his conviction, there was no prosecutorial misconduct or an error by the court in denying his jury instruction on mere presence.

Indiana Court of Appeals
Nick Hunckler v. Air Sorce-1, Inc., Timothy Miller and Kelly A. Brannen
84A01-1405-CT-217
Civil tort. Reverses summary judgment in favor of the defendants on Hunckler’s personal injury claim. There are material issues of fact that exist and therefore preclude any grant of summary judgment that determined Miller was not liable by virtue of his position as an officer of the corporation as that would be erroneous. Remands for further proceedings. Judge Robb concurs in result with opinion.

Indiana Tax Court
Brandenburg Industrial Service Co., an Illinois Corp. v. Ind. Dept. of State Revenue
49T10-1206-TA-37
Tax. Denies Brandenburg’s request that the Department of State Revenue must disclose its potential non-expert witnesses, but orders the department to produce the two pages of handwritten notes that Brandenburg seeks.  Finds the department has adequately answered the interrogatory and will not compel it to identify any additional potential non-expert witnesses, but the handwritten notes are relevant.

7th Circuit Court of Appeals
United States of America v. Anthony Bailey
13-3229
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Finds Bailey’s motion asking for a reduced sentence is best understood as a petition for relief under 28 U.S.C. Section 2255 for a sentence that was imposed contrary to the law. Based on Dorsey v. United States, Bailey should have been subject to a mandatory minimum sentence of only 10 years, instead of 20, after he pleaded guilty in 2011 to distributing crack cocaine. Remands for a new sentencing hearing.

Indiana Court of Appeals
State of Ind., Consolidated City of Indianapolis/Marion Co., et al. v. El Rodeo #11, LLC
49A05-1406-MI-257
Miscellaneous. Vacates order that Marion County return El Rodeo’s seized funds that are being held in the Tippecanoe County Prosecutor’s Office. The trial court should have granted Marion County’s motion to dismiss its forfeiture complaint against El Rodeo because Tippecanoe County already had the funds. Remands for further proceedings.

The following 7th Circuit Court of Appeals opinions were posted after IL deadline Tuesday
United States of America v. Jeffrey P. Taylor
12-2916
U.S. District Court, Northern District of Indiana, Hammond Division. Judge Rudy Lozano.
Criminal. Affirms conviction. Finds double jeopardy does not bar his retrial on the charges of attempting to transfer obscene material to a minor using means of interstate commerce after his conviction of attempting to use facilities of interstate commerce to engage in criminal sexual activity with a minor was overturned because the charges require proof of different elements. And because the judgment does not incorporate the SORNA ruling and the government has not filed a cross-appeal contesting that, there is nothing for the 7th Circuit to review on this issue. Affirms in all other respects.

Indiana Court of Appeals
Christopher Tiplick v. State of Indiana
Criminal. On interlocutory appeal, reverses denial of Tiplick’s motion to dismiss 11 of the 18 counts in an indictment against him alleging Class C felony charges of dealing in a lookalike substance and Class D felony possession of or dealing in a synthetic drug commonly referred to as spice. A divided panel held the statutes governing synthetic drug charges are unconstitutionally vague based on the definition of “synthetic drug” in I.C. § 35-31.5-2-321(9). Writing Judge Melissa May and concurring Judge James Kirsch held the trial court erred in failing to dismiss charges based on possession of a substance specified as a synthetic drug by a pharmacy board emergency rule but not specifically by statute. Dissenting Judge L. Mark Bailey would affirm the trial court, writing that laws and regulations were not so complex or overly broad as to preclude a person of ordinary intelligence from having notice of the criminal nature of the sale of XLR11 on the basis of vagueness. 

Indiana Court of Appeals
Curt Pearman d/b/a Greenwood Professional Park v. T. Ryan Jackson and Kristin M. Jackson
41A04-1408-CC-381
Civil collection. Affirms granting of partial summary judgment in favor of the Jacksons. Finds the Jacksons did not breach the terms of their lease agreement when they moved from their office five months after their initial three-year lease expired. Ruled the “clear and unambiguous terms of the lease agreement” allowed the Jacksons to continue to occupy the space on a monthly basis without having to sign another three-year lease.

7th Circuit Court of Appeals
Visteon Corp. v. National Union Fire Insurance Company of Pittsburgh, Pa.
14-2725
Chief Judge Richard Young, U.S. District Court for the Southern District of Indiana, Indianapolis Division.
Affirms judgment in favor of National Union on its denial of coverage for toxic chemical pollution at a Connersville Visteon auto parts factory that also contaminated neighboring properties. The District Court properly applied Michigan law, holding that Visteon was not entitled to coverage and dismissed the case. 

Indiana Supreme Court
Jason Young v. Hood's Gardens, Inc.
29S02-1405-PL-314
Civil plenary.  Reverses summary judgment in favor of Hood’s Gardens that it had no secondary liability to pay workers’ compensation benefits to Jason Young, who was severely injured while removing a tree from Hood’s Gardens’ property. The "value" that triggers secondary liability under Indiana Code 22-3-2-14(b) may include the value of other property transferred in connection with the performance of services and the designated evidence shows that the contract Hood’s Gardens entered into with the tree removal company may have been more than $1,000 once the value of firewood is considered.

Indiana Court of Appeals
Sandra Elaine Lappin v. Anthony Alex Timmerman (NFP)
86A03-1407-PL-229
Civil plenary. Reverses summary judgment in favor of Timmerman on his motion to dismiss Lappin’s complaint that he not be allowed to participate in an HVAC business in violation of the parties’ covenant not to compete. Remands for further proceedings.