Opinions

Express Scripts Incorporated v. Department of State Revenue
19T-TA-18
Tax. Denies the Indiana Department of State Revenue’s motion for partial summary judgment and grants summary judgment to Express Scripts on the issue of whether Express Scripts receives its Indiana income from the retail sale of prescription drugs or from the provision of services. Finds Express Scripts receives its Indiana income from the latter. Remands the matter to the department for action consistent with the opinion.

7^th Circuit Court of Appeals

USA v. Ethel Shelton
19-3388
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Senior Judge Joseph S. Van Bokkelen.

Criminal. Reverses and remands Ethel Shelton’s conviction for conspiracy to commit wire fraud and conspiracy to commit honest services wire fraud. Finds that the district court erred when it found that Shelton lacked any reasonable expectation of privacy in her office. Finds Stafford Garbutt’s document collection violated Shelton’s Fourth Amendment rights. Finds the warrant would not have been issued in the absence of the information gathered as a result of the unlawful searches. Thus, the district court should have suppressed the evidence obtained from the search authorized by that warrant, and granted Shelton’s motion for a mistrial.

Soraida Flores v. City of South Bend
20-1603
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge James T. Moody.
Civil. Reverses the Northern Indiana District Court’s dismissal of Soraida Flores’s lawsuit against former South Bend police officer Justin Gorny and the City of South Bend as personal representative of deceased Erica Flores. Although the district court concluded Gorny did not violate the motorist’s constitutional rights, the 7^th Circuit finds that Flores’s allegations plausibly state claims against both defendants, and she is therefore entitled to proceed with her case. Remands for further proceedings. Circuit Judge Michael B. Brennan writes separately in concurrence.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline on Monday:
Katherine Black v. Cherie Wrigley
20-2656
Civil. Affirms a jury’s verdict against Katherine Black in her defamation dispute with Cherie Wrigley and denies her request for a new trial based on her assertions that the Northern District Court of Illinois erred in several ways. Finds no errors warrant a reversal of the jury’s verdict.

Indiana Court of Appeals
Karl Woodall v. State of Indiana
20A-CR-00862
Criminal. Affirms Karl Woodall’s murder conviction and the Marion Superior Court’s grant of the State of Indiana’s motion for a mistrial on grounds of jury taint. Finds Woodall was not subjected to procedural double jeopardy upon retrial. Finds the trial court did not commit fundamental error in instructing the jury or in conducting the sentencing hearing.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Thursday:
United States of America v. Adonnis Carswell 
20-1036
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Judge Holly A. Brady.
Criminal. Affirms Adonnis Carswell’s convictions of four drug and firearm offenses, including possession of heroin with intent to distribute. Finds that the judge who issued the search warrant intended for Carswell’s home had a reasonable basis for thinking evidence of drug and firearm crimes was likely to be found there. Also finds the prosecution’s closing arguments were not improper, did not make Carswell’s trial unfair and did not deny him due process of law.  

Indiana Court of Appeals
Juventino V. Ramirez v. State of Indiana (mem. dec.)
20A-CR-1982
Criminal. Affirms Juventino V. Ramirez’s conviction of Level 4 felony child molesting. Finds the Allen Superior Court’s rulings on Ramirez’s discovery requests were not an abuse of discretion, nor did they violate his constitutional rights. Also finds the trial court did not abuse its discretion when it denied Ramirez’s motion for a continuance, did not allow him to make an offer of proof of a recording of a forensic interview, allowed a witness to give vouching testimony or in instructing the jury. Finally, finds that even if the trial court abused its discretion in allowing vouching testimony or hearsay, the error was harmless.

The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
Zachariah Brian Wright v. State of Indiana
20S-LW-260
Life without parole. Affirms the denial of Zachariah Brian Wright’s request to self-represent, and his sentence of life without the possibility of parole plus 18 years for his convictions of murder, Level 3 felony criminal confinement, Level 6 felony theft, Level 5 felony burglary and Level 2 felony attempted burglary. Finds that Wright’s waiver of the right to counsel was knowing and voluntary, but because his waiver was neither unequivocal nor intelligent, the Boone Superior Court properly denied his request. Also finds Wright’s sentence was not inappropriate in light of the nature of his offenses or his character. Remands for the correction of a minor oversight in the sentencing order. Justice Mark Massa concurs in result with separate opinion. Justice Geoffrey Slaughter dissents with separate opinion.

Indiana Court of Appeals
National Collegiate Athletic Association v. Jennifer Finnerty, Individually and as Personal Representative of the Estate of Cullen Finnerty, and Carol Anderson, Individually, and as Personal Representative of the Estate of Neal Anderson, and Maura Solonoski, Individually, and as Attorney-In-Fact for Andrew Solonoski Jr.
20A-CT-1069
Civil tort. Dismisses the NCAA’s appeal of the denial of its protective order to quash the depositions of Mark Emmert, Donald Remy and Dr. Brian Hainline. Finds the NCAA’s repetitive motion for a protective order/motion to reconsider did not extend the time for an interlocutory appeal of the Marion Superior Court’s denial, so the appeal is untimely. Also finds there are no extraordinarily compelling reasons to consider the merits of the appeal. Judge Elizabeth Tavitas dissents with separate opinion.

Indiana Court of Appeals
Service Steel Warehouse Co., L.P. v. United States Steel Corp.
20A-CC-1643
Civil collection. Reverses the entry of partial summary judgment in favor of United States Steel Corp. on Service Steel Warehouse Co.’s mechanic’s lien foreclosure claim. Finds Indiana’s mechanic’s lien statute does not require on-site labor for subcontractor status, and the essential feature making one a subcontractor, rather than a material supplier, is the performance of a definite and substantial portion of the project’s prime contract. Also finds Service Steel’s mechanic’s lien is not barred by the supplier-to-supplier prohibition. Finally, finds the Lake Superior Court erred in granting summary judgment on favor of U.S. Steel. Remands for further proceedings.

7^th Circuit Court of Appeals

USA v. David Gibson and Jerry Harris
20-1236 & 20-2234
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio.

Criminal. Affirms the Northern District Court’s denial of Jerry Harris and David Gibson’s motion to suppress evidence collected from cellphone tracking that revealed a heroin drug-trafficking scheme, as well as their respective sentences for conviction of conspiring to distribute one kilogram or more of heroin.

Indiana Court of Appeals

Nancy S. Allsup v. Josie Swalls-Thompson
20A-MI-2333
Miscellaneous. Affirms the denial of a post-election contest petition filed by Nancy S. Allsup, the incumbent candidate for the office of Vigo County treasurer, against the winning candidate, Jose Swalls-Thompson. Finds the Vigo Circuit Court’s findings support its conclusion that “the evidence is undisputed that Swalls-Thompson moved back to Vigo County after her marriage in August 2017 and has resided here ever since with her husband in his house.” Also finds the trial court’s denial of Allsup’s post-election contest petition was not clearly erroneous.

Indiana Court of Appeals

Rebecca Minser and Tina Zion v. DeKalb County Plan Commission
20A-PL-2408
Civil plenary. Affirms the grant of summary judgment to the DeKalb County Plan Commission on its complaint alleging Rebecca Minser and Tina Zion constructed a pond in violation of the DeKalb County Unified Development Ordinance, as well as the finding that Minser and Zion can be ordered to fill in the pond. Reverses the award of attorney fees to the commission. Finds the DeKalb Superior Court did not err when it awarded summary judgment to the commission and ordered a fine of $1,000. Also finds the trial court did err in awarding attorney fees to the commission. Remands with instructions to vacate the attorney fee award.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline on Monday:

USA v. Rex Hammond
19-2357
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Robert L. Miller, Jr.
Criminal. Affirms Rex Hammond’s 47-year sentence for conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and two counts of brandishing a weapon during a crime of violence in violation of 18 U.S.C. § 924(c). Finds that none of the evidence stemming from Hammond’s Oct.31, 2017 arrest must be suppressed, finding that the collection of his real-time CSLI was not a search; the resulting traffic stop was valid under Whren v. United States, 517 U.S. 806 (1996); officers read Hammond his Miranda rights prior to his verbal statements; and the physical evidence recovered from the car was discovered pursuant to a valid search warrant. Also finds that the district court did not err in instructing the jury regarding the felon-in-possession charge under Rehaif v. United States, 139 S. Ct. 2191 (2019). Lastly, finds his sentence should not be vacated under the guidelines.

Indiana Court of Appeals

Aaron James Kearney v. State of Indiana (mem. dec.)
20A-CR-02117
Criminal. Affirms Aaron James Kearney’s aggregate two-year sentence in community corrections for conviction of Level 6 felony pointing a firearm and Class A misdemeanor intimidation. Finds sufficient evidence to support Kearney’s conviction for intimidation. Also finds the Lake Superior Court did not abuse its discretion by failing to instruct the jury on the defense of property.

The following opinions were posted after IL deadline Thursday:
7^th Circuit Court of Appeals
Rexing Quality Eggs v. Rembrandt Enterprises, Inc. v. Joseph L. Rexing, et al.
20-1726, -1727
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Jane Magnus-Stinson.
Civil. Affirms the award of $1,522,302.61 in damages for Rembrandt Enterprises Inc. in its contract repudiation dispute with Rexing Quality Eggs, but reverses the district court’s denial of Rembrandt’s request for interest and fees. Finds the district court properly concluded that the resale remedy under Iowa’s version of the Uniform Commercial Code was the appropriate mechanism for calculating Rembrandt’s damages. Also finds Rexing waived its arguments challenging the jury’s damages award by not presenting them to the district court in a postverdict motion. Finally, finds the parties’ agreement fell within the Business Credit Exception to Iowa’s usury statute. Remands for further proceedings.

Indiana Court of Appeals
Sarah Swingley v. City of Muncie, Ball State University, and Board of Trustees of Ball State University (mem. dec.)
20A-PL-1797
Civil plenary. Affirms the grant of summary judgment to Ball State University, its board of trustees and the city of Muncie on Sarah Swingley’s complaint filed after she was struck and run over by a pickup truck near the BSU campus. Finds the designated evidence does not reveal a genuine issue of material fact as to whether a duty was owed to Swingley by either BSU or by the city under applicable Indiana law. Also finds neither owed Swingley any duty recognized in Indiana. Finally, finds BSU and the city are entitled to judgment as a matter of law, and the Delaware Circuit Court did not err in granting summary judgment.

Indiana Court of Appeals
In the Matter of the Guardianship of Donnell Lee Roberts, an Adult (now deceased), James Wesley Frady v. Patrick Hart
20A-GU-1837
Guardianship. Affirms the Hancock Superior Court’s denial of James Frady’s petition to exercise estate planning over the Estate of Donnell Roberts but reverses the trial court’s decision to sustain the state’s objection to Frady depositing a check as instructed after Roberts’ death. Finds that after termination of guardianship, Indiana Code § 29-3-12-1(e) permitted Frady to deposit a check as instructed. Also finds the trial court was not required to hold a hearing regarding estate planning before dismissing the petitions.

Indiana Court of Appeals
Blind Hunting Club, LLC and Brian Lane v. David Martini and Theresa Farrell
20A-PL-1868
Civil plenary. Affirms the grant of summary judgment to David Martini and Theresa Farrell on their complaint for declaratory judgment against Blind Hunting Club LLC and Brian Lane regarding the scope of an easement. Finds the agreement as a whole and the parties’ course of conduct demonstrate that BHC can use the easement either to access the property for a farm purpose and/or to access no more than two residences. Also finds BHC’s fee-based hunting operation is not a “farm” and is therefore not permitted by the agreement. Finally, finds the Dearborn Circuit Court did not err when it concluded that a fee-based hunting operation is not a business contemplated by the easement.