Opinions

Indiana Court of Appeals 
Dunham's Athleisure Corp. v. Keith Shepherd
18A-PL-2892
Civil plenary. Reverses the Wabash Superior Court’s denial of Dunham’s Athleisure Corp.’s motion for summary judgment on Keith Shepherd’s complaint alleging Dunham’s negligence in the sale of a firearm to a third party. Finds the trial court erred in its denial of Dunham’s summary judgment motion and that the store is immune from liability regarding Shepherd’s injuries that resulted after his girlfriend shot him with a gun she purchased at Dunham’s.  

Indiana Court of Appeals 
Brian Ramsey v. State of Indiana
18A-CR-1276
Criminal. Affirms Brian Ramsey’s convictions for Level 5 felony criminal confinement and Level 6 felony intimidation. Finds the Floyd Superior Court properly admitted Rhonda Crone’s statements pursuant to the medical records and excited utterance exceptions to the rule against hearsay. Also finds the evidence is sufficient to support Ramsey’s intimidation conviction. 

Indiana Court of Appeals
Kenneth N. McFall v. State of Indiana (mem. dec.)
18A-CR-2322
Criminal. Affirms Kenneth McFall’s conviction of Level 3 felony dealing in methamphetamine, Class B misdemeanor possession of marijuana and Class C misdemeanor possession of paraphernalia following a traffic stop. Finds McFall waived any challenge to the admission of evidence officers obtained during the search of his residence despite his continuing objection. Finds the Perry Circuit Court did not abuse its discretion when it did not allow the driver of the vehicle to testify in front of the jury or when it declined to give McFall’s proffered jury instruction.

Alfonso Artigas v. State of Indiana
18A-CR-2877
Criminal. Reverses Alfonso Artigas’ conviction for Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to at least .08 but less than .15 g/100mL of blood. Finds the stipulated blood test presented a blood alcohol concentration only in a range from .07 to .084 g/100mL. Also finds there is insufficient evidence to support the conviction. 

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.

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.

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.

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.

The following Indiana Tax Court opinion was posted Thursday after IL deadline.
Tell City Boatworks, Inc. v. Indiana Department of State Revenue
18T-TA-4
Tax. Denies Tell City Boatworks, Inc.’s motion to strike the report and exclude the testimony of John William Sullivan. Finds Tell City is unable to prove Sullivan’s report or testimony is inadmissible due to its “overall lack of relevancy and credibility.”  

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.

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.

Indiana Court of Appeals 
City of Indianapolis v. Ginger Tichy
18A-OV-2202
Ordinance violation. Reverses the order granting relief from judgment to Ginger Tichy under Indiana Trial Rule 60(B). Finds the Marion Superior Court abused its discretion. 

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.

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.

The following Indiana Tax Court opinion was published after IL deadline Wednesday:
Tony W. Smith and Shirlena Smith v. Indiana Department of State Revenue
49T10-1605-TA-13
Tax. Grants Tony and Shirlena Smith’s motion for partial summary judgment against the Indiana Department of State Revenue. Finds the department’s modifications to the Smiths’ adjusted gross income tax liabilities for 2005 through 2007 were limited to the final modifications made by the Internal Revenue Service to resolve the federal audit for those years. Orders the court to schedule a case management conference with the parties to discuss pretrial matters and scheduling. 

Indiana Court of Appeals
Tre Ron Smith v. State of Indiana
18A-CR-1633
Criminal. Affirms Tre Ron Smith’s Class A misdemeanor possession of a handgun conviction. Finds police had reasonable suspicion under the federal and state constitutions to conduct a Terry stop of Smith, and they did not exceed the permissible scope of such a stop. Also finds the trial court did not err when it allowed into evidence the firearm found in the search conducted after the Terry stop. Judge Melisa May dissents with separate opinion.

Indiana Court of Appeals
Robert Earl Davis v. State of Indiana (mem. dec.)
18A-PC-556
Post conviction. Affirms the denial of Robert Davis’ petition for post-conviction relief. Finds Davis failed to show a reasonable probability that the Indiana Court of Appeals’ decision in his direct appeal would have been different absent any misstatement. Concludes the Lake Superior Court did not err in its denial of David’s request.

Indiana Court of Appeals
Michael Hickingbottom v. State of Indiana
18A-CR-627
Criminal. Reverses Michael Hickingbottom’s six-year sentence for conviction of Level 5 felony battery resulting in bodily injury to a public safety officer. Finds the Miami Superior Court abused its discretion when it denied Hickingbottom’s motion for mistrial. Finds the state failed to produce the Indiana Department of Correction manual that contains policies and procedures on the use of force by DOC officers. Remands for a new trial with instructions for the DOC to produce the manual to the state before any subsequent proceedings take place, so Hickingbottom can review and utilize it.

7th Circuit Court of Appeals
Stephen West v. Charter Communications, Inc.
18-1906
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. Judge Richard Young.
Civil. Dismisses Stephen West’s appeal of the partial dismissal of his claim against Charter Communications, Inc. for lack of appellate jurisdiction. Finds the conditional dismissal of West’s claims against Louisville Gas and Electric Company renders the judgment non-final.

Indiana Court of Appeals
Sidney A. Berry v. State of Indiana
18A-CR-1769
Criminal. Affirms the denial of Sidney Berry’s motion to suppress evidence. Finds Detective Marc Deshaies had sufficient basis under both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution to perform a safety pat-down of Berry.