Opinions

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday.
Mycal L. Ashby v. Warrick County School Corp
18-1371
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard L. Young.
Civil plenary. Affirms the U.S. District Court for the Southern District of Indiana’s grant of summary judgment in favor of Warrick County School Corporation against Mycal Ashby’s claim of discrimination under the Americans with Disabilities Act and Rehabilitation Act. Finds Asby’s son’s Christmas concert was not a service, program, or activity provided or made available by the Warrick County School Corporation.

Indiana Supreme Court
In the Matter of Larry W. Rogers
64S00-1704-DI-251
Attorney discipline. Suspends Larry Rogers for 90 days, with the manner of his reinstatement conditional upon full restitution being made to a client who paid an unearned retainer of $8,000. Finds Rogers committed attorney misconduct by neglecting an appeal and then failing to refund the unearned fee.

7th Circuit Court of Appeals
United States of America v. Styles Taylor and Keon Thomas
17-2986, 17-3145
Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. Judge James T. Moody. 
Criminal. Affirms Styles Taylor and Keon Thomas’ life sentences. Finds the sentences are reasonable despite Taylor and Thomas’ difficult upbringings, and neither Taylor nor Thomas rebutted the presumption of reasonableness. 

Indiana Court of Appeals
Laperria Marie Brooks v. State of Indiana
18A-CR-759
Criminal. Reverses Laperria Marie Brooks’ conviction of Class A misdemeanor resisting law enforcement after a Marion Superior Court bench trial. Remands for the conviction to be vacated because the evidence to support it is insufficient. Brooks, who was also convicted of Class A misdemeanor trespass and Class B misdemeanor disorderly conduct, appealed only the resisting conviction.

7th Circuit Court of Appeals
Rebecca Zander v. Samuel Orlich, Jr., et al.
17-2792
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Magistrate Judge Paul R. Cherry.
Civil. Reverses summary judgment for former Lake County Sheriff John Buncich on Rebecca Zander’s respondeat superior claim, but affirms summary judgment for Buncich on Zander’s negligent hiring claim filed after she alleged Lake County Sheriff’s Deputy Samuel Orlich sexually assaulted her in her home. Finds that whether Orlich’s employment gave rise to the abuse of power in question is a question of fact for the jury. Also finds there was no evidence that Buncich should have known Orlich was likely to assault a member of the public. Remands for further proceedings. 

Indiana Tax Court
Sahara Mart, Incorporated v. Indiana Department of State Revenue
49T10-1709-TA-17
Tax. Grants the Indiana Department of State Revenue’s motion for sanctions and contempt against Sahara Mart, Incorporated following a determination finding Sahara Mart left unpaid Indiana sales tax liabilities for the 2013, 2014, and 2015 tax years. Finds Sahara Mart unsuccessfully attempted to avoid charges of perjury and witness tampering through evidentiary objections. Orders Sahara Mart to the Department’s attorney’s fees in the amount of $45,000.

Indiana Court of Appeals
M Jewell, LLC v. Roger Bainbridge, in his capacity as Grant County Auditor; Sarah A. Melford, in her capacity as County Treasurer; John Lawson, in his capacity as a Grant County Commissioner; et al.
18A-MI-36
Miscellaneous. Affirms the Grant Superior Court’s grant of summary judgement to SRI, Inc. on M Jewell, LLC’s third-party beneficiary claim. Finds the trial court properly awarded summary judgment to SRI. Finds M Jewell cannot be considered as a third-party beneficiary to the agreements made between Grant County and SRI because language in the agreements did not indicate an intention to benefit tax purchasers.

Indiana Supreme Court
Akeem Daniels, Cameron Stingily, and Nicholas Stoner v. FanDuel, Inc. and DraftKings, Inc.
18S-CQ-134
Certified question. Finds Indiana’s right of publicity statute contains an exception for material with newsworthy value that includes online fantasy sports operators’ use of college players’ names, pictures, and statistics for online fantasy contests.

7th Circuit Court of Appeals 
Jay Vermillion v. Corizon Health, Inc., Paul Talbot, and Ruby Beeny 
18-1517
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane E. Magnus-Stinson.
Civil. Affirms the striking of Jay Vermillion’s brief for exceeding the acceptable word count and discharges Vermillion’s order to show cause requesting his appellant brief be reinstated on the grounds that it complies with the word count requirement under Rule 32(f). Finds the “Properties” panel in Microsoft Word is not designed to count all words in a document. Also finds citations are not justifiably excluded from the word count simply because Rule 32(f) does not mention them. Finally, finds Vermillion misunderstood both Rule 32(f) and the right place to start counting in Microsoft Word. 

Indiana Court of Appeals
Damon L. Maffett v. State of Indiana
82A04-1711-CR-2679
Criminal. Affirms Damon Maffett’s 10-year sentence for conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon. Finds the Vanderburgh Circuit Court did not abuse its discretion when it admitted three minutes of a videotaped police interview of Maffett and police testimony about the presence of handgun ammunition in the apartment. Finds Maffett’s sentence is not inappropriate based on his prior and extensive criminal history record.

7th Circuit Court of Appeals
Francina Smith v. GC Services Limited Partnership
18-1361
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Civil. Affirms the Southern District Court’s denial of collection agency GC Services’ motion to compel arbitration. Finds GC Services waived any right to arbitration when it did not make a diligent assertion of that right. Also finds that as a non-signatory, GC Services cannot enforce the arbitration agreement. Concludes the district court’s denial was not erroneous.

The following 7th Circuit opinion was post after IL deadline on Thursday.
Mario Sims v. New Penn Financial LLC
18-1710
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Magistrate Judge Michael G. Gotsch, Sr.
Civil. Affirms the Northern District’s award of summary judgment to loan servicer Shellpoint following its prohibition of Mario and Tiffany Sims’ attempts to assume a loan on their home’s mortgage. Finds the Simses produced insufficient evidence to prove they were racially discriminated against by Shellpoint, and presented evidence was too speculative to establish a dispute of material fact.

Indiana Supreme Court
In the Matter of Edward R. Hall
98S00-1703-DI-152
Attorney discipline. Disbars Florida attorney Edward R. Hall from the practice of law in Indiana. Finds Hall committed attorney misconduct by disobeying a subpoena and causing another witness to do the same, neglecting clients’ cases and engaging in a pattern of dishonesty, among other things.

Indiana Court of Appeals
Thomas A. DeCola v. State of Indiana
18A-MI-732
Miscellaneous. Affirms the denial of Thomas DeCola’s request to expunge any and all records pertaining to a school suspension and the decision not to hold a jury trial. Finds the Jasper Superior Court did not err. Holds expungements are not subject to jury trials and the statute does not apply to school records.

Indiana Court of Appeals 
Steven Bethel v. State of Indiana
18A-PC-117
Post-conviction. Affirms the St. Joseph Superior Court’s denial of Steven Bethel’s successive petition for post-conviction relief. Finds that although Bethel’s trial counsel ultimately used an unsuccessful defense strategy, his counsel was not “constitutionally ineffective.” Also finds that challenging the show-up identifications would not have been a stronger or more effective strategy than what was previously chosen by Bethel’s counsel.  

The following 7th Circuit Court of Appeals opinion was posted after IL deadline on Friday:
Vicki Barbera v. Pearson Education, Inc.
18-1085
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson.
Civil. Affirms the district court’s decision to overrule Vicki Barbera’s objection to a magistrate’s order that Pearson Education, Inc. could not dispute Barbera’s description of a missing email chain and the grant of summary judgment to Pearson on Barbera’s severance pay discrimination claim. Finds the magistrate judge did not act unreasonably in declining to impose additional sanctions on Pearson for the missing email chain. Also finds Barbera was not similarly situated to her proposed comparators. Finally, finds there is no evidence of pretext.

Indiana Court of Appeals
J.S. v. State of Indiana
18A-JV-1049
Juvenile. Affirms the placement of J.S. in the Indiana Department of Correction following his admission to delinquent acts that would have amounted to Level 6 felony receiving stolen auto parts, Class A misdemeanor dangerous possession of a firearm and Class A misdemeanor theft if committed by an adult. Finds the Marion Superior Court did not abuse its discretion. 

Indiana Supreme Court
B.T.E. v. State of Indiana
36S05-1711-JV-711 
Juvenile. Affirms the Jackson Superior Court’s adjudication of B.T.E. as a juvenile delinquent for what would have been Level 3 felony attempted aggravated battery if committed by an adult. Finds there is sufficient evidence B.T.E took a substantial step toward a plot to shoot up and blow up Seymour High School.

Indiana Court of Appeals
In the Matter of: T.T. and M.M., Children in Need of Services: C.Y. (Mother) v. The Indiana Department of Child Services
18A-JC-1216
Juvenile CHINS. Reverses the Tippecanoe Superior Court’s denial of C.Y.’s motion to dismiss CHINS petitions filed by the Indiana Department of Child Services in regard to her two children, T.T. and M.M. Finds the fact-finding hearing was not completed within 120 days of the filing of the CHINS petitions. Notes that Indiana Code section 31-34-11-1 creates “a hard and fast deadline” for filing completion. Remands with instructions to dismiss the CHINS petitions without prejudice.

Indiana Court of Appeals
James Wade Baker, Jr. v. State of Indiana
30A01-1710-CR-2511
Criminal. Affirms James Baker’s conviction of Level 6 felony resisting law enforcement by use of a vehicle and Class A misdemeanor driving while suspended with a prior similar offense within the past 10 years. Finds the Hancock Superior Court erred in admitting hearsay evidence from Deputy Kevin Stickford but noted the hearsay evidence was harmless and did not contribute to the jury’s verdict. Also finds the state erred when it asked Baker a question before reading him his Miranda rights. Finds there is sufficient evidence to support the conviction based on eyewitness testimony.