Opinions

Indiana Court of Appeals 
Umesh Kaushal v. State of Indiana
49A04-1612-CR-2862
Criminal. Affirms the Marion Superior Court’s denial of Umesh Kaushal’s motion to withdraw his guilty plea for Level 4 felony child molesting. Finds Kaushal did not establish that he was prejudiced by his counsel’s performance in light of Jae Lee v. United States. Also finds Kaushal did not establish a reasonable probability that he would not have pled guilty and would have insisted on going to trial if not for his counsel’s errors. 

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday.
Jane Doe v. Vigo County, et al.
17-3155
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Judge William T. Lawrence.
Civil tort. Affirms summary judgment in favor of Vigo County on a civil liability suit filed after Jane Doe was sexually assaulted by a county parks department maintenance worker. Finds Doe has not proven that Vigo County had reason to believe the assault was foreseeable, and there was not enough evidence to support a Monell claim.

Indiana Court of Appeals
Bobby J. Johnson, Jr. v. Hix Wrecker Service, Inc.
18A-PL-10
Civil plenary. Affirms the Marion Superior Court’s award of post-judgment attorney’s fees to Bobby J. Johnson, Jr. and his counsel. Finds the trial court did not abuse its discretion by vacating its prior provisional order for sanctions against Hix Wrecker Service, Inc. Also finds no abuse of discretion in the trial court’s calculation and award of roughly $35,000 in post-judgement attorney fees to Johnson’s counsel without using the lodestar method. 

Indiana Court of Appeals 
Jason Michael Gibson v. State of Indiana
18A-CR-743
Criminal. Affirms Jason Michael Gibson’s convictions of robbery and conspiracy to commit robbery, both as Level 3 felonies and his sentence to an aggregate of 17 years. Finds the St. Joseph Superior Court did not commit fundamental error when it entered judgment of conviction for conspiracy to commit robbery, and his convictions do not violate double jeopardy principles. Also finds the trial court did not abuse its discretion when it admitted into evidence Gibson’s inculpatory statements to police and the evidence was sufficient to support Gibson’s conspiracy conviction. Finally, finds Gibson failed to show that the trial court abused its discretion when it sentenced him. 

Indiana Court of Appeals
Joseph Baliga, DVM v. Indiana Horse Racing Commission, Indiana Horse Racing Commission Staff  
17A-MI-3009
Miscellaneous. Reverses the Madison Circuit Court’s dismissal of veterinarian Joseph Baliga’s petition for judicial review after the Indiana Horse Racing Commission found him in default for allegedly giving a banned substance to a racehorse. Finds the IHRC and administrative law judge abused their discretion by finding Baliga in default. Directs the trial court to grant the petition and to remand the matter to the IHRC for a hearing on the merits.

Indiana Court of Appeals
International Business Machines Corporation v. State of Indiana, acting on behalf of the Indiana Family & Social Services Administration
49A02-1709-PL-2006
Civil plenary. Affirms and reverses in part the Marion Superior Court’s calculation of damages stemming from IBM Corp.’s material breach of a master services agreement with the State of Indiana. Finds the trial court did not err in its award of the state’s damages. Also finds IBM is entitled to post-judgment interest on its $49.5 million damages award. Remands for recalculation of the post-judgment interest.

Indiana Court of Appeals

Rainbow Realty Group, Inc., and/or Cress Trust v. Katrina Carter and Quentin Lintner,
49A02-1707-CC-1473.
Civil collections. Reverses the Marion Superior Court’s entry of summary judgment in favor of Katrina Carter and Quentin Lintner. Reverses the award to them of $4,000 in damages and $3,000 in attorney fees. Remands with instructions to enter summary judgment for Rainbow Realty. Finds Rainbow’s rent-to-buy agreement was not a lease; that Rainbow had not committed fraud as a matter of law; and that because Carter and Lintner did not prevail, they are not entitled to legal fees.

The following Indiana Tax Court decision was issued Monday.
Garrett LLC v. Noble County Assessor
49T10-1712-TA-22
Tax. Affirms the Indiana Board of Tax Review’s determination of Garrett LLC’s assessed value of its real property for the 2016 tax year. Finds Garrett failed to present sufficient evidence to support its claims on appeal.

Indiana Supreme Court
State of Indiana v. Norfolk Southern Railway Company
18S-IF-193
Infraction. Finds Indiana’s blocked-crossing statute which prevents trains from blocking intersections for more than 10 minutes is pre-empted by the Interstate Commerce Commission Termination Act. Holds that Indiana’s statute, Ind. Code section 8-6-7.5-1, violates the ICCTA’s prohibition on managing or governing rail transportation by causing Norfolk Southern to change several key operations just to try to comply.       

Indiana Court of Appeals
Delmar Kelly v. State of Indiana (mem. dec.)
18A-CR-1162
Criminal. Affirms Delmar Kelly’s dealing in narcotics conviction. Finds the Hendricks Superior Court did not commit fundamental error in allowing the state to present during trial evidence of Kelly’s post-arrest, pre-Miranda silence. Also finds Kelly’s due process rights were not violated.

Indiana Court of Appeals
GO Properties, LLC, and Maxim Alliance Group, LLC v. BER Enterprises, LLC; Mortgage Electronic Registration Systems, Inc., as Nominee for Franklin American Mortgage Company; New Field, LLC; et al.
18A-PL-176
Civil plenary. Reverses the Marion Superior Court’s order granting summary judgment in favor of BER Enterprises, LLC and New Field, LLC on GO Properties’ quiet title action. Finds the trial court erred and that Stacy Phillips did not have actual or apparent authority to sell the properties on behalf of GO Properties. Remands with instructions to enter summary judgment in favor of GO Properties.

Nicholas R. Hedrick v. State of Indiana (mem. dec.)
18A-CR-762 
Criminal. Affirms Nicholas R. Hedrick’s 12-year sentence for conviction of Class C felony and Level 4 felony counts of child molesting pursuant to a plea agreement. The Pike Circuit Court did not abuse its discretion in sentencing nor was the sentence inappropriate in light of the nature of the offenses or Hedrick’s character.

Indiana Court of Appeals
C.S., Jr. v. State of Indiana
18A-JV-862
Juvenile. Affirms the Elkhart Juvenile Court’s placement of C.S., Jr., in the Indiana Department of Correction after his delinquency adjudication for what would have been Class A misdemeanor dangerous possession of a firearm if committed by an adult. The juvenile court did not abuse its discretion and C.S., Jr.’s presence via video conference was sufficient to satisfy the requirements of Indiana Code section 31-37-18-1.3.

Indiana Court of Appeals
K.M. v. State of Indiana (mem. dec.)
18A-JV-643
Juvenile. Affirms K.M.’s conviction of Level 4 felony child molesting if committed by an adult. Finds sufficient evidence to support the conviction.

Indiana Court of Appeals
Timothy C. Troxel v. Dale Ward, successor in interest to original Plaintiff, Plan Administrators, Inc.
18A-PL-597
Civil plenary. Reverses the LaPorte Circuit Court’s denial of Timothy Troxel’s Trial Rule 60(B) motion to set aside the sale of his stock in an Indiana corporation to satisfy default judgment against him by a Wisconsin corporation. Finds because Troxel was not properly served with notice of the Wisconsin lawsuit, the Wisconsin court did not have personal jurisdiction over him. Therefore, the Wisconsin judgment and any Indiana orders based upon it are void.

The following 7th Circuit Court opinion was posted after Indiana lawyer deadline Thursday.
Gregory Aregood, Jr. v. Givaudan Flavors Corporation
17-3390
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Affirms and reverses in part, remands for proceedings. Affirms the District Court for the Southern District of Indiana’s grant of summary judgment to Givaudan Flavors Corp. on its employees’ claims, except for failure to warn. Reverses the grant of summary judgment on the employees’ duty to warn claim based on the sophisticated intermediary doctrine. Remands for proceedings on the duty to warn claim.

Indiana Supreme Court
Jennifer Cox v. Evansville Police Department and The City of Evansville; Babi Beyer v. The City of Fort Wayne
18S-CT-447
Civil tort. Affirms denial of summary judgment to Evansville and Fort Wayne on a claim of respondeat superior. Finds that when a police officer’s tortious acts — in this case sexual assault — fall within the scope of employment, the city is liable. Also affirms the trial courts’ grants of summary judgment to the cities on common-carrier theory. Finds the relationships between the cities and the women in these cases do not fall within the common-carrier exception.

The following 7^th Circuit Court of Appeals opinion was posted after Indiana Lawyer deadline Tuesday.

United States of America v. D.D.B.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson.
Criminal. Vacates the waiver of D.D.B. from juvenile to adult court on a robbery charge. Holds that attempted robbery does not satisfy the juvenile waiver requirement of a prior adjudication for a violent crime, because the Indiana attempted robbery statute does not include an intent element. Remands for proceedings.

The following 7th Circuit Court of Appeals opinion was posted after Indiana Lawyer deadline Monday.
Berry Plastics Corporation v. Illinois National Insurance Company
17-1815
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard L. Young.
Civil. Affirms the entry of summary judgment for Illinois National on Berry Plastics’ suit seeking indemnity from a $7.2 million jury damages award to a customer to whom Berry supplied defective laminate material used in the manufacture of products that later failed. Finds Berry failed to show that some portion of the lost profits theoretically might be attributable to property damage.