Opinions

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.

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.