Opinions June 30, 2015

The following opinions were posted after IL deadline Monday.
7th Circuit Court of Appeals
Richard Bell v. Cameron Taylor
14-3099
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Dismisses interlocutory appeal for lack of jurisdiction and remands to the District Court for resolution of outstanding issues. The 7th Circuit had no jurisdiction because Bell’s suit was still alive even though partial summary judgment had been granted.

Indiana Supreme Court
Celebration Worship Center, Inc. v. Patrick Tucker and Carolyn P. Tucker, A/K/A Patty Tucker
22S01-1506-PL-401
Civil plenary. Affirms summary judgment in favor of homeowners, Patrick and Carolyn Tucker. Finds since there is no genuine issue of material fact, the homeowners are entitled to summary judgment for both their adverse possession and prescriptive easement claims.  

Jeffrey M. Miller and Cynthia S. Miller v. Kristine C. Danz
49S05-1506-PL-400
Civil plenary. Affirms summary judgment in favor of Kristine C. Danz in a defamation suit brought by the former president and CEO of Junior Achievement of Central Indiana. The existence and identity of Danz was not unknown to the plaintiff before he commenced this action, yet he waited until after expiration of the applicable statute of limitations to substitute her name for John Doe #8. Holds that Trial Rule 15(C) does not supersede Trial Rule 17(F).

Today's opinions
Indiana Tax Court
Asplundh Tree Expert Co. v. Indiana Department of State Revenue
49T10-1110-TA-63
Tax. Grants partial summary judgment in favor of the Department of Revenue, finding that Asplundh properly paid Indiana use tax on its out-of-state commercial vehicle purchases, and that the imposition of the use tax did not violate the Commerce Clause.

Indiana Court of Appeals
Wilmington Savings Fund Society, FSB, Not In Its Individual Capacity But Solely as Trustee for the Primestar-H Fund I Trust v. Ty Bowling and Asset Acceptance, LLC
39A05-1409-MF-433
Mortgage foreclosure. Affirms on interlocutory appeal a grant of partial summary judgment in favor of Wilmington. The trial court did not err by denying summary judgment on foreclosure of the mortgage and granting it on the note.

Lawrence J. Anderson v. State of Indiana
79A02-1501-CR-10
Criminal. Affirms conviction of Class A felony robbery, holding that rushing a door opened for another person to gain unauthorized entry is sufficient evidence of use of force, satisfying the statutory requirement.

Scott Grundy v. State of Indiana
49A02-1409-CR-665
Criminal. Affirms conviction of and 20-year executed sentence for Class B felony battery and a habitual offender adjudication. Holds that the July 1, 2014, revisions to the habitual offender statute, Indiana Code Section 35-50-2-8, do not apply retroactively to offenses committed prior to the effective date of the revised criminal code.

Saundra S. Wahl v. State of Indiana
29A04-1409-CR-418
Criminal. Affirms conviction of and sentence for Class D felony involuntary manslaughter resulting from the death of a child at a home-based daycare Wahl operated with her husband. Majority Judges Patricia Riley and Michael Barnes found the evidence was sufficient, the sentence appropriate and any alleged juror misconduct rebutted by the state. Dissenting Judge L. Mark Bailey wrote that an alternate juror’s persistent efforts to influence the jury and the state’s merging of administrative regulation with the criminal code constituted fundamental error, and that Wahl was entitled to a new trial.

Daniel P. Wahl v. State of Indiana
29A02-1409-CR-625
Criminal. Affirms conviction of sentence for Class D felony involuntary manslaughter resulting from the death of a child at a home-based daycare Wahl operated with his wife. Majority Judges Patricia Riley and Michael Barnes found the evidence was sufficient, the sentence appropriate and any alleged juror misconduct rebutted by the state, and that a restitution order was proper. Judge L. Mark Bailey dissented, citing his dissent in Saundra S. Wahl v. State, in which he wrote that an alternate juror’s persistent efforts to influence the jury and the state’s merging of administrative regulation with the criminal code constituted fundamental error, and that Wahl was entitled to a new trial.

Tikidanke Bah v. Mac's Convenience Stores, LLC d/b/a Circle K and David Ruffin
49A02-1407-CT-512
Civil tort. Affirms appellees’ motion to strike and grant of summary judgment on Bah’s claims of negligent supervision and negligent infliction of emotional distress. Reverses summary judgment in favor of appellees on Bah’s remaining claims based on defenses requiring state-of-mind and credibility determinations. Rejects appellees claims their communications to police are qualifiedly privileged. Judge Elaine Brown dissents.

Starla Gough v. Dale Gough (mem. dec.)
37A03-1411-DR-414
Domestic relation. Affirms dissolution court’s final decree which ended the marriage of Starla and Dale Gough.

Lamarr T. Crittenden v. State of Indiana (mem. dec.)
49A05-1405-PC-227
Post conviction. Affirms post-conviction court’s order for a new sentencing hearing. Also affirms post-conviction court’s denial of Crittenden’s request for subpoenas and motions for discovery as well as excluding the Department of Child Services’ reports from the evidence and denying relief on his remaining ineffective counsel claims.

Richard Lebron v. State of Indiana (mem. dec.)
49A04-1409-CR-451
Criminal. Affirms convictions of Class A misdemeanor domestic battery and Class A misdemeanor criminal mischief.

Cory C. Carter v. State of Indiana (mem. dec.)
45A03-1411-PC-412
Post conviction. Affirms denial of Carter’s petition for post-conviction relief.

Donald Probst v. State of Indiana (mem. dec.)
15A04-1412-CR-586
Criminal. Affirms 545-day sentence in the Indiana Department of Correction following conviction of nonsupport of a dependent child, a Class D felony.

Theodore Miller v. LVNV Funding LLC (mem. dec.)
82A04-1412-SC-598
Small claim. Affirms judgment in favor of LVNV Funding LLC for $1,509.97 plus court costs.

Duane R. Tackett v. State of Indiana (mem. dec.)
20A03-1410-CR-368
Criminal. Affirms conviction of and 16-year aggregate sentence for two counts of dealing in methamphetamine, both Class B felonies.

J.E. v. State of Indiana (mem. dec.)
02A03-1409-CR-339
Criminal. Affirms trial court’s order of involuntary commitment of J.E. to a state psychiatric hospital following a jury verdict that he was not responsible by reason of insanity on six criminal charges.

Michael A. Powers v. State of Indiana (mem. dec.)
03A01-1410-CR-450
Criminal. Affirms Powers’ conviction of and sentence for dealing in methamphetamine, as a Class B felony, and the revocation of his probation in a separate case where he pleaded guilty to distribution of methamphetamine, as a Class B felony. Trial court revoked Powers’ probation and reinstated the suspended 12-year sentence for distribution to be served consecutively with his 16-year sentence for distributing.

Estel Lynn v. State of Indiana (mem. dec.)
49A05-1410-CR-467
Criminal. Affirms convictions for resisting law enforcement, a Class A misdemeanor and battery, a Class A misdemeanor.  

T.D.G. v. State of Indiana (mem. dec.)
71A04-1411-JV-528
Juvenile. Affirms T.D.G.’s adjudication as a juvenile delinquent for robbery.  

Demetrius Howell v. State of Indiana (mem. dec.)
46A05-1409-CR-446
Criminal. Affirms conviction of and eight-year sentence for convicted felon in possession of a handgun, a Class C felony. Remands with instructions to vacate his conviction for carrying a handgun without a license since the judgment order indicates Howell was convicted of two offenses based on the same evidence.

Ivan Green v. State of Indiana (mem. dec.)
49A02-1412-CR-870
Criminal. Affirms conviction of battery resulting in bodily injury, a Class A misdemeanor.

Charles Sweeney v. State of Indiana (mem. dec.)
10A01-1411-CR-488
Criminal. Affirms trial court’s denial of Sweeney’s petition for jail time credit.

Brian E. Connell v. State of Indiana (mem. dec.)
27A02-1412-PC-863
Post conviction. Affirms denial of Connell’s petition for post-conviction relief.

Jesse E. Kaufman v. State of Indiana (mem. dec.)
20A04-1406-PC-301
Post conviction. Affirms denial of Kaufman’s petition for post-conviction relief.

Tierra Greene v. State of Indiana (mem. dec.)
49A05-1411-CR-542
Criminal. Affirms conviction of operating a vehicle while intoxicated, a Class A misdemeanor.

Marvin T Boothe, Jr. v. State of Indiana (mem. dec.)
20A04-1412-CR-584
Criminal. Affirms trial court’s order vacating Boothe’s placement in community corrections and placing him in the Indiana Department of Correction to serve the balance of his sentence.

Allen Moore, Jr. v. State of Indiana (mem. dec.)
32A04-1412-CR-577
Criminal. Affirms Moore’s conviction of indecent exposure, a Class C misdemeanor.

In the Matter of the Paternity of H.J., Melissa R. Jallow v. William R. Fat-Anthony (mem. dec.)
49A02-1412-JP-825
Juvenile paternity. Affirms order modifying Fat-Anthony’s child support obligation to $66 per week.

Ronald Longer v. State of Indiana (mem. dec.)
79A04-1410-CR-464
Criminal. Affirms Longer’s aggregate sentence for 31 years following his convictions of three counts of robbery while armed with a deadly weapon, Class B felonies; and one count of carrying a handgun without a license with a prior felony conviction, a Class C felony.

Glenda Helton v. State of Indiana (mem. dec.)
36A01-1410-CR-438
Criminal. Affirms denial of Helton’s motion to withdraw her guilty plea to one count of dealing in a controlled substance, as a Class B felony, and neglect of a dependent, as a Class D felony.

Reginald Gant v. State of Indiana (mem. dec.)
02A03-1412-CR-445
Criminal. Affirms conviction of domestic battery, a Class D felony.

Devynn Dixon-McNairy v. State of Indiana (mem. dec.)
49A02-1501-CR-21
Criminal. Affirms convictions of Class D felony theft and Class D felony auto theft.

Brittany N. Veal v. Indiana Department of Workforce Development (mem. dec.)
93A02-1411-EX-778
Agency action. Dismisses Veal’s appeal of the decision to suspend her unemployment benefits and ordering her to pay benefits and assessing civil penalties. Finds Veal’s failure to comply with various appellate rules makes it virtually impossible to discern the merits of her appeal, let alone address them.

Tony Dean v. State of Indiana (mem. dec.)
71A03-1412-CR-447
Criminal. Affirms conviction of possession of cocaine, a Class D felony.

Leon Payne v. State of Indiana (mem. dec.)
49A04-1410-CR-487
Criminal. Affirms conviction of carrying a handgun without a license, a Class A misdemeanor.

Kevin M. Plummer v. State of Indiana (mem. dec.)
01A02-1411-CR-824
Criminal. Affirms eight-year sentence following guilty plea to Class C felony child molesting. Reverses restitution order in the amount of $3,068.68 and remands to the trial court with instructions to conduct a new restitution hearing.

Michael L. Bowling v. State of Indiana (mem. dec.)
20A03-1501-PC-13
Post conviction. Affirms denial of Bowling’s petition for post-conviction relief.