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The Indiana Supreme Court upheld the denial of a supermarket’s motion for summary judgment in a negligence case, finding
the company failed to carry its burden in showing that criminal activity on its premises at the time a customer was assaulted
wasn’t foreseeable.
The following opinions were posted after IL deadline Wednesday
Indiana Supreme Court
Curtis
F. Sample v. State of Indiana
45S03-1006-CR-338
Criminal. Affirms Sample’s convictions and sentence for attempted murder and criminal confinement. Vacates habitual
finding adjudication and remands for new habitual offender phase of trial. Because the trial court provided over Sample’s
objection an instruction that minimized the jury’s power of discretion in making a determination on habitual offender
status, and provided a “law and facts” instruction that rendered meaningless the jury’s Article I, Section
19 authority, the trial court committed reversible error. Sample is entitled to have the habitual offender adjudication vacated.
Subhen
Ghosh v. Indiana State Ethics Commission and Office of the Inspector General
32S01-0910-CV-504
Civil. Holds that a 2005 amendment authorized State Employee Appeals Commission to consider ethical violations among other
grounds for termination in conducting this review, but did not otherwise affect the general rule that the Ethics Commission
has exclusive jurisdiction to interpret the state Ethics Code. Ghosh’s attempt to review his termination by the Indiana
Department of Environmental Management in this subsequent Ethics Commission proceeding is therefore barred by IDEM’s
earlier unappealed decision to terminate him. Upholds the Ethics Commission’s sanction against Ghosh.
Austin
Knight v. State of Indiana
02S03-1006-CR-339
Criminal. Revises Knight’s sentence of 70 years following a guilty plea without a plea agreement to 11 counts, including
felony burglary and robbery, to a total aggregate term of 40 years. Cannot conclude that Knight’s transgressions necessarily
“demonstrate a character of such recalcitrance or depravity” that they justify a 70-year sentence. Remands for
re-sentencing.
Today’s opinions
Indiana Supreme Court had posted no opinions at IL deadline.
Indiana Court of Appeals
John
M. Knight v. Kelly A. Knight (NFP)
39A01-0909-CV-453
Civil. Affirms denial of John Knight’s petition for modification of child support.
Luiz
Alves v. Damon R. Leichty, James W. Tuesley, and Barnes & Thornburg, LLC (NFP)
71A03-0912-CV-605
Civil. Affirms dismissal with prejudice of Alves’ complaint for legal malpractice.
Karla
J. Reaser v. State of Indiana (NFP)
92A03-1001-CR-20
Criminal. Affirms convictions of Class C felony battery, Class A misdemeanor possession of paraphernalia, and Class D felony
criminal confinement.
Derrick
D. Hammond v. State of Indiana (NFP)
59A05-0908-CR-475
Criminal. Affirms convictions of Class A misdemeanor operating while intoxicated and Class B misdemeanor false informing.
In Re: the Marriage of J.R. and M.R. (NFP)
30A01-0912-CV-581
Civil. Affirms child support award, reverses division of marital estate, and remands with instructions.
Elizabeth
Saldivar-Cruz v. Guardian Industries Corp. (NFP)
93A02-0909-EX-839
Civil. Affirms denial of application for adjustment of claim with the Worker’s Compensation Board of Indiana.
Gregory
A. Harpenau v. State of Indiana (NFP)
62A01-1002-CR-52
Criminal. Affirms conviction of Class D felony operating a vehicle while intoxicated with a prior conviction.
Indiana Tax Court had posted no opinions at IL deadline.
Indiana Court of Appeals
Luiz
Alves v. Old National Bank f/k/a St. Joseph Capital Bank
71A03-0909-CV-416
Civil. Affirms denial of Alves’ Ind. Trial Rule 60(B) motion. Because he filed his motion more than one year after
the trial court granted summary judgment for Old National Bank and his earlier appeal of that judgment doesn’t toll
the 1-year limit applicable to motions brought pursuant to subsections (1)-(4), his motion is untimely. In addition, the evidence
on appeal doesn’t show the bank owed a duty to Alves or that the bank breached a duty by conspiring with his former
business partner to remove him from their company.
The one-year limit to file a motion for relief from judgment under Indiana Trial Rule 60(B) is not from the time an appeals
court rules on the matter, but must be made within one year after the trial court enters its order, the Indiana Court of Appeals
ruled today in an issue of first impression.
There are a lot of people in Indiana who want to become the state’s next Supreme Court Justice.
In a case identical to one it ruled on earlier this year, the Indiana Court of Appeals found the state violated a juvenile’s
right to counsel at her detention hearing.
The following opinion was posted after IL deadline Tuesday.
Indiana Supreme Court
Kenneth
Brown v. State of Indiana
11S04-0911-CR-537
Criminal. Affirms Brown’s convictions of possession with intent to deliver methamphetamine as a Class B felony, possession
of a controlled substance as a Class C felony, possession of paraphernalia as a Class A misdemeanor, and possession of marijuana
as a Class A misdemeanor. Brown failed to preserve his challenge to the admissibility of evidence. Holds that a claimed error
in admitting unlawfully seized evidence at trial is not preserved for appeal unless an objection was lodged at the time the
evidence was offered. Also holds that such a claim, without more, does not assert fundamental error.
Today’s opinions
Indiana Court of Appeals
Michael
L. Smith v. State of Indiana
52A04-0909-CR-504
Criminal. Affirms Smith’s 7-year sentence following guilty plea to auto theft, institutional criminal mischief, and
arson. Reverses condition of probation that says unfavorable results of Smith’s polygraph examinations on drug use and
drug trafficking would constitute a probation violation. The use of those tests is improper as found in Hoeppner. Remands
for trial court to amend Smith’s conditions of probation to say positive results may be used against him in a probation-revocation
proceedings and may constitute a violation of probation.
Brightpoint,
Inc. and Brightpoint Europe A/S v. Steen F. Pedersen
49A02-0912-CV-1196
Civil. Affirms dismissal of Brightpoint’s complaint against Pedersen. The trial court did not abuse its discretion
in denying Brightpoint and Brightpoint Europe’s motion to strike nor in dismissing the complaint on the basis of comity.
John
Bragg and Built on Foundation, Inc. v. City of Muncie and The Housing Authority
18A04-0912-CV-725
Civil. Affirms summary judgment in favor of City of Muncie and the Muncie Housing Authority on Bragg’s claim for tortious
interference with a contract. Thus, the designated evidence establishes that the agreement between Weatherly and Bragg may
very well have violated the requirements of Indiana Code Section 36-1-2-1 et seq., which would have rendered the contract
void ab initio.
John
Offett v. State of Indiana (NFP)
49A04-0912-CR-687
Criminal. Affirms conviction of Class C felony forgery.
C.B.
v. State of Indiana (NFP)
49A02-0909-JV-842
Juvenile. Affirms adjudication for committing dangerous possession of a firearm by a child, a Class A misdemeanor if committed
by an adult.
Eddie
D. Lowe v. State of Indiana (NFP)
58A01-0912-CR-615
Criminal. Affirms revocation of probation.
Michael
K. Williams v. State of Indiana (NFP)
45A03-0909-CR-438
Criminal. Affirms denial of motion to correct sentence.
Carmen
Kelleher, et al. v. Carol Mason, as personal representative of the Estate of Donald W. Mason (NFP)
45A03-0912-CV-598
Civil. Affirms declaratory judgment in favor of Donald Mason’s estate.
Patton
Homes, LLC, et al. v. Robert Bellows, et al. (NFP)
03A04-0906-CV-358
Civil. Reverses finding that Patton was bound by Robert Bellows’ contractual obligation to the City of Columbus to
provide the sidewalks in question.
Jermaine
J. Johnson v. State of Indiana (NFP)
49A04-0910-CR-591
Criminal. Reverses order Johnson pay $100 supplemental public defender service fee and remands.
Danny
T. Dunlap v. State of Indiana (NFP)
49A02-0907-PC-620
Post conviction. Affirms denial of petition for post-conviction relief.
Lawrence
Brown v. State of Indiana (NFP)
49A02-0908-CR-732
Criminal. Affirms conviction of Class A voluntary manslaughter.
Thaddeus
J. Zysk v. Jennifer K. Zysk (NFP)
48A02-0912-CV-1236
Civil. Affirms order granting Jennifer Zysk’s request to relocate to California with parties’ two minor children.
Jon
Marc Kaetzel and Beverly K. Kaetzel v. The Carl Kaetzel Trust, et al. (NFP)
74A01-1001-PL-30
Civil plenary. Reverses judgment against Jon and Beverly Kaetzel on the trusts’ breach of trust claim. Remands with
instructions to enter judgment in favor of Jon and Beverly Kaetzel on the claim and to rule on all remaining claims. Affirms
judgment for Carl Kaetzel on prejudgment interest and remands with instructions to calculate the amount owed.
Term.
of Parent-Child Rel. of J.G. & J.R.; A.R. v. IDCS (NFP)
20A05-1001-JT-21
Juvenile. Affirms termination of parental rights.
Richard
Joslyn v. State of Indiana (NFP)
49A04-0908-CR-460
Criminal. Affirms convictions of Class C felony stalking and four counts of Class A misdemeanor invasion of privacy.
Guardianship
of Alice L. Schoonover (NFP)
84A01-0904-CV-207
Civil. Affirms order that Margaret Ditteon reimburse the Estate of Alice L. Schoonover for funds misappropriated by a woman
who preceded Ditteon as guardian.
Indiana Tax Court had posted no opinions at IL deadline.
A booking card created by law enforcement in the course of a ministerial, nonevaluative booking process is not subject to
the police reports exclusion under Indiana Evidence Rule 803(8), the Indiana Court of Appeals decided today.
Indiana Supreme Court
League of Women Voters, et al. v. Todd Rokita
49S02-1001-CV-50
Civil. Affirms trial court dismissal of challenge to state’s voter identification law. The case presents only facial
constitutional challenges. It is within the power of the legislature to require voters to present photo ID at the polls. Justice
Boehm dissents.
In two separate rulings involving the “economic loss rule,” the Indiana Supreme Court ruled against a library
seeking to hold subcontractors and an engineer responsible for negligence, and in favor of a bank in its tort claim against
a title company.
The Indiana legislature can require people to show photo identification at the polls in order to vote, the Indiana Supreme
Court ruled today.
The company that provides the water utility to the City of Indianapolis is not a political subdivision of the state, the Indiana
Court of Appeals concluded today.
The Indiana Supreme Court tackled the state’s habitual-offender statute today in two separate rulings, finding that
an instant offense of drug dealing, coupled with a prior conviction, can qualify a defendant as a habitual offender.
The Indiana Court of Appeals was faced with competing constitutional rights today: a mother’s right to free political
speech versus her daughter’s right to privacy as to whether her father allegedly sexually abused her.
Indiana Supreme Court
Myron Owens v. State of Indiana
49S02-0910-CR-429
Criminal. Affirms Owens’ convictions of and sentence for dealing cocaine and obstruction of justice, and that he has accumulated two unrelated convictions to be sentenced under the habitual offender statute. Holds conspiracy to deal conviction is not equivalent to a dealing conviction for purposes of the Indiana habitual offender statute.
Indiana Court of Appeals
Randy Edward Johnson v. State of Indiana
53A01-1002-CR-38
Criminal. Affirms conviction of Class A felony child molesting. No actual conflict existed that required the defense attorney to make a choice advancing his own interests to the detriment of his client’s interests, but only a potential conflict occurred between Johnson and his counsel. Finds that the trial court’s action of formally noting Johnson’s displeasure on the chronological case history and forwarding his request to the Monroe County Public Defender Officer reasonable. The State did not commit prosecutorial misconduct during closing arguments.
Paternity of H.S.; P.S. v. R.F.
91A02-1003-JP-334
Juvenile. Affirms summary judgment in favor of R.F. in P.S. and H.S.’s paternity action against him and the denial of their request for genetic testing of R.F. Any objections to Judge Overbeck’s presiding over the adoption were waivable and H.S. and P.S. have done just that due to mother P.S.’s failure to raise the issue in 1975. Concludes that a mere desire to know the identity of one’s biological father, whatever the reason, is insufficient once establishing legal paternity is not possible. The trial court correctly denied H.S and P.S.’s motion to compel genetic testing on R.F.
Lorenzo A. Taylor v. State of Indiana
29A02-0912-CR-1212
Criminal. Reverses conviction of conspiracy to commit dealing in cocaine as a Class A felony and remands with instructions to enter as a Class B felony and resentence accordingly. Taylor’s convictions and sentences for both dealing in cocaine and conspiracy to commit dealing in cocaine don’t violate the prohibition against double jeopardy.
City of Indianapolis v. Olive Duffitt
49A04-0911-CV-661
Civil. Reverses denial of City of Indianapolis’ motion for summary judgment in Duffitt’s tort action for damages arising out of injuries sustained from falling on a sidewalk. Given the budgetary considerations and cost-benefit analyses that produced the city’s prioritization scheme, Indianapolis’ designated evidence demonstrates that its decisions are discretionary under the “planning-operational test” as it is interpreted in Pairsh and Rutherford. In cases where certain policy decisions have been delegated to individual employees, discretionary immunity may be established through affidavits. Remands with instructions to enter summary judgment in favor of the city.
Adam Gibson v. State of Indiana (NFP)
47A01-1001-CR-28
Criminal. Affirms sentence following guilty plea to two counts of Class B felony burglary.
Kathy Hardesty v. Larry Vickery (NFP)
08A04-1001-PO-117
Order of protection. Affirms order of protection against Hardesty.
Christopher Deardorff v. State of Indiana (NFP)
02A03-0911-CR-550
Criminal. Affirms conviction of Class D felony theft.
James Daugherty v. State of Indiana (NFP)
21A01-1001-CR-55
Criminal. Affirms sentence following guilty plea to public intoxication as a Class B misdemeanor.
Term. of Parent-Child Rel. of L.C. & G.C.; G.C. v. Marion County Dept. of Child Services and Child Advocates (NFP)
49A02-0912-JV-1253
Juvenile. Affirms termination of parental rights.
Saundra and Clyde Smithson v. Howard Regional Health System (NFP)
34A02-1001-CT-73
Civil. Reverses and remands summary judgment in favor of Howard Regional Health System that it was immune from liability under the Indiana Tort Claims Act.
S.C. v. State of Indiana (NFP)
49A02-0912-JV-1186
Juvenile. Affirms adjudication for false informing, a Class A misdemeanor if committed by an adult.
Sheldon Fogleman v. State of Indiana (NFP)
30A01-1002-CR-62
Criminal. Affirms sentence following guilty plea to Class D felony theft.
Billy Dix v. Indiana State Department of Health, et al. (NFP)
03A01-1001-MI-13
Miscellaneous. Affirms order on judicial review affirming the Indiana State Department of Health’s administrative determination that Dix’s involuntary transfer was in compliance with Indiana’s regulations.
Spencer Jones v. State of Indiana (NFP)
49A05-0912-CR-719
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.
Donald Fisher v. Tower Bank and Trust Co. (NFP)
02A05-1002-MF-97
Mortgage foreclosure. Affirms summary judgment in favor of Tower Bank upon the court’s determination that the bank’s lien on property owned by Stauffer Development was first in priority.
L.M. v. State of Indiana (NFP)
49A02-1001-JV-15
Juvenile. Affirms adjudication for Class B felony child molesting if committed by an adult.
Cynthia Sericati v. State of Indiana (NFP)
49A04-0911-CR-673
Criminal. Affirms conviction of Class D felony neglect of a dependent.
Alvino Pizano v. State of Indiana (NFP)
45A04-1002-CR-128
Criminal. Affirms denial of motion to remove defendant from Indiana’s Sex Offender Registry Act’s Residency Restriction Portion.
Kevin Holloway v. State of Indiana (NFP)
49A05-0911-CR-649
Criminal. Affirms conviction of Class C felony child solicitation.
Indiana Tax Court had posted no opinions at IL deadline.
Indiana Supreme Court
Andre
Peoples v. State of Indiana
79S02-0912-CR-549
Criminal. Affirms finding Peoples is a habitual offender. People’s instant dealing offense is to be counted in calculating
the total number of unrelated felony convictions an individual has for drug dealing. While a single felony drug conviction
is not enough to qualify a person for habitual offender status, a second such conviction is, be it a prior conviction or the
instant offense.
The Indiana Supreme Court Monday answered the certified question sent to them by the U.S. District Court in New York about
what standard should be applied in determining whether a director is “disinterested” under Indiana Code Section
23-1-32-4(d).
The Indiana Supreme Court granted four transfers June 24, including one in which the Indiana Court of Appeals extended the
duty to prevent injury to sports participants to include sporting event volunteers.
Indiana Court of Appeals
Julianne
E. Tamasy v. Peter S. Kovacs
49A05-0910-CV-563
Civil. Affirms order granting physical custody of the parties’ children to Kovacs. The trial court did not abuse its
discretion in denying Tamasy’s request to transfer the custody proceedings to Massachusetts, in excluding certain testimony
at trial, in modifying the previous custody order, and in issuing a July 23, 2009, order regarding Tamasy’s emergency
motion to compel parenting time.
American
Family Insurance v. Beazer Homes, et al.
49A02-0912-CV-1292
Civil. Reverses dismissal of American Family Insurance’s claim for failure to prosecute against Beazer Homes and other
defendants. The trial court abused its discretion in dismissing the claim under Indiana Trial Rule 41(E). The record does
not reveal a history of an egregious pattern of deliberate delay on the part of American Family or that American Family defied
any court orders. Remands with instructions to reinstate the cause of action.
Elmer
D. Baker, v. State of Indiana
17A04-0905-CR-299
Criminal. Grants rehearing to clarify holding on the issue of the amendment of the charging information but affirms original
opinion affirming convictions of two counts of Class A felony child molesting and one count of Class C felony child molesting.
Clarifies holding to state that the applicable deadline for amending the information is not “before the commencement
of the trial” that ended in a mistrial; rather, it is “before the commencement of the trial” that was held
on the amended charges, and the one from which Baker filed his appeal.
Eliud
Anthony Delgado v. State of Indiana (NFP)
29A02-0911-CR-1142
Criminal. Affirms revocation of placement in community corrections.
Travis
Halveland v. State of Indiana (NFP)
89A04-1002-CR-111
Criminal. Affirms sentence following guilty plea to Class D felony theft.
Stardust Development, LLC v. City of Bloomington (NFP)
53A04-0908-CV-487
Civil. Reverses small claims judgment in favor of Bloomington in Stardust Development’s action to recover costs of
a tree branch removal. Remands with instructions.
Martin Serrano v. State of Indiana and the City of Fort Wayne (NFP)
02A03-0908-CV-362
Civil. Reverses judgment in favor of the state and City of Fort Wayne ordering the forfeiture of Serrano’s truck, which
was seized after a traffic stop.
Maurice
Hairston v. State of Indiana (NFP)
02A03-1003-CR-137
Criminal. Affirms convictions of burglary as a Class B felony, receiving stolen property as a Class D felony, and adjudication
as a habitual offender.
Jason D. Arbuckle v. State of Indiana (NFP)
72A01-0912-CR-618
Criminal. Affirms conviction of Class A felony dealing in methamphetamine.
Term.
of Parent-Child Rel. of T.L.; H.L. v. IDCS (NFP)
02A03-1002-JT-100
Juvenile. Affirms involuntary termination of parental rights.
Indiana Tax Court had posted no opinions at IL deadline.