Opinions

Opinions, Sept. 23, 2013

Indiana Court of Appeals
C. Subah Packer v. The Indiana Department of Workforce Development
93A02-1301-EX-83
Agency action. Affirms determination of a liability administrative law judge that a horse stable owner must pay unemployment compensation taxes plus interest and penalties for employees during the years 2008-2011 because they performed some amount of non-agricultural labor. Because employment records did not establish the amount of wages paid to workers for agricultural or non-agricultural work, a determination that Packer must pay taxes on total compensation for the audit years is not arbitrary, unreasonable, against the evidence or contrary to law.

Opinions – Sept. 20, 2013

Indiana Court of Appeals

Walter E. Lunsford v. Deutsche Bank Trust Company Americas as Trustee
30A01-1302-MF-63
Mortgage foreclosure. Affirms trial court grant of summary judgment in favor of Deutsche Bank, holding that its mortgage was the senior lien on a property that Walter Lunsford sold on a land contract years earlier but failed to record until after the mortgage was recorded. Deutsche Bank is the holder of the note and was entitled to enforce the loan document after a default, and Lunsford waived his arguments that the bank lacks standing and that it refused his offer to make payment in full because those arguments were not raised before the trial court.

Beneficial Financial 1 Inc., Successor in Interest to Beneficial Mortgage Co. of Indiana v. Sharon Hatton, a/k/a Sharon J. Hatton, First Select, Inc., Calvary SPV, II, LLC, and Discover Bank
45A03-1212-MF-531
Mortgage foreclosure. Reverses trial court grant of dismissal for failure to state a claim upon which relief can be granted, finding that a surviving company after a merger needs no documentation of assignment of interest in Hatton’s mortgage, and remands to the trial court with instructions to reinstate Beneficial’s complaint for damages. Beneficial also must have an opportunity to prove that a mutual mistake was the cause of an erroneous legal description of the property secured by the mortgage.

Indiana Supreme Court
Kevin M. Clark v. State of Indiana
20S05-1301-CR-10
Criminal. Reverses conviction and 45-year sentence for Class A felony attempted dealing in methamphetamine, holding that police violated the Fourth Amendment protections of Kevin Clark when a late-night call regarding someone allegedly living improperly at a 24-hour self-storage unit instead became a “fishing expedition” for narcotics based on an officer’s hunch. Officers saw nothing illegal or appearing to constitute narcotics use, and evidence gathered from resulting search must be suppressed as fruit of the poison tree, a 4-1 majority ruled. Justice Mark Massa dissented, holding that when Clark dropped a bag as police approached, it provided reasonable suspicion, as did Clark’s subsequent admission that the bag contained marijuana.

Indiana Tax Court
United Parcel Service, Inc. v. Indiana Department of State Revenue
49T10-0704-TA-24
Premiums tax. On remand from a reversal by the Indiana Supreme Court, denies UPS’s motion for summary judgment of an appeal of taxes due for the years 2000 and 2001 and grants summary judgment in favor of the Department of Revenue, holding that statutes governing premiums tax on out-of-state insurers are immune from Commerce Clause challenges.

Indiana Court of Appeals
Larry Lyons, Jr. v. State of Indiana
36A01-1208-CR-331
Criminal. Affirms conviction for Class B felony dealing in methamphetamine and Class D felony methamphetamine possession. Finds there is no evidence that the trial court’s failure to provide instructions in strict accordance to Indiana Code 35-37-2-4 and Indiana Jury Rule 26(b) caused Lyons harm or put him at substantial risk of harm.

Von Tobel Corporation, Individually, and d/b/a Von Tobel Lumber & Hardware; and Von Tobel Lumber & Home Center, Inc. v. Chi-Tec Construction & Remodeling, Inc.; John F. Ziola, Jr.; Et Al.
46A03-1301-MI-18
Miscellaneous/mechanic’s lien. Reverses grant of summary judgment in favor of the Margret Lynn West trust, one of the defendant parties, and orders summary judgment entered for Von Tobel. The panel reversed a trial court ruling that the lien was invalid because a pre-lien notice named “Von Tobel Lumber & Home Center Inc.” and the lien notice named “Von Tobel Corporation” as claimants. The difference was minimal, not misleading and didn’t prejudice the trust or other parties, the panel held.

Indiana Supreme Court
Clark County Board of Aviation Commissioners, Board of Commissioners of Clark County, Indiana v. Dennis Dreyer and Margo Dreyer, as Co-Personal Reps. of the Estate of Margaret A. Dreyer
10S01-1308-PL-529
Civil plenary. Grants transfer to dispel confusion arising from “inartful language” in previous opinion.

7th Circuit Court of Appeals
David Hughes v. Kore of Indiana Enterprise Inc., et al.
13-8018
Civil. Reverses decertification of a class action, finding the U.S. District Court for the Southern District of Indiana, Indianapolis Division, did not provide adequate grounds for the ruling, and remands for further proceedings.

U.S. 7th Circuit Court of Appeals
United States of America v. John Scott
12-2962
Criminal. Affirms U.S. District Court for the Northern District of Indiana ruling denying a motion to suppress evidence gathered from a search warrant issued after a driveway conversation involving drug deals was captured without the knowledge of either party, after a dealer took a confidential informant’s vehicle to meet his supplier, John Scott. The panel held that sufficient evidence aside from the recorded conversation supported the issuance of the warrant.

U.S. 7th Circuit Court of Appeals
United States of America v. Christopher Eads
12-2464
Criminal. Affirms conviction and 480-month sentence for distributing child pornography, possessing child pornography and tampering with a witness. Addresses the issues Eads raises on appeal but upholds the decision of the U.S. District Court of the Southern District of Indiana, Indianapolis Division. Finds the district court did not abuse its discretion in allowing Eads to represent himself; the conviction for witness tampering was supported by the evidence; a new trial is not warranted because no new evidence has been discovered; and the discussion of 18 U.S.C. 3553 factors at sentencing was sufficient. Agrees with Eads that the district court erred in not thoroughly explaining on the record why it allowed images to be shown to the jury but rules the error is harmless because the additional evidence against him was overwhelming.  

7th Circuit Court of Appeals
Scott Weigle and April Weigle v. SPX Corp.
12-3024 and John Moore, II and Corinne Moore v. SPX Corp.
12-3025
Civil. Vacates a district court grant of summary judgment for SPX Corp. on a complaint seeking damages due design defects on a semi-truck trailer support stand from which a trailer fell on mechanics. Affirms the district court judgment of summary judgment with respect to inadequate-warning claims.

Opinions, Sept. 5, 2013

Indiana Court of Appeals
Ezekier Breaziel v. State of Indiana (NFP)
49A02-1209-CR-731
Criminal. Dismisses Breaziel’s interlocutory appeal of the denial of his motion to dismiss the charges against. Concludes sua sponte the COA lacks authority under the appellate rules to accept jurisdiction of Breaziel’s appeal.

Indiana Court of Appeals
Joshua Basey v. State of Indiana (NFP)
48A01-1301-CR-40
Criminal. Affirms conviction of Class D felony battery.

7th Circuit Court of Appeals
USA v. Farshad Ghiassi
12-3596
Criminal. Affirms 70-month sentence for Ghiassi’s guilty plea to being a felon in possession of a firearm, in violation of 18 U.S. Code 922(g)(1). Finds the District Court was uniquely and well-situated to assess the credibility of Ghiassi’s co-defendant and her statements that she purchased eight firearms on his behalf. Also rejects Ghiassi’s alternative argument that the District Court deprived him of due process. Rules Ghiassi knew the court was going to rely on his co-defendant’s statements and he had opportunity to challenge those statements.

Indiana Supreme Court
John W. Schoettmer & Karen Schoettmer v. Jolene C. Wright & South Central Community Action Program, Inc.
49S04-1210-CT-607
Civil Tort. Reverses grant of summary judgment in defendants favor and remands for further proceedings. Rules even though the Schoettmers filed their law suit against South Central well past the Indiana Tort Claims Act’s 180-day deadline, they should be allowed to present proof of estoppel to the trial court. Finds South Central never told John Schoettmer it was covered by the Act and that South Central’s insurer did not make a settlement offer until nearly three months after the ITCA deadline.

7th Circuit Court of Appeals
Larry Butler et al. v. Sears, Roebuck and Co.
11-8029, 12-8030
Civil. On remand from the U.S. Supreme Court, reinstates class-action certification for two claims regarding front-loading Kenmore washing machines sold by Sears: that design defects created odor-producing mold and cause the machine to stop at inopportune times. Applying the SCOTUS holding in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the court held that a single common issue of liability ran through class action claims: whether the washers were defective.

Indiana Court of Appeals
Roger A. Buchanan and Susan Buchanan v. HSBC Mortgage Services, Inc.
39A01-1211-MF-515
Mortgage foreclosure. Affirms trial court grant of summary judgment in favor of HSBC Mortgage Services, holding that even if a mortgage was not properly acknowledged, the Buchanans don’t deny that they executed a mortgage and note when they purchased their home, on which they stopped making mortgage payments in 2007. The Buchanans’ arguments therefore are without merit.

Opinions – Aug. 21, 2013
Indiana Court of Appeals

Rodney Melton v. State of Indiana
49A02-1212-CR-1008
Criminal. Affirms conviction of Class C felony child molesting and Class D felony dissemination of matter harmful to minors, rejecting an argument that the dissemination statute requires a “performance” under that law be public. The court also found Melton’s 11-year aggregate sentence was not inappropriate in light of his character and the nature of the offense.