Opinions

Indiana Court of Appeals
Duke Energy Indiana, Llc v. J & J Development LLC
19A-PL-00735
Civil plenary. Reverses the Clark Circuit Court’s grant of summary judgment to J&J Development Company, LLC and against Duke Energy Indiana, LLC. Finds improvements made by J&J within an easement owned by Duke did unreasonably interfere with the easement’s use. Remands for the entry of summary judgment in favor of Duke, including an injunction requiring J & J to remove the challenged improvements.

The following Indiana Supreme Court opinion was posted after IL deadline Friday.
S.H. v. D.W.
19S-PO-118
Protective order. Reverses the Bartholomew Superior Court’s grant of a second protective order against S.H. that was requested by D.W. Finds insufficient evidence to support the trial court’s entry of another two-year protective order. Remands with instructions to vacate entry of the second protective order. Justice Christopher Goff dissents with a separate opinion in which Justice Mark Massa joins.

Indiana Court of Appeals
Small Business in Transportation Coalition, et al. v. Indiana Department of Revenue, et al.
19A-PL-370
Civil Plenary. Affirms the Marion Superior Court order in favor of the Indiana Department of Revenue on a complaint by Small Business in Transportation and other plaintiffs’ class-action suit seeking the reimbursement of potentially hundreds of millions of dollars in state motor carrier fees collected through an internet portal. Hold the plaintiffs’ efforts to recoup fees voluntarily paid through the portal is without basis in law.

Indiana Court of Appeals
City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corporation
19A-PL-00457
Civil plenary. Majority affirms the Monroe Circuit Court’s grant of UJ-Eighty Corp.’s petition seeking judicial review of the Bloomington Board of Zoning Appeals’ decision that affirmed the issuance of two notices of violation against UJ-Eighty. Finds the City of Bloomington improperly delegated authority to Indiana University in violation of the Due Process Clause of the Fourteenth Amendment. Affirms that the ordinance unconstitutionally violates due process. Judge L. Mark Bailey dissents with opinion.

Indiana Court of Appeals
Raymond E. Cook, III v. State of Indiana (mem. dec.)
19A-CR-1594
Criminal. Affirms Raymond Cook III’s aggregate seven-year sentence for conviction in Ripley Circuit Court of Level 5 felony dealing in methamphetamine and Level 6 felony maintaining a common nuisance. Finds the sentence is not inappropriate in light of the nature of the offenses and his character.

Indiana Court of Appeals
Termination: J H, et al. v. Child Advocates Inc, et al.
19A-JT-01549
Juvenile termination. Affirms the Marion Superior Court’s termination of J.H. and W.D.’s parental rights to their minor child, C.D. Finds the trial court did not clearly err in determining that there was sufficient evidence to support the termination of parental rights. Finds their right to consent to C.D.’s adoption was rightly terminated.

Indiana Court of Appeals
Stephen W. Peele v. State of Indiana
19A-CR-1775
Criminal. Reverses the dismissal of Stephen Peele’s petition for removal from the Indiana Sex Offender Registry. Finds the Marion Superior Court erred in dismissing Peele’s petition, finding Peele properly brought his petition for removal within a criminal cause in a qualifying court. Remands with instructions to the trial court to consider the merits of Peele’s petition.

The following 7^th Circuit Court of Appeals opinions were posted after IL deadline Wednesday:
United States of America v. Jose Trinidad Garcia, Jr., and Alfonso Pineda-Hernandez, also known as Flaco
18-1890, 18-2261
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson
Criminal. Reverses the 20-year mandatory minimum sentence for Jose Garcia after he pleaded guilty to a drug-dealing conspiracy count, finding the predicate Indiana offense used to enhance his sentence does not qualify as a federal drug offense. Remands for resentencing. Affirms the 25-year sentence imposed on Alfonso Pineda-Hernandez after he was found guilty on two trafficking charges, finding no error in his sentencing or conviction.

Indiana Court of Appeals
First Chicago Insurance Company v. Candace Collins, et al.
19A-PL-02000
Civil plenary. Finds the Marion Superior Court did not abuse its discretion in granting Robin Dunn’s motion for relief from default judgment, as Dunn showed a meritorious defense and misconduct of an adverse party under Trial Rule 60(B)(3). Reverses the order requiring that First Chicago Insurance Company make up to $25,000 available for Dunn’s claims. Remands for proceedings.

The following 7th Circuit Court of Appeals opinions were posted after IL deadline Friday.
Thomas Censke v. USA
18-2695
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Reverses the holding that Thomas Censke’s administrative complaint under the Federal Tort Claims Act was not filed until it was received and therefore untimely. Finds the prison mailbox rule applies to a prisoner’s administrative complaint under the Federal Tort Claims Act and that mail is filed upon being placed in the prison’s mail. Thus, finds Censke’s claim was timely filed.

Indiana Court of Appeals
Shannon Gehlhausen, et al. v. Indiana Foundation Service, Inc.
19A-CT-00842
Civil tort. Affirms the Hamilton Superior Court’s grant of summary judgment to Indiana Foundation Service, Inc. Finds Shannon and Brandon Gehlhausen have failed to present a different account of events that would require a resolution by a trier of fact.

7^th Circuit Court of Appeals
Judy Prater v. Andrew Saul
19-2263
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Judge William C. Lee.
Civil. Affirms the denial of Judy Prater’s request for Social Security disability insurance benefits based on a variety of her mental and physical impairments. Finds that the sit/stand limitation in Prater’s residual functional capacity assessment specifies that Prater may change positions as needed so long as she remains in position for at least 30 minutes at a time. Finds the RFC formulation as not vague and that the decision is supported by substantial evidence.

7th Circuit Court of Appeals
Shanika Day v. Franklin Wooten
19-1930
Appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil tort. Reverses the denial of qualified immunity to Indianapolis Metropolitan Police Officer Randall Denny and Indianapolis Metropolitan Police Sgt. Franklin Wooten. Finds the officers’ conduct in placing Terrell Day in handcuffs did not violate the teenager’s Fourth Amendment rights even though he complained of not being able to breathe and eventually died in custody. The autopsy report concluded Day’s death was caused in part by having his hands cuffed behind his back, but the appellate panel ruled there is no precedent giving an arrestee the right to not have his hands cuffed behind his back after he complains of difficulty breathing. Remanded for further proceedings.

Indiana Supreme Court
In the Matter of the Adoption of C.A.H., A.C.S. (Father) v. R.S.E. and R.K.E. (Grandparents)
20S-AD-5
Adoption. Reverses the Morgan Superior Court’s finding that father’s consent was irrevocably implied in the adoption matter. Remands for a hearing on the merits of his motion to contest the adoption of his child. Finds a parent’s implied consent to the adoption of a child may not be based solely on the parent’s failure to appear at a single hearing.

Indiana Court of Appeals
MGPI of Indiana, LLC v. South Dearborn Regional Sewer District
19A-PL-393
Civil plenary. Affirms the Dearborn Circuit Court’s order upholding the District Authority of Dearborn County’s ruling that upheld the adoption of a rate-setting ordinance by the South Dearborn Regional Sewer District. Finds there was a rational basis for the District Authority to uphold the ordinance and for the trial court to affirm its ruling against the challenge brought by MGPI of Indiana.