Opinions

The 7th Circuit Court of Appeals posted the following opinion after IL deadline Monday.
USA v. Tom Smith, III
18-2905
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker.
Criminal. Affirms the U.S. District Court for the Southern District of Indiana’s determination that Tom Smith III is a career offender under § 4B1.1 of the United States Sentencing Guidelines. Also affirms its application of a corresponding enhancement for his two prior controlled substance convictions. Disagrees with Smith’s interpretation of the statute and denies his request to vacate his sentence for improperly including an enhancement.

Indiana Court of Appeals
Janet L. Himsel, Martin Richard Himsel, Robert J. Lannon, Susan M. Lannon v. Samuel Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock, LLC, and Co-Alliance, LLP and State of Indiana
18A-PL-645
Civil Plenary. Affirms Hendricks Superior Court’s grant of summary judgment in favor of Samuel T. Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock LLC, and Co-Alliance LLP. Rules the plaintiffs’ nuisance and repackaged negligence and trespass claims are barred by Indiana Code section 32-30-6-9, commonly known as the Right to Farm Act. Also finds the plaintiffs’ various claims that the RTFA is unconstitutional are unavailing.

The following Indiana Tax Court opinion was posted Thursday after IL deadline.
Tell City Boatworks, Inc. v. Indiana Department of State Revenue
18T-TA-4
Tax. Denies Tell City Boatworks, Inc.’s motion to strike the report and exclude the testimony of John William Sullivan. Finds Tell City is unable to prove Sullivan’s report or testimony is inadmissible due to its “overall lack of relevancy and credibility.”  

Indiana Court of Appeals
Indiana Hotel Equities, LLC v. Indianapolis Airport Authority
18A-PL-769
Civil plenary. Affirms the Marion Superior Court’s ruling in favor of the Indianapolis Airport Authority, finding that Indiana Hotel Equities, LLC breached the parties’ lease agreement and that the Authority did not waive its ability to terminate the lease. Finds the trial court did not err by finding that the Authority did not waive its right to declare a forfeiture and terminate the lease.

Indiana Court of Appeals
Bank of America, N.A. v. Kimberly A. Congress-Jones
18A-CC-1087
Civil collection. Affirms the Lake Superior Court’s grant of Kimberly Congress-Jones’ motion to dismiss for failure to prosecute and the trial court’s denial of Bank of America, N.A.’s motion to set aside the dismissal order. Finds the bank failed to prove prima facie error in the trial court’s grant of Jones’ motion and in its denial of the bank’s motion to set aside.

Indiana Court of Appeals 
City of Indianapolis v. Ginger Tichy
18A-OV-2202
Ordinance violation. Reverses the order granting relief from judgment to Ginger Tichy under Indiana Trial Rule 60(B). Finds the Marion Superior Court abused its discretion. 

Indiana Court of Appeals
Heraeus Medical, LLC, et al. v. Zimmer, Inc., a Delaware corporation d/b/a Zimmer Biomet, and Zimmer US, Inc., a Delaware corporation
18A-PL-1823
Civil plenary. Affirms in part the Kosciusko Superior Court’s issuance of a preliminary injunction ordering Heraeus Medical LLC to not possess, use, or disclose confidential information received from Heraeus Medical GmbH, or employ or engage the individual defendants in a way that violated their restrictive covenants with Zimmer Biomet or the trial court’s preliminary injunction. However, reverses in part after finding a noncompete and nonsolicitation covenant between Robert Kolbe and Zimmer Biomet employees to be overbroad. Remands to reform it to comply with Indiana law. Also finds in crafting its preliminary injunction, the trial court incorrectly defined the geographic scope of the Kolbe Agreement and applied the term “contact” in a way inconsistent with the Kolbe Agreement.

Indiana Supreme Court
In the Matter of Marjonie Diane Gabriel
18S-DI-6
Attorney discipline. Suspends Carmel attorney Marjonie Gabriel for 90 days with automatic reinstatement after she committed attorney misconduct by knowingly disobeying court orders. Affirms Gabriel violated Professional Conduct Rule 3.4(c) but did not violate Rule 8.4(b), as the disciplinary commission alleged. Finds her act of making payments and withdrawals her estate to herself without obtaining the requisite court approval did not equate to criminal conversion or exploitation of an endangered adult.

The following Indiana Tax Court opinion was published after IL deadline Wednesday:
Tony W. Smith and Shirlena Smith v. Indiana Department of State Revenue
49T10-1605-TA-13
Tax. Grants Tony and Shirlena Smith’s motion for partial summary judgment against the Indiana Department of State Revenue. Finds the department’s modifications to the Smiths’ adjusted gross income tax liabilities for 2005 through 2007 were limited to the final modifications made by the Internal Revenue Service to resolve the federal audit for those years. Orders the court to schedule a case management conference with the parties to discuss pretrial matters and scheduling. 

Indiana Court of Appeals
Tre Ron Smith v. State of Indiana
18A-CR-1633
Criminal. Affirms Tre Ron Smith’s Class A misdemeanor possession of a handgun conviction. Finds police had reasonable suspicion under the federal and state constitutions to conduct a Terry stop of Smith, and they did not exceed the permissible scope of such a stop. Also finds the trial court did not err when it allowed into evidence the firearm found in the search conducted after the Terry stop. Judge Melisa May dissents with separate opinion.

Indiana Court of Appeals
Robert Earl Davis v. State of Indiana (mem. dec.)
18A-PC-556
Post conviction. Affirms the denial of Robert Davis’ petition for post-conviction relief. Finds Davis failed to show a reasonable probability that the Indiana Court of Appeals’ decision in his direct appeal would have been different absent any misstatement. Concludes the Lake Superior Court did not err in its denial of David’s request.

Indiana Court of Appeals
Michael Hickingbottom v. State of Indiana
18A-CR-627
Criminal. Reverses Michael Hickingbottom’s six-year sentence for conviction of Level 5 felony battery resulting in bodily injury to a public safety officer. Finds the Miami Superior Court abused its discretion when it denied Hickingbottom’s motion for mistrial. Finds the state failed to produce the Indiana Department of Correction manual that contains policies and procedures on the use of force by DOC officers. Remands for a new trial with instructions for the DOC to produce the manual to the state before any subsequent proceedings take place, so Hickingbottom can review and utilize it.

7th Circuit Court of Appeals
Stephen West v. Charter Communications, Inc.
18-1906
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. Judge Richard Young.
Civil. Dismisses Stephen West’s appeal of the partial dismissal of his claim against Charter Communications, Inc. for lack of appellate jurisdiction. Finds the conditional dismissal of West’s claims against Louisville Gas and Electric Company renders the judgment non-final.

Indiana Court of Appeals
Sidney A. Berry v. State of Indiana
18A-CR-1769
Criminal. Affirms the denial of Sidney Berry’s motion to suppress evidence. Finds Detective Marc Deshaies had sufficient basis under both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution to perform a safety pat-down of Berry.

Indiana Court of Appeals
Ismael Alicea v. Ronald Brown
18A-CT-2495
Civil tort. Reverses the grant of partial summary judgment in favor of Ronald Brown on Ismael Alicea’s claim for punitive damages. Finds Brown has not sustained his burden to affirmatively negate an element of Alicea’s punitive damages claim. Also finds the Porter Superior Court erred in granting partial summary judgment in favor of Brown on that claim. Remands for further proceedings.

Indiana Supreme Court 
Nathaniel Bennett v. State of Indiana
18S-CR-538
Criminal. Reverses the Marion Superior Court’s finding that Nathaniel Bennett violated a term of his community corrections placement. Finds the trial court made factual findings that negate one part of the statutory definition to prove the violation. Remands for the trial court to change the record accordingly. Justices Mark Massa and Geoffrey Slaughter dissent without separate opinion, believing transfer should have been denied. 

Indiana Court of Appeals
In the Matter of A.R., A.S., L.S., and J.O., Children Alleged to be Cihldren in Need of Services; M.O. (Mother) v. Indiana Department of Child Services
18A-JC-2523
Juvenile CHINS. Reverses the Tippecanoe Superior Court’s adjudication of M.O.’s four minor children as children in needs of services. Finds the trial court erred in adjudicating A.R., A.S., L.S., and J.O. as CHINS. Concludes the Department of Child Services did not meet its burden to demonstrate that the children have needs that they were unlikely to receive without the coercive intervention of the court.

Indiana Court of Appeals 
Cathy Jo Robertson v. State of Indiana ex rel. Curtis T. Hill, Jr., Attorney General of Indiana; Ronald Bloemer, Auto-Owners Insurance Company, and OneBeacon Insurance Company
18A-PL-1002
Civil plenary. Affirms the Jennings Superior Court’s denial of Cathy Jo Robertson’s Indiana Trial Rule 12(B)(6) motion to dismiss a complaint to recover public funds filed by the Office of the Indiana Attorney General. Finds the two-year statute of limitations did not begin to run until after the OAG received the final, verified report of the Indiana State Board of Accounts. Also finds the OAG’s complaint was filed within two years of receiving the final report, so, the claim was timely filed, and the trial court did not err in its denial of Robertson’s motion to dismiss. 

7th Circuit Court of Appeals
USA v. Alandous Briggs
18-1415
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Criminal. Reverses the U.S. District Court for the Southern District of Indiana’s application of a four-level enhancement on Alandous Briggs’ guilty plea to a charge of being a felon in possession of a firearm after drugs and firearms were found at his home during a parole visit. Finds no factual findings were made connecting Briggs’ firearms to his conviction for cocaine possession. Vacates his sentence and remands for resentencing consistent with the opinion.

Indiana Court of Appeals
Rosemary Quillen, as Personal Representative of Patricia Cook, Deceased v. Anonymous Hospital and Anonymous Physicians A, B, and C
18A-CT-2743
Civil tort. Affirms the Porter Superior Court’s dismissal of Rosemary Quillen’s proposed medical malpractice complaints. Finds Quillen is not entitled to relief and that the trial court did not commit error in finding dismissal was the appropriate sanction for her failure to comply with the medical review panel chair’s schedule for submission of evidence.