Opinions

Indiana Court of Appeals
Trey A. Smith v. State of Indiana
18A-CR-1023
Criminal. Affirms Trey Smith’s conviction of Level 6 felony theft. Finds the hearsay testimony offered by a Columbus police officer was a harmless error because the conviction was supported by independent evidence of guilt. Reverses sua sponte Smith’s conviction of Class B misdemeanor criminal mischief. Holds the conviction violates the rule against double jeopardy. Remands to the Bartholomew Superior Court with instructions to vacate the criminal mischief conviction.

Indiana Court of Appeals 
Oscar Flores v. State of Indiana
18A-CR-1632
Criminal. Reverses and remands with instructions for the Marion Superior Court to vacate one of Oscar Flores’ convictions for Level 4 felony child molesting. Finds that both convictions occurred during a single transaction, so one should be vacated under the continuous-crime doctrine.

Indiana Court of Appeals
In the Matter of the Termination of the Parent-Child Relationship of Z.S., Minor Child, and F.S., Mother v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.)
18A-JT-1203
Juvenile termination of parental rights. Affirms the involuntary termination of F.S.’s parental rights to Z.S. Finds the Marion Superior Court did not err.

Indiana Court of Appeals
J.S. v. State of Indiana
18A-JV-826
Juvenile. Affirms J.S.’s adjudication as a delinquent child for possession of a firearm and resisting law enforcement as Class A misdemeanors if committed by an adult. Finds there is sufficient evidence to support J.S.’s true finding for dangerous possession of a firearm.

Indiana Supreme Court 
In the Matter of Tia R. Brewer
18S-DI-299
Disciplinary. Suspends Marion attorney Tia Brewer from the practice of law for at least three years without automatic reinstatement. Finds Brewer committed attorney misconduct by neglecting clients’ cases, failing to appear at show cause hearings, failing to withdraw from cases when her abuse of cocaine rendered her unable to assist her clients, committing a crime that reflects adversely on her fitness as a lawyer and failing to cooperate with the disciplinary process. Justice Christopher Goff did not participate.

Indiana Court of Appeals
Jose Andrade v. City of Hammond and Hammond Board of Public Works and Safety
18A-MI-1199
Miscellaneous. Affirms the Lake Superior Court’s order affirming a decision made by the Hammond Board of Public Works and Safety that Jose Andrade restore a 1927 home he owns to a single-family dwelling. Finds the board did not exceed its statutory authority when it issued the order. Finds there is sufficient evidence to prove the home was intended as a single-family dwelling. Lastly, finds the city’s failure to comply with Andrade’s discovery request does not merit reversal.

7th Circuit Court 
Richard N. Bell v. Vacuforce, LLC, Appeals of: Paul B. Overhauser
18-1368, 18-1159
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William Lawrence. 
Civil. Affirms the Southern District Court’s imposition of sanctions on Paul Overhauser for filing a motion found to be frivolous and misleading. Finds the district court did not abuse its discretion in imposing sanctions for filing a motion for fees that was baseless and rested on “an infirm factual foundation.” Also rejects Overhauser’s notion that a party can “prevail” for purposes of a fee-shifting statute by paying a settlement and obtaining a dismissal with prejudice.  

Indiana Court of Appeals 
Yusuf Hotep-El v. State of Indiana
18A-CR-477
Criminal. Affirms the Marion Superior Court’s termination of Yusuf Hotep-El’s self-representation. Finds the trial court did not err when it terminated Hotep-El’s self-representation in order to determine his competency to stand trial. Also finds the trial court was correct in not reinstating Hotep-El’s pro se status based on the conclusion that he sought to use the courtroom for deliberate disruption of the proceedings.

Indiana Court of Appeals 
The State of Indiana, ex rel. Harmeyer v. The Kroger Co., Kroger Limited Partnership I, KRGP, Inc., Payless Super Markets, Inc., and Ralphs Grocery Company
18A-PL-806
Civil plenary. Affirms the Marion Superior Court’s dismissal of Michael Harmeyer’s complaint against several grocery stores that operate in Indiana alleging they violated Indiana’s False Claims and Whistleblower Protection Act. Finds the trial court did not err in finding Harmeyer’s complaint was not sufficient under Indiana Trial Rule 9(B). 

7th Circuit Court of Appeals
USA v. Joshua C. Bolin
18-2208
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard Young.
Criminal. Affirms the U.S. District Court for the Southern District of Indiana’s imposition of a $5,000 additional special assessment to Joshua Bolin, in addition to the mandatory special assessment under 18 U.S.C. §§ 3013 and 3014. Finds Bolin waived his claim.

Indiana Court of Appeals
Indiana University Health Southern Indiana Physicians, Inc., et al. v. Charlene Noel
18A-CT-1299
Civil tort. Affirms the denial of Indiana University Health Southern Indiana Physicians, Inc., Sarah Whiteman, NP, and Dr. Carlito Sabandal’s motion to transfer venue in Charlene Noel’s medical malpractice complaint from Marion County to Lawrence County. Finds Indiana Code section 23-0.5-4-12 conflicts with Trial Rule 75(A)(4) as interpreted by the Indiana Supreme Court, making the statute a nullity.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday.
Mycal L. Ashby v. Warrick County School Corp
18-1371
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard L. Young.
Civil plenary. Affirms the U.S. District Court for the Southern District of Indiana’s grant of summary judgment in favor of Warrick County School Corporation against Mycal Ashby’s claim of discrimination under the Americans with Disabilities Act and Rehabilitation Act. Finds Asby’s son’s Christmas concert was not a service, program, or activity provided or made available by the Warrick County School Corporation.

Indiana Supreme Court
In the Matter of Larry W. Rogers
64S00-1704-DI-251
Attorney discipline. Suspends Larry Rogers for 90 days, with the manner of his reinstatement conditional upon full restitution being made to a client who paid an unearned retainer of $8,000. Finds Rogers committed attorney misconduct by neglecting an appeal and then failing to refund the unearned fee.

7th Circuit Court of Appeals
United States of America v. Styles Taylor and Keon Thomas
17-2986, 17-3145
Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. Judge James T. Moody. 
Criminal. Affirms Styles Taylor and Keon Thomas’ life sentences. Finds the sentences are reasonable despite Taylor and Thomas’ difficult upbringings, and neither Taylor nor Thomas rebutted the presumption of reasonableness. 

Indiana Court of Appeals
Laperria Marie Brooks v. State of Indiana
18A-CR-759
Criminal. Reverses Laperria Marie Brooks’ conviction of Class A misdemeanor resisting law enforcement after a Marion Superior Court bench trial. Remands for the conviction to be vacated because the evidence to support it is insufficient. Brooks, who was also convicted of Class A misdemeanor trespass and Class B misdemeanor disorderly conduct, appealed only the resisting conviction.

7th Circuit Court of Appeals
Rebecca Zander v. Samuel Orlich, Jr., et al.
17-2792
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Magistrate Judge Paul R. Cherry.
Civil. Reverses summary judgment for former Lake County Sheriff John Buncich on Rebecca Zander’s respondeat superior claim, but affirms summary judgment for Buncich on Zander’s negligent hiring claim filed after she alleged Lake County Sheriff’s Deputy Samuel Orlich sexually assaulted her in her home. Finds that whether Orlich’s employment gave rise to the abuse of power in question is a question of fact for the jury. Also finds there was no evidence that Buncich should have known Orlich was likely to assault a member of the public. Remands for further proceedings. 

Indiana Tax Court
Sahara Mart, Incorporated v. Indiana Department of State Revenue
49T10-1709-TA-17
Tax. Grants the Indiana Department of State Revenue’s motion for sanctions and contempt against Sahara Mart, Incorporated following a determination finding Sahara Mart left unpaid Indiana sales tax liabilities for the 2013, 2014, and 2015 tax years. Finds Sahara Mart unsuccessfully attempted to avoid charges of perjury and witness tampering through evidentiary objections. Orders Sahara Mart to the Department’s attorney’s fees in the amount of $45,000.

Indiana Court of Appeals
M Jewell, LLC v. Roger Bainbridge, in his capacity as Grant County Auditor; Sarah A. Melford, in her capacity as County Treasurer; John Lawson, in his capacity as a Grant County Commissioner; et al.
18A-MI-36
Miscellaneous. Affirms the Grant Superior Court’s grant of summary judgement to SRI, Inc. on M Jewell, LLC’s third-party beneficiary claim. Finds the trial court properly awarded summary judgment to SRI. Finds M Jewell cannot be considered as a third-party beneficiary to the agreements made between Grant County and SRI because language in the agreements did not indicate an intention to benefit tax purchasers.

Indiana Supreme Court
Akeem Daniels, Cameron Stingily, and Nicholas Stoner v. FanDuel, Inc. and DraftKings, Inc.
18S-CQ-134
Certified question. Finds Indiana’s right of publicity statute contains an exception for material with newsworthy value that includes online fantasy sports operators’ use of college players’ names, pictures, and statistics for online fantasy contests.

7th Circuit Court of Appeals 
Jay Vermillion v. Corizon Health, Inc., Paul Talbot, and Ruby Beeny 
18-1517
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane E. Magnus-Stinson.
Civil. Affirms the striking of Jay Vermillion’s brief for exceeding the acceptable word count and discharges Vermillion’s order to show cause requesting his appellant brief be reinstated on the grounds that it complies with the word count requirement under Rule 32(f). Finds the “Properties” panel in Microsoft Word is not designed to count all words in a document. Also finds citations are not justifiably excluded from the word count simply because Rule 32(f) does not mention them. Finally, finds Vermillion misunderstood both Rule 32(f) and the right place to start counting in Microsoft Word.