Opinions

Indiana Court of Appeals
House of Prayer Ministries, Inc. d/b/a Harvest Christian Camp v. Rush County Board of Zoning Appeals; Milco Dairy Farm, LLC
21A01-1707-MI-1693
Miscellaneous. Affirms the denial of House of Prayer Ministries, Inc.’s petition for judicial review of the Rush County Board of Zoning Appeals’ grant of a special exception to Milco Dairy Farm on its construction and operation of a concentrated animal feeding operation. Finds the BZA’s consideration of the public interest and the impact of the CAFO on surrounding properties was not contrary to law. Also finds House of Prayer failed to prove the BZA improperly considered setback requirements, or that the BZA’s decision violated its right to an impartial tribunal. Finally, finds House of Prayer failed to prove BZA’s grant of a special exception violated its religious rights and state and federal law.

7th Circuit Court of Appeals
United States of America v. Jeffrey J. Wilson
17-1076
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
Judge Sarah Evans Barker.
Criminal. Affirms Jeffrey Wilson’s convictions of 21 securities fraud-related offenses. Finds the evidence adequately supports the jury’s finding that Wilson acted knowingly and willfully when making false statements to investors, regulators, and outside accountants and government agents. Also finds the evidence supports the reasonable inference that Wilson was aware of and participated in a fraudulent tax scheme called “Alchemy.”

7th Circuit Court of Appeals
Frederick Michael Baer v. Ron Neal
15-1933
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Reverses the district court’s denial of Frederick Michael Baer’s petition for writ of habeas corpus with regard to the penalty phase of his trial. Affirms Baer’s convictions of robbery, theft, attempted rape and two counts of murder. Finds Baer’s trial counsel failed to challenge crucial misleading jury instructions and a pattern of prosecutorial misconduct. Also finds the state court unreasonably applied Strickland v. Washington, in denying Baer relief.

Indiana Court of Appeals
John Bush v. State of Indiana (mem. dec.)
34A04-1709-CR-2064
Criminal. Affirms the Howard Circuit Court’s decision to place John Bush in the Indiana Department of Correction for the two-year executed portion of his sentence for Level 5 felony burglary. Finds Bush’s placement in the DOC is not inappropriate in light of the nature of his offense or his character.

Indiana Court of Appeals
Michael P. Quirk v. Delaware County, Indiana and The Board of Commissioners of Delaware County, Indiana
18A02-1706-PL-1208
Civil plenary. Affirms the grant of summary judgment in favor of Delaware County and its Board of Commissioners. Finds Delaware County’s motion for summary judgment was filed before Quick’s motion for summary judgment, and also asserted the argument and designated the evidence on which Delaware was entitled to summary judgment.

The following Indiana Tax Court opinion was posted after IL deadline Thursday:

Paul J. Elmer and Carol A.N. Elmer v. Indiana Department of State Revenue
49T10-1110-TA-00064
Tax. Affirms the Indiana Department of State Revenue’s assessment of adjusted gross income tax against Paul and Carol Elmer for the 2005 through 2008 tax years. Finds the Elmers did not establish that Paul Elmer’s businesses were entitled to certain expense deductions.

Indiana Court of Appeals
John Pelliccia, M.D. v. Anthem Insurance Companies, Inc.
49A02-1705-PL-1080
Civil plenary. Reverses the grant of summary judgment in favor of Anthem Insurance Companies, Inc. Finds the language of Anthem’s policy clearly provides the effective date of the termination of Dr. John Pelliccia’s health insurance coverage for nonpayment of one premium was Jan. 3, 2015. Also finds Anthem was required to abide by its policy with respect to covered medical expenses Pelliccia incurred before Jan. 3, 2015. Finally, finds Pelliccia’s bad faith claim against Anthem remains pending. Remands for Pelliccia’s motion for partial summary judgment to be granted.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
E.F. Transit, Inc. v. David Cook, et al.
16-3641
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Civil. Reverses the dismissal of E.F. Transit’s declaratory and injunctive action that argued enforcement of Indiana’s prohibited-interest statutes is preempted by federal law. Finds the Indiana Supreme Court’s ruling in Indiana Alcohol and Tobacco Commission v. Spirted Sales, LLC, removes any ripeness barrier to the federal lawsuit. Remands for further proceedings.

The following Indiana Tax Court opinion was posted after IL deadline Friday.
Nick Popovich v. Indiana Department of State Revenue
49T10-1010-TA-53
Tax. Affirms the Department of Revenue’s 2004 proposed assessment of income taxes for Nick Popovich, finding he failed to prove that he gambled with continuity and regularity and with the intent to make a profit.

Indiana Court of Appeals
Campbell Hausfeld/Scott Fetzer Company v. Paul Johnson
64A03-1705-CT-984
Civil tort. Affirms and reverses in part the grant of summary judgment in favor of Campbell Hausfeld/Scott Fetzer Company on Paul Johnson’s defective design claim and the denial of summary judgment with regard to Johnson’s failure to warn claim. Finds Campbell Hausfeld is not entitled to summary judgment on any of its asserted statutory defenses. Also finds the designated evidence establishes a genuine issue of material fact regarding whether Campbell Hausfeld provided adequate warning concerning the use of a Grinder with a cut-off disc. Finally, finds Campbell Hausfeld failed to establish its entitlement to summary judgment on the defective design claim. Remands.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
Abdullah Ennin v. CNH Industrial America, LLC
17-2270
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Civil. Affirms the judgment in favor of CNH Industrial America, LLC in Abdullah Ennin’s discrimination case. Finds Ennin waived the admissibility of certain evidence CNH attacked as inadmissible, and without that evidence the record undisputedly shows CNH fired Ennin before it knew of his alleged disability or FMLA leave. Also finds nothing in the record support Ennin’s argument that CNH’s stated reasons for terminating him were pretextual, and CNH did not interfere with his right to take FMLA leave. Finally, finds Ennin’s federal conspiracy and state law negligent-supervision claims fail because they are derivative of underlying federal claims.

Indiana Court of Appeals
Christine Marie Lindhorst v. State of Indiana
02A03-1704-CR-696
Criminal. Affirms Christine Marie Lindhorst’s conviction of battery resulting in serious bodily injury to a person younger than 14 and neglect of a dependent resulting in serious bodily injury, both as Level 3 felonies, and her six-year executed sentence. Finds any error in limiting Lindhorst’s cross-examination of Dr. David Smith did not prejudice her defense and was harmless. Also finds there is sufficient evidence to support the Allen Superior Court’s determination Lindhorst knowingly or intentionally inflicted the injury upon S.E. and knowingly or intentionally placed S.E. in a dangerous situation by delaying medical assistance. Finally, finds Lindhorst’s sentence is not inappropriate.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:

United States of America v. Robert E. Fox
16-2892
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson.
Criminal. Affirms Robert Fox’s his convictions of two Hobbs Act robberies. Vacates Fox’s sentence to 435 months’ imprisonment. Finds the district court was within its discretion to deny Fox’s morning-of-trial motion for a continuance when there was no indication Fox was particularly close to retaining new counsel. Also finds Fox is entitled to resentencing in light of Dean v. United States. Remands for resentencing.

The following Indiana Supreme Court opinions were posted after IL deadline Thursday:
Matthew L. Johnson v. State of Indiana
32S05-1707-CR-469
Criminal. Reverses the trial court’s overruling of Matthew Johnson’s objection to his habitual offender charges. Finds Indiana Code section 35-50-2-8(d) unambiguously requires each underlying low-level offense to meet the statutory 10-year requirement for a habitual offense.

The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:
Bellwether Properties, LLC v. Duke Energy Indiana, Inc.
53S04-1703-CT-121
Civil tort. Reverses the dismissal of Bellwether Properties, LLC’s complaint against Duke Energy Indiana, Inc. Finds the dismissal was premature because the face of the complaint did not establish the asserted claim was time-barred. Remands for further proceedings.

Indiana Court of Appeals
City of Washington, Indiana v. Daviess County Rural Water System, Inc.
14A01-1702-PL-316
Civil plenary. Affirms and reverses in part the entry of judgment in favor of Daviess County Rural Water System, Inc. and the invalidation of an ordinance that raised DCRW’s rate 57 percent. Finds the Daviess Circuit Court did not abuse its discretion in finding the city breached its contract with DCRW by enacting the ordinance, so the ordinance is null and void as it relates to DCRW. Also finds the trial court erroneously invalidated the entire ordinance, so the ordinance remains in full force and effect as it relates to out-of-city customers other than DCRW. Finally, finds the trial court did not err in declining to dismiss DCRW’s declaratory judgment action or in consolidating the declaratory and statutory actions.

The following Indiana Supreme Court opinion was posted after IL deadline Monday:
In the Matter of: Philip H. Chamberlain
53S00-1303-DI-191
Disciplinary. Suspends Philip Chamberlain for at least three years without automatic reinstatement. Finds Chamberlain engaged in attorney misconduct by committing the crime of counterfeiting.

Indiana Court of Appeals
Miguel Alvarado v. State of Indiana
12A04-1704-CR-818
Criminal. Affirms the denial of Miguel Alvarado’s motion to introduce evidence that his ex-wife’s daughter, M.L., had been molested by her mother’s new boyfriend, and the denial of his motion to reopen evidence after the state’s closing argument. Finds the Clinton Circuit Court did not abuse its discretion in refusing to admit evidence that M.L. was molested by her mother’s new boyfriend, or in denying Alvarado leave to reopen evidence.

Indiana Court of Appeals
J.R. and C.R. v. S.P. and D.P
31A04-1706-DC-1284
Domestic relations with children. Affirms the grant of S.P. and D.P.’s motion to dismiss a custody action in which C.R. and J.R. sought to obtain custody of A.P. 13 years after C.R. voluntarily relinquished right to A.P. and consented to A.P.’s adoption. Finds the Harrison Circuit Court did not err in granting the motion to dismiss.