Opinions

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
Gerardo Correa-Diaz v. Jefferson B. Sessions, III
16-3198
Petition for Review of a Final Administrative Removal Order of the Department of Homeland Security.
Denies Gerardo Correa-Diaz’s petition for review of the Department of Homeland Security’s final administrative removal order against him after he was convicted of of attempted sexual misconduct with a minor. Finds the Board of Immigration Appeals’ definition of sexual abuse of a minor requires deference under Chevron U.S.A. Inc. v. Nat. Res. Dec. Council, Inc. Also finds Correa-Diaz’s conviction under Indiana Code section 35-42-4-9(a) meets the board’s definition.

Indiana Court of Appeals
J.G. v. State of Indiana
49A02-1706-JV-1419
Juvenile. Affirms J.G.’s adjudication as a delinquent for dangerous possession of a firearm, a Class A misdemeanor if committed by an adult. Remands with instructions to vacate the true finding against J.G. of carrying a handgun without a license, a Class A misdemeanor if committed by an adult. Finds J.G.’s detention by police was constitutional and his confession to possessing the handgun was voluntary. Also finds the Marion Superior Court presumably disregarded inadmissible portions of an audio recording. Finally, finds the true finding for carrying a handgun without a license must be vacated on double jeopardy grounds.

7th Circuit Court of Appeals

Kristine Bunch v. United States of America
16-3775
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Reverses the grant of summary judgment to the United States on Kristine Bunch’s claim under the Federal Tort Claims Act. Finds summary judgment was premature because the record was not fully developed enough to support the conclusion that the intentional-tort exception to the general waiver of immunity in the FTCA applied. Remands for further proceedings.

Indiana Court of Appeals
Christopher Richardson v. Det. Arturo Azcona, Jr., Gary Police Department, and City of Gary, Indiana (mem. dec.)
45A05-1703-CT-00599
Civil tort. Affirms the motion to dismiss filed by Detective Arturo Azcona, Jr., Gary Police Department and the City of Gary. Finds any error by the Lake Superior Court in naming its order one of dismissal rather than of summary judgment was harmless as the trial court treated the motion as one of summary judgment. Also finds Christopher Richardson’s due process and liberty claims are unripe. Finally, finds Richardson’s false imprisonment claim is time-barred, and he presented no issue of material fact to overcome that bar.

Indiana Court of Appeals
Robert A. McAdams, Quinn Whitney and Vonda Whitney v. Foxcliff Estates Community Association, Inc.; Foxcliff Estates Community Association, Inc. v. Paul Harnishveger, Mary Harnishveger, et al.
55A04-1707-PL-1707
Civil plenary. Affirms the entry of summary judgment in favor of Foxcliff Estates Community Association, Inc. Finds Robert A. McAdams and Quinn and Vonda Whitney did not meet their burden to establish that an exculpatory clause in the subdivision’s covenants and restrictions was unenforceable.

7th Circuit Court of Appeals
United States of America v. Ronald Tingle
17-1604
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. Judge Tanya Walton Pratt.
Criminal. Affirms Ronald Tingle’s convictions of possessing and distributing methamphetamine and possessing a firearm in furtherance of a drug trafficking crime. Finds a DEA agent had the requisite qualifications to testify as an expert. Also finds the agent’s testimony did not improperly opine on Tingle’s mental state. Finally, finds the district court did not err when it allowed the agent to testify, or when it denied Tingle’s motion to dismiss the charges and his motion for access to grand jury transcripts without a hearing.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
William Hurt, Deadra Hurt and Andrea Hurt v. Matthew Wise, et al.
17-1771, -1777
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson.
Affirms in part the denial of qualified immunity to the Evansville and Kentucky State police departments and individual officers. Reverses the denial of qualified immunity to officers William Arbaugh and Jason Pagett on Deadra Hurt’s malicious prosecution claim. Finds the district court properly denied qualified immunity. Also finds Arbaugh and Pagett were entitled to qualified immunity on the malicious prosecution claim. Also finds the district court should have eliminated the substantive due process theory.

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

Talal S. Hamdan, M.D. v. Indiana University Health North Hospital, Inc.
16-1074
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Affirms the jury verdict in favor of Indiana University Health North Hospital, Inc. on Dr. Talal Hamdan’s racial discrimination claim. Finds the district court did not abuse its discretion in allowing the hospital to ask him impeachment questions relating to his prior work at other hospitals.

Indiana Supreme Court
L.G. v. S.L., et al.
18S-AD-32
Adoption. Grants transfer for the limited purpose of vacating the section of the Indiana Court of Appeals opinion addressing whether the trial court judge should recuse himself on remand. Summarily affirms the remainder of the opinion. Finds a trial court judge is not required to recuse himself from a case solely because counsel for one of the parties served as a professional reference and wrote a recommendation letter in support of a judge’s application for another judicial role. Also finds that under the facts and circumstances of this case, the trial court judge is not required to recuse himself on remand. Remands for further proceedings. Justice Geoffrey Slaughter did not participate.

The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:  
Jessica McCain v. State of Indiana 
18S-CR-26 
Criminal. Grants transfer and affirms Jessica McCain’s sentence of 40 years, with 38 years executed and two years suspended to probation, for her conviction of Level 1 felony child molesting. Finds the judgment imposed by the Tippecanoe Superior Court is not inappropriate. Justice Geoffrey Slaughter votes to deny transfer. 

Indiana Court of Appeals
James Hill v. State of Indiana
45A04-1702-CR-325
Criminal. Affirms the denial of James Hill’s motion to dismiss charges of murder, murder in perpetration of robbery and attempted robbery. Finds Hill has not demonstrated prejudice in the 36-year delay in charging him. Remands.

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.