Opinions

The following Indiana Supreme Court opinion was posted after IL deadline Thursday.

Suzanne E. Esserman v. Indiana Department of Environmental Management
49S02-1704-PL-189
Civil plenary. Affirms dismissal of Suzanne E. Esserman's suit seeking damages under Indiana’s False Claims and Whistleblower Protection Act against the Indiana Department of Environmental Management, which fired her after she said she inquired about questionable state expenses. Majority holds Indiana has not abrogated common-law sovereign immunity for non-tort claims premised on the violation of a statute. Justice Steven David dissents, writing the plain language of "employer" covered by the act includes the state.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
United States of America v. Wanda Shorter
16-2053
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio
Criminal. Affirms Wanda Shorter’s convictions of health care fraud and three counts of misusing a means of identification. Finds the district court did not err in the admission of evidence. Also finds Shorter did not prove the indictments for the identity charges were duplicitous. Finally, finds the evidence was sufficient to convict Shorter.

Indiana Court of Appeals
Raymond Brown, on behalf of Himself and All Others Similarly Situated v. Bucher and Christian Consulting, Inc., d/b/a BCforward
49A04-1611-PL-2564
Civil plenary. Affirms the Marion Superior Court’s order granting partial summary judgment on the pleadings filed by Bucher and Christian Counseling, Inc., d/b/a BCforward on Raymond Brown’s claims under the wage payment statute. Finds the trial court did not err as a matter of law when it found Brown was not entitled to seek damages for salary-based wages or commission-based payments under the wage payment statute.

The following Indiana Court of Appeals opinion was posted after IL deadline Friday:
Indiana Department of Workforce Development v. Kristofer Hugunin
64A05-1703-CC-583
Civil collection. Reverses the denial of the Indiana Department of Workforce Development’s motion for summary judgment in its action against Kristopher Hugunin. Finds the department is entitled to judgment as a matter of law. Remands with instructions for the Porter Superior Court to grant the summary judgment motion.

The following Indiana Tax Court opinion was posted after IL deadline Friday:
American United Life Insurance Company v. Indiana Department of State Revenue
49T10-1610-TA-53
Tax. Affirms American United Life Insurance Company’s motion for summary judgment and denies the Indiana Department of State Revenue’s cross-motion for summary judgment on AUL’s claim for a refund. Denies the department’s motion to designate the affidavit of Ray Langenberg. Finds the motion to designate was not timely filed. Also finds Indiana Code section 6-2.5-3-5 does not exclude local-level taxes. Finally, finds AUL paid a use tax to a state other than Indiana when it paid the Texas comptroller.

Indiana Court of Appeals
Tony Petrovski v. Robert Neiswinger
45A03-1706-CT-1412
Civil tort. Reverses the Lake Circuit Court dismissal of Tony Petrovski’s complaint after a car crash for failure to prosecute. Finds that under the unique facts of the case, including attorney Samuel G. Vazanellis’ “complete abdication of his duties,” dismissal was not warranted. Remands.

Indiana Court of Appeals
Maimouna Coulibaly v. Eric Stevance
49A02-1702-DR-235
Domestic relation. Affirms the Marion Superior Court’s finding that it lacked jurisdiction to modify a child custody order issued in Mali in favor of Eric Stevance and against Maimouna Coulibaly. Finds Mali’s child custody laws do not violate fundamental human rights under the Uniform Child Custody Jurisdiction and Enforcement Act, so Indiana courts do not have jurisdiction to strike down the Malian custody order.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
Arthur J. Bryant v. Richard Brown
15-3144
Appeal from the U.S. District Court for the Southern District of Indiana, Terre Haute Division. Judge William T. Lawrence.
Habeas. Denies Arthur J. Bryant’s petition for habeas relief from his convictions of murder, theft and obstruction of justice. The state trial court reasonably applied Strickland and Brady in denying his petition for post-conviction relief claiming ineffective assistance of trial counsel. Because the same issues are reiterated in his habeas petition, the district court’s denial of habeas relief is affirmed.

Indiana Court of Appeals
Cameron Tibbs v. State of Indiana
49A02-1701-CR-154
Criminal. Affirms Cameron Tibbs’ convictions of Level 6 felony obstruction of justice and Class A misdemeanor carrying a handgun without a license. Finds the Marion Superior Court did not abuse its discretion and was not required to enter findings in support of its decision to deny Tibbs’ motion to transfer his case to juvenile court.

Indiana Supreme Court
Richard D. Shepard v. State of Indiana
84S01-1704-CR-190
Criminal. Reverses the Vigo Superior Court’s determination of the good time credit Richard Shepard earned while in a community corrections program. Finds the community correction director lacked authority to deprive Shepard of good time credit earned. Remands to the trial court with instructions to recalculate Shepard’s credit time.

Indiana Court of Appeals

State of Indiana v. Pebble Stafford
 39A04-1705-CR-930 
Criminal. Affirms the Jefferson Circuit Court's sentence modification reducing the time Pebble Stafford was to serve in the Department of Correction after pleading guilty to Class B felony dealing in a controlled substance, Class C felony battery and Class B misdemeanor possession of substance to interfere with a screening test. Holds that the plain language of I.C. § 35-38-1-17(e) says offenders may not waive the right to sentence modification as part of a plea agreement, and trial courts are authorized to modify sentences. Remands to the trial court to omit suspension of the remainder of her six-year term to probation and to determine whether direct placement in community corrections would be appropriate. 

Indiana Supreme Court
Mario Watkins v. State of Indiana
82S01-1704-CR-191
Criminal. Affirms Mario Watkins’ conviction of possession of  a Schedule II controlled substance as a
lesser-included Class A misdemeanor, possession of cocaine as a Level 6 felony, possession of a schedule IV controlled substance as a lesser-included Class A misdemeanor, possession of marijuana as a lesser-included Class B misdemeanor, and maintaining a common nuisance as a Level 6 felony. The search warrant executed at Watkins’ house did not violate Article 1, Section 11 of the Indiana Constitution or the Fourth Amendment.  

Indiana Court of Appeals
Timothy Allen v. State of Indiana
24A05-1706-CR-1303
Criminal. Reverses the revocation of Timothy Allen’s probation and the imposition of the execution of his previously suspended 20-year sentence in the Department of Correction. Finds Allen did not waive his right to counsel at the fact-finding hearing on the petition to revoke his probation. Remands for a new fact-finding hearing.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
United States of America v. Ali Al-Awadi
16-2643
Appeal from the United States District Court for the Southern District of Indiana.
Judge Tanya Walton Pratt.
Criminal. Affirms Ali Al-Awadi’s convictions of making and attempting to make child pornography. Finds the pattern jury instructions given to the jury accurately told the jury how to assess evidence of acts other than charged crimes, and the jury was instructed that the government had to prove the elements of the charged crimes beyond a reasonable doubt for Al-Awadi to be found guilty. Also finds evidence of Al-Awadi molesting a young girl was permissible because he placed his intent in taking sexually explicit pictures of the girl at issue, the molestation evidence was relevant to his intent, and the government’s evidence was not unduly repetitive. Finally, finds sufficient evidence supports the jury’s conclusion that Al-Awadi used the young girl to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct.

Friday opinions
Indiana Court of Appeals
Dyamond Harris v. Lafayette LIHTC, LP
79A02-1703-SC-638
Small claims. Reverses the Tippecanoe Superior Court’s judgment and writ of possession in favor of Lafayette LIHTC LP on its claim against Dyamond Harris for unpaid rent. Finds the trial court committed clear error by improperly shifting the burden of proof. Also finds the trial court violated Harris’ due process right to an impartial decision-maker.

Indiana Court of Appeals
Lamasco Redevelopment, LLC v. Henry County, Indiana, Auditor and Henry County, Indiana, Treasurer
33A01-1702-MI-398
Miscellaneous. Grants rehearing and reaffirms the original opinion. Finds the amount a purchaser paid for one of the parcels of land at issue is immaterial to the decision in the case. Also finds the original opinion did not misstate key points of In re 2014 Johnson County Tax Sale, 48 N.E.3d 340 (Ind. Ct. App. 2015).

Indiana Supreme Court
Virginia Garwood and Kristen Garwood v. State of Indiana, et al.
31S01-1710-CT-647
Civil tort. Grants transfer for the limited purpose of vacating only the section of the Indiana Court of Appeals opinion that addresses subject matter jurisdiction. Finds a published order issued Feb. 8, 2016, that vacated the case of Garwood v. Indiana Department of State Revenue, 24 N.E.3d 548 (Ind. Tax Ct. 2014), which the Court of Appeals cited in its discussion on jurisdiction, resolved the issue of subject matter jurisdiction based on the parties’ representations at oral argument. Summarily affirms the remainder of the opinion.

Indiana Court of Appeals
In the Matter of the Guardianship of Nathaniel C. Hurst, A Minor, Centier Bank and Centier Bank, Personal Representative of the Estate of Luanne Hurst v. Nathaniel C. Hurst
45A03-1612-GU-2790
Guardianship. Affirms the denial of Centier Bank’s motion for summary judgment in Nathaniel Hurst’s action against it and Patrick and Michelle Hurst, in which Nathaniel Hurst alleged he suffered damages as a result of fraudulent acts committed by the bank and by Patrick and Michelle Hurst during their guardianship of Nathaniel Hurst’s estate. Finds the Lake Superior Court did not err in denying the bank’s motion for summary judgment. Chief Judge Nancy Vaidik dissents with separate opinion.