Indiana court decisions – dec. 6-18, 2017 2017-12-27 the indiana lawyer gas and electric credit union


The Indiana Court of Appeals handed down an opinion in May in the Monroe County case, which stemmed from the Town of Ellettsville Plan Commission grant of a request to amend a subdivision plat to allow Richland Convenience Story Partners, LLC to move a utility easement. Joseph V. DeSpirito, Richland’s neighbor who benefitted from the location of the easement, sued for judicial review, declaratory and injunctive relief and damages.

The Indiana Court of Appeals reversed that decision on the grounds that local regulations did not require DeSpirito’s consent in the circumstances of the instant case. However, the the appellate court first grappled with the question of whether Richland and the commission had appealed from a final judgment, considering a preliminary, rather than permanent, injunction remained in place.

The court ultimately decided to consider the case on the grounds that the Supreme Court “significantly relaxed procedural requirements in this regard” in the case of In re D.J. v. gas tax in washington state Indiana Department of Child Services, 68 N.E.3d 574 (Ind. 2017). The high court however, disagreed with the lower court’s reading of D.J. in a per curiam opinion Dec. 12.

“Nothing in D.J. eliminated or relaxed the requirements for appellate jurisdiction,” the court wrote. “It reaffirmed that the prerequi-sites for appellate jurisdiction are (1) entry of an appealable order by the trial court and (2) the trial court clerk’s entry of the notice of completion of the clerk’s record on the chronological case summary … D.J. explained that in a child in need of services (‘CHINS’) case, the CHINS determination is not a final judgment and that finality does not occur until the court enters a dispositional order.”

Thus, rather than ruling on DeSpirito’s appeal, the justices stayed its consideration and instead remanded the case for the trial court to decide within 90 days whether to expressly determine in writing there is no just reason for delay and to direct entry of judgment under Trial Rules 54(B) or 56(C). Richland and the board can then file a supplemental appendix that includes copies of the updated CCS and any new orders entered by the court.

In 2011 and 2012, Merchandise Warehouse Co., Inc. filed for refunds for sales tax it paid on electricity and equipment it used during its blast freezing process, which involves more specificity and additional steps not associated with a typical freezing process. Specifically, the company cited Indiana Code section 2.5-5-5.1(b) and 6-2.5-5-3 to support its assertion that blast freezing the food “constitutes the last stage in the (food’s) manufacturing process.”

MWC then filed for judicial review in the Indiana Tax Court, and both parties moved for summary judgment. Tax Court Judge Martha Wentworth ruled in favor of the department in January, writing that Merchandise Warehouse’s freezing process “(does) not culminate in the production of new, distinct marketable goods” as is required to qualify for the exemptions. The Tax Court also determined taxpayers must use purchased items such as electricity or freezer equipment “as part of its own process to produce other tangible personal property.”

Justice Christopher Goff, writing in his first majority opinion since he joined the high court last summer, first wrote that under the Consumption and Equipment exemptions cited by MWC, the company would only be entitled to refunds if it used the equipment in question for the “direct production of other tangible personal property.” Indiana law defines direct product as “a process that substantially changes tangible personal property, transforming it into a distinct marketable good,” Goff wrote.

Indiana caselaw holds that the production process ends when it yields the most marketable good, rather than a potentially marketable product, Goff continued. t gastrobar el tenedor Under that definition, Merchandise Warehouse’s blast freezing process constitutes direct production because it increases the food’s shelf life, thus creating a distinct product that is marketed to consumers, he said.

In J.R. v. State of Indiana, 49A02-1704-JV-754, Indianapolis Metropolitan Police Department Officer Richard Christian was dispatched to an eastside Family Dollar store in January, where he found three males trying to enter a vehicle. They fled when they saw Christian, but officer Nicholas Snow, who was on patrol nearby, caught one of the suspects, later identified as 16-year-old J.R.

The state filed a petition alleging J.R. had committed acts that would be considered dangerous possession of a firearm and carrying a handgun without a license, both Class A misdemeanors if committed by an adult. The juvenile court entered true findings on both allegations and placed J.R. on probation, with a suspended commitment to the Department of Correction.

On appeal, J.R. first argued Snow’s second pat-down search violated his rights under the Fourth Amendment and Article I, Section 11 of the Indiana Constitution. But in a Dec. 8 opinion, Indiana Court of Appeals Judge John Baker disagreed, writing instead that J.R. had been hostile toward Snow when he was initially stopped and that his leg movements drew attention to his body.

However, the appellate panel agreed with J.R. that his adjudication for carrying a handgun without a license must be vacated, but for a different reason than he put forth. Rather than relying on J.R.’s double jeopardy claim, the court pointed to Indiana Code section 35-47-10-5(a), which holds that a child who possesses a firearm for any purpose not permitted by statute commits dangerous possession of a firearm.

“In other words, Indiana Code section 35-46-2-1 applies only to adults who possess handguns without a license, and as a matter of law, a person under the age of eighteen is not eligible for such a handgun license,” Baker wrote for the unanimous court. “Instead, a person under the age of eighteen, such as J.R., who possess a handgun for any unauthorized reason commits, and only commits, dangerous possession of a firearm.”

After stopping Richard Sansbury’s car for failing to use a turn signal and a faulty headlight on Jan. 17, 2016, Indianapolis Metropolitan Police Department Detective Andrew McKalips learned Sansbury did not have a valid driver’s license. The vehicle was also parked in the middle of traffic at an apartment complex, so McKalips called a tow truck to impound the vehicle and began an inventory search.

On appeal, Sansbury argued the guns and ammunition should not have been admitted as evidence because the impoundment of the vehicle violated his state and federal constitutional protections against unreasonable search and seizure. The Indiana Court of Appeals agreed, with Senior Judge Betty Barteau writing Dec. 11 the issue could be resolved completely under the Fourth Amendment.

Turning to a Fourth Amendment analysis, Barteau wrote the vehicle did pose a “threat of harm or was itself imperiled,” considering Sansbury did not have a valid license and chose to stop the car in the middle of the flow of traffic. However, the subsequent search of the vehicle was not constitutional, Barteau wrote, because the officers’ conduct “deviated greatly from the requirements of (IMPD’s impoundment) policy.”

Johanningsmeier attempted to explain the deviations from department policy by saying that after McKalips found the guns, the search became one for evidence, not inventory. But Barteau said that testimony, coupled with their “misinterpretation of the policy,” led to the conclusion the search was investigatory. Thus, Sansbury’s conviction for possession of a handgun without a license was reversed.

From 2000 to 2006, U.S. gas lighting Research Consultants, Inc. had a contract with Lake County in which the county would assign all of its real property tax collections cases to USRC, which would collect delinquent payments. Pursuant to the contract, USRC could receive a 20 percent commission for taxes collected from cases begun before June 4, 2003, and 15 percent after that date.

After a series of motions, the Lake Superior Court granted summary judgment to USRC on the basis that it was required to collect all delinquent monies, not just those that were delinquent for more than one year. bp gas prices The Indiana Court of Appeals, however, overturned the grant of summary judgment on that issue and remanded for the entry of summary judgment in favor of the county on the issue of interpretation of the phrase “delinquent monies” in the contract. The appeals court determined that phrase referred to just those taxes that were delinquent for more than one year, pursuant to the treasurer’s instructions.

The trial court was also instructed in a 2015 appellate opinion to conduct further proceedings on whether USRC was owed any unpaid commissions of taxes that were delinquent by more than one year. After the parties filed subsequent cross-motions for summary judgment, the trial court ruled in favor of the county on the basis of the appellate court’s 2015 ruling, prompting the instant appeal in U.S. Research Consultants, Inc. v. The County of Lake, Indiana, et al., 45A05-1704-CC-902.

The appellate court once again overturned the trial court’s grant of summary judgment, with Judge Terry Crone writing first that the original appellate panel made no determination as to when USRC had to file its claims for commissions. Thus, the 2015 opinion did not require the company to prove that it filed its commission claims within a specified time frame, as the county asserted, Crone said.

Zelman felt “intense pain” following the surgery and shared her concerns with Tekula but the surgeon maintained everything was fine. The patient sought out different specialists, receiving injections and pain medications along with physical therapy. She also met with another surgeon who told Zelman that a second back surgery would be “brutal” and had no guarantee it would alleviate her discomfort.

The next year, Zelman filed with the Indiana Department of Insurance a proposed complaint alleging medical negligence against Tekula and Central Indiana Orthopedics. The defendants filed a motion for summary judgment that the Delaware Circuit Court granted. Specifically, the court found Zelman had the ability to discover the alleged negligence before the statute of limitations deadline, which was March 1, 2013.

“Given that the second surgery was required to discover the malpractice, and given that it was described as brutal with no guarantee of success, we cannot say as a matter of law that Zelman was not reasonably diligent when she did not have the second surgery sooner than she did,” Judge Elaine Brown wrote for the court. “Thus, we hold that a genuine issue of material fact exists as to when Zelman’s pain and diligent pursuit would have led her to discover that medical malpractice was the cause.”

The judge had Fearman removed from the courtroom, then issued an order finding him in direct contempt of court for his behavior. Noting Fearman’s behavior was the equivalent of Level 6 felony intimidation, a crime punishable by up to 2½ years in prison, the judge sentenced Fearman to 910 days in the Department of Correction on the contempt charge, with that sentence to run consecutive to his other sentences.

Fearman appealed, and the Indiana Court of Appeals agreed to reverse the contempt sentence Dec. 14. Judge Melissa May wrote for the court that Fearman’s Sixth Amendment rights were violated when he was sentenced to more than six months without being tried before a jury. gas bubble in throat That’s because his multiple interruptions and profane outbursts during the sentencing hearing occurred during a single, uninterrupted proceeding, May said, citing Codispoti v. Pennsylvania, 418 U.S. 506, 517 (1974).

“Fearman’s multiple acts of contemptuous behavior constitute a single contemptuous episode and can only warrant a ‘single punishment of not more than six months, without a jury trial,” May wrote. “Therefore, we reverse Fearman’s 910-day sentence for contempt and remand for the trial court to enter a sentencing order for criminal contempt with a six-month sentence, to be served consecutive to Fearman’s criminal convictions … .”

P.B. was admitted to the Evansville State Hospital on Feb. 13, and one day later the St. Joseph Superior Court entered an order to continue her regular commitment without a hearing. After P.B. filed for dismissal of her commitment, the trial court held a hearing, where Dr. Boris Vatel testified in favor of continuing the commitment because she was gravely disabled.

The trial court ultimately continued P.B.’s involuntary commitment, but the Indiana Court of Appeals reversed that decision Dec. 15. la gasolina Judge Michael Barnes, writing for the unanimous panel, cited T.K. v. Department of Veteran Affairs, 27 N.E.3d 271, 273 (Ind. 2015), which disapproved of the Court of Appeals using a standard of review that affirmed involuntary commitments “merely if a reasonable person could have drawn the conclusion that commitment was necessary, even if other reasonable conclusions were possible.”

“Essentially, Dr. Vatel’s recommendation in favor of P.B.’s continued involuntary commitment was based on her unpleasantness and inability to get along with other people, her paranoid delusions, and her failure to fully cooperate with treatment,” the judge wrote. “None of this is untrue, and there is no doubt that P.B. suffers from severe mental illness. However, the statutory definition of ‘gravely disabled’ is very specific, and it has not been met here.”

Judge Melissa May, writing for the panel, wrote that the state failed to present evidence that McMiller behaved in a manner that suggested he consumed Scotty’s food and drink with an intent to deprive the restaurant of the value thereof. Rather, the record showed McMiller thought Garcia was taking him out to dinner and would pay, then tried to make other arrangements when her credit card was declined.