Opinions August 24, 2011

August 24, 2011
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7th Circuit Court of Appeals
Arboleda Ortiz v. Thomas Webster, Doctor
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry McKinney.
Civil. Vacates summary judgment for Dr. Webster and remands with instructions that the case proceed to trial. This is the second time the case has come on appeal and the first time, the 7th Circuit reversed summary judgment for the doctor on the grounds that Ortiz had established fact disputes on the seriousness of his eye condition and the constitutionally of Webster’s delayed response. The record had changed very little on remand yet the District Court granted summary judgment for the doctor. Judge Kanne dissents.

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Jesus A. Villagrana v. State of Indiana
Criminal. Reverses conviction of Class D felony neglect of a dependent. Villagrana was negligent, but the child neglect statute requires intent beyond negligence.

Kerwin Masten and Heather Masten v. AMCO Insurance Company
Civil tort. Reverses summary judgment for AMCO Insurance Co. The trial court erred in concluding as a matter of law that no underinsured motorist coverage is available to the Mastens. Remands for further proceedings.

Stephen L. Gilmore v. State of Indiana
Criminal. Reverses on interlocutory appeal the order finding that Gilmore was no longer indigent and that he had waived or forfeited his right to appointed counsel by his obstreperous conduct. The trial court abused its discretion by finding that Gilmore was not indigent and it retains the ability to order him to reimburse the costs of his defense to the extent he is able to do so. Gilmore is entitled to a hearing during which he should be warned that if his difficult behavior persists, the trial court will find he has chosen self-representation by his own conduct. Remands for further proceedings.

S.G. v. State of Indiana
Juvenile. Affirms in part and reverses in part S.G.’s adjudication as a delinquent child for committing what would be Class D felony receiving stolen property if committed by an adult. The facts of this case do not satisfy the requirements of a custodial interrogation and the introduction of S.G.’s statements did not violate Article I, Section 14 of the Indiana Constitution. The trial court abused its discretion in imposing a restitution order in an amount allegedly greater than the victim’s actual loss. Orders a new restitution hearing held if the state desires.

Carrie Chapman v. Irrevocable Trust of Stephen Chapman
Trust. Affirms trial court’s decision with regard to its exercise of jurisdiction over the trust proceedings. Carrie has not established that the trial court could not or should not have exercised jurisdiction over the trust as the subject matter of the trust reformation and the Chapmans’ divorce proceedings is not the same or substantially the same. The trial court erred when it determined the trustees weren’t required to establish that the dissolution was unforeseeable. Because the trustees failed to prove that the dissolution at the time of distribution was unforeseen or not anticipated as required, reverses modification of trust that delayed distribution to Stephen until after the dissolution is final or any appeal therefrom.

Dalmas Maurice Otieno Anyango, et al. v. Rolls Royce Corp., et al.
Civil tort. Affirms grant of Rolls Royce and other appellees’ motion to dismiss on the grounds of forum non conveniens the Anyanagos’ complaint for strict liability and wrongful death. Even if the trial court had not granted the motion to dismiss, the law of British Columbia would apply in Indiana, and the trial court did not err in granting the motion to dismiss based on forum non conveniens.

Matthew Erin Koch v. State of Indiana
Criminal. Affirms kidnapping, robbery, and battery convictions because evidence of probative value was presented at trial from which a jury could find Koch kidnapped Le in Indiana and that the robbery and battery offenses were integrally related. Vacates Koch’s convictions of two counts of Class B felony criminal confinement because of double jeopardy. Reverses 45-year aggregate sentence and remands with instructions to impose an aggregate sentence of 30 years. Judge Riley dissents regarding the sentence revision.

Travelers Insurance Companies, et al. v. Maplehurst Farms, Inc., et al.
Civil plenary. Reverses summary judgment for Maplehurst that directed Travelers to reimburse Maplehurst for the pre-notice costs and indemnity expenses. The trial court erred in doing so in light of Dreaded Inc. v. St. Paul Guardian Ins. Co. Maplehurst is not entitled to an award of its attorney fees from Travelers. Remands with instructions to enter summary judgment in Travelers’ favor as to those costs and expenses and for further proceedings. Judge May dissents.

James R. Sapp v. Flagstar Bank, FSB
Civil plenary. Affirms in part and reverses in part the denial of Sapp’s motion to correct error, which challenged a summary judgment order upon the claims of Flagstar Bank against Sapp for breach of contract, theft, and unjust enrichment. A genuine issue of material fact remains as to whether or not the bank’s loss of the check and two-month acquiescence was a failure to exercise ordinary care regarding the breach of contract claim. Sapp is entitled to summary judgment on the theft claim because Flagstar didn’t show that Sapp’s control was without authorization such that he could have been found to have criminally stolen the funds. He is also entitled to summary judgment on the unjust enrichment claim. Reverses award of attorney fees for Flagstar. Remands for trial only on the contract claim.

Larry D. Smith v. State of Indiana (NFP)
Criminal. Affirms sentence following guilty plea to Class C felony aiding in burglary.

Anthony W. Taylor v. Mark Sevier (NFP)
Miscellaneous. Affirms dismissal of Taylor’s petition for writ of habeas corpus.

Troy T. Hardesty v. State of Indiana (NFP)
Criminal. Affirms conviction of Class C felony burglary.

D.R., Alleged to be CHINS; E.D. v. IDCS and Child Advocates (NFP)
Juvenile. Affirms determination that D.R. was a child in need of services.

Terrell B. Wofford v. State of Indiana (NFP)
Criminal. Affirms conviction of and sentence for Class A felony battery.
Sanchez M. Ellis v. State of Indiana (NFP)
Criminal. Affirms convictions of Class C felony battery, Class D felony battery, and Class D felony resisting law enforcement.

James J. Duchene v. State of Indiana (NFP)
Criminal. Affirms order revoking probation and imposition of 18 months of previously suspended sentence.

Peter Johnson v. Keith Sove (NFP)
Small claims. Affirms denial of Johnson’s motion to correct error following the denial of his motion to set aside a default judgment in favor of Sove.

William Sebastian, Jr.v. State of Indiana (NFP)
Criminal. Affirms denial of jail credit time.

State of Indiana v. Steven Hollin (NFP)
Post conviction. Reverses grant of Hollin’s petition for post-conviction review. Remands with instructions to deny the petition for post-conviction relief.

Brian E. Crist, Jr. v. State of Indiana (NFP)
Criminal. Affirms conviction of Class C felony battery.

Thomas E. Curtis v. State of Indiana (NFP)
Criminal. Reverses conviction of felony murder and remands with instructions.

Indiana Tax Court had posted no opinions at IL deadline.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.