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Opinions Nov. 13, 2014

November 13, 2014

The following opinion was posted after IL deadline Wednesday:
7th Circuit Court of Appeals
United States of America v. Evelyn Rivera Borrero, et al.

13-3430, 13-3468, 13-3516, 13-3517, 13-3559
U.S. District Court, Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio.
Criminal. Reverses convictions of conspiring to violate 8 U.S.C. Section 1324 (a)(1)(A)(iii) and (iv) by shielding unauthorized aliens from detection and encouraging them to live in the United States; and vacates convictions of conspiracy to commit mail or wire fraud. Remands for entry of acquittal on the first count. The government’s legal argument that vehicle tiles and license plates are “property” from the perspective of Indiana is a legal error.

Thursday’s opinions
Indiana Supreme Court

Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education
49S05-1411-PL-700
Civil plenary.  Affirms dismissal of TOPS petition for judicial review because it did not file an agency record. Holds that a petitioner seeking judicial review of an agency action must file with the trial court the agency record as defined by the Administrative Orders and Procedures Act. Failure to do so results in dismissal of the petition.

First American Title Insurance Company v. Stephen W. Robertson, Insurance Commissioner of the State of Indiana, in his official capacity, On Behalf of the Indiana Department of Insurance
49S04-1311-PL-732
Civil plenary. Affirms denial of First American’s petition for judicial review, and reverses denial of commissioner’s petition for dismissal. First American did not file the agency record with the trial court, therefore its petition for judicial review cannot be considered.

Indiana Court of Appeals
R.M. v. State of Indiana
49A02-1403-JV-206
Juvenile. Affirms adjudication that R.M. is a delinquent child for committing what would be Class C felony carrying a handgun without a license and Class D felony possession of a firearm inside a school if committed by an adult. Holds the Indianapolis Public Schools police sergeant’s search of R.M.’s backpack was reasonable and the juvenile court did not abuse its discretion in admitting the handgun into evidence.

Thomas L. Esmond v. State of Indiana
56A05-1404-CR-163
Criminal. Affirms order requiring Esmond to undergo a psychiatric evaluation by the state’s mental health expert without the presence of counsel. The Indiana Supreme Court has held that a defendant who raises an insanity defense has a right to the presence of counsel during a psychiatric examination. Judge Terry Crone concurs with separate opinion.

XYZ, D.O., v. Robin Sykes and Thomas Williams, and ABC Hospital
41A01-1402-CT-85
Civil tort. Reverses denial of doctor’s motion to disqualify attorney Michael S. Miller and the law firm of Montross Miller Muller Mendelson & Kennedy from representing Robin Sykes and Thomas Williams in their negligence and loss of consortium lawsuit. The trial court abused its discretion because the firm has an imputed conflict of interest because one of its current attorneys previously represented the doctor as his primary lawyer in six medical malpractice cases.

Matthew Townsend v. Lyvonda Townsend
31A01-1405-DR-207
Domestic relation. Affirms order requiring Matthew Townsend to pay the appellate attorney fees of his ex-wife. Because her request for appellate attorney fees was based on I.C. 31-15-10-1, the trial court was not required to consider Appellate Rule 66(E) in awarding her the fees. Matthew Townsend also has not established that the trial court abused its discretion in awarding her appellate attorney fees.

Jerry French v. Rebecca (French) Lambert (NFP)
18A05-1403-DR-94
Domestic relation. Affirms in part and reverses in part. The trial court abused its discretion in failing to include all of the unsecured debt of the parties in the marital estate. The trial court was within its discretion to divide the parties’ marital assets equally, but the court failed to include in its findings its determination as to sanctions and attorney fees. Remands for further proceedings.

In the Matter of the Termination of the Parent-Child Relationship of: A.S. and B.S. (Minor Children) and D.J. (Mother) and H.S. (Father) v. The Indiana Department of Child Services (NFP)
85A02-1403-JT-209
Juvenile. Affirms termination of parental rights.

Corey Weaver v. State of Indiana (NFP)
49A02-1402-CR-112
Criminal. Affirms convictions of two counts of Class A misdemeanor resisting law enforcement.

Carl Gleason v. State of Indiana (NFP)
69A05-1403-CR-141
Criminal. Affirms convictions of Class B felony sexual misconduct with a minor and Class C felony sexual misconduct with a minor. Also affirms 80-year sentence for two counts of Class A felony child molesting, the sexual misconduct with a minor convictions, and Class C felony vicarious sexual gratification.

In the Matter of the Paternity of S.P., Minor Child, K.M., Father v. A.P., Mother, and State of Indiana (NFP)
45A04-1312-JP-587
Juvenile. Affirms denial of motion to set aside default judgment against K.M.

Kelly Robertson v. Elkhart Housing Authority (NFP)
20A04-1406-PL-252
Civil plenary. Affirms Elkhart Housing Authority’s motion for summary judgment on Robertson’s lawsuit that it discharged her from employment in violation of the Family and Medical Leave Act.

T.D., and Ti. D. alleged to be CHINS and T.D. (father) v. Dearborn Co. Dept. of Child Services (NFP)
15A05-1403-JC-116
Juvenile. Affirms finding children are children in need of services.

In Re the Paternity of B.M.: J.M. v. M.S. (NFP)
79A05-1403-JP-115
Juvenile. Affirms in part and reverses in part. Father has established, prima facie, that the calculation of child support arrearage includes a mathematical error and that the child support worksheet supporting the prospective child support award does not accurately reflect which parent pays medical insurance. Father has further shown, prima facie, that the trial court abused its discretion by finding him in contempt of court and ordering his payment of mother’s attorney fees. Remands with instructions.
 

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