Opinions April 22, 2015

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Indiana Court of Appeals
William I. Babchuk, M.D., P.C., d/b/a Babchuk Imaging, P.C., and William I. Babchuk v. Indiana University Health Tipton Hospital, Inc., d/b/a Indiana University Health Tipton Hospital
Civil plenary. Reverses order dismissing Babchuk’s complaint of breach of contract for failure to prosecute under Trial Rule 41(E).  While the trial court would have had discretion to dismiss Babchuk’s case for failure to prosecute had a timely motion been filed, the hospital did not file its motion to dismiss before Babchuk had resumed prosecution of his case. Remands for further proceedings.

Bryson Tyrone Street v. State of Indiana
Criminal. Reverses convictions of Class A felony attempted robbery, Class B felony attempted robbery and Class C felony battery based on double jeopardy concerns. Remands for the trial court to vacate Street’s Class A felony conviction; reinstate Street’s conviction under Count III for robbery, as a Class C felony; and reduce Street’s conviction under Count IV to battery as a Class B misdemeanor. Also orders the court to properly impose Street’s habitual offender conviction as a sentence enhancement. Affirms the rest of Street’s convictions.

Timothy Devereux v. Jim and Diana Love
Civil tort. Reverses denial of Devereux’s motion for summary judgment on the Loves’ lawsuit against Devereux, a former member of William Conour’s law practice. Finds that Devereux satisfied his legal duty to the Loves based on his lack of knowledge of any specific wrongdoing by Conour related to the Loves. Remands for the trial court to grant summary judgment in favor of Devereux.

M.M. v. State of Indiana
Juvenile. Affirms decision to not terminate M.M.’s obligation to make restitution after the court discharged him from probation. Holds that when restitution is a condition of a juvenile’s probation, Indiana law does not require that the restitution obligation terminate upon the juvenile’s discharge from probation. Remands with instructions for the court to correct an error in one of its orders.

Derek L. Moore v. State of Indiana
Criminal. Affirms the trial court’s judgment to deny Moore’s petition for sentence modification on its merits based on the seriousness of his crimes and criminal history. Holds the trial court erred in finding that it did not have authority to entertain his petition to modify his sentence absent the consent of the prosecutor.  The recent revision to the sentence modification statute implemented a procedural change to a procedural statute, thus Moore is not barred from bringing his petition under the revised statute because he was convicted and sentenced before the revised statute’s effective date. Judge Robb concurs in part and dissents in part.

Khamya Slayton v. State of Indiana (mem. dec.)
Criminal. Affirms conviction of Class A misdemeanor conversion and remands for the trial court to clarify its sentencing order.

Jamie Joe Hardy v. State of Indiana (mem. dec.)
Criminal. Affirms sentence following guilty plea to Class C felony child molesting and Class D felony dissemination of matter harmful to minors.

Cindy Brothers, As Personal Representative of the Estate of Kristopher Stately, Deceased, Alicia Arnold and Tiffany Arnold v. Lake Holiday Enterprises, Inc. (mem. dec.)
Civil tort. Reverses summary judgment in favor of Lake Holiday Enterprises in consolidated actions alleging wrongful death, negligence, emotional distress and other claims brought against Lake Holiday. Remands for further proceedings.

John E. Servies v. The Kroger Company (mem. dec.)
Civil plenary. Affirms judgment in favor of Kroger on Servies’ negligence complaint.

Mark Lax v. State of Indiana (mem. dec.)
Post conviction. Affirms denial of petition for post-conviction relief.

Robert Smith v. State of Indiana (mem. dec.)
Criminal. Affirms conviction of Class A felony dealing in cocaine.

In the Matter of the Termination of the Parent-Child Relationship of: A.G., M.G. v. Indiana Department of Child Services (mem. dec.)

Juvenile. Affirms termination of parental rights.

Switzer Farms v. Sylvia Switzer, as Trustee of the Frank E. Switzer Revocable Trust (mem. dec.)
Civil plenary. Reverses judgment for trust on Switzer Farm’s motion for declaratory judgment that it had leasehold rights to farmland owned by the trust. Remands for further proceedings.

Cody Boruff v. Tiffany Boruff (mem. dec.)
Domestic relation. Affirms decree of dissolution of marriage.


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