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Opinions Aug. 4, 2015

August 4, 2015

Indiana Supreme Court
David J. Markey v. Estate of Frances S. Markey, Deceased; Stephen L. Routson, Personal Representative Under the Last Will and Testament of Frances S. Markey, Deceased et al
89S05-1412-ES-749
Estate. Reverses summary judgment in favor of the defendants. Agrees with David Markey that his claim for breach of contract to make and not revoke mutual wills is a claim governed by the probate code. Remands to determine if Markey was a “creditor” who was “known or reasonably ascertainable” and therefore timely filed his claim.   

Indiana Court of Appeals
Dylan R. Smart v. State of Indiana
29A02-1412-CR-887
Criminal. Affirms in part and reverses in part. The evidence is sufficient to sustain Smart’s Class D felony conviction of possession of methamphetamine, but it is insufficient to sustain his conviction of Class D felony unlawful possession of a syringe. The court could not say that methamphetamine injected by Smart qualifies as methamphetamine hydrochloride, a drug covered by the Legend Drug Act required for conviction of the unlawful possession of a syringe charge.

Richard Zeller, Jr. v. AAA Insurance Company
64A05-1502-CT-84
Civil tort. Reverses judgment following a bench trial in favor of AAA. Rules that AAA’s acceptance of a late payment on a cancelled homeowner’s insurance policy reinstated the policy, and the policy was in force when his garage subsequently sustained an estimated $80,000 in damage as the result of a fire. Remands for the trial court to consider Zeller’s bad faith claim and his request for compensatory and punitive damages, which the trial court did not address.

Brian Young, Dave Wells, Steve Richmond, and Tim Corbett v. Henry Davis, Jr.
71A04-1501-CT-26
Civil tort. Reverses dismissal of complaint against South Bend city councilman Henry Davis Jr., for defamation and violation of the federal wiretap act. Rejected the argument that Davis is protected from the litigation because the Indiana Tort Claims Act prohibits civil actions against government employees acting within the scope of the employment. Remands for further proceedings.

Stephen Ferguson v. State of Indiana
49A04-1412-CR-557
Criminal. Affirms convictions of two counts of Class A felony child molesting. Finds the trial court did not abuse its discretion by not specifically telling the jury it had stricken “the detective told her that they believe her.” Rules the trial judge’s description of other people’s opinions as “heartfelt” did not violate Indiana Evidence Rule 605’s prohibition against judicial testimony.  

Bethany Koorsen v. Benjamin Koorsen (mem. dec.)
48A05-1411-DR-532
Domestic relation. Affirms order giving Benjamin Koorsen custody of the three children in Pendleton as long as the mother remains in Albion.

Dustin E. McGuire v. State of Indiana (mem. dec.)
48A02-1501-CR-23
Criminal. Affirms 80-year sentence for three counts of Class A felony child molesting and one count of Class C felony child molesting.

In the Matter of the Paternity of A.D., State of Indiana Ex. Rel., E.M.W. v. J.M.D. (mem. dec.)
71A03-1502-JP-58
Juvenile paternity. Reverses denial of state’s motion to correct error. Finds trial court abused its discretion in vacating the order establishing paternity and in denying state’s resulting motion. Remands to the trial court for an order on father’s motion to re-calculate his arrearage of child support and to vacate the contempt finding.

Sharla C. Williams v. TradeWinds Services, Inc., Board of Directors of TradeWinds Services, Inc., Jon Gold in his individual capacity and official capacity (mem. dec.)

45A03-1406-CT-202
Civil tort. Grants Williams’ petition for rehearing. Affirms summary judgment in favor of Trade Winds.

Kobe Blake v. State of Indiana (mem. dec.)
49A04-1412-CR-572
Criminal. Reverses conviction for Class A misdemeanor resisting law enforcement by flight.

Grant Johnson, Minor Child, by his Mother and Father, Don Johnson and Janice Johnson v. South Spencer School Corp. and Cliff Hagan's Boys' Club of Owensboro, Kentucky, Inc. (mem. dec.)
74A04-1501-PL-16
Civil plenary. Reverses grant of summary judgment in favor of South Spencer School Corp. and Cliff Hagan’s Boys’ Club of Owensboro, Kentucky. Finds there are issues of material fact regarding the negligence claims filed by the Johnsons stemming from multiple instances of bullying.  

Tony E. Rice v. State of Indiana (mem. dec.)
89A05-1412-CR-556
Criminal. Affirms 12-year sentence for two counts of Class C felony child molesting.

Kimtai Wilkerson v. State of Indiana (mem. dec.)
49A02-1501-CR-18
Criminal. Affirms conviction of Class A misdemeanor possession of a handgun without a license. Finds the admission of the deposition from one of the arresting officers who was being deployed to military duty overseas did not violate Wilkerson’s Sixth Amendment right to confront the witnesses. Also rules the evidence was sufficient to support the conviction.

 

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