Opinions Oct. 6, 2015

October 6, 2015

7th Circuit Court of Appeals
Bryana Bible, Individually and on Behalf of the Proposed Class v. United Student Aid Funds, Inc.
Appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division
Judge Tanya Walton Pratt
Civil. Denies petition for rehearing en banc of the panel decision. The panel reversed and remanded the District Court’s dismissal of Bible’s complaint against a creditor in a student loan default case. None of the panelists who wrote three separate opinions, nor other Circuit judges, favored rehearing en banc. Judge Frank Easterbrook wrote a concurrence to underscore that deference to federal agency positions affirmed in Auer v. Robbins, 519 U.S. 452 (1997), has been assailed by recent Supreme Court rulings suggesting that decision “may not be long for this world.”

Indiana Court of Appeals
Jill Miller v. Rosehill Hotels, LLC d/b/a Holiday Inn Express; Intercontinental Hotel Group d/b/a Holiday Inn Express
Civil tort. Reverses summary judgment in favor of Holiday Inn Express defendants in a negligence claim involving a slip and fall in an ice-covered parking lot at an Anderson hotel. Summary judgment was improper because the hotel failed to carry its burden of establishing that Miller voluntarily accepted a known and obvious risk as a matter of law or that it did not breach its duty to maintain its property in a reasonably safe condition.

Jermaine McKinley v. State of Indiana
Criminal. Affirms conviction of Class A felony possession of cocaine with intent to deliver, finding the trial court did not err when it instructed the jury that McKinley could be convicted for “knowingly” possessing cocaine with intent to deliver.  

Jason D. Smith v. State of Indiana (mem. dec.)
Post conviction. Affirms denial of post-conviction relief.

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.)
Civil plenary. Denies petition for rehearing.

William M. Cox v. State of Indiana (mem. dec.)
Criminal. Affirms in part, reverses in part and remands convictions of Class B felony criminal confinement, Class C felony battery, Class D felony strangulation and Class A misdemeanor domestic battery. Remands with instructions to vacate the Class C felony battery conviction on double-jeopardy grounds as evidence of his victim’s loss of consciousness was likely used by the jury to establish the serious bodily injury element of that crime as well as the confinement conviction. This will not impact Cox’s 24-year aggregate sentence.