Opinions Dec. 31, 2015

December 31, 2015
KEYWORDS Opinions / neglect

Indiana Court of Appeals
East Point Business Park, LLC, Fieldview Properties, LLC, and Karen Rusin v. Private Real Estate Holdings, LLC
Mortgage foreclosure. Affirms grant of summary judgment in favor of Private Real Estate Holdings LLC on its foreclosure action against defendants East Point, Fieldview and Rusin. Holds that the defendants filed their designated evidence in an untimely fashion and that such evidence should not be considered. Finds that the trial court did not err in denying the defendants’ motion to strike the affidavit of PREH principal Arshad Malik, which was submitted by PREH in support of its motion for summary judgment. The defendants’ argument that Private-Bank made an oral agreement to a fourth loan renewal is barred by the relevant Illinois statute of frauds, which, as a substantive law, is applicable to the interpretation of the loan agreements. The bank did not breach the loan agreements by reneging on the alleged oral agreement or by failing to fund the last draw request by the defendants, and the foreclosure action is not prevented by the bank or PREH’s allegedly unclean hands.

Nathan Polson v. State of Indiana
Criminal. Affirms conviction of Level 5 felony carrying a handgun without a license, rejecting Polson’s argument on appeal that the trial court abused its discretion because he claims the gun was seized by police in violation of the Fourth Amendment of the Constitution.

Daniel Harris v. Donald brewer, Donald Crockett, and Thomas Lamb, Orange County Commissioners as governing body of the Orange County Highway Dept.
Civil tort. Affirms summary judgment in favor of Donald Brewer, Donald Crockett, and Thomas Lamb, Orange County Commissioners, as governing body of the Orange County Highway Department. Finds the employee handbook did not provide any clear promises of employment and that Harris was an at-will employee who could be fired with or without reason. Rules Harris did not meet his burden needed to support his defamation claim against Orange County.

Shawn Jaco v. State of Indiana
Criminal. Affirms denial of Jaco’s motion for modification of sentence. Finds the overhaul of Indiana’s criminal code in 2014 that allows for courts to reduce or suspend a sentence without the approval of the prosecuting attorney does not apply because the Legislature amended the code again in May 2015 so that violent criminals may not petition for sentence modification with the consent of the prosecutor.  

Hoker Trucking, LLC and Linda L. Phillips v. Pamela K. Robbins, as Adminstratrix of the Estate of Mike Douglas Robbins, Deceased
Civil tort. On rehearing, affirms its prior opinion but rules that Robbins as the surviving spouse was entitled to recover prejudgment interest on a $6 million jury verdict.

D.A. v. State of Indiana
Miscellaneous. Reverses denial of D.A.’s request to apply an expungement order to the records of a civil forfeiture proceeding that arose from the same facts underlying his now-expunged convictions. Holds that under the facts of this case, the expungement statutes apply to the records of civil forfeiture proceedings. Judge Barnes dissents with separate opinion.

John Collip, M.D. v. Vickie Ratts on behalf of Robert A.J. Ratts, deceased, and Little Creek Family Health Center, LLP
Civil tort. Affirms on interlocutory appeal the order granting partial summary judgment in favor of Vickie Ratts on her medical malpractice claim after her son, Robert, died as a partial result of mixed drug intoxication. Nurse practitioner Dena Barger prescribed the medication and Dr. John Collip had an agreement with Barger to review at least 5 percent of her charts on a weekly basis to evaluate her prescriptive practices. Holds as a matter of law that physicians who undertake this responsibility owe a duty to the nurse practitioner’s patients to fulfill their contractual obligations with reasonable care. Remands for further proceedings.

Kyle W. Dilts v. State of Indiana
Criminal. Affirms trial court admission of certain evidence against Dilts that led to his conviction of Class A felony child molesting. On the state’s cross-appeal, reverses the trial court’s vacation of a second Class A felony child molesting conviction and remands for resentencing.

Steven E. Dotlich v. Tucker Hester, LLC
Collections. Affirms summary judgment in favor Tucker on Dotlich’s malpractice claim. Based upon the designated evidence, Dotlich’s malpractice claim constituted property of the bankruptcy estate under 11 U.S.C. § 541. Accordingly, the trial court did not err in determining that Dotlich is precluded from pursuing the claim and in entering summary judgment in favor of Tucker on Dotlich’s counterclaim for malpractice.  

Carl Summerhill v. Craig Klauer
Civil tort. Reverses jury finding declining to find Klauer liable for a collision between his motorcycle and Summerhill’s moped. The trial court erred in excluding the testimony of an accident reconstructionist that Summerhill sought to call on his behalf. Remands for a new trial.

Wanetta Marie Lloyd v. State of Indiana (mem. dec.)
Criminal. Affirms 35-year sentence for Class A felony neglect of a dependent resulting in death.

Tamara Fitzgerald v. State of Indiana (mem. dec.)
Criminal. Affirms convictions of Class C felony insurance fraud and Class B misdemeanor false informing.

In the Matter of the Term. of the Parent-Child Relationship of: C.G., I.G., and S.G. (Minor Children), and J.G. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)
Juvenile. Affirms termination of parental rights.

Daniel R. Ross v. State of Indiana (mem. dec.)
Criminal. Affirms order Ross serve the remainder of his suspended sentence following a probation violation.

Herbert Popp v. State of Indiana (mem. dec.)
Criminal. Affirms conviction and sentence for Class C felony child molesting.

Richard Green Burns v. State of Indiana (mem. dec.)
Criminal. Affirms convictions and 85-year sentence for murder and Class A felony attempted murder.

Javier Morales, Jr. v. State of Indiana (mem. dec.)
Post-conviction. Affirms denial of petition for post-conviction relief.

Omar Davis v. State of Indiana (mem. dec.)
Criminal. Affirms two counts of Level 1 felony attempted murder.

CM Sunshine Home Healthcare v. Review Board of the Indiana Dept. of Workforce Development and Kimberly McClam (mem. dec.)
Agency action. Affirms grant of unemployment benefits to McClam.

David Rabinowitz v. State of Indiana (mem. dec.)
Criminal. Affirms convictions of Level 5 felonies battery resulting in serious bodily injury and battery by means of a deadly weapon, which were merged into the serious bodily injury conviction.

In the Matter of the Term. of the Parent-Child Relationship of: K.R. (minor child) and T.R. (mother) v. The Ind. Dept. of Child Services (mem. dec.)
Juvenile. Affirms termination of parental rights.

Jonathan L. Slone v. State of Indiana (mem. dec.)
Criminal. Affirms denial of petition to remove Slone’s sexually violent predator designation.

Jorge Navarro v. State of Indiana (mem. dec.)
Criminal. Affirms conviction of resisting law enforcement.

Richard L. Berg, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms revocation of probation.

Joshua T. Trammell v. State of Indiana (mem. dec.)
Criminal. Affirms the trial court properly determined Trammell’s credit time.

Jesse Eads and Total Image Exteriors, LLC d/b/a TIE Tree Services v. Patrick Turner (mem. dec.)
Civil tort. Affirms order to return the case to its county of origin, Howard County, as a county of preferred venue.

Jeffrey E. Duermit v. Odyssey Healthcare, Inc. (mem. dec.)
Civil plenary. Affirms issuance of a preliminary injunction enforcing the terms of a non-compete agreement in favor of Odyssey Healthcare.

Dontaye Singletary v. State of Indiana (mem. dec.)
Criminal. Affirms murder conviction and 65-year sentence.

Indiana Tax Court
Wells County Assessor v. Alexin, LLC
Tax. Reverses final determination of the Indiana Board of Tax Review that the Common Council of the city of Bluffton waived Alexin LLC’s non-compliance with certain statutory requirements for its 2013 personal property tax abatement deduction. The final determination is contrary to law.