Opinions Jan. 20, 2016

January 20, 2016

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
United States of America v. Julius W. Lawson
U.S. District Court, Northern District of Indiana, Fort Wayne Division. Judge Theresa L. Springmann.
Criminal. Affirms convictions of three counts related to aiding and abetting firearm use during an attempted robbery of a post office. Rejects Lawson’s claims that there was insufficient evidence for the jury to find that a firearm was used; that the jury was improperly instructed on the theory of aiding and abetting firearm use in light of Rosemond v. United States, entitling him to a new trial; and that he is entitled to a new trial because the government withheld evidence of an investigator offering a “bribe” to a witness and a police officer’s disciplinary record in violation of Brady v. Maryland.

Wednesday’s opinions
Indiana Court of Appeals

Indiana Professional Licensing Agency and Indiana State Board of Dentistry v. Irfan A. Atcha, D.D.S.
Miscellaneous. Affirms in part and reverses in part the trial court’s finding that three dental advertising regulations are unconstitutional. The state properly restricted Dr. Atcha’s false and misleading claims implying he had a particular dental specialty and could provide better materials or superior service than other dentists. But the state may not compel a dentist to list on his advertisements every dentist in his practice. Remands for the board to reassess the penalty in light of this decision.

Shari L. Morey v. W. Michael Morey
Domestic relation. Affirms application of the coverture fraction formula to husband’s pension, the court’s failure to credit wife’s payment of husband’s post-dissolution expenses, and the valuation of the marital residence. The trial court did not abuse its discretion when it found husband failed to rebut the presumption that an equal division of marital property was just and reasonable. Judge Baker concurs in result with separate opinion.

Michael Townsend v. State of Indiana (mem. dec.)
Criminal. Affirms conviction of Level 6 felony intimidation.

Zolo Agona Azania v. State of Indiana (mem. dec.)
Criminal. Affirms dismissal of Azania’s petition seeking judicial review of the Department of Correction’s denial of his request for educational credit time.

Joshua Shepherd Thompson v. City of Jeffersonville, Indiana and its Fire Department Merit Commission (mem. dec.)
Civil plenary. Affirms dismissal of Thompson’s request for judicial review of the determination that he is ineligible for promotion after a change in policy by the city’s fire department merit commission.

In the Matter of the Civil Commitment of S.J. v. Eskenazi Health (mem. dec.)
Mental health. Affirms involuntary civil commitment.

Janel Manriquez v. Derek Lee Manriquez (mem. dec.)
Domestic relation.  Affirms final decree of dissolution of marriage, finding the trial court did not err in failing to divide father’s 2013 tax refund between the parties nor did it abuse its discretion in the determination of parenting time.

Robert J. Lunsford v. Laurie (Lunsford) Knight (mem. dec.)
Domestic relation. Affirms in part and reverses in part. The court did not err in entering a post-dissolution judgment in favor of the wife against the husband that included payment based upon the sale of real estate. The court erred in adding the 2008 payment based on wife’s lack of proof of the bi-weekly psychological treatment called for in the parties’ agreed entry as a condition precedent to husband’s liability for those amounts. Remands for further proceedings. Judge Baker concurs in part and dissents in part with opinion.

2007 East Meadows, LP v. RCM Phoenix Partners, LLC (mem. dec.)
Civil plenary. Affirms summary judgment in favor of RCM Phoenix in Meadows’ counter-claim against RCM Phoenix alleging breach of contract and fraud and requesting specific performance.

Ryan A. Kish v. State of Indiana (mem. dec.)
Criminal. Affirms revocation of probation and sentence imposed thereafter.

D.L. v. State of Indiana (mem. dec.)
Juvenile. Affirms order finding D.L. to be a delinquent child for committing what would be class B misdemeanor criminal mischief if committed by an adult.

Charles E. Gatewood, II, and Rita L. Gatewood v. John A. Gatewood, as Personal Representative of the Estate of Margaret H. Gatewood (mem. dec.)
Estate. Affirms the trial court properly applied a presumption of undue influence in Charles and Rita Gatewood’s transactions with the decedent.