Opinions May 31, 2016

Keywords neglect / Opinions

The following 7th Circuit Court of Appeals decision was posted after IL deadline Friday:
United States v. Maurice Dimitrie Moore
United States District Court for the Northern District of Indiana, South Bend Division.
Jon E. DeGuilio, judge.
Criminal. Vacates and remands District Court decision on interlocutory appeal that denied probationary evidence of cell phone records. The records showed Marcus Hayden, who was on probation, and Maurice Moore had contact with each other prior to Hayden engaging and dying in an armed battle police. Moore is charged with selling a handgun to Hayden that Hayden used in the incident and then falsely reporting the weapon was stolen.

Tuesday’s opinions
Indiana Court of Appeals
Tracy K. Barber v. Amy Henry
Juvenile. Affirms calculation of weekly child support owed by father after imputing just minimum wage to mother. The record shows mother, who is a doctor, is unemployed with just cause based on the special needs of her sons.  Reverses the order with respect to the civil attorney fees father is ordered to pay in his son’s juvenile case and remands with instructions to determine which part of the total amount claimed can be attributed to the protective order petition.

Joseph C. Lehman v. State of Indiana
Criminal. Affirms convictions of three counts of Class B misdemeanor practicing law by a non-attorney as Joseph Lehman continued to provide legal services to existing and new clients after he was suspended by the Indiana Supreme Court in 2014. There’s no evidence supporting Lehman’s request for a change of judge, he waived his right to a jury trial, and there is sufficient evidence in the record to sustain his convictions.

David C. Varble v. Stephanie J. (Carroll) Varble and James T. Carroll; In Re: The Matter of the Paternity of: A.C., A Minor Child, David C. Varble v. Stephanie J. (Carroll) Varble and James T. Carroll,  
Domestic relations. Affirms denial of a motion for relief from judgment for David Varble, who sought to modify a settlement decree between Stephanie and James Carroll in their divorce that provided joint custody of A.C. Varble, who married Stephanie after she and Carroll divorced, proved paternity of A.C. several years after the settlement, and the court did not abuse its discretion in denying relief from a judgment in which Stephanie and Carroll had agreed to share joint legal and physical custody because they believed it was in the child’s best interests.

Mark D. Nichols v. State of Indiana
Criminal. Affirms conviction after a bench trial of three counts of sexual misconduct with a minor as class B felonies and two counts of sexual misconduct with a minor as class C felonies.   The trial court did not abuse its discretion in admitting evidence that Nichols did not attend an interview with a detective or ask about the investigation, and the admission of testimony by a polygraph examiner was not fundamental error.

Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical Services, Inc. v. T3 Investments Corporation
Civil plenary. Affirms trial court order of summary judgment in favor of T3, ordering individual appellants pay a pro rata share of $173,102.20 each to satisfy a deficiency judgment. Agrees with the trial court that consideration is not present between T3 and the appellants to support the existence of a contractual relationship between them. Accordingly, the release contained in the settlement agreement is not applicable to T3’s contribution claim.

Faye E. Warfield and Keyotta Warfield a/k/a Nicole Warfield, v. Jim Dorey d/b/a JRD Construction Services and JRD Enterprises, LLC
Civil plenary. Reverses and remands judgment for Jim Dorey finding that because Dorey was not licensed in Marion County and did not apply for the proper permit, the contract between him and the Warfields should be void. Finds Dorey should be repaid for his work under the doctrine of unjust enrichment or quantum meruit and orders the Warfields to pay more than $13,000 for the work. Remands to the trial court to determine the amount of prejudgment interest at 8 percent per annum.

Edward Rusnak and Rebecca Rusnak v. Brent Wagner Architects
Civil plenary. Reverses summary judgment in favor of Brent Wagner Architects on the Rusnaks’ lawsuit claiming BWA had a duty under the contract to correct substandard construction work on their home. Finds term in the contract is ambiguous and remands for further proceedings.

Trevor Rujuwa v. State of Indiana (mem. dec.)
Criminal. Affirms convictions of three counts of Level 6 felony neglect of a dependent, which were reduced to Class A misdemeanors.

Mary J. Coate v. Timothy D. Coate (mem. dec.)
Domestic relation. Affirms awarding marital residence to Timothy Coate and order that he pay an equalizing judgment to Mary Coate. Reverses in part as trial court erred in its monthly value assigned to Timothy’s CSRS pension. Affirms in all other respects.

In the Term. of the Parent-Child Relationship: B.B. (Minor Child) and P.G. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)
Juvenile. Affirms termination of parental rights.

James Albert Costello and Lisa Renee Costello v. Wayne Zollman and Teresa Zollman (mem. dec.)
Civil plenary. Affirms in part and reverses in part judgment against the Costellos in their action against the Zollmans regarding a dispute over the ownership of land in Clark County. The Zollmans gained title to the property by adverse possession, but the trial court erred in awarding them damages and in rejecting the Costellos’ claims for trespass.

Jennifer Ansari v. Sirius Satellite Radio (Sirius XM) (mem. dec.)
Civil plenary. Affirms summary judgment in favor of Sirius XM Radio in finding it is not liable to Jennifer Ansari under respondeat superior for certain communications sent to her by Sirius’ employee.

Carrie Sturdivant v. Michael Sturdivant (mem. dec.)
Domestic relations. Affirms dissolution decree, which granted physical custody of the children to father.

Mathias Gaumer v. State of Indiana (mem. dec.)
Criminal. Affirms convictions of Class C felony child solicitation and Class D felony attempted possession of child pornography.

Marcus Russell v. State of Indiana (mem. dec.)
Criminal. Affirms conviction of Class A misdemeanor criminal trespass.

Brandy G. Hoebee v. State of Indiana (mem. dec.)
Criminal. Reverses denial of Hoebee’s motion to correct credit time with respect to the court’s March 14, 2014, order that she serve 1,462 days instead of 1,461 days. Remands for entry of a corrected judgment of conviction and affirms the denial in all other respects.


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