Opinions Dec. 27, 2016

December 27, 2016

Indiana Court of Appeals
P. Kevin Barkal, M.D. and Pemcor, Inc. v. Gouveia & Associates
Civil tort. Affirms the Lake Circuit Court’s grant of summary judgment to Gouveia & Associates, concluding that Dr. P. Kevin Barkal and Pemcor Inc. failed to designate expert testimony establishing that Gouevia breached the standard of care in his legal representation of Pemcor in the underlying bankruptcy case. Finds that the trial court properly concluded that Barkal and Pemcor failed to designate expert testimony to establish a breach of the appropriate standard of care.

Jill, Roeland, Jaymie and Jordyn Polet, et al. v. ESG Security, Inc.
Civil tort. Affirms the Marion Superior Court’s grant of summary judgment filed by ESG Security Inc. Finds that a stage collapse due to high wind is not foreseeable as a matter of law and, accordingly, ESG did not have a duty relating to the stage collapse.

Roy A. Smith v. Keith Butts, Jenny Gibson, Amber Berry, Misty Cecil, and Amie Williams
Civil plenary. Affirms the Henry Circuit Court’s denial of Roy A. Smith’s motion for summary judgment. Reverses the trial court’s grant of summary judgment in favor of Keith Butts, Jenny Gibson, Amber Berry, Misty Cecil and Amie Williams. Finds in viewing the facts in the light of the specifically designated evidence, there are genuine issues of material fact as to whether Smith exhausted his administrative remedies and whether Smith caused prison officials to delay mailing his motion for extension of time. Remands for further proceedings.   

Watts Water Technologies, Inc. v. State Farm Fire & Casualty Co. a/s/o Richard Lucka
Civil tort. Affirms the Lake Superior Court’s order denying Watts Water Technologies Inc.’s motion to compel arbitration. Finds that the notice of amendment to the subrogation arbitration agreement and the actual amendment fall within Arbitration Forum’s authority. Also finds that it would not be fair to permit the use of collateral estoppel by Watts. Finally, finds that State Farm’s claims fell within the exclusion in the Amended Arbitration Agreement.

Andrew W. Barrus v. State of Indiana (mem. dec.)
Criminal. Affirms the Huntington Circuit Court’s sentencing order imposing a sentence for Andrew W. Barrus’ new offenses and sentencing him for the revocation of his probation. Finds that Barrus has not met his burden of persuading the appellate court that his sentence is inappropriate in light of the nature of the offenses and the character of the offender. Remands to the trial court for correction of the abstract of judgment to reflect that Barrus’ habitual offender determination attaches to his sentence for his Level 1 felony burglary conviction.

George A. Foote v. State of Indiana (mem. dec.)
Post conviction. Affirms the denial of George A. Foote’s successive petition for post-conviction relief. Finds that Foote did not receive ineffective assistance of appellate counsel.

Ellica Ann Houser v. State of Indiana (mem. dec.)
Criminal. Affirms Ellica Houser’s conviction for neglect of a dependent as a Class D felony. Finds that the Tippecanoe Circuit Court did not abuse its discretion by admitting evidence in relation to the events that arose in White County, nor did it abuse its discretion by admitting Dawn Gross’ testimony regarding the general nature of child abuse reports and recantations.

In Re: The Guardianship of C.R. and A.R;. E.R. v. M.S. and D.S. (mem. dec.)
Guardianship. Reverses the Tippecanoe Circuit Court’s order awarding visitation to grandparents M.S. and D.S. with E.R.’s minor children, C.R. and A.R. Finds that the trial court’s order granting unsupervised visits to M.S. and D.S. did not overcome E.R.’s decision to limit visitation based on therapist Gloria Hood’s recommendation. Remands to the trial court for entry of new findings and legal conclusions without hearing new evidence.