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Opinions Jan. 3, 2017

January 3, 2017
KEYWORDS Opinions

Indiana Supreme Court
Kennedy Tank & MFG. Co., Inc., and Hemlock Semiconductor Operations LLC and Hemlock Semiconductor, LLC v. Emmert Industrial Corporation d/b/a Emmert International
49S02-1608-CT-431
Civil tort. Finds on an issue of first impression that Indiana’s 10-year statute of limitations is not preempted by the federal statute of limitations in the Interstate Commerce Commission Termination Act. Finds that Congress’ purpose was not to preempt state statutes of limitations and that Indiana’s statute of limitations does not do major damage to the ICCTA’s deregulatory purpose. Thus, Emmert Industrial Corp.’s collection claim against Kennedy Tank & Manufacturing Co. can proceed.

7th Circuit Court of Appeals
Duane E. Turner v. Richard Brown

15-1592
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Judge William T. Lawrence.
Civil. Affirms the district court’s denial of Duane E. Turner’s petition for a writ of habeas corpus. Finds that the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act still applies to Turner’s 1995 murder conviction, despite a resentencing on his robbery conviction in 2013.

Patriotic Veterans, Inc. v. Greg Zoeller, Attorney General of Indiana
16-2059
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Affirms district court ruling, finding that Indiana’s law banning robocalls is valid and does not discriminate based on political content.

Dee Frye and Lanhui Frye v. Auto-Owners Insurance Co.
16-1677
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Rudy Lozano.
Civil. Reverses district court’s grant of summary judgment in favor of Auto-Owners. The Fryes sued Auto-Owners after a partial settlement of their claim arising from a car crash involving an uninsured driver while Dee Frye was seriously injured while driving for his employer. The panel finds a commercial umbrella policy providing UIM coverage must otherwise comply with the limit-of-liability requirements set forth in the policy. Further, Auto-Owners’ reduction of coverage by the amount provided by workers' compensation violated the terms of the contract. Remands for proceedings.

The following opinions were posted on Friday, Dec. 30, when IL offices were closed:
Indiana Tax Court
Lake County Trust Co., Trust No. 6, (Flowers for Heaven, Inc.) v. St. Joseph County Assessor
02T10-1604-TA-10
Tax. Denies the St. Joseph County Assessor’s motion to dismiss the trust’s original tax appeal for failure to timely file the certified administrative record. Finds that an objection to the untimely filing of the certified administrative record in an appeal from a final determination of the Indiana Board of Tax Review must itself be filed before the merits of the case have been furthered. The assessor filed the motion after the merits of the case had been furthered, thus it waived any objection to the untimely filing of the certified administrative record.

Indiana Court of Appeals
Tina L. Hemingway v. John P. Scott
39A04-1604-PL-957
Civil plenary. Affirms the Jefferson Circuit Court decision finding Tina Hemingway to be in breach of contract and order that she execute a quitclaim deed conveying to John Scott all her rights, title and interest in the property. Finds the doctrine of merger does not apply and the contract is not rendered unenforceable for public policy reasons.

Richard Brown and Janet Brown v. City of Valparaiso, Indiana
64A05-1607-PL-1488
Civil plenary. Affirms partial summary judgment in favor of Valparaiso on the Browns’ complaint alleging the city was negligent in causing flooding to their residence in 2008. The Browns do not have a private cause of action under the Flood Control Act nor are they entitled to assert a private cause of action for a public nuisance.

Dalton Corporation v. Larry Myers and Loa Myers
49A02-1604-MI-836
Miscellaneous. Affirms the denial of Dalton Corp.’s motion to set aside default judgment. The trial court properly considered the parties’ equitable considerations and concluded Dalton did not present exceptional circumstances to warrant setting aside the default judgment pursuant to Indiana Trial Rule 60(B)(8).

In the Matter of the Revocable Living Trust Agreement of Joseph W. Dague and the Revocable Living Trust Agreement of Dorothy K. Dague, et al. v. Jean E. Galloway and Joseph E. Dague (mem. dec.)
25A05-1602-TR-240
Trust. Reverses the Fulton Circuit Court’s grant of Jean Galloway and Joseph Dague’s motion for order of sale and order requiring Jeffrey Dague and Judith Ulrich to retain a specific company to sell the farm at a public auction. Finds that the order is contrary to the will and desire of Joseph and Dorothy Dague, who chose Ulrich and Jeffrey Dague to be trustees and granted them complete discretion to manage and dispose of Dague Farm. Remands for further proceedings.

In the Matter of the Termination of the Parent-Child Relationship of: K.T. and K.O. (minor children) and R.T. (father) v. The Indiana Department of Child Services, et al. (mem. dec.)
49A02-1605-JT-1127
Juvenile termination of parental rights. Affirms the termination of R.T.’s parental rights to K.T. and K.O. Finds that R.T. failed to establish that the juvenile court erred in terminating his parental rights.

Devin Brookins v. State of Indiana (mem. dec.)
49A02-1601-CR-169
Criminal. Affirms Devin Brookins’ conviction of murder. Finds the evidence is sufficient to support Brookins’ identity beyond a reasonable doubt and, therefore, to support his conviction.

Ricardo S. Trevino v. Comprehensive Care, Inc. (mem. dec.)
45A05-1603-CT-683
Civil tort. Affirms the Lake Superior Court’s grant of a motion to dismiss filed by Comprehensive Care Inc. in a negligence action filed by Ricardo S. Trevino. Finds the acts alleged in Trevino’s complaint fall within the scope of the Indiana Medical Malpractice Act.

Jason Tye Myers v. Nalin Desai, et al. (mem. dec.)
79A02-1604-PL-929
Civil plenary. Affirms the Tippecanoe Superior Court’s award of $0 in damages and the dismissal of the state appellees from a complaint filed by Jason Tye Myers’ stemming from the denial of his 2012 petition for post-conviction relief. Finds that the trial court did not abuse its discretion.

Robert A. Davis v. State of Indiana (mem. dec.)
16A04-1609-CR-2053
Criminal. Affirms Robert A. Davis’ convictions of Level 3 felony aggravated battery, Level 5 felony criminal confinement and Level 5 felony battery and aggregate sentence of 15 years with six months suspended to probation and the remainder executed. Finds the abstract of justice does not require correction. Also finds that Davis’ convictions do not violate double jeopardy. Finally, finds that neither the nature of the offenses nor Davis’ character warrants a reduction of his sentence.

Linda H. Havel v. Vaughan & Vaughan and Charles V. Vaughan (mem. dec.)
49A02-1605-CT-1101
Civil tort. Reverses the Marion Superior Court’s grant of Vaughan & Vaughan and Charles V. Vaughan’s motion for partial summary judgment with respect to Linda H. Havel’s claims arising from the years 2008 and 2009 in an alleged breach of employment contract.  Finds the trial court erred in granting the motion for partial summary judgment. Remands for further proceedings.

Robert Coyle v. State of Indiana (mem. dec.)
36A01-1603-PC-644
Post conviction. Affirms the denial of Robert Coyle’s petition for post-conviction relief. Finds there is no evidence that a motion for a dismissal of charges would have been granted or that Coyle suffered any prejudice.

Terry Smith v. State of Indiana (mem. dec.)
49A04-1608-PC-1953
Post conviction. Affirms the denial of Terry Smith’s petition for post-conviction relief.  Finds that Smith failed to prove that he suffered ineffective assistance of appellate counsel.

Hugo Torres v. Dean White and Town and Country Remodeling, Inc. (mem. dec.)
45A05-1608-PL-1892
Civil plenary. Affirms the Lake Superior Court’s judgment in favor of Hugo Torres and against Town and Country Remodeling Inc. for $11,600. Finds that the damages award is not inadequate.

Joseph R. Keller v. State of Indiana (mem. dec.)
46A04-1601-CR-142
Criminal. Affirms Joseph R. Keller’s sentence to 10 years with three years suspended to probation for Level 4 felony child molesting. Finds that Keller has waived appellate review of his sentence.

In Re the Marriage of: Mark Alan Grube, Jr. v. Brittany P. Grube (mem. dec.)
10A05-1607-DR-1693
Domestic relation. Affirms the Clark Circuit Court’s division of Mark A. Grube Jr. and Brittany P. Grube’s marital estate. Finds that Mark Grube failed to prove that the trial court abused its discretion.

Asa Hairston v. State of Indiana (mem. dec.)
49A04-1606-CR-1267
Criminal. Affirms Asa Hairston’s conviction for Class A misdemeanor resisting law enforcement. Finds that the evidence is sufficient to sustain his conviction.

Marqwan D. Beserra v. State of Indiana (mem. dec.)
71A03-1606-CR-1369
Criminal. Affirms Marqwan D. Beserra’s conviction for felony murder. Finds that the state presented sufficient evidence to rebut Beserra’s claim of self-defense.

Allison K. Harper v. James Likens and Jennifer Likens (mem. dec.)
84A01-1606-MI-1279
Miscellaneous. Affirms the Vigo Superior Court order granting grandparent visitation to James and Jennifer Likens. Finds that in light of the Likens’ relationship with B.L., the child, the ordered visitation was well within its discretion.

Jason A. Hill v. State of Indiana (mem. dec.)
31A01-1604-CR-812
Criminal. Affirms the Harrison Superior Court’s revocation of Jason A. Hill’s probation. Finds Hill has not shown that he was denied due process. Also finds Hill has not established that he received the ineffective assistance of probation revocation counsel.

Robert L. Dowell v. State of Indiana (mem. dec.)
09A04-1601-CR-23
Criminal. Affirms Robert Dowell’s conviction of three felonies and two misdemeanors for making methamphetamine and possessing meth, marijuana and paraphernalia. Finds that Dowell’s claim of Fourth Amendment error was waived and sufficient evidence proved his possession of the incriminating evidence needed to convict.

Michael Reid v. State of Indiana (mem. dec.)
49A02-1603-CR-429
Criminal. Affirms Michael Reid’s conviction for Class A misdemeanor intimidation. Reverses and remands the public defender fee calculation for correction and determination of Reid’s ability to pay. Finds that any abuse of discretion with respect to giving the instruction as to Count II is harmless error. Also finds that the public defender fee for a felony is $100 and for a misdemeanor is $50 and that Reid’s charges were amended to a misdemeanor.

Timothy L. Sallee, Jr. v. State of Indiana (mem. dec.)
34A02-1606-CR-1341
Criminal. Affirms Timothy L. Sallee Jr.’s convictions of Level 6 felony maintaining a common nuisance, Class A misdemeanor possession of a controlled substance and Class A misdemeanor possession of a synthetic drug lookalike substance.  Finds Sallee has not established that the Howard Circuit Court committed error,  much less error so prejudicial as to make a fair trial impossible, in admitting Lisa Thieke’s in-court identification of Salle.

L.P. v. State of Indiana (mem. dec.)
49A04-1606-JV-1472
Juvenile. Affirms the Marion Superior Court order that L.P. pay restitution after admitting to having committed criminal mischief and criminal trespass, Class A misdemeanors if committed by an adult. Finds the juvenile court’s restitution is not unreasonable in light of the facts before the court and the court’s order is not contrary to Article 1, Section 18 of the Indiana Constitution.

Lisa Orwig v. State of Indiana (mem. dec.)
31A01-1604-CR-825
Criminal. Affirms Lisa Orwig’s conviction of permitting her livestock to run at large, a Class B misdemeanor.  Finds that the evidence presented by the state was sufficient to support Orwig’s conviction.

Jason E. Hammock v. State of Indiana (mem. dec.)
63A01-1605-CR-1117
Criminal. Dismisses Jason E. Hammock’s appeal of the Pike Circuit Court’s denial of his petition requesting that the trial court review whether his license was properly suspended. Finds that because Dec. 15, 2016 – 90 days after his latest release date – has passed, the issue of whether Hammock refused to submit to a chemical test is moot. Remands to the trial court with instructions to comply with the terms agreed to during Hammock’s plea hearing.
 

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