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Opinions May 30, 2017

May 30, 2017

Indiana Court of Appeals
McKinley, Inc a/k/a McKinley Associates, Inc. d/b/a Summer Wood Apartment Homes v. Michelle Skyllas
45A05-1612-CT-2853
Civil tort. Reverses the Lake Superior Court’s grant of Michelle Skyllas’ motion to correct error, which sat aside the trial court’s prior grant of summary judgment to McKinley, Inc., a/k/a McKinley Associates, Inc., d/b/a Summer Wood Apartment Homes, and the trial court’s grant of Skyllas’ motion to withdraw and amend admissions. Finds Skyllas did not establish she was entitled to relief from judgment with respect to the grant of summary judgment or the admissions. Remands with instructions to reinstate the judgment in favor of McKinley and against Skyllas.

Charles Aillones v. Glen D. Minton
82A01-1609-CT-2138
Civil tort. Reverses the Vanderburgh Superior Court’s denial of Charles Aillones’ motion to qualify his nurse practitioner as an expert witness. Finds a nurse practitioner, under the proper circumstances, can be an expert witness. Remands for further proceedings.

Darlene Sekerez v. Grund & Leavitt PC
45A04-1610-MI-2395
Miscellaneous. Reverses the Lake Superior Court’s order to domesticate the judgment of an Illinois trial court. Finds Darlene Sekerez has demonstrated prima facie error. Also finds trial court’s order to domesticate the Illinois trial court’s judgment was ultra vires. Remands with instructions to vacate the trial court’s order.

Myra Duby as Guardian of L.H., a Minor v. Christopher Woolf
84A05-1612-CT-2815
Civil tort. Affirms the Vigo Superior Court’s entry of summary judgment in favor of Christopher Woolf on Myra Duby’s complaint alleging Woolf’s negligence. Finds Duby has not shown the trial court abused its discretion when it excluded Boyd’s testimony regarding the purported diagnosis and causation of L.H.’s autism. Also finds the trial court did not err when it entered summary judgment in favor of Woolf.

John C. & Maureen G. Osborne, et al v. Town of Long Beach, Indiana et al
46A03-1607-PL-1698
Civil plenary. Reverses the trial court’s April 8 order denying the motions to dismiss filed by town defendants the Town of Long Beach, Indiana, the town council, the Building Commission, the Advisory Plan Commission, the Board of Zoning Appeals, certain individuals in their official capacities as members of the aforementioned municipal entities, the Long Beach Community Alliance, Inc., and James Neulieb. Finds John C. and Maureen G. Osborne Revocable Family Trust, Timothy J. and Anna Voortman, Christopher Lyons and their contractor, Duneland Development, LLC, failed to exhaust their administrative remedies before filing their complaint for declaratory and injunctive relief.

B&R Oil Company, Inc., Empire Petroleum Partners, LLC, and EPP-Atlas Acquisitions, LLC v. William E. Stoler, Kathlyn Stoler, Jeffrey A. Levy, and Con-Serve, Inc.
71A04-1603-PL-608
Civil plenary. Affirms the trial court’s entry of summary judgment for William E. Stoler, Kathlyn Stoler, Jeffrey A. Levy and Con-Serve, Inc. on the Stolers’ complaint for breach of contract against B&R Oil Company, Inc. Finds as a matter of first impression that a lessor may not circumvent a lessee’s contractual right of first refusal to purchase the leased premises by submitting a third-party offer to the lessee in which the leased premises are bundled with other property. Judge Mark Bailey dissents with separate opinion.

Deshawn Lamont Redfield v. State of Indiana
48A02-1608-CR-1806
Criminal. Affirms Deshawn Lamont Redfield’s convictions for unlawful possession of a firearm by a serious violent felon as a Class B felony, possession of cocaine as a Class C felony, pointing a firearm as a Class D felony and resisting law enforcement as a Class A misdemeanor. Finds the officer’s seizure of Redfield was reasonable.

In the Matter of the Guardianship of I.R., M.P. and D.P. v. M.M.J.S
18A05-1610-GU-2431
Guardianship. Affirms the Delaware Circuit Court’s order granting M.M.J.S.’s petition to terminate M.P. and D.P.’s guardianship over I.R. Finds M.P. and D.P. did not carry their burden to overcome the presumption in M.M.J.S.’s favor that I.R.’s best interests are served by placement with her.

Kevin Campbell v. Irenea George

41A01-1607-SC-1723
Small claims. Remands a Johnson County magistrate order giving Snickers, a dog, to Irenea George. Finds the magistrate’s order was never signed or otherwise adopted by a judge, so it was not a final appealable order by statute.

Lacee M. Garber, n/k/a Lacee M. Cochran v. State of Indiana (mem. dec.)
34A02-1609-CR-2039
Criminal. Affirms the Howard Superior Court’s restitution order after Lacee M. Garber pleaded guilty to two counts of Class C felony forgery and one count of Class D felony theft. Finds Garber challenged he amount offered by Michael Krebes, but did not provide the trial court with an alternative, lesser amount, and expressly left the calculation to the trial court’s discretion. Also finds the trial court did not abuse its discretion.

Reggie Thomas Johnson v. State of Indiana (mem. dec)
18A02-1607-CR-1712
Criminal. Affirms Reggie Thomas Johnson’s convictions for dealing in cocaine as a Level 4 felony and possession of marijuana as a Class B misdemeanor. Finds the evidence taken as a whole supports a reasonable inference that Johnson had constructive possession of contraband. Also finds Johnson’s separate argument the state failed to prove intent to deliver is merely a request to reweigh evidence.

In the Matter of the Termination of the Parent-Child Relationship of A.T., Jr., A Minor Child et al. v. Indiana Department of Child Services (mem. dec.)
15A01-1612-JT-2944
Juvenile termination of parental rights. Affirms the Dearborn Circuit Court’s termination of A.T., Sr. and K.T.’s parental rights over their minor child, A.T., Jr. Finds, waiver notwithstanding, the trial court did not err when it concluded the conditions that resulted in the child’s removal will not be remedied and that the totality of the evidence supports the trial court’s conclusion that termination of the parents’ parental rights is in the child’s best interests.

In the Matter of the Termination of the Parent-Child Relationship of : D.S. and A.A., Minor Children and D.M., Mother and E.A., Father et al v. Indiana Department of Child Services (mem. dec.)
45A03-1611-JT-2502
Juvenile termination of parental rights. Affirms the involuntary termination of D.M. and E.A.s’ parental rights. Finds the Lake Superior Court’s judgment terminating the parental rights is supported by clear and convincing evidence.
 
Jennifer Sanders v. Bryan Sanders (mem. dec.)
42A01-1606-DR-1340
Domestic relation. Affirms the denial of Jennifer Sanders’ motion to modify custody. Finds Sanders waived her right to a full evidentiary hearing when she failed to object to the Knox Superior Court’s summary procedure and failed to submit any other evidence or request to submit testimonial evidence. Also finds the trial court’s decision was based on sufficient evidence and the trial court did not err in denying Sanders’ request to modify custody.
 
Ronnie Rice v. State of Indiana (mem. dec.)
45A05-1608-PC-1951
Post-conviction. Affirms the denial of Ronnie Rice’s petition for post-conviction relief. Finds Rice did not establish he did not knowingly, voluntarily and intelligently enter his guilty plea. Also finds Rice’s trial counsel was not ineffective with regard to his investigation and presentation of mitigating circumstances for purposes of sentencing, and the post-conviction court did not err in concluding his appellate counsel was not ineffective. Finally, find the Indiana Supreme Court has already reviewed Rice’s sentence to life without the possibility of parole and held the Lake Superior Court did not abuse its discretion, so his sentencing argument is barred by res judicata.

Phillip Edwin Byrd v. State of Indiana (mem. Dec.)
71A03-1609-CR-2218
Criminal. Affirms Phillip Edwin Byrd’s conviction for invasion of privacy as a Class A misdemeanor. Finds sufficient evidence exists from which the trier of fact could find Byrd guilty beyond a reasonable doubt of invasion of privacy as a Class A misdemeanor.

Randal Shawn Dunham v. State of Indiana (mem. dec.)
12A02-1606-CR-1357
Criminal. Affirms Randal Shawn Dunham’s conviction of Level 4 felony child molesting and his sentence to seven years in the Department of Correction, three years executed and four suspended to probation. Finds Dunham’s trial counsel was not ineffective. Also finds the sentencing court did not abuse its discretion.

Jeremy Alan Riddle v, State of Indiana (mem. dec.)
27A05-1606-CR-1360
Criminal. Affirms Jeremy Alan Riddle’s conviction of murder, Level 4 felony unlawful possession of a firearm by a serious violent felon, and Level 6 felony theft. Finds the Grant Superior Court did not abuse its discretion when it admitted into evidence the challenged exhibits existing of crime scene and autopsy photographs.

Derrick Townes v. State of Indiana (mem. dec.)
49A04-1611-CR-2651
Criminal. Affirms Derrick Townes’ conviction for battery as a Class B misdemeanor. Finds the state presented evidence of a probative nature from which a reasonable trier of fact could have determined beyond a reasonable doubt Townes did not validly act in self-defense.

In the Matter of the Termination of the Parent-Child Relationship of B.J. R., Mother, J.F., Father and M.R., Minor Child, B.J.R. v. Indiana Department of Child Services (mem. dec.)
21A04-1701-JT-104
Juvenile termination of parental rights. Affirms the juvenile court’s order terminating B.J.R.’s parental rights to her child, M.R. Finds the juvenile court did not abuse its discretion when it denied B.J.R.’s motion for a continuance. Also finds the juvenile court’s termination of B.J.R.’s parental rights was not clearly erroneous.

Desmond Hayes v. State of Indiana (mem. dec.)
49A02-1606-CR-1391
Criminal. Affirms Desmond Hayes’ conviction of Level 2 felony burglary, Level 3 felony robbery and two counts of Level 3 felony criminal confinement. Finds Hayes waived abuse-of-discretion review of the Marion Superior Court’s evidentiary ruling by failing contemporaneously to object. Also finds Hayes cannot allege fundamental error.

Kyle Andrews v. Gilliam Moorman (mem. dec)
27A02-1610-JP-2311
Juvenile paternity. Affirms the Grant Circuit Court’s modification of custody of Kyle Andrews’ child, T.A., in favor of Gillian Moorman. Finds the trial judge did not err in failing to sua sponte recuse himself from consideration of the case. Also finds there is sufficient evidence to support the modification of custody in favor of Moorman. Finally, finds there is no error in the child support or parenting time orders.

Christina Lyons v. Lillian Henegar, Trusteee of Bloomington Township (mem. dec)
53A04-1603-MI-611
Miscellaneous. Affirms the Monroe Circuit Court’s order regarding the denial of Christina Lyons’ application for township assistance by Lillian Henegar, trustee of Bloomington Township. Finds the trial court’s denial of Lyons’ application for township assistance is not clearly erroneous.

Stacey Cabell v. State of Indiana (mem. dec.)
82A01-1608-CR-1962
Criminal. Affirms Stacey Cabell’s convictions of Level 4 felony methamphetamine possession, Level 6 felony maintaining a common nuisance and Class B misdemeanor marijuana possession. Finds the Vanderburgh Circuit Court did not abuse its discretion in admitting certain deposition testimony at trial and in denying Cabell’s pretrial motion to compel the state to disclose the identity of its confidential informant. Also finds the evidence is sufficient to support Cabell’s convictions.
 

Estate of Ladean Kennedy ex rel. Jackie Franklin, Estate of Daraunda Gambill ex rel. Jackie Franklin v. SAFR, L.L.C. and Shelly Fonner (mem. dec.)
84A01-1607-PL-1639
Civil plenary. Affirms the grant of summary judgment to Shelly Fonner and SAFR, LLC on Ladean Kennedy’s tort and quasi-contract claims. Reverses the grant of summary judgment to Fonner and SAFR on Kennedy’s breach of contract claim. Finds Kennedy failed to state a claim for fraud of any species, no matter Fonner’s intent.  Also finds no party received a benefit without paying for it or enforceably contracting to pay for it, so there could be no unjust enrichment, and judgment as a matter of law was properly entered against Daraunda Gambill’s estate on that claim. Finally, finds Fonner and SAFR breached a contract and Kennedy was entitled to the remedy she sought, so summary judgment in Fonner and SAFR’s favor on Kennedy’s contract claim was improper. Remands for further proceedings.
 

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