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Opinions June 13, 2017

June 13, 2017

7th Circuit Court of Appeals
United States of America v. Anthony J. Minney
16-4057
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Larry J. McKinney.
Criminal. Affirms denial of Anthony Minney’s motion to suppress evidence of guns found during a search of his apartment. Finds the plain-view doctrine is controlling and the discovery of the guns falls under that doctrine.

Indiana Court of Appeals
City of Evansville and The Evansville Department of Parks and Recreation v. Benjamin A. Magenheimer

82A05-1610-PL-2350
Civil plenary. Affirms denial of the City of Evansville and Evansville Department of Parks and Recreation’s motion for summary judgment on a complaint filed by Benjamin A. Magenheimer. Finds the law of the case doctrine precludes appellate review of the city’s arguments.

Thomas Jordan v. State of Indiana
49A02-1608-CR-1730
Criminal. Affirms Thomas Jordan’s conviction for invasion of privacy as a Class A misdemeanor. Finds the state presented sufficient evidence to support Jordan’s conviction.

Mark Gleaves v. Messer Construction Company and PERI Formwork Systems, Inc.
49A02-1609-CT-2140
Civil tort. Affirms grant of summary judgment to Messer Construction Company and PERI Formwork Systems, Inc. on Mark Gleaves’ claims against them. Finds the Marion Superior Court did not err in finding the danger of lumberfills ejecting during the removal process was open and obvious. Also finds Messer’s actions and conduct constituted its fulfillment of its contractual obligations to Indiana University. Finally, finds Messer did not undertake supervisory duty beyond those obligations and it did not assume a duty to Gleaves through its actions or conduct.

Elizabeth Roumbos v. Samuel G. Vazanellis and Thiros and Stracci, PC
45A03-1606-CT-1424
Civil tort. Grants rehearing to clarify the distinction between Central Indiana Podiatry, P.C. v. Barnes & Thornburg, LLC and Gaboury v. Ireland Road Grace Brethren, Inc., et al and the facts of the instant case. Finds the facts in this case are strikingly different than those in Podiatry and Gaboury, as in those cases the two statements at issue were unquestionably contradictory, and in this case they are decidedly less so. Affirms the original opinion in all respects.

Ralph Monty Layne, Jr. v. Sudie Mae Layne
71A04-1607-DR-1687
Domestic relation. Affirms the St. Joseph Superior Court’s final decree ending the marriage of Ralph Monty Layne, Jr. and Sudie May Layne. Finds the trial court did not err when it divided the marital estate and did not “claw back” into the marital estate the dissipated assets by excluding them from the marital estate. Also finds the trial court properly considered the dissipated assets when it divided the marital estate and did not err when it awarded Sudie Layne $97,000 in assets, including the dissipation payment. Finally, finds the trial court did not err when it found the parties’ premarital agreement was valid and enforceable.

Epworth Forest Administration Committee, Inc. v. Gerry Lee Powell and Patricia Ann Powell
43A03-1610-MI-2332
Miscellaneous. Affirms the Kosciusko Circuit Court’s judgment for Gerry Lee Powell and Patricia Ann Powell on their complaint against Epworth Forest Administration Committee, Inc. and Robert and Deborah Miller. Finds the trial court’s interpretation of its prior orders is based on the unambiguous language of those orders, and EFAC has not shown the trial court erred when it rejected EFAC’s contrary interpretation. Finds the trial court’s finding there has been no substantial change in circumstances is supported by the record and that its judgment is supported by the findings.

John E. Moriarity and Mae E. Moriarity v. Richard Gillis (mem. dec.)
18A04-1611-PL-2463
Civil plenary. Affirms the Delaware Circuit Court’s finding in favor of Richard Gillis on his counterclaim that he had acquired property by adverse possession. Finds the trial court did not clearly err in concluding Gillis reasonably believed in good faith he paid taxes on the disputed property or in concluding Gillis carried his burden with respect to the elements of intent and notice. Also finds the doctrine of merger by deed is inapplicable.

Blake Patrick Hansen v. State of Indiana (mem. dec.)
41A01-1603-CR-476
Criminal. Affirms Blake Patrick Hansen’s conviction for criminal confinement and intimidation. Finds the state presented sufficient evidence.

Clarenda Love v. Bruce Love (mem. dec.)
32A01-1612-DR-2918
Domestic relation. Affirms the Hendricks Superior Court’s conclusion Bruce Love is not in contempt for failure to turn over the proceeds from an insurance settlement check and certain personal property. Vacates the portion of the Dec. 2, 2016 concluding Love is no longer obligated to make the equalization payment pursuant to a previous order. Finds the trial court erred in determining Bruce Love has no further financial obligation to Clarenda Love. Remands with instructions to determine if Bruce Love’s violation of the trial court’s order to make the equalization payments constitutes contempt of court.

Jerry Coop v. State of Indiana (mem. dec.)
22A01-1610-CR-2376
Criminal. Affirms Jerry Coop’s four convictions of child molesting and his 120-year sentence. Finds the Floyd Superior Court did not commit fundamental error in permitting the state to introduce certain testimony and exhibits or abuse its discretion by relying on an improper aggravator. Also finds the prosecutor’s comments did not place Coop in “’a position of grave peril to which he would not have been subjected otherwise.’” Finally, finds Coop’s 120-year sentence is not inappropriate. Judge Patricia Riley concurs and dissents in part.

In Re the Marriage of: J.W. v. M.W. (mem. dec.)
29A02-1612-DR-2869
Domestic relation. Affirms and reverses in part the Hamilton Superior Court’s order modifying the child custody arrangement between J.W., the father, and his ex-wife, M.W. Finds the trial court did not err by naming M.W. sole legal custodian. Also finds it is improper to require J.W. to obtain M.W.’s consent to the children’s extracurricular activities when they are with J.W.

Karen Bedwell, as Personal Representative of the Estate of Jeffrey Bedwell, Deceased v. Auto-Owners Insurance Company (mem. dec.)
77A01-1612-CT-2899
Civil tort. Affirms the grant of summary judgment to Auto-Owners Insurance Company. Finds Auto-Owners was not precluded by waiver or estoppel from asserting its coverage defense. Also finds that because the source of Jeffrey Bedwell’s peril was his extreme intoxication his estate’s claim for failure to aid an imperiled person was subject to the alcohol exclusion in The Upland Tavern, Inc.’s general liability policy with Auto-Owners.

Frank Larkins, III v. State of Indiana (mem. dec.)
49A02-1611-CR-2516
Criminal. Affirms Frank Larkins, III’s convictions of aggravated battery as a Level 1 felony and neglect of a dependent as a Level 1 felony. Finds the Marion Superior Court did not abuse its discretion when it denied Larkins’ motion to sever. Also finds the state presented sufficient evidence.

Clyde Kissel v. State of Indiana (mem. dec.)
20A05-1606-CR-1462
Criminal. Affirms Clyde Kissel’s convictions of four counts of attempted child molesting as Class A felonies and two counts of child molesting as Class C felonies. Finds the Elkhart Superior Court did not abuse its discretion in denying Kissel’s motion to sever. Also finds the state presented sufficient evidence.

In Re: The Marriage of Wendi L. Lanford v. Stuart D. Lanford (mem. dec.)
49A02-1702-DR-239
Domestic relation. Reverses the grant of Stuart Lanford’s motion to correct error. Finds the trial court had no authority to rule on the motion months after it was filed because Lanford did not file a notice of appeal within 30 days of the deemed denial, so the order is a nullity.
 

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