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Opinions Sept. 25, 2017

September 25, 2017
KEYWORDS Opinions

The following 7th Circuit Court of Appeals opinions were posted after IL deadline Friday:
In Re: OneStar Long Distance, Inc., Elliott D. Levin v. Verizon Business Global, LLC

16-1940, -2094
Appeals from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard L. Young.
Civil. Affirms the district court’s affirmation of the bankruptcy judge’s ruling that the new value, or additional telecommunications services, that MCI advanced during its preference period sufficed to make OneStar’s preferential payments unavoidable, so the debt assignment to a newly formed affiliate was irrelevant. Finds a debtor’s assignment of debt and contractual rights to an affiliate doesn’t have the effect of repaying a creditor for new value. Also finds MCI advanced subsequent new value that remained unpaid, so OneStar’s preferential transfers are unavoidable.

Michael D. Faucett v. United States of America
15-2515
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms the district court’s denial of Michael Faucett’s request to vacate his convictions of two counts of production and one count of possession of child pornography and his 30-year sentence on the basis of ineffective assistance of counsel. Finds Faucett could not have succeeded on a defense of involuntary intoxication. Also finds an argument about diminished capacity at sentencing would have undermined Faucett’s defense strategy. Finally, finds the district court did not err in denying Faucett’s motion without an evidentiary hearing.

Monday's opinions
Indiana Court of Appeals

Indiana Insurance Guaranty Association v. Carlos A. Smith
71A03-1703-CT-610
Civil tort. Affirms the denial of the Indiana Insurance Guaranty Association’s motion to dismiss. Finds a vehicle that has liability insurance but was denied coverage meets the statutory definition of an uninsured motor vehicle. Also finds Martin Torres’ vehicle meets Affirmative Casualty Insurance Company’s definition of an uninsured automobile, so Carlos Smith alleged in his compliant a set of circumstances under which he would be entitled to relief. Finally, finds the St. Joseph Superior Court did not err in denying IIGA’s motion to dismiss. Judge Robert Altice concurs in result with separate opinion.

Kellam Excavating, Inc. v. Community State Bank
09A02-1704-PL-760
Civil plenary. Affirms the grant of summary judgment in favor of Community State Bank. Finds the bank’s leasehold mortgage qualifies as a mortgage, and takes priority over a mechanic’s lien. Also finds the bank qualifies as “lender” under the lender exception. Finally, finds the bank’s lien related to the construction project Kellam Excavating, Inc. was hired to complete for Sagamore Warehouse, LLC, so the lender exception applies.

Roxanne Wells v. Wayne Wells, III (mem. dec.)
17A03-1701-DR-172
Domestic relation. Reverses the DeKalb Superior Court’s order modifying Roxanne Wells’ custody of her minor child, W.E.W. IV, in favor of Wayne Wells III. Finds the trial court did not abuse its discretion by admitting a report from guardian ad litem Hugh Taylor, but did abuse its discretion by modifying the prior custody order.

In the Matter of the Termination of the Parent-Child Relationship of A.M. and D.M. (Minor Children), M.M. (Mother) v. Indiana Department of Child Services (mem. dec.)
49A02-1705-JT-908
Juvenile termination of parental rights. Affirms the termination of M.M.’s parental rights to her minor children, A.M. and D.M. Finds the Marion Superior Court did not err when it concluded the continuation of the parent-child relationship would pose a threat to the well-being of the children or when it concluded the termination of the parent-child relationships was in the best interests of the children.

Herbert Robertson v. State of Indiana (mem. dec.)
82A05-1610-PC-2303
Post-conviction. Affirms the denial of Herbert Robertson’s petition for post-conviction relief. Finds the post-conviction court’s denial of the request for an evidentiary hearing and motion to compel affidavits were not erroneous. Also finds the post-conviction court did not err in finding that trial counsel was not ineffective.

William Gholston v. State of Indiana (mem. dec.)
49A05-1605-CR-1031
Criminal. Affirms William Gholston’s conviction for murder. Finds that although it was erroneous to admit into evidence the parts of Gholston’s videotaped interview with Captain Craig Converse and Detective Marcus Kennedy that showed him invoking his right to silence, the error did not result in fundamental error. Also finds the state presented sufficient evidence to support Gholston’s murder conviction. Chief Judge Nancy Vaidik concurs in result without separate opinion.

In the Matter of the Termination of the Parent-Child Relationship of J.S. & H.E., Minor Children, E.S., Mother & G.E., Father v. The Indiana Department of Child Services (mem. dec.)
49A02-1703-JT-444
Juvenile termination of parental rights. Affirms the involuntary termination of E.S. and G.E.’s parental rights to their children, J.S. and H.E. Finds the termination of their parental rights was supported by clear and convincing evidence.

Carlos Menwell Arevalo, III v. State of Indiana (mem. dec.)
48A05-1703-CR-532
Criminal. Affirms Carlos Menwell Arevalo, III’s conviction of possession of methamphetamine as a Level 4 felony. Finds evidence of probative value exists from which the jury as trier of fact could find that Arevalo had constructive possession of the contraband and could have found him guilty beyond a reasonable doubt.

Curtis Richards v. State of Indiana (mem. dec.)
49A05-1611-CR-2560
Criminal. Affirms Curtis Richards’ conviction of battery resulting in serious bodily injury as a Level 5 felony. Finds the evidence is sufficient to support Richards’ conviction.

 

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