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Opinions Oct. 13, 2017

October 13, 2017
KEYWORDS Opinions

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Thursday:
BancorpSouth, Incorporated v. Federal Insurance Company
17-1425
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Affirms the district court’s grant of Federal Insurance Co.’s motion to dismiss BancorpSouth Inc.’s complaint alleging breach of contract and bad faith denial of coverage. Finds the central harm in the case is Bancorp’s maximization of overdraft fees. Also finds that Federal had no duty to defend against Shane Swift’s claims against Bancorp, so it also had not duty to indemnify. Finally, finds Bancorp’s claim of bad-faith denial of coverage fails.

Friday opinions
Indiana Court of Appeals
Dyamond Harris v. Lafayette LIHTC, LP
79A02-1703-SC-638
Small claims. Reverses the Tippecanoe Superior Court’s judgment and writ of possession in favor of Lafayette LIHTC LP on its claim against Dyamond Harris for unpaid rent. Finds the trial court committed clear error by improperly shifting the burden of proof. Also finds the trial court violated Harris’ due process right to an impartial decision-maker.

Ginger Moell v. Stephen R. Moell
45A05-1704-DR-784
Domestic relation. Affirms and reverses in part. The Lake Superior Court did not err as a matter of law when it vacated the parties’ original settlement agreements regarding the children’s care. Also finds the trial court did not abuse its discretion when it modified Stephen Moell’s parenting time with W.M. Finally, finds the trial court did not have authority to allow N.M. to make his own decisions regarding parenting time and related issues. Remands for further proceedings.

Charles Brown v. Vanderburgh County Sheriff's Department and Vanderburgh County, Indiana
82A04-1705-CT-1087
Civil tort. Affirms the dismissal of Charles Brown’s amended complaint against the Vanderburgh County Sheriff’s Department and Vanderburgh County, Indiana. Finds the tort claim notice sent to the sheriff’s department and the county by Brown did not satisfy Trial Rule 15(C) because it informed them of Brown’s potential claims, but did not advise that a lawsuit had been filed. Also finds the record is devoid of any evidence suggesting the sheriff’s department and county had notice of Brown’s lawsuit as is required by Rule 15(C)(1). Finally, finds Brown’s amended complaint does not relate back to a date preceding the expiration of the statute of limitations.

Anthony T. Williams v. State of Indiana
45A05-1702-CR-314
Criminal. Affirms Anthony Williams’ convictions for murder, Class A felony attempted murder and Class B felony carjacking. Finds the Lake Superior Court did not clearly err in denying Williams’ motion for change of judge.

In re the Paternity of: S.A.M. (Child), M.M. v. M.H., S.B.
48A05-1704-JP-922
Juvenile paternity. Reverses the denial of M.M.’s motion to declare a mediation agreement between himself and M.H. void ab initio. Finds M.H. lacked standing as S.A.M.’s next friend to file a petition to establish paternity of S.A.M., and the Madison Circuit Court acted without authority in ordering the parties to conduct mediation. Also finds that because the trial court acted without authority, the agreement is void ab initio. Vacates the trial court’s order enforcing the mediation agreement and remands for the trial court to decide a reasonable amount of attorney fees to award to M.M.

Brenda Sue Gittings and Marc Richmond Gittings v. William H. Deal
74A01-1611-TR-2551
Trust. Affirms the Spencer Circuit Court’s judgment in favor of William Deal. Finds the Spencer Circuit Court’s finding and conclusion that Brenda and Marc Gittings’ claims were barred by the statute of limitations is not clearly erroneous.

Craig Vickery v. Ardagh Glass, Inc.
49A02-1702-PL-330
Civil plenary. Affirms the Marion Superior Court’s order granting Ardagh Glass Inc.’s motion for preliminary injunction. Finds Vickery received insufficient notice of the temporary restraining order proceeding, but that he has waived the right to seek relief on the issue. Also finds the trial court did not err by entering the preliminary injunction. Remands for further proceedings.

Johnny L. Raley, Jr. v. State of Indiana
88A04-1705-CR-1039
Criminal. Affirms the denial of Johnny L. Raley Jr.’s motion to enforce plea agreement. Finds Raley has failed to demonstrate the Washington Superior Court erred in denying his motion to enforce plea agreement.

Robert Bowman, Tommy Maurry, and Jacob Murphy, et al. v. State of Indiana
49A02-1606-MI-1463
Miscellaneous. Grants the state’s petition for rehearing for the limited purpose of withdrawing footnote three of the original Indiana Court of Appeals opinion. Denies the state’s petition in all other respects.

Jordan L. Gosnell v. State of Indiana (mem. dec.)
84A01-1702-CR-365
Criminal. Affirms Jordan Gosnell’s sentence to 11 years, with five years suspended to probation, for his conviction of Level 3 felony aggravated battery. Finds Gosnell’s sentence is neither erroneous nor inappropriate in light of the nature of the offenses and his character.

Phillip David Lee Witte v. State of Indiana (mem. dec.)
20A03-1701-CR-162
Criminal. Affirms Phillip David Lee Witte’s convictions of Level 3 felony criminal confinement, Level 6 felony intimidation and Class B misdemeanor false informing. Finds admission of challenged testimony regarding Heather Morales’ testimony was harmless. Also finds Witte has failed to establish an abuse of the Elkhart Superior Court’s discretion regarding the use of leading questions or that the court’s actions in permitting such questioning, even if erroneous, was anything but harmless.

Ken R. Anderson v. State of Indiana (mem. dec.)
88A01-1612-CR-2928
Criminal. Affirms and reverses in part Ken Anderson’s convictions of Level 5 felony intimidation and Level 6 felony criminal recklessness. Finds the evidence was sufficient to rebut Anderson’s claim of self-defense and to support his criminal recklessness conviction, but was insufficient to support his intimidation conviction. Remands with instructions to vacate the intimidation conviction, reinstate the criminal recklessness conviction and resentence Anderson accordingly. Judge Robert Altice concurs and dissents in part with separate opinion.

Mark Anthony Woelfel v. State of Indiana (mem. dec.)
49A04-1705-CR-977
Criminal. Affirms and reverses in part Mark Woelfel’s convictions for Level 6 felony criminal recklessness and Class A misdemeanor domestic battery. Finds the evidence was sufficient to support Woelfel’s convictions. Also finds it was erroneous to enter separate convictions and sentences on both counts, as Woelfel’s criminal recklessness and domestic battery offense were “all kind of…the same act.” Remands with instructions to vacate Woelfel’s domestic battery conviction.

Lora L. (Padilla) Goodman v. Carlos J. Padilla (mem. dec.)
52A05-1701-DR-203
Domestic relation. Affirms the Miami Superior Court’s order that Carlos J. Padilla is not required to make any further child support and college expense payments due to overpayment. Finds the trial court’s order was not clearly erroneous.

Rodrigo Castillo Trudillo v. State of Indiana (mem dec.)
12A04-1704-CR-831
Criminal. Affirms the denial of Rodrigo Castillo Trudillo’s motion to withdraw his guilty plea. Finds the Clinton Circuit Court did not err by concluding that Trudillo’s momentary apprehension causing him to say, “not guilty” renders his plea unknowing or involuntary. Also finds the trial court did not err in concluding Trudillo failed to prove a manifest injustice by a preponderance of the evidence or in its denial of his motion to withdraw his guilty plea.

 

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