Opinions Nov. 21, 2017

November 21, 2017

Indiana Court of Appeals
In re Unsupervised Estate of Cary A. Owsley, Logan A. Owsley v. Mark E. Gorbett, et al.
Estate, unsupervised. Affirms the dismissal of Logan A. Owsley’s verified petition to open estate and the denial of his motion to correct error. Finds the Marion Superior Court did not err in concluding a claim being pursued in federal court was not an asset or property of the estate of Cary Owsley and, accordingly, in dismissing the matter.

Robin King v. Rebecca Conley
Civil plenary. Affirms the denial of Robin King’s motion for eviction of Rebecca Conley and grant of Conley’s request for specific performance. Finds the Hendricks Circuit Court’s findings and conclusions that Conley was not in material breach of the lease and was entitled to specific performance of an option agreement are not clearly erroneous. Remands for a determination of appellate attorney fees.

Progressive Southeastern Insurance Co. v. Empire Fire and Marine Insurance Co.
Civil plenary. Reverses the Hendricks Superior Court finding that a courtesy car agreement between Maria Rivera and Terry Lee Honda was a rental agreement. Affirms the trial court’s order of partial arbitration. Finds the trial court erred in reaching the merits of the underlying complaint because the dispute is subject to compulsory arbitration. Remands to the trial court to enter an order compelling the entire dispute to arbitration.

Adam Whitaker v. State of Indiana
Criminal. Reverses the probation department’s imposition of fees on Adam Whitaker. Finds the Marion Superior Court did not order probation fees and abused its discretion when it authorized the probation department to do so. Remands with instructions to vacate the $740 in probation fees and order reimbursement of those fees from the probation department.

Nathaniel Thrash v. State of Indiana
Criminal. Affirms Nathaniel Thrash’s convictions for two counts of resisting law enforcement as a Class A misdemeanor and Level 6 felony. Finds the Marion Superior Court did not abuse its discretion by admitting hearsay testimony by officers regarding Thrash having a possible warrant of arrest. Also finds there was sufficient evidence to support Thrash’s Level 6 felony resisting law enforcement conviction. Finally, finds there is no double jeopardy violation in Thrash’s convictions for two counts of resisting law enforcement.

Richard Curtis, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms Richard Curtis, Jr.’s convictions for sexual misconduct with a minor and intimidation. Finds Curtis’ waiver of his right to a jury trial was knowing and intelligent.

In re the Termination of the Parent-Child Relationship of A.C. and M.C. (Minor Children), N.C. (Father) v. Indiana Department of Child Services (mem. dec.)
Juvenile termination of parental rights. Affirms the termination of N.C.’s parental rights to his two children. Finds there is a reasonable probability that the reasons for placement outside of N.C.’s home will not be remedied.

Edward E. Bell, M.D. v. Joan Barmore and Lew G. Barmore, Individually and as Husband and Wife (mem. dec.)
Civil tort. Affirms the grant of summary judgment to Joan and Lew G. Barmore on their medical malpractice complaint against Edward E. Bell, M.D. Finds the Floyd Superior Court did not err in finding the affidavit of George E. Quill, Jr., M.D., was not sufficient to create a genuine issue of material fact as to causation.

Brandon McCall v. State of Indiana (mem. dec.)
Criminal. Affirms Brandon McCall’s conviction for Level 5 felony domestic battery, the revocation of his probation in a separate case and the sentence imposed for the revocation of his probation. Finds the state presented sufficient evidence to rebut McCall’s claim of self-defense. Also finds the St. Joseph Superior Court properly revoked his probation and properly ordered him to serve his entire suspended sentence.

Jason Leonardo v. State of Indiana (mem. dec.)
Criminal. Affirms Jason Leonardo’s conviction for armed robbery as a Level 3 felony and his sentence to nine years, with three years suspended to probation. Finds the trial court did not abuse its sentencing discretion while sentencing Leonardo. Also finds Leonardo’s sentence is not inappropriate in light of the nature of the offense and his character. Judge Margret Robb concurs with separate opinion.

Bryan Tuggle v. State of Indiana (mem. dec.)
Criminal. Affirms Bryan Tuggle’s conviction for attempted murder as a Level 1 felony. Finds the Marion Superior Court did not commit clear error in denying Tuggle’s motion for an involuntary dismissal. Also finds sufficient evidence supports Tuggle’s conviction. Finally, finds Tuggle was properly sentenced to a single term of imprisonment for attempted murder.

Ozark Capital Corp. v. Lynn K. Kurzendorfer (mem. dec.)
Civil collection. Reverses the denial of Ozark Capital Corp.’s verified motion for proceedings supplemental. Finds the Vanderburgh Superior Court lacked authority to sua sponte set aside a 2004 summary judgment entry because there was no claim of a clerical mistake in that entry and because Lynn Kurzendorfer never filed a motion to set aside the summary judgment pursuant to Trial Rule 60(B).  Remands to the trial court to conduct proceedings supplemental.

Byron Snelbaker v. State of Indiana (mem. dec.)
Criminal. Grants rehearing for the limited purpose of addressing Byron Snelbaker’s double-jeopardy claims against his convictions of two counts of Level 5 felony battery. Finds Snelbaker has failed to establish his two battery convictions violate the U.S. Constitution’s prohibition against double jeopardy. Reaffirms the Cass Superior Court’s judgment in all respects.

Eric D. Huffman v. State of Indiana (mem. dec.)
Criminal. Affirms Eric Huffman’s sentence to an aggregate of 32 years’ imprisonment for his convictions of Level 4 felony burglary, Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 6 felony theft and the finding that he is a habitual offender. Finds the Wells Circuit Court did not err by increasing the habitual offender enhancement after the Indiana Court of Appeals remanded for resentencing following Huffman’s first appeal. Also finds Huffman’s sentence is not inappropriate.

David M. Fischer v. State of Indiana (mem. dec.)
Post-conviction. Affirms the post-conviction court’s denial of David M. Fischer’s petition for post-conviction relief. Finds Fischer’s trial counsel provided effective assistance.

Kevin Thien v. State of Indiana (mem. dec.)
Criminal. Affirms Kevin Thien’s convictions of possession of a narcotic drug as a Level 5 felony and possession of paraphernalia as a Class A misdemeanor and the finding that he was a habitual offender. Finds there was sufficient evidence that Thien possessed a controlled substance and paraphernalia.