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Opinions Dec. 29, 2017

December 29, 2017

Indiana Court of Appeals
Campbell Hausfeld/Scott Fetzer Company v. Paul Johnson

64A03-1705-CT-984
Civil tort. Affirms and reverses in part the grant of summary judgment in favor of Campbell Hausfeld/Scott Fetzer Company on Paul Johnson’s defective design claim and the denial of summary judgment with regard to Johnson’s failure to warn claim. Finds Campbell Hausfeld is not entitled to summary judgment on any of its asserted statutory defenses. Also finds the designated evidence establishes a genuine issue of material fact regarding whether Campbell Hausfeld provided adequate warning concerning the use of a Grinder with a cut-off disc. Finally, finds Campbell Hausfeld failed to establish its entitlement to summary judgment on the defective design claim. Remands.

Monica Dycus v. State of Indiana
49A05-1705-CR-978
Criminal. Reverses Monica Dycus’ conviction for operating a vehicle while intoxicated endangering a person as a Class A misdemeanor. Finds the admission of the Indiana State Department of Toxicology’s chain-of-custody forms were not subject to the protection of the Confrontation Clause. Also finds a person in custody must be advised of the right to counsel before being able to validly consent to a drug recognition evaluation. Remands for a new trial.

Buddy & Pal's III, Inc. v. Stephen Shearer
45A03-1703-CT-465
Civil tort. Affirms the denial of Buddy & Pal’s III, Inc.’s motion for judgment on the evidence and motion to correct error. Finds the Lake Superior Court did not err or abuse its discretion.

Kenneth Alford et al. v. Johnson County Commissioners et al.
73A04-1702-PL-223
Civil plenary. Affirms the dismissal of seven Johnson County defendants’ complaint against the Johnson County commissioners, judges and individual attorneys party to public defender contracts. Finds the Shelby Superior Court properly dismissed the complaint.

Nancy McDaniel, as Personal Representative of the Estate of Fred C. McDaniell, III, deceased v. William C. Erdel, M.D., and Indiana Gastroenterology, Inc.
49A05-1612-CT-2759
Civil tort. Affirms the entry of summary judgment in favor of Dr. William C. Erdel and Indiana Gastroenterology, Inc. on Nancy McDaniel’s medical malpractice action. Finds the Marion Superior Court did not err in its entry of summary judgment.

Ross E. Embry v. State of Indiana (mem. dec.)
49A04-1706-CR-1374
Criminal. Affirms Ross Embry’s convictions of two counts of Class A misdemeanor criminal trespass. Finds the evidence was sufficient to support Embry’s convictions.

Michael Riggle v. State of Indiana (mem. dec.)
49A02-1704-CR-787
Criminal. Affirms Michael Riggle’s conviction of Level 1 felony child molesting. Finds the evidence was sufficient to support Riggle’s conviction.

Gerald L. Doll v. State of Indiana (mem. dec.)
91A05-1704-PC-912
Post-conviction. Affirms the denial of Gerald L. Doll’s petition for post-conviction relief. Finds Doll failed to carry his burden of showing the post-conviction court clearly erred in determining his guilty plea was not involuntary, and that he was not denied effective assistance of trial counsel. Also finds Doll’s sentence to an aggregate of 30 years was not erroneous.

In the Matter of the Termination of the Parent-Child Relationship of A.L., Mother, and Al.L., Ar.L., and K.M.L., Minor Children, A.L. v. Indiana Department of Child Services (mem. dec.)
21A04-1705-JT-1126
Juvenile termination of parental rights. Affirms the termination of A.L.’s parental rights to her three minor children. Finds the juvenile court’s termination of A.L.’s parental rights was not clearly erroneous.

In the Termination of the Parent-Child Relationship of: K.S. (Minor Child) and D.S. (Father) v. The Indiana Department of Child Services (mem. dec.)
49A02-1707-JT-1499
Juvenile termination of parental rights. Affirms the termination of D.S.’s parent-child relationship with his daughter, K.S. Finds there was sufficient evidence to support the juvenile court’s conclusion that the conditions that resulted in K.S.’s placement outside the father’s home would not be remedied, that continuation of the parent-child relationship poses a threat to K.S.’s well-being, and that termination of the parent-child relationship is in K.S.’s best interest.

Ed Wayt and Tex A. Wayt v. Phyllis I. Maschino, et al. (mem. dec.)
36A05-1702-CC-335
Civil collection. Affirms the entry of judgment against Ed and Tex Wayt and in favor of Phyllis Maschino in the amount of $83,000. Finds the Jackson Superior Court did not err in its entry of judgment or findings. Also finds Maschino’s claims regarding loan payments she made on the Wayts’ behalf and her cash loans to the Wayts are not barred by the statute of frauds. Remands with instructions to clarify the trial court’s order with respect to ownership of three items of personal property belonging to the Wayts.

Fredrick Ulysses Rogers v. State of Indiana (mem. dec.)
82A01-1708-CR-1888
Criminal. Affirms Frederick Ulysses Rogers’ 40-year executed sentence for his convictions of three counts of Level 1 felony child molesting, two counts of Level 4 felony child molesting, one count of Level 5 felony child exploitation, four counts of Level 6 felony performing sexual conduct in the presence of a minor and two counts of Level 6 felony dissemination of matter harmful to minors. Finds Rogers’ sentence is not inappropriate in light of his character of the nature of the offense.

Lavar L. Thomas v. State of Indiana (mem. dec.)
89A04-1705-CR-1104
Criminal. Affirms Lavar L. Thomas’ convictions of Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 6 felony possession of cocaine and Level 3 felony dealing in a narcotic drug. Finds the Wayne Superior Court did not commit reversible error when it denied Thomas’ motions for mistrial, removed a juror after deliberations had begun and failed to instruct the jury regarding the reasons for her removal.

Christopher M. Beaty v. State of Indiana (mem. dec.)
30A05-1706-CR-1366
Criminal. Reverses Christopher M. Beaty’s conviction of dealing in methamphetamine as a Level 4 felony. Finds the state presented insufficient evidence to support Beaty’s Level 4 felony conviction. Remands for the trial court to enter judgment and resentence as a Level 5 felony.

In re the Matter of the Involuntary Termination of the Parent-Child Relationship of: K.M., H.M., K.M. and H.J. v. The Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.)
49A05-1707-JT-1498
Juvenile termination of parental rights. Affirms the termination of H.J.’s parental rights to her three children. Finds the termination order is not clearly erroneous.

Involuntary Termination of the Parent-Child Relationship of C.H., Minor Child, and A.H. v. Indiana Department of Child Services (mem. dec.)
89A01-1708-JT-1781
Juvenile termination of parental rights. Affirms the termination of A.H.’s parental rights to his daughter, C.H. Finds the Wayne Superior Court’s conclusions that there is a reasonable probability that the conditions that resulted in C.H.’s continued placement outside of her father’s care will not be remedied, and that termination of his parental rights is in C.H.’s best interest are support by the evidence.

Involuntary Termination of the Parent-Child Relationship of D.B., Minor Child, and S.B. v. Indiana Department of Child Services (mem. dec.)
49A02-1707-JT-1635
Juvenile termination of parental rights. Affirms the involuntary termination of S.B.’s parental rights to D.B. Finds the termination order is supported by clear and convincing evidence.

Jefferson Mitchell Dean v. State of Indiana (mem. dec.)
71A03-1704-CR-689
Criminal. Affirms Jefferson Mitchell Dean’s conviction of Level 4 felony child molesting. Finds Dean waived any admission of evidence argument when he stipulated at trial to the admissibility of the exhibit that contained his police statement as part of a defense strategy. Also finds Dean’s policy arguments do not present a reviewable appellate issue.

Northern Indiana Public Service Company v. John J. Krause (mem. dec.)
45A03-1707-SC-1701
Small claims. Affirms the entry of judgment in favor of John Krause on Northern Indiana Public Service Company’s negligence complaint. Finds the evidence supports the judgment.

Stacey H. Young v, Michael A. Young (mem. dec.)
29A02-1707-DR-1478
Domestic relation. Affirms the denial of Stacey H. Young’s motion to modify joint legal custody and parenting time of O.Y., the minor child she shares with Michael Young. Finds the Hamilton Superior Court properly appointed a guardian ad litem and allocated her fees to Stacey Young. Also finds the trial court properly denied Stacey Young’s request for modification of joint legal custody and parenting time. Finally, finds the trial court properly clarified its order with respect to work-related childcare expenses and awarded attorney fees to Michael Young.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.K. (Minor Child) and T.K. (Father) v. The Indiana Department of Child Services (mem. dec.)
28A01-1708-JT-2072
Juvenile termination of parental rights. Affirms the termination of T.K.’s parent-child relationship with his daughter, A.K. Finds the evidence and unchallenged findings are sufficient to support the termination order.

United States Fidelity & Guaranty Insurance Co., et al. v. Crawfordsville Square, LLC and Crawfordsville Square II, LLC (mem. dec.)
54A05-1704-PL-874
Civil plenary. Dismisses United States Fidelity & Guaranty Insurance Company’s appeal of the Montgomery Circuit Court denial of its motion for summary judgment on the issue of whether Crawfordsville Square, LLC and Crawfordsville Square II, LLC were entitled to coverage. Finds sua sponte that USF&G was not aggrieved by the trial court’s order.

Kevin D. Hamilton v. State of Indiana (mem. dec.)
02A03-1704-CR-932
Criminal. Affirms Kevin D. Hamilton’s convictions of murder and Level 3 felony robbery and an enhancement for use of a firearm in the commission of a felony. Finds the Allen Superior Court did not err when it merged Hamilton’s felony murder count with his murder count. Also finds the trial court correctly remedied any potential double jeopardy problem by entering judgment on count III as a Level 3 felony. Finally, finds the trial court did not err when it did not require the jury to reconvene for a bifurcated proceeding regarding the use of a handgun in the commission of the crime.

In re The Matter of The Termination of Parent-Child Relationship of: I.B. and J.B. v. The Indiana Department of Child Services (mem. dec.)
20A03-1707-JT-1505
Juvenile termination of parental rights. Affirms the termination of J.B.’s parental rights to I.B. Finds clear and convincing evidence supports the juvenile court’s termination order.

Joshua J. Fairley v. State of Indiana (mem. dec.)
82A04-1703-PC-575
Post-conviction. Affirms the denial of Joshua Fairley’s petition for post-conviction relief. Finds the post-conviction court did not clearly err in concluding Fairley had not met his burden of establishing his trial counsel was ineffective, in rejecting Fairley’s claim that his guilty plea was not made knowingly and voluntarily, or in determining Fairley was not deprived of due process when the Vanderburgh Circuit Court did not sua sponte order Fairley to undergo a competency evaluation.

Prosecuting Attorney of Hendricks County and Indiana Bureau of Motor Vehicles v. Randy L. Hammer (mem. dec.)
32A01-1705-MI-1107
Miscellaneous. Affirms the denial of the Bureau of Motor Vehicles’ Trial Rule 60(B) motion to set aside the judgment granting Randy L. Hammer’s petition for specialized driving privileges. Finds the Hendricks Superior Court had subject-matter jurisdiction. Also finds any alleged legal error should have been raised on direct appeal.

Gregory A. Traylor v. State of Indiana (mem. dec.)
03A01-1709-CR-2017
Criminal. Reverses the denial of Gregory Traylor’s motion for reduction of bail. Finds the Bartholomew Circuit Court abused its discretion in denying Traylor’s motion. Remands with instructions for the trial court to set a reasonable bond amount based on the relevant statutory factors.

 

 

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