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Opinions Aug. 1, 2018

August 1, 2018

The following 7th Circuit Court opinion was posted after IL deadline on Tuesday.
Mark McCleskey v. CWG Plastering, LLC

17‐1980
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Larry J. McKinney.

Civil. Reverses and remands the Indiana Southern District Court’s decision to grant summary judgment to CWG Plastering, LLC. Finds the appellants provided enough evidence to support their case, concluding the district court was too quick to grant summary judgment in favor of CWG Plastering, LLC. Judges Frank Easterbrook and David Hamilton concur with separate opinions.

Wednesday’s opinions
Indiana Court of Appeals
David Pflugh v. Indianapolis Historic Preservation Commission sitting as the Indianapolis Historic Preservation Commission and as the Board of Zoning Appeals Division of Marion County, Indiana, et al.

18A-PL-351
Civil plenary. Finds that David Pflugh, who lives across the street from a proposed development, lacks standing to challenge the Indianapolis Historic Preservation Commission’s rezoning decision. Denies appellate attorney fees sought by the commission, finding it failed to establish that all of Pflugh’s contentions were devoid of plausibility, frivolous or in bad faith.

Jeffrey Fairbanks v. State of Indiana
49A02-1707-CR-1675
Criminal. Affirms Jeffrey Fairbanks’ conviction of Level I felony neglect of a dependent resulting in death. Finds evidence that he did affirmatively claim his infant daughter’s death was an accident. Consequently, under Evidence Rule 404(b), the state could admit evidence at trial that Fairbanks had placed a pillow over her on previous occasions when she was crying. The court also rejected Fairbanks’ other arguments of prosecutorial misconduct and juror misconduct, as well as his assertion that the neglect-of-a-dependent is statute is unconstitutionally vague.  

In Re the Estate of James E. Hurwich v. Scott D. Hurwich v. Stacey R. MacDonald
71A04-1705-EU-990
Estate, unsupervised. Affirms on rehearing the COA’s original decision that found the St. Joseph Probate Court erred by dismissing James Hurwich’s complaint with prejudice. Finds his request for the court to vacate and re-enter its order without prejudice is untimely.

Scott A. Hall v. State of Indiana
17A-CR-3022
Criminal. Affirms Clark Circuit Court’s revocation of Scott Hall’s placement in community corrections. Finds the petition filing revoking Hall’s placement by a deputy prosecutor was a procedural, not a jurisdictional, error. Finds the court did not commit fundamental error.

Ed McCarthy v. Tim (John) Ralston (mem. dec.)
39A01-1711-PL-2717
Civil plenary. Affirms the Jefferson Superior Court did not err in equally dividing equipment between Ed McCarthy and Tim Ralston related to their business venture.

Reginald Blackburn v. State of Indiana (mem. dec.)
71A03-1709-CR-2056
Criminal. Affirms Reginald Blackburn’s sentence to 90 days probation and participation in an intervention program for conviction of Class A misdemeanor domestic battery. Finds the St. Joseph Superior Court did not abuse its discretion in admitting evidence. Finds there was sufficient evidence to support Blackburn’s conviction.

John Newsome v. Robert E. Carter, Jr., Indiana Department of Correction, Officer Stephenson, and Indiana State Prison (mem. dec.)
18A-SC-275
Small claims. Affirms the LaPorte Superior small claims court’s judgment in favor of the Indiana Department of Correction. Finds the small claims court properly entered judgment in favor of the DOC on John Newsome’s replevin claim.

James Parrott v. State of Indiana (mem. dec.)
49A02-1712-CR-2761
Criminal. Remands with instructions to correct the sentencing order to reflect that James Parrott’s possession of marijuana conviction is a Class B, rather than a Class A, misdemeanor. Finds the sentencing order is erroneous due to an apparent scrivener’s error.

Saegesser Engineering, Inc. v. Terry Amick (mem. dec.)
72A01-1711-PL-2660
Civil plenary. Affirms the Scott Circuit Court’s entry of summary judgment to Terry Amick. Finds that because Amick acted within the scope of his employment and Saegesser Engineering failed to comply with the notice requirements of the Indiana Tort Claims Act, the trial court properly granted summary judgment to Amick.

In the Matter of the Paternity of T.A. (Minor Child): C.B. v. L.A. (mem. dec.)
18A-JP-238
Juvenile paternity. Affirms the Adams Circuit Court’s order restricting C.B.’s parenting time with T.A. upon petition by the father, L.A. Finds the trial court did not enter insufficient findings to support the parenting time restriction.

John C. Green v. State of Indiana (mem. dec.)
18A-CR-29
Criminal. Affirms John Green’s convictions of Level 2 felony dealing in a narcotic drug, Level 3 felony possession of a narcotic drug, Class A misdemeanor driving while suspended and Class B misdemeanor possession of marijuana. Finds the Marion Superior Court did not err in admitting heroin as evidence. Also finds Green was not denied a fair trial

Gregory B. Kimbrough v. State of Indiana (mem. dec.)
18A-CR-470
Criminal. Affirms Gregory Kimbrough’s 2½-year sentence for conviction of Level 6 felony domestic battery and Class A misdemeanor invasion of privacy. Finds the sentence is not inappropriate in light of the nature of the offenses and his character.

 

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