Opinions Feb. 14, 2019

Keywords Opinions

The following 7th Circuit Court opinion was posted after IL deadline Wednesday.
Red Barn Motors, Inc. v. NextGear Capital, Inc.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Vacates the Southern District Court’s decision to rescind class certification for Red Barns Motors’ numerous claims against NextGear Capital, including breach of contract, constructive fraud and RICO violations and conspiracy. Finds the district court’s denial of the class certification lacks sufficient reasoning and explanation. Remands for further proceedings.

Indiana Court of Appeals
Darwin L.G. Hanks v. State of Indiana

Criminal. Affirms Darwin Hanks’ conviction of Level 5 felony battery and Level 6 felony domestic battery against this 6-year-old son. Finds there is sufficient evidence to support the conviction and to refute the defense of parental privilege.

Daniel Vega v. State of Indiana
Criminal. Affirms Daniel Vega’s 12-year executed sentence and conviction of Level 3 felony child molesting and two counts of Level 5 felony child solicitation. The Madison Circuit court did not abuse its discretion when it admitted video of the forensic interview with the victim or denied Vega’s request for a psychological examination of the victim at public expense. Vega failed to preserve for appeal his arguments that the trial court abused its discretion by admitting “drumbeat evidence” and failing to declare a mistrial. Finally, his sentence is not inappropriate.

Joshua J. Kelp v. State of Indiana
Criminal. Affirms Joshua Kelp’s convictions of Level 4 felony child exploitation, Level 5 felony child exploitation, and Level 5 felony possession of child pornography. Finds the Tippecanoe Superior Court committed harmless error when it improperly considered Kelp trading images as an aggravating factor. Finds his 10-year-sentence is not inappropriate in light of his offenses and character. Remands to the trial court for clarification of Special Probation Rule 12, which is overly broad.

Shelley Nicholson, as the Mother of Matthew Kendall v. Christopher S. Lee
Civil tort. Affirms the Dubois Circuit Court’s grant of judgment in favor of Christopher Lee. Finds Lee is immunize from liability in the negligence case brought after Matthew Kendall’s shooting death under the plain language of Indiana Code section 34-30-20-1, both in shooter C.O.’s actions in taking the gun, and in Lee’s failure to store his gun safely and properly.

Ronald Lunsford, Jr. v. State of Indiana (mem. dec.)
Post conviction. Affirms the Sullivan Superior Court’s denial of Ronald Lunsford Jr.’s petition for post conviction relief. Finds Lunsford’s trial counsel was not ineffective for declining to file a motion to dismiss on the basis of double jeopardy.

Gordon Cummins and Richard Bizzaro v. 1st Source Bank (mem. dec.)
Civil plenary. Affirms the entry of summary judgment for liability against Gordon Cummins. Reverses the entry of summary judgment against Richard Bizzaro and the entry of summary judgment as to damages against Cummins and Bizzaro. Remands to the trial court for proceedings consistent with the opinion.

In the Matter of the Termination of the Parent-Child Relationship of A.B. (Minor Child); D.F. (Father) v. Indiana Department of Child Services (mem. dec.)
Juvenile termination. Affirms the termination of D.F.’s parental rights to his minor child A.B. Finds there is sufficient evidence to support the termination of D.F.’s parental rights.

Demettress Burnett v. David Davis and Mari Davis (mem. dec.)
Small claims. Affirms the $270 judgment entered in Demettress Burnett’s favor in her small-claims action against David and Mari Davis. Finds the Lake Superior Court did not err in allowing the Davises to file an untimely counterclaim. Also finds the judgment was not clearly erroneous and that Burnett waived any challenge she might have to the counterclaim.

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