Opinions May 6, 2019

Keywords Opinions

The following 7th Circuit Court opinion was posted after IL deadline Friday: 
Johnny Webber and Debora Webber v. Roger Butner

18-2866
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Reverses and vacates the Indiana Southern District Court’s judgment in favor of Roger Butner on Johnny and Debora Webber’s negligence claims. Finds Webber is entitled to a new trial because the district court erred in admitting evidence that Webber was not wearing a hardhat when a dead branch fell on his head, severely injuring him. Also finds the errors were not harmless based on the jury’s 51-49 percent split when apportioning fault. Remands for a new trial. 

Monday opinions
Indiana Court of Appeals 
Kirk S Freeman v. Tricia L Thompson 

18A-SC-2718
Small claims. Affirms the Tippecanoe Superior Court’s dismissal of Lafayette attorney Kirk S. Freeman’s defamation complaint against Tippecanoe Superior Court Magistrate Tricia L. Thompson for failure to state a claim upon which relief can be granted. Finds Thompson was acting within her judicial capacity when she reported Tippecanoe County courthouse law enforcement that Freeman possessed a firearm inside the courthouse in violation of state law and local ordinances and is, thus, immune from Freeman’s allegation that she defamed him in making the report.

G.F. v. St. Catherine Hospital, Inc., Vatsal K. Patel, D.O., and Indiana Patient's Compensation Fund
18A-PL-2460
Civil plenary. Reverses the Marion Superior Court’s judgment in favor of St. Catherine Hospital, Inc., and Vatsal K. Patel, D.O., against G.F. and Indiana Patient’s Compensation Fund. Finds the trial court erred by allowing St. Catherine and Patel to file a response to G.F.’s motion for summary judgment outside the time period specified in Indiana Trial Rule 56. Also finds the Medical Malpractice Act is not applicable to claims involving negligent dissemination of protected health information. Remands for further proceedings. 

Kevin Jones v. State of Indiana (mem. dec.)
18A-CR-1320
Criminal. Affirms Kevin Jones’ convictions for aggravated battery, battery and domestic battery. Finds the Marion Superior Court’s determination that the extreme remedy of a mistrial was unnecessary is supported by the record and was not an abuse of discretion. Judge Paul Mathias dissents with separate opinion. 

In the Paternity of C.L.H., Blake A. Hensley v. Alyssa N. Troesch (mem. dec.)
18A-JP-3038
Juvenile paternity. Affirms the Perry Circuit Court’s order in favor of Alyssa Troesch with respect to parenting time with Blake Hensley, as well as the trial court’s finding of contempt. Finds the trial court did not abuse its discretion by ordering Hensley to complete 18 months of drug rehabilitation before receiving unsupervised parenting time with the child. Also finds the trial court did not abuse its discretion by concluding Troesch was not in contempt for denying Hensley parenting time, or by finding him in contempt for nonpayment of child support and attorney’s fees. 

In the Matter of the Termination of the Parent-Child Relationship of L.C. (Minor Child) and C.D.C., Jr. (Father) v. Indiana Department of Child Services (mem. dec.)
18A-JT-2905
Juvenile termination of parental rights. Affirms the termination of C.D.C. Jr.’s parental rights to his child, L.C. Finds the Department of Child Services did not violate C.D.C. Jr.’s constitutional due process rights. 

Kenneth R. Sumner v. Loree A. Wheeler (mem. dec.)
18A-DR-2070
Domestic relation. Affirms the Hendricks Superior Court’s modification of physical custody, parenting time and child support as requested by Loree Wheeler, as well as its decision to leave legal custody shared jointly between Wheeler and Kenneth Sumner. Finds Sumner was not unconstitutionally precluded from presenting his entire case due to time constraints. Also finds the the trial court did not improperly deny a motion to continue. Finally, finds Sumner waived his right to appeal the trial court’s support order.  

Kristie L. Stepanovich v. Susan Houchin, Individually, and Susan Houchin, O.D., P.C. (mem. dec.)
18A-PL-2788
Civil plenary. Affirms and reverses in part the Lake Superior Court’s order dismissing Kristie Stepanovich’s claims against Susan Houchin and Susan Houchin, O.D., P.C. Finds the trial court erred when it treated the defendants’ dismissal motion as a motion for summary judgment. Also finds Houchin may proceed on her breach of fiduciary duty and contract claims that are not based upon the alleged agreement to share in the profits of the P.C. Remands for further proceedings. 

G.S. v. A.S. (mem. dec.)
18A-DR-2625
Domestic relation. Affirms the White Circuit Court’s order denying father G.S.’s motion to modify custody. Finds the trial court did not abuse its discretion in denying G.S.’s motions to continue, compel and restrict witnesses. Also finds the trial court applied the correct legal standard in its order and did not abuse its discretion in denying G.S.’s motion to modify custody. 

Stephen Boger v. State of Indiana (mem. dec.)
18A-CR-2622
Criminal. Affirms and reverses in part Stephen Boger’s convictions of one count of Level 4 felony dealing in methamphetamine and three counts of Level 5 felony dealing in methamphetamine and his 15-year sentence. Finds the Greene Superior Court did not abuse its discretion in admitting evidence of Boger’s previous drug sales. Also finds there was sufficient evidence to rebut his entrapment defense and support his convictions. Finally, finds the trial court erred in imposing consecutive sentences. Remands for the trial court to resentence Boger consistent with the opinion, modify its orders accordingly and notify the Department of Correction of the change.

Eugene L. Cardwell v. State of Indiana (mem. dec.)
18A-CR-2605
Criminal. Affirms Eugene Cardwell’s convictions for Level 3 felony aggravated battery and Level 5 felony battery. Finds there is sufficient evidence to support the convictions. 

In the Matter of the Termination of the Parent-Child Relationship of S.C.; K.W. (Mother) v. The Indiana Department of Child Services (mem. dec.)
18A-JT-2998
Juvenile termination of parental rights. Affirms the termination of mother K.W.’s parental rights to her minor child, S.C. Finds the “clear and convincing” evidence burden of proof standard in termination of parental rights cases does not violate the Indiana Constitution.

James Curtis Todd v. State of Indiana (mem. dec.)
18A-CR-3017
Criminal. Affirms James Todd’s conviction for Class B misdemeanor criminal mischief. Finds there is sufficient evidence to support the conviction.  

Brenda Conley v. State of Indiana (mem. dec.)
18A-CR-1402
Criminal. Affirms Brenda Conley’s conviction for Class A misdemeanor possession of a synthetic drug or synthetic drug lookalike substance and Level 6 felony obstruction of justice. Finds there is sufficient evidence to support the conviction. 

Devonne Mosley v. State of Indiana (mem. dec.)
18A-CR-2871
Criminal. Dismisses Devonne Mosley’s appeal of her conviction for Class A misdemeanor pointing a firearm. Finds that because the Marion Superior Court already granted the relief sought by Mosley when it entered judgment as a Class A misdemeanor, her case is moot.  

Marshaun Bugg v. State of Indiana (mem. dec.)
18A-CR-2890
Criminal. Affirms the denial of Marshaun Bugg’s motion to modify his sentence to placement in a community corrections program. Finds the Marion Superior Court did not err.

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