Opinions June 26, 2019

Keywords Opinions

The following 7th Circuit Court of appeals opinion was posted after IL deadline Tuesday.
Donald Fessenden v. Reliance Standard Life Insurance Company and Oracle USA, Inc., Group Long Term Disability Plan  
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Philip P. Simon.
Civil. Vacates the Northern District Court’s summary judgment determination in favor of Reliance Standard Life Insurance Company and remands for proceedings consistent with the opinion. Holds that the “substantial compliance” exception does not apply to missed deadlines. Finds that because Reliance violated a hard‐and‐fast obligation, its late decision to deny Fessenden benefits is not entitled to deference.

Wednesday's opinions
Indiana Supreme Court

International Business Machines Corporation v. State of Indiana, acting on behalf of the Indiana Family & Social Services Administration
Civil plenary. Finds IBM is entitled to post-judgment interest on its $49.5 million damages award running from the 2017 judgment on remand, not from the original 2012 judgment, because the 2012 judgment was not “final.” Summarily affirms the Indiana Court of Appeals on all other issues and affirms the Marion Superior Court on all issues, including the award of $78 million in damages to the state. Justice Geoffrey Slaughter concurs in part and dissents in part with separate opinion. Just Mark Massa did not participate.

Levetta Tunstall v. Dawn Manning
Civil tort. Affirms the award of $1.3 million to Dawn Manning following an vehicle crash involving Levetta Tunstall. Holds that evidence of both an expert witness’s professional license status and the reasons for professional discipline may be admissible to challenge medical expert Dr. Steven Paschall’s credibility. Finds the Marion Superior Court abused its discretion when it excluded evidence that Paschall’s medical license had been on probation. Also finds the trial court properly excluded evidence of the reasons for the doctor’s professional discipline because the evidence was inadmissible under certain evidentiary rules.

Indiana Court of Appeals
Antonio R. Whitfield v. State of Indiana
Criminal. Affirms Antonio R. Whitfield’s conviction of Level 5 felony burglary. Finds the Marion Superior Court did not clearly err in determining Whitfield failed to demonstrate that the state’s peremptory challenge to a potential juror was based on her race in violation of the 14th Amendment.

Kiel Stone v. State of Indiana
Criminal. Affirms on interlocutory appeal the denial of Kiel Stone’s seven counts of Class B misdemeanor harassment for calls he made to staff members of the Indiana General Assembly and the office of Indiana Secretary of State. Finds the denial was not a violation of Stone’s First Amendment rights or his rights under the Article 1, Section 9 of the Indiana Constitution. Judge John Baker concurs in result with separate opinion.

Roberto Cruz Rivera v. State of Indiana
Criminal. Affirms the Marion Superior Court’s issuance of a jury admonishment as part of its preliminary instruction immediately before excusing the jury for lunch. Finds the admonishment was sufficient to satisfy both the “in the preliminary instruction” and “before separating for meals” requirements of Indiana Code section 35-37-2-4(a). Finds the trial court did not commit fundamental error.

State of Indiana ex rel. Curtis T. Hill, Jr., Attorney General of Indiana v. Larry Lawson, Angela M. Lawson aka Angie M. Lawson
Civil plenary. Reverses the Owen Circuit Court’s order that Larry Lawson was entitled to one half of proceeds from the sale of land that was fraudulently transferred to him by his wife, former Owen County Auditor Angela Lawson, as she was being investigated for misappropriation of public money. Remands with instructions for the court to enter an order awarding the state the full amount of the land sale proceeds.

Indiana Office of Utility Consumer Counselor, City of Crown Point, Indiana and Town of Schererville, Indiana v. Indiana-American Water Company, Inc., City of Lake Station, Indiana, et al. (mem. dec.)
Agency. Affirms the Indiana Utility Regulatory Commission’s allowance of a $7 million appraisal value of the City of Lake Station’s water treatment plant and five supply wells to be included in Indiana-American Water Company, Inc.’s rate base. Finds the commission’s interpretation of Indiana Code Section 8-1-30.3-5 is reasonable. Concludes it was reasonable for the Commission to conclude that, pursuant to the statute, the Legislature intended for the standard to apply to the seller of a distressed utility.

Michael Ray Walton v. State of Indiana (mem. dec.)
Criminal. Dismisses Michael Walton’s appeal of his 54-month sentence for conviction of Level 5 felony failure to register as a sex offender and Level 6 felony failure of a sex or violent offender to possess identification. Finds Walton waived the right to appeal his sentence.  

Teresa Thornton v. State of Indiana (mem. dec.)
Criminal. Affirms Teresa Thornton’s 10-year sentence for conviction of Level 5 felony dealing in a narcotic drug and being a habitual offender. Finds the sentence is not inappropriate in light of the nature of the offense and her character.

Dustin Woodard v. Ashley Woodard (mem. dec.)
Domestic relation. Affirms the Morgan Circuit Court’s denial of Dustin Woodard’s motion to modify custody and for the appointment of a guardian ad litem. Finds the trial court did not abuse its discretion by denying father’s motion to modify custody. Also holds that the trial court did not abuse its discretion by denying father’s request for the appointment of a GAL. Judge Rudolph R. Pyle III concurs in result with separate opinion.

Anita Dustrude v. State of Indiana (mem. dec.)
Criminal. Affirms Anita Dustrude’s 14-year sentence for conviction of Level 4 felony dealing in methamphetamine; Level 5 felony dealing in methamphetamine; Level 6 felony maintaining a common nuisance; and Level 6 felony unlawful possession of a syringe. Finds the sentence is not inappropriate in light of the nature of her offenses or her character.

D.J. Johns v. State of Indiana (mem. dec.)
Criminal. Affirms the Ripley Circuit Court’s order revoking D.J. Johns’ probation and imposition of the balance of his previously suspended sentence. Finds the trial court properly revoked the balance of Johns’ previously suspended sentence.

Anthony Larkins v. State of Indiana (mem. dec.)
Criminal. Affirms Anthony Larkins’ 31-year aggregate sentence for his conviction of Level 1 felony attempted murder and Class A misdemeanor carrying a handgun without being licensed. Finds the Marion Superior Court did not abuse its sentencing discretion.

In the Matter of the Termination of the Parent-Child Relationship of K.G., Mother, D.B., Father, and N.G. and B.B., Minor Children, K.G. v. Indiana Department of Child Services (mem. dec.)
Juvenile termination. Affirms the termination of mother K.G.’s parental rights to her minor children, N.G. and B.B. Finds the Legislature was within its right to determine the burden of proof in termination cases to be the clear and convincing standard. Concludes that mother has not shown that the clear and convincing standard of proof violates the Indiana Constitution.

In the Matter of the Paternity of Brogan Hensley, Megan Orcutt v. John Hensley (mem. dec.)
Juvenile paternity. Vacates the Dearborn Circuit Court’s order granting John Hensley’s petition to modify custody of his minor child with Megan Orcutt. Finds Orcutt has shown prima facie error and that the trial court abused its discretion when it modified custody in favor of Hensley. Remands for further findings.

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