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Opinions Nov. 17, 2014

Indiana Court of Appeals
In the Matter of the Walter Penner Trust Under Agreement Created by the Grantor, Walter Penner on April 13, 2010, Stanley Penner v. Ronald Penner
45A03-1212-TR-516
Trust. Affirms trial court’s denial of Stanley Penner’s Petition for Trustee’s Accounting, for Order to Sell Real Estate, and Related Matters. Also affirmed trial court’s order that Stanley pay $13,166 in attorney fees to the Penner Trust. Remands for the trial court to determine and order Stanley to pay the appellate attorney fees for the trust. Finds Ronald did not breach the trust. The language of the trust is unambiguous and, therefore, overrides the state statutes that require trusts to provide access to an accounting. 

Conviction for hit-and-run fatality affirmed

The conviction of a driver who struck and killed a woman while she walked on a busy street during a rainstorm was affirmed Monday by the Indiana Court of Appeals.

Court to consider when second mortgage can be void

The Supreme Court said Monday it will decide whether homeowners who declare bankruptcy can void a second mortgage if the home's market value has dropped below the amount they owe on the first mortgage.

COA rules contract with missing elements is still valid

A Hamilton County man failed to convince the Indiana Court of Appeals that the absence of start and completion dates along with his name rendered his contract with a home improvement company invalid.

Opinions Nov. 14, 2014 ILD

Indiana Court of Appeals
Trinity Ross v. State of Indiana (NFP)
49A02-1402-CR-126
Criminal. Affirms convictions for Class A misdemeanor resisting law enforcement and Class B misdemeanor public intoxication.

In the Matter of the Termination of the Parent-Child Relationship of: K.B., Minor Child, and A.B., Mother v. The Indiana Department of Child Services (NFP)
13A04-1405-JT-206
Juvenile. Affirms termination of parental rights.

Rafael Walker v. State of Indiana (NFP)
49A04-1404-CR-191
Criminal. Affirms convictions of murder and Class C felony robbery.

Shari Melton v. State of Indiana (NFP)
75A03-1403-CR-105
Criminal. Affirms conviction of Class D felony possession of methamphetamine. Reverses conviction of Class A misdemeanor possession of marijuana for lack of evidence demonstrating Melton knew of its presence in a house she shared with others.

Forrest R. Ferguson v. State of Indiana (NFP)
49A02-1406-CR-406
Criminal. Grants rehearing to correct statements that the court lacked jurisdiction to consider Ferguson’s untimely appeal but finds notwithstanding the erroneous references that dismissal of his appeal was warranted.

Henry Morales v. State of Indiana (NFP)
49A02-1403-CR-175
Criminal. Affirms conviction of Class A misdemeanor patronizing a prostitute.

Cody Waldrip v. State of Indiana (NFP)
53A05-1404-CR-154
Criminal. Affirms conviction of Class B felony escape.

Ryan K. Hensley v. State of Indiana (NFP)
19A04-1403-CR-113
Criminal. Affirms denial of credit time sought by Hensley in an order to revoke probation.

Ronald F. Graham v. State of Indiana (NFP)
22A01-1404-CR-181
Criminal. Affirms convictions of Class D felony resisting law enforcement and Class A misdemeanor criminal recklessness.

Landon Q. Jones v. Terry Curry, as the Marion County Prosecutor and Ronald Stiver, as the Commissioner of the Indiana BMV (NFP)
49A02-1403-MI-204
Miscellaneous. Affirms determination by the Bureau of Motor Vehicles that Jones is a habitual traffic violator.
 

Opinions Nov. 14, 2014

Indiana Court of Appeals
Timothy W. Paul v. Stone Artisans, Ltd.
29A04-1406-PL-258
Civil plenary. Affirms finding that Paul breached his contract with Stone Artisans. Finds that although the contact did not include measurements, the contract is still enforceable because it is reasonably certain in the terms and conditions. Also rules the contract did comply with the Home Improvement Contract Act despite missing two of the required nine elements.

Lawyer: Affirmed $1.4M judgment against Walgreen sets HIPAA precedent

A Marion County jury verdict affirmed Friday by the Indiana Court of Appeals upholds a $1.4 million verdict for a Walgreen pharmacy customer whose prescription information was provided to a third party and sets a national precedent, according to the lawyer who argued the case.

In affirming conviction, justices clarify required meth evidence

Authorities improperly charged a man with meth manufacturing based on the volume of an intermediate mixture, but other evidence was sufficient to affirm his conviction of Class A felony manufacturing methamphetamine, the Indiana Supreme Court held Thursday.

Government’s legal error requires another look at convictions

The United States government conceded on appeal that its treatment of vehicle titles and license plates as “property” from the perspective of Indiana in order to convict defendants of conspiracy to commit mail or wire fraud was a legal error. The 7th Circuit Court of Appeals reversed the convictions but did not foreclose the possibility of retrial.

Opinions Nov. 13, 2014 ILD

Indiana Court of Appeals
Jerry French v. Rebecca (French) Lambert (NFP)
18A05-1403-DR-94
Domestic relation. Affirms in part and reverses in part. The trial court abused its discretion in failing to include all of the unsecured debt of the parties in the marital estate. The trial court was within its discretion to divide the parties’ marital assets equally, but the court failed to include in its findings its determination as to sanctions and attorney fees. Remands for further proceedings.

In the Matter of the Termination of the Parent-Child Relationship of: A.S. and B.S. (Minor Children) and D.J. (Mother) and H.S. (Father) v. The Indiana Department of Child Services (NFP)
85A02-1403-JT-209
Juvenile. Affirms termination of mother and father’s parental rights.

Corey Weaver v. State of Indiana (NFP)
49A02-1402-CR-112
Criminal. Affirms convictions of two counts of Class A misdemeanor resisting law enforcement.

Carl Gleason v. State of Indiana (NFP)
69A05-1403-CR-141
Criminal. Affirms convictions of Class B felony sexual misconduct with a minor and Class C felony sexual misconduct with a minor. Also affirms 80-year sentence for two counts of Class A felony child molesting, the sexual misconduct with a minor convictions, and Class C felony various sexual gratification.

In the Matter of the Paternity of S.P., Minor Child, K.M., Father v. A.P., Mother, and State of Indiana (NFP)
45A04-1312-JP-587
Juvenile. Affirms denial of motion to set aside default judgment against K.M.

Kelly Robertson v. Elkhart Housing Authority (NFP)
20A04-1406-PL-252
Civil plenary. Affirms Elkhart Housing Authority’s motion for summary judgment on Robertson’s lawsuit that it discharged her from employment in violation of the Family and Medical Leave Act.

T.D., and Ti. D. alleged to be CHINS and T.D. (father) v. Dearborn Co. Dept. of Child Services (NFP)
15A05-1403-JC-116
Juvenile. Affirms finding children are children in need of services.

In Re the Paternity of B.M.: J.M. v. M.S. (NFP)
79A05-1403-JP-115
Juvenile. Affirms in part and reverses in part. Father has established, prima facie, that the calculation of child support arrearage includes a mathematical error and that the child support worksheet supporting the prospective child support award does not accurately reflect which parent pays medical insurance. Father has further shown, prima facie, that the trial court abused its discretion by finding him in contempt of court and ordering his payment of mother’s attorney’s fees. Remands with instructions.
 

Opinions Nov. 13, 2014

7th Circuit Court of Appeals
United States of America v. Evelyn Rivera Borrero, et al.
13-3430, 13-3468, 13-3516, 13-3517, 13-3559
U.S. District Court, Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio.
Criminal. Reverses convictions of conspiring to violate 8 U.S.C. Section 1324 (a)(1)(A)(iii) and (iv) by shielding unauthorized aliens from detection and encouraging them to live in the United States; and vacates convictions of conspiracy to commit mail or wire fraud. Remands for entry of acquittal on the first count. The government’s legal argument that vehicle tiles and license plates are “property” from the perspective of Indiana is a legal error.

Agency record required for judicial review of agency action

A petitioner seeking judicial review of an agency action must file with the trial court the agency record as defined by the Administrative Orders and Procedures Act. Not doing so will result in dismissal of the petition, the Indiana Supreme Court unanimously ruled Thursday.

COA upholds order man pay ex-wife’s appellate attorney fees

The Indiana Court of Appeals rejected a man’s claim that the same standard for awarding attorney fees should apply regardless of the forum. The judges affirmed the order that he pay his ex-wife’s appellate attorney fees because he is in a better position than she is to pay them.