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Opinions May 13, 2013 ILD

Indiana Court of Appeals
David D. Kiely v. Kathryn Starnes-Kiely (NFP)
14A05-1208-DR-430
Domestic relation. Remands division of marital estate property to the trial court for clarification.

Vickie Fenoglio as Personal Representative of the Estate of Paul Fenoglio v. Boguslaw Gluszak, M.D. and Steve Robertson, Commissioner of the Indiana Dept. of Ins. and Boguslaw Gluszak, M.D. (NFP)
84A01-1211-PL-513
Civil plenary. Affirms summary judgment in favor of Boguslaw Gluszak M.D. on a proposed medical malpractice complaint.

Stephen Harriman and Elena Ivanova v. Smith Brothers Ultimate Builders, Inc. (NFP)
41A01-1210-SC-460
Small claim. Affirms judgment in favor of Smith Brothers on a breach of contract claim.

Paul Komyatti, Jr. v. The Consolidated City of Indianapolis-Marion County and Citizens Energy Group (NFP)
49A04-1209-CT-445
Civil tort. Affirms summary judgment for the city and Citizens Energy on Komyatti’s lawsuit after he hit a pothole while on his bicycle and was injured.

Chris Griner v. State of Indiana (NFP)
49A02-1208-CR-656
Criminal. Affirms conviction of Class A felony child molesting.

The Indiana Supreme Court and Tax Court posted no opinions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana decisions by IL deadline.
 

Opinions May 13, 2013

Indiana Court of Appeals
Joseph Matheny v. State of Indiana
49A04-1207-CR-347
Criminal. Grants petition for rehearing to clarify that the previous holding – that the trial court’s refusal of Matheny’s tendered instruction constituted error in light of Santiago v. State and Albores v. State – does not conflict with those cases. The judges reaffirmed their original decision which affirmed the Class D felony auto theft conviction and found that although the trial court erred in refusing to give the instruction regarding the jury’s duty to conform the evidence to the presumption that the defendant is innocent, the error was harmless.

Governor signs JTAC, workers’ comp bills into law

The Division of State Court Administration’s Judicial Technology and Automation Committee will see a temporary boost in funding for its Odyssey case management system under a new law signed by Gov. Mike Pence.

Judges tell trial court to declare commissioner’s order void

The Indiana Court of Appeals reversed a trial court’s denial of a title insurance company’s verified petition for judicial review and declaratory relief, finding the court erred by requiring a separate showing of prejudice because the Indiana insurance commissioner failed to comply with a mandatory statutory deadline regarding an order setting an investigatory hearing.

Court clarifies decision on jury instructions

The Indiana Court of Appeals granted the state’s request for rehearing on a case in which the judges found the trial court erred in not giving a defendant’s tendered jury instruction, but that the error was harmless. The state contended that two cases dictated that there was no error by the court.

SCOTUS rules against Indiana farmer in seed patent case

A unanimous Supreme Court of the United States has ruled that patent exhaustion doesn’t allow a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.

Opinions May 10, 2013 ILD

Indiana Court of Appeals
Karina Wilson v. State of Indiana (NFP)
49A02-1207-CR-602
Criminal. Affirms sentence for Class A misdemeanor battery.

Term. of the Parent-Child Rel. of C.T. and D.T., minor children, and C.T., biological father, and K.P., biological mother: C.T. and K.P. v. Indiana Dept. of Child Services (NFP)
79A02-1210-JT-837
Juvenile. Affirms involuntary termination of parental rights.

Mr. Bults, Inc. D/B/A MBI v. Nathan Orlando (NFP)
56A04-1210-CT-515
Civil tort. Affirms negligence finding against Mr. Bults Inc. and $650,000 jury award.

In Re: The Paternity of V.A.; R.A. v. B.Y. (NFP)
39A01-1209-JP-413
Juvenile. Affirms order addressing custody, parenting time, child support and personal property issues. Remands for the court to rule on the issue of legal custody, father’s contempt petition, to clarify the factual basis for its child support order and to enter findings supporting the conclusion.

Daon L. Bellamy v. State of Indiana (NFP)
49A04-1210-CR-500
Criminal. Affirms conviction of Class D felony theft.

The Indiana Supreme Court and Tax Court posted no decisions by IL deadline.
 

Opinions May 10, 2013

7th Circuit Court of Appeals
Royce Brown v. John F. Caraway, Warden
12-1439
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Reverses denial of Brown’s petition for habeas corpus under 28 U.S.C. Section 2241 in which he argued under Begay v. United States, 553 U.S. 137 (2008), his prior Delaware conviction for arson in the third degree did not qualify as a crime of violence. Brown is entitled to relief, and under Begay, his prior conviction doesn’t qualify as “generic” arson under the enumerated crimes clause of the career offender guideline, nor is it covered by the residual clause. Remands with instructions to reduce his drug and firearm sentence to reflect that he is not a career offender under Section U.S.S.G. Section 4B1.1. Chief Judge Easterbrook issued a statement concerning the circulation under Circuit Rule 40(e).

Man’s prior conviction doesn’t render him a career offender

The 7th Circuit Court of Appeals reversed the denial of a man’s habeas petition, finding his conviction of arson in the third degree in Delaware doesn’t qualify as a crime of violence under U.S.S.G. Section 4B.1. As such, his current sentence should be reduced to reflect he isn’t a career offender.

State not trying to circumvent adverse ruling in refiling charges

The Indiana Court of Appeals affirmed a man’s felony cocaine dealing conviction, finding the state, when originally dismissing charges and then later refiling them, was not trying to avoid an adverse ruling that barred testimony of a confidential informant.

Denial of post-conviction relief upheld by COA

Even if the Indiana Court of Appeals was to assume that a defendant’s trial counsel performed below prevailing professional norms by not explaining the potential immigration consequences of his guilty plea, the judges ruled the defendant wasn’t prejudiced because the trial court explained those consequences.

COA to trial judges: enter restitution orders at sentencing

The Indiana Court of Appeals sent a case in ‘procedural limbo’ back to trial court to enter a restitution order within 30 days, which will allow the defendant to appeal his aggravated battery conviction. The appellate judges also advised trial courts on the pitfalls of postponing ordering restitution when ordering a sentence.

Judicial candidate barred from office for 5 years

The attorney who made statements regarding Franklin Circuit Judge Steven Cox’s release of a prisoner during the time she was challenging him for his spot on the bench last fall cannot seek judicial office for five years, the Indiana Supreme Court ruled Thursday. The justices also publicly reprimanded Tammy R. Davis of Brookville.

Opinions May 9, 2013 ILD

Indiana Court of Appeals
In Re: the Paternity of M.R.; A.K. v. J.R. (NFP)
50A03-1211-JP-457
Juvenile. Affirms custody modification order granting father J.R. physical custody of M.R.

Ronald L. Hoffman and Christy G. Hoffman, and Johnson Sunnybrook Farm, LLC, an Indiana Limited Liability Co. v. Lake Co. Indiana, a unit of government, its County Council, et al. (NFP)
45A03-1206-PL-291
Civil plenary. Affirms summary judgment for Singleton Stone as the opposed landowners to the rezoning had no standing to challenge the rezoning.

Bradley Ryan v. State of Indiana (NFP)
34A02-1211-CR-921
Criminal. Affirms convictions of murder and Class A felony robbery resulting in serious bodily injury.

Eldon E. Harmon v. State of Indiana (NFP)
20A05-1212-CR-634
Criminal. Affirms 16-year sentence for Class B felony dealing in methamphetamine.

James Q. Bryant v. State of Indiana (NFP)
49A02-1211-PC-869
Post conviction. Affirms denial of petition for post-conviction relief.

Carmell D. Nelson v. State of Indiana (NFP)
02A03-1208-CR-349
Criminal. Affirms convictions of Class A felony attempted murder and Class B felony unlawful possession of a firearm by a serious violent felon.

Mark A. Centofante v. State of Indiana (NFP)
49A05-1207-CR-360
Criminal. Affirms conviction of Class B felony sexual misconduct with a minor.

Demetrick Cameron v. State of Indiana (NFP)
48A02-1209-CR-733
Criminal. Affirms revocation of probation for failure to pay child support.

Deborah Chandler v. State of Indiana (NFP)
15A04-1211-CR-560
Criminal. Affirms revocation of probation and order Chandler serve 10 years of her 16-year suspended sentence in the Department of Correction.

LP XXIV, LLC d/b/a Las Palmas Apartment Homes and SLS Management, Inc. v. American Family Mutual Insurance Company and Carl Long (NFP)
49A04-1207-PL-340
Civil plenary. Affirms denial of Las Palmas’ and SLS’s motion for summary judgment on the issue of agency.

The Indiana Supreme Court and Tax Court posted no decisions by IL deadline. The 7th Circuit Court of Appeals posted no Indiana opinions by IL deadline.
 

Opinions May 9, 2013

Indiana Court of Appeals
Bonnie Moryl, as Surviving Spouse and Personal Rep. of the Estate of Richard A. Moryl, Deceased v. Carey B. Ransone, M.D.; La Porte Hospital; Dawn Forney, RN; Wanda Wakeman, RN BSBA; et al.
46A04-1112-CT-710
Civil tort. Affirms summary judgment for the defendants, on which the trial court determined that Bonnie Moryl’s proposed complaint for medical malpractice was not timely filed with the Indiana Department of Insurance. The trial court properly found that her complaint sent to the DOI by FedEx was filed one day late under the two-year statute of limitations.

Woman who used FedEx to send med mal complaint didn’t timely file

Third-party carriers are not included in the statute regarding filing proposed medical malpractice complaints with the Indiana Department of Insurance, so a woman’s complaint that was sent via FedEx within the two-year statute of limitations – but not stamped until after the limitations expired – is not considered timely filed, the Indiana Court of Appeals ruled.