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Opinions Dec. 13, 2012 ILD

The Indiana Supreme Court and Tax Court posted no opinions prior to IL deadline.

Indiana Court of Appeals
Scott J. Lunsford v. State of Indiana (NFP)
34A02-1206-CR-501
Criminal. Reverses time the trial court calculated as the time remaining on Lunsford’s sentence at the time his probation was revoked and remands with instructions to resentence him to 673 days.

Uriah S. Swelfer v. State of Indiana (NFP)
45A05-1205-CR-260
Criminal. Affirms sentence for two counts of Class C felony battery and one count of Class D felony criminal mischief.

Decarlos Connell v. State of Indiana (NFP)
48A05-1203-CR-141
Criminal. Affirms conviction of Class B misdemeanor visiting a common nuisance.

Kerry Wagner and Wagner Trucking, Inc. v. Rugged Enterprises, LLC (NFP)
26A05-1206-CC-333
Civil collection. Affirms denial of relief from default judgment rendered in favor of Rugged Enterprises in its action against Wagner and Wagner Trucking for repayment of money mistakenly paid to Wagner Trucking by Rugged, which Wagner refused to refund.

Joseph Majors v. State of Indiana (NFP)
49A02-1205-CR-433
Criminal. Affirms convictions of attempted murder and carrying a handgun without a license. Reverses sentencing enhancement and orders it vacated, but affirms 45-year aggregate sentence imposed.

Roseann Kwak v. Kimberly Overmyer and Marshall-Starke Development Center, Inc., West Bend Mutual Ins. Company (NFP)
75A03-1203-CT-104
Civil tort. Affirms order denying Kwak’s motion to correct error from the trial court order granting summary judgment to West Bend Mutual, the garnishee-defendant, in proceedings supplement initiated by Kwak.

Daniel A. Sage v. State of Indiana (NFP)
20A03-1206-PC-266
Post conviction. Affirms denial of post-conviction relief.

Tyler P. Hogue v. State of Indiana (NFP)
29A02-1203-CR-217
Criminal. Affirms sentence after Hogue admitted to violating his probation.

Jaconiah Fields v. State of Indiana (NFP)
89A01-1205-PC-232
Post conviction. Affirms denial of petition for post-conviction relief.

Melissa L. Freyberger v. Duane L. Freyberger (NFP)
71A03-1206-MI-252
Miscellaneous. Dismisses Melissa Freyberger’s appeal of the modification of Duane Freyberger’s parenting time rights, allowing him to take the children on a six-week vacation in Europe. Denies her request for appellate attorney fees.
 

Opinions Dec. 13, 2012

7th Circuit Court of Appeals
Estate of Rudy Escobedo (deceased) (Raquel Hanic, Personal Representative of Estate) v. Officer Brian Martin, et al.
11-2426
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge Theresa L. Springmann.
Civil. Affirms jury verdict in favor of the defendants on the estate’s excessive force claim against the police and the city of Fort Wayne and grant of judgment as a matter of laws on qualified immunity grounds, as well as summary judgment in favor of officers Martin and Brown on the excessive force claim.

Justices issue 4 opinions tackling prejudgment interest

In four opinions dealing with the award of prejudgment interest under the Tort Prejudgment Interest Statute, the Indiana Supreme Court found Wednesday, among other things, that the TPIS applies to an action by an insured against an insurer to recover benefits under the insured’s underinsured motorist policy.

Hoosiers want legislators to focus on job creation

A survey released Thursday by the Bowen Center for Public Affairs at Ball State University shows that 81 percent of residents want job creation to be the main priority for the Indiana General Assembly in 2013. This is the third straight year that Hoosiers said jobs are the No. 1 priority.

Judges rule legal malpractice claim untimely

A family who sued an Allen County attorney after finding out he did not properly obtain ownership of a railroad right-of-way in 1995 lost its appeal before the Indiana Court of Appeals because the family’s lawsuit is barred by the statute of limitations.

7th Circuit affirms ruling for officers on excessive force claims

The 7th Circuit Court of Appeals found no reason to disturb a judgment in favor of several officers involved in a standoff and shooting death of a Fort Wayne man in 2005. Rudy Escobedo’s estate challenged the jury verdict and summary judgment for the defendants on excessive force claims.

Opinions Dec. 12, 2012 ILD

The 7th Circuit Court of Appeals issued no Indiana opinions and the Indiana Supreme Court and Tax Court issued no opinons prior to IL deadline.

Indiana Court of Appeals
Jason Wilson v. Kelly (Wilson) Myers (NFP)
71A03-1204-DR-153
Domestic relation. Affirms order modifying primary physical custody of the parties’ two children from Wilson to Myers.

Christopher A. Merder v. State of Indiana (NFP)
19A04-1205-CR-229
Criminal. Affirms Merder is not entitled to pretrial credit for time served in Kentucky from May to August 2009, but finds Merder is entitled to pretrial credit for the period from Aug. 6, 2009, to Aug. 14, 2009. Remands for further proceedings.

James Fusco v. State of Indiana (NFP)
54A01-1204-CR-182
Criminal. Reverses sentence following revocation of probation and remands.

Tymon Brown v. State of Indiana (NFP)
49A02-1203-CR-233
Criminal. Affirms conviction of felony murder.

Earl McClendon v. State of Indiana (NFP)
49A04-1206-CR-282
Criminal. Reverses denial of motion requesting the return of a firearm. Remands with instructions.
 

Opinions Dec. 12, 2012

Indiana Court of Appeals
Ponziano Construction Services, Inc. v. Quadri Enterprises, LLC
45A05-1112-CC-661
Civil collection. Reverses award of $16,000 to Ponziano on its breach of contract claim against Quadri and the denial of Ponziano’s rquest to foreclose on its mechanic’s lien. Affirms the award of $8,000 in attorney fees to Ponziano and remands with instructions to the trial court to enter judgment in favor of Ponziano for $48,483.43, order sale of the property subject to the $45,549.43 lien, and determine the existence, extent, and outcome of a potential priority dispute between Ponziano and Wells Fargo.

Builder allowed to foreclose on lien

The Indiana Court of Appeals found a Lake Superior judge erred in denying a construction company’s request to foreclose on a mechanic’s lien after the client withheld a final payment, claiming faulty work.

Indiana GAL/CASA program gets national grant

Indiana’s State Office of the GAL/CASA has been awarded a $40,000 grant from the National Court Appointed Special Advocate Association. The money will be used to support local programs that provide volunteer advocacy for abused and neglected children in Indiana.

Workers settle employment lawsuit against local hotels

Sixteen current and former Indianapolis hotel workers have settled their union-backed lawsuit that alleged employment violations by nine area hotels and Atlanta-based Hospitality Staffing Solutions, a subcontractor that employs many hotel workers.

Bankruptcy judge warns of impact of ‘fiscal cliff’

Chief Judge James K. Coachys in the U.S. Bankruptcy Court for the Southern District of Indiana sent a memo to the Indiana State Bar Association Wednesday explaining how budget cuts and the potential “fiscal cliff” have affected the court.

Opinions Dec. 11, 2012 ILD

The 7th Circuit Court of Appeals posted no Indiana opinons and the Indiana Supreme Court and Tax Court posted no opinions prior to IL deadline.

Indiana Court of Appeals
Paul Henry Gingerich v. State of Indiana
43A05-1101-CR-27
Criminal. Reverses conviction of Class A felony conspiracy to commit murder and remands for further proceedings. The juvenile court abused its discretion when it denied Gingerich’s request for a continuance.

Johnny Mosby v. State of Indiana (NFP)
49A02-1205-CR-403
Criminal. Affirms conviction of Class A misdemeanor operating while intoxicated.

Douglas A. Schwan v. Linda D. Schwan (NFP)
80A05-1204-DR-171
Domestic relation. Affirms division of marital property.

Phyllis Allen v. State of Indiana (NFP)
82A04-1205-CR-263
Criminal. Affirms conviction of Class A misdemeanor battery.

Richard A. Walls v. Janet Walls (NFP)
10A01-1112-DR-572
Domestic relation. Affirms determination that the real property was commingled with the marital estate and the decision to award Janet Walls a one-half interest in the real property.

Chad E. Aslinger v. State of Indiana (NFP)
68A04-1205-DR-259
Domestic relation. Reverses finding of contempt of court for failure to pay child support.

Garland Aschenbrenner, Winifred Aschenbrenner, and South Bend Carpetland USA, Inc., d/b/a Abbey Carpets and Floors v. Melvin H. Sandock Inter Vivos Revocable Trust, et al. (NFP)
71A04-1201-PL-96
Civil plenary. Vacates judgment in favor of the revocable trusts and the Sandocks that awarded damages of $180,183.11 plus attorney fees. Remands with instructions.

Steven T. Lakes v. State of Indiana (NFP)
15A01-1204-CR-186
Criminal. Affirms sentence following guilty plea to Class D felonies operating a vehicle while intoxicated with a passenger less than 18 years of age and operating a vehicle as a habitual traffic violator, and being a habitual substance offender.

Bradley S. Sater v. State of Indiana (NFP)
32A04-1204-CR-182
Criminal. Affirms conviction of Class A felony dealing in methamphetamine and remands with instructions to vacate the conviction of Class C felony possession of methamphetamine.

 

Opinions Dec. 11, 2012

Indiana Court of Appeals
Paul Henry Gingerich v. State of Indiana
43A05-1101-CR-27
Criminal. Reverses conviction of Class A felony conspiracy to commit murder and remands for further proceedings. The juvenile court abused its discretion when it denied Gingerich’s request for a continuance.

Court reverses felony convictions stemming from domestic incident

The state didn’t provide sufficient evidence to support convictions of Class D felony strangulation and domestic battery, the Indiana Court of Appeals held Tuesday. The court did order the domestic battery conviction entered as a Class A misdemeanor.

Judges reverse teen’s conspiracy to commit murder conviction

The Indiana Court of Appeals has reversed Paul Henry Gingerich’s conviction of Class A felony conspiracy to commit murder, finding the Kosciusko juvenile court abused its discretion in denying the then-12-year-old’s request for a continuance of a waiver hearing.

2013 Leadership in Law nominations due Jan. 15

Indiana Lawyer is proud each year to recognize attorneys who make meaningful contributions to the legal profession, their communities and beyond. The Distinguished Barrister Award honors those with 15 or more years of legal experience, while the Up and Coming Lawyer Award recognizes lawyers who, early in their careers, are already making their mark.

Nominations are being accepted through Jan. 15 for Indiana Lawyer’s 2013 Leadership in Law awards. Honorees will be announced in the April 24 issue of IL and celebrated at a reception in May. Visit http://www.theindianalawyer.com/nominations to learn more about the awards, view a list of past recipients and submit a nomination. Contact editor Kelly Lucas at [email protected] or 317-472-5233 for more information.