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Allen County bar seeks nominations for Niemann Citation

The Allen County Bar Association is accepting nominations for the 2011 Niemann Citation for Excellence and Professionalism, an award established in 2004 to honor the memory of attorney Scott T. Niemann.

Man entitled to damages following excavation of home without notice

In reviewing a case in which an attorney appointed guardian of an adult male unilaterally decided to tear down his home without providing notice to the man, the Indiana Court of Appeals found the attorney violated the man’s due process rights and damages were necessary.

Court reverses suspension of mother’s parenting time

The Indiana Court of Appeals reversed the modification of a mother’s parenting time to end any visitation with her autistic son because the father didn’t present evidence justifying terminating the parenting time.

Opinions July 29, 2011 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Don Harley v. State of Indiana
20A03-1012-PC-630
Post conviction. Reverses denial of petition for post-conviction relief and remands for a new trial. Harley’s trial attorney was ineffective when she failed to inform the trial court that Harley’s only income consisted of Supplemental Security Income.

U.S. Bank National Association v. Ethyl R. Seeley, et al.
21A04-1102-MF-84
Mortgage foreclosure. Affirms entry of summary judgment in favor of Clarence and Pamela Davidson in the bank’s suit to foreclose on certain real property owned by them. The designated evidence establishes that the parties understood the Oct. 8, 1999, payment to be a final payment on the agreement, terminating it, which obligated Firstar to release the mortgage.

Derric Price v. Lake County Board of Elections and Registration
45A03-1103-PL-128
Civil plenary. Affirms ruling by the election board that Price was ineligible to appear on the 2011 primary ballot as a Democratic candidate for the mayor of Gary because he did not meet the one-year residency requirement. There is sufficient evidence to support that ruling.

Kenneth Kelly v. State of Indiana
30A04-1006-PC-408
Post conviction. Reverses denial of petition for post-conviction relief. The trial court erred in summarily denying Kelly’s petition as allegations by Kelly alleging ineffective trial counsel raise issues of possible merit. Remands for further proceedings.

A.T. v. State of Indiana
49A02-1012-JV-1394
Juvenile. Affirms ordering wardship of A.T. to the department of correction for murder pursuant to both indeterminate and determinate sentences. The juvenile court did not err in awarding wardship of him to the DOC under a determinate sentence pursuant to Indiana Code 31-37-19-9.

William T. Springer v. State of Indiana
92A05-1101-PC-16
Post conviction. Reverses denial of petition for post-conviction relief. Springer demonstrated at least a reasonable probability that a hypothetical reasonable defendant would have elected to go to trial if properly advised instead of plead guilty.

Term. of Parent-Child Rel. of K.S., et al.; A.S. v. I.D.C.S. (NFP)
48A04-1011-JT-731
Juvenile. Affirms termination of parental rights.

Term. of Parent-Child Rel. of H.W. & S.W.; A.W. v. I.D.C.S. (NFP)
17A04-1102-JT-57
Juvenile. Affirms termination of parental rights.

Kristina L. Phillips v. State of Indiana (NFP)
82A01-1102-CR-37
Criminal. Affirms sentence for Class D felony neglect of a dependent.

Rachel Mosco v. Ind. Family and Social Services (NFP)
43A05-1102-MI-69
Miscellaneous. Reverses dismissal of petition for judicial review.

Term. of Parent-Child Rel. of S.M.; M.M. v. I.D.C.S. (NFP)
20A03-1101-JT-3
Juvenile. Affirms termination of parental rights.

Richard Spradlin v. State of Indiana (NFP)
49A04-1012-CR-764
Criminal. Affirms conviction of Class A misdemeanor battery.

Oswaldo Quizaman v. State of Indiana (NFP)
20A05-1010-CR-712
Criminal. Affirms sentence of 40 years on each on the two counts of Class A felony dealing cocaine and one count of Class A felony dealing in methamphetamine, but reverses and remands to revise his sentences to run concurrently.

Earnest Jackson v. State of Indiana (NFP)
71A03-1012-CR-671
Criminal. Affirms conviction of Class B felony unlawful possession of a firearm by a serious violent felon.

Term. of Parent-Child Rel. of B.B.; L.B. and D.W. v. I.D.C.S. (NFP)
79A02-1012-JT-1372
Juvenile. Affirms termination of parental rights.

Term. of Parent-Child Rel. of R.P.; R.P. and M.P. v. I.D.C.S. (NFP)
20A03-1101-JT-15
Juvenile. Affirms termination of parental rights.

Billy Lee McKeehan v. State of Indiana (NFP)
84A01-1012-CR-666
Criminal. Affirms conviction of and sentence for Class B felony dealing in methamphetamine.

Stephen J. Taylor v. State of Indiana (NFP)
06A04-1009-PC-557
Post conviction. Affirms denial of petition for post-conviction relief.

David Brown v. Brandi Brown Wittmer (NFP)
64A04-1012-DR-749
Domestic relation. Affirms in part and reverses in part the final order in the dissolution of the Browns’ marriage. Remands for further proceedings.

Matthew D. Rozinski v. State of Indiana (NFP)
71A05-1010-CR-640
Criminal. Affirms convictions of Class A felony attempted murder, three counts of Class B felony criminal confinement, and Class D felonies domestic battery, strangulation, criminal recklessness, and three counts of pointing a handgun.

Richard Sullivan v. State of Indiana (NFP)
49A02-1011-CR-1195
Criminal. Affirms conviction of Class A felony child molesting.

Boyer Corp. Excavating v. Sheila Forbes (NFP)
18A02-1009-CT-1078
Civil tort. Affirms summary judgment in favor of Forbes in a suit seeking to recover an invoice for the use of the Boyer Corp.’s equipment by a laid-off employee.

Jesse J. Harris, Jr. v. State of Indiana (NFP)
34A02-1009-CR-1068
Criminal. Affirms convictions of and sentence for felony murder and two counts of Class A felony attempted murder.

Indiana Tax Court had posted no opinions at IL deadline.

 

Opinions July 29, 2011

Indiana Court of Appeals
Don Harley v. State of Indiana
20A03-1012-PC-630
Post conviction. Reverses denial of petition for post-conviction relief and remands for a new trial. Harley’s trial attorney was ineffective when she failed to inform the trial court that Harley’s only income consisted of Supplemental Security Income.

COA rules on man’s theft conviction for third time

Following an order from the Indiana Supreme Court that the lower appellate court more fully address the Proportionality Clause of the Indiana Constitution, the Indiana Court of Appeals has again upheld a man’s felony theft conviction.

DOJ: No charges against cops involved in arrest of Indianapolis teen

The U.S. Department of Justice announced Thursday that it’s closed its investigation into whether federal criminal civil rights charges should be filed against the Indianapolis Metropolitan Police Department officers involved in the arrest of Indianapolis teenager Brandon Johnson. Johnson claimed officers used excessive force while trying to arrest him.

Opinions July 28, 2011 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Jason Keigley v. State of Indiana (NFP)
49A04-1012-CR-743
Criminal. Affirms convictions of and sentence for Class C felony identity deception and five counts of Class D felony fraud in loan brokering.

Michael Yates v. State of Indiana (NFP)
34A05-1009-CR-582
Criminal. Affirms convictions of felony aiding, inducing, or causing murder and two counts of aiding, inducing, or causing attempted murder as Class A felonies.

Christina Smith v. Trilogy Health Services (NFP)
67A05-1006-PL-644
Civil plenary. Reverses order Smith pay $1,000 in attorney fees to Trilogy Health Services as a sanction for a discovery dispute. Remands for further proceedings.

Metals & Additives Corp., Inc., et al. v. Dagoberto Hornedo, et al. (NFP)
49A02-1011-PL-1213
Civil plenary. Affirms denial of Metals & Additives Corp.’s request for injunctive relief seeking to prevent Hornedo and St. Louis Group from using MAC trade secrets and alleging Hornedo breached his fiduciary duties.

Kimberly A. Kelley v. State of Indiana (NFP)
45A04-1010-CR-638
Criminal. Affirms conviction of Class A felony neglect of a dependent, revises the sentence to the advisory sentence, and remands with instructions to vacate the Class A felony battery conviction and sentence.

Betty Nolot v. Richard A. Nolot, et al. (NFP)
22A01-1012-PL-643
Civil plenary. Affirms denial of summary judgment for Richard Nolot as to the invasion of privacy claim and the grant of summary judgment for Richard on the trespass claim. Reverses grant of summary judgment for Richard on the conversion, unjust enrichment, and replevin claims. Remands for further proceedings.

Johnnie Gustafson v. State of Indiana (NFP)
05A04-1010-CR-647
Criminal. Affirms sentence following guilty plea to Class D felony possession of a controlled substance.

Indiana Tax Court had posted no opinions at IL deadline.
 

Practicing Law in Indiana: Trademarks Aug. 12

Indiana Lawyer is sponsoring Practicing Law in Indiana: Trademarks CLE event on August 12 in Indianapolis. Speaker David Wong of Barnes & Thornburg will present “Cloudy with a chance of infringement: Protecting your brand in the virtual world.” He will speak about strategies for cracking down on online infringement, phishing, and scams; imminent release of personalized domain names (.branding, .computers, .yourcompanyname); defending your brand in social media and with software application names; and online marketing and advertising — keywords, terms of service, and the FTC.

Registration and lunch begin at 11:15 a.m.; the program is from noon to 2:15 p.m. at Barnes & Thornburg, 5th Floor Conference Center, 11 S. Meridian St., Indianapolis. The cost is $65 or $55 for government employees, which includes a lunch. Two hours of CLE credit is available. Visit Indiana Lawyer 's events page to register online or to download a printable registration form. For questions or more information, contact Karen Aruta at 317-472-5201 or [email protected]. Registrations are due by Aug. 5.
 

Opinions July 27, 2011 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
James W. Miller v. State of Indiana
64A03-1008-CR-543
Criminal. Affirms convictions of two counts of Class A misdemeanor neglect of a vertebrate animal. The evidence is sufficient to show that Miller recklessly endangered the horses’ health by failing to provide them adequate food so as to neglect them. The trial court’s failure to appoint the state veterinarian doesn’t require the reversal of Miller’s convictions.

Christopher Brightman v. State of Indiana (NFP)
22A01-1011-CR-603
Criminal. Affirms convictions of Class D felonies receiving stolen property and theft.

Rudolfo G. Rodriguez, Jr. v. Lakeview Title, LLC (NFP)
76A03-1101-PL-36
Civil plenary. Affirms summary judgment for Lakeview Title and denial of Rodriguez’s motion for summary judgment in his suit for negligence and unjust enrichment.

Derek A. Bishop v. State of Indiana (NFP)
06A01-1012-CR-683
Criminal. Affirms convictions of two counts of Class D felony battery.

J.H. v. B.H. (NFP)
02A04-1010-DR-729
Domestic relation. Affirms order modifying custody in response to father J.H.’s relocation to Ohio.

Matthew William Huttle v. State of Indiana (NFP)
45A03-1012-CR-634
Criminal. Affirms sentence for Class D felony battery.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions July 27, 2011

Indiana Court of Appeals
James W. Miller v. State of Indiana
64A03-1008-CR-543
Criminal. Affirms convictions of two counts of Class A misdemeanor neglect of a vertebrate animal. The evidence is sufficient to show that Miller recklessly endangered the horses’ health by failing to provide them adequate food so as to neglect them. The trial court’s failure to appoint the state veterinarian doesn’t require the reversal of Miller’s convictions.

COA split on whether scooter is ‘motor vehicle’

The Indiana Court of Appeals was divided in a case involving a man who was convicted of driving a motor vehicle while his privileges were suspended, with one judge agreeing with the state that the defendant’s scooter qualified as a motor vehicle under statute.

Opinions July 26, 2011 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Mary McCraney v. Steven Gibson, et al.
49A05-1009-CT-528
Civil tort. Affirms summary judgment in favor of Steven Gibson, and Bradley and Natalie Calow with respect to Mary McCraney’s negligence claim resulting in personal injuries. Applying the two-prong test, which finds that the duty of reasonable care imposed upon a landowner is measured by the landowner’s control or possession of the property and the landowner’s knowledge of the dangerous propensities of the dog, McCraney fails to prove the landlords knew of the dog’s violent propensity.

Jo. W. v. Je. W.
02A04-1012-DR-811
Domestic relation. Affirms denial of husband Jo.W.’s Indiana Trial Rule 60(B) motion for relief from judgment. An allegation of intrinsic fraud is governed by T.R. 60(B)(3), and a motion for relief under T.R. 60(B)(3) must be brought within one year from the date of the judgment challenged. Husband’s motion was not timely and the trial court properly denied it.

Marc Randolph v. Edwin Buss, et al.
33A04-1010-MI-684
Miscellaneous. Affirms denial of petition for writ of habeas corpus. Based on the new language of Indiana Code 35-50-6-3.3(e), Randolph was not entitled to the unused educational credit time.

Robert Fuentes v. State of Indiana
45A05-1011-CR-717
Criminal. Affirms conviction of felony murder. The trial court erred in refusing to tender Robert Fuentes’ instruction on self-defense as it was a more complete statement of the law. It was a harmless error as the jury could not have properly found that Fuentes acted in self-defense when he shot the victim a second time.

Jamall Borum v. State of Indiana
49A02-1010-CR-1099
Criminal. Affirms convictions of and sentences for Class B felony attempted carjacking and Class C felony attempted robbery. There was not a reasonable possibility that the jury relied upon exactly the same facts in rendering convictions on each charge, and the single larceny rule and continuous crime doctrine do not apply. Remands to correct the abstract of judgment and judgment of conviction consistent with the opinion.

Jay C. Gagne v. State of Indiana
03A01-1101-IF-16
Infraction. Affirms jury verdict that Gagne made an illegal U-turn on the interstate. Gagne’s actions violated the provisions of Indiana Code 9-21-8-19.

Robin (Wren) Lechien v. Michael W. Wren
48A02-1007-DR-882
Domestic relation. Affirms finding that son Nathan has repudiated his relationship with his father, relieving the father of any further responsibility to contribute toward college expenses. Reverses modification of father’s weekly child support obligation because the trial court erred in adjusting father’s support obligation. Remands with instructions to enter a child support order consistent with this opinion.

Matthu R. Sanders v. State of Indiana (NFP)
17A05-1012-CR-756
Criminal. Affirms conviction of and sentence for Class A felony robbery while armed with a deadly weapon.

Michael Hickingbottom v. State of Indiana (NFP)
48A02-1012-PC-1429
Post conviction. Affirms denial of petition for post-conviction relief.

Term. of Parent-Child Rel. of M.M.; M.G. v. IDCS (NFP)
49A02-1012-JT-1420
Juvenile. Affirms termination of parental rights.

Robert Pope, et al. v. Patrick Smith (NFP)
17A04-1010-SC-655
Small claim. Affirms order of eviction in favor of landlord Patrick Smith.

William J. Pearson v. State of Indiana (NFP)
81A01-1011-CR-634
Criminal. Affirms revocation of 23 years of Pearson’s suspended sentence.

Teresa A. Mills v. State of Indiana (NFP)
15A01-1012-CR-673
Criminal. Affirms revocation of probation.

Term. of Parent-Child Rel. of R.R, et al.; T.E. v. IDCS (NFP)
20A05-1101-JT-9
Juvenile. Affirms termination of parental rights.

Richard D. Gasper v. State of Indiana (NFP)
73A01-1009-CR-474
Criminal. Affirms conviction of and sentence for Class D felony battery with serious bodily injury.

Melissa Kay Sneed v. State of Indiana (NFP)
16A01-1103-CR-134
Criminal. Affirms sentence for Class B felony dealing in methamphetamine.

Herschel S. Crain, Jr. v. State of Indiana (NFP)
29A04-1101-PC-36
Post conviction. Affirms denial of petition for post-conviction relief.

James Goins v. State of Indiana (NFP)
49A02-1012-CR-1321
Criminal. Affirms revocation of probation.

Herbert Buck v. Sonia Buck (NFP)
48A02-1009-DR-1070
Domestic relation. Reverses denial of Herbert Buck’s motion to correct error after the trial court ordered he reimburse Sonia for certain taxes. Remands with instructions.

Term. of Parent-Child Rel. of K.B.; M.B. v. IDCS (NFP)
42A01-1101-JT-42
Juvenile tort. Affirms termination of parental rights.

Shawn Michael Davis v. State of Indiana (NFP)
71A03-1011-CR-649
Criminal. Affirms conviction of Class D felony theft and adjudication as a habitual offender.

Christian Behling v. State of Indiana (NFP)
71A04-1010-CR-688
Criminal. Affirms revocation of probation.

DeQuan D. Branch v. State of Indiana (NFP)
49A02-1010-CR-1126
Criminal. Affirms conviction of Class B felony possession of cocaine within 1,000 feet of a family housing complex and/or school property.

Karl L. Brunk v. State of Indiana (NFP)
49A02-1008-CR-877
Criminal. Affirms conviction of Class A misdemeanor endangering a person by operating a vehicle while intoxicated.

Indiana Tax Court had posted no opinions at IL deadline.