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Opinions June 29, 2011 ILD

Today’s opinions
7th Circuit Court of Appeals
United States of America v. Brook Abebe
10-3966
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms sentence of 300 months in prison following guilty plea to armed bank robbery, discharge of a firearm during a crime of violence, and unlawful possession of a firearm by a convicted felon. There was no procedural error in the District Court’s calculation of Abebe’s sentence and his sentence is not substantively unreasonable.

Aaron Smeigh v. Johns Manville Inc.
10-3388
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Tanya Walton Pratt.
Civil. Affirms summary judgment for Johns Manville on Smeigh’s suit for retaliatory discharge and civil conversion. Smeigh didn’t present sufficient evidence to conclude that he was fired in retaliation for filing workers’ compensation or that JM knowingly exerted unauthorized control over his property. Admonishes Smeigh’s counsel for a portion of the appeal not meeting the standards for presenting and developing arguments on appeal.

Indiana Supreme Court
Citizens State Bank of New Castle v. Countrywide Home Loans, Inc.
76S03-1009-CV-515
Civil. Reverses summary judgment in favor of Countrywide and Federal National Mortgage Association. Countrywide has failed to demonstrate that it is entitled to the remedy of strict foreclosure. Remands with instructions to enter summary judgment in favor of Citizens Bank, and for all relief consistent with this opinion. Justice Sullivan dissents.

Indiana Court of Appeals
Zachery Blackwell v. State of Indiana (NFP)
67A01-1101-CR-98
Criminal. Affirms convictions of Class C felony attempted robbery, and Class D felonies criminal confinement and aiding rioting.

James Deloney Jr v. State of Indiana (NFP)
29A02-1010-CR-1227
Criminal. Affirms conviction of Class D felony theft.

Christopher Collins v. State of Indiana (NFP)
49A02-1010-CR-1157
Criminal. Affirms conviction of and sentence for Class D felony theft.

Martin J. Russell v. State of Indiana (NFP)
83A04-1011-CR-671
Criminal. Dismisses appeal of sentence following a plea agreement to six counts of Class C felony theft and three counts of Class D felony theft.

John Chatman v. State of Indiana (NFP)
49A05-1005-PC-362
Post conviction. Vacates trial court denial of Chatman’s motion for additional credit time for completion of a substance abuse program while he was in jail awaiting trial and dismisses the appeal.

Indiana Tax Court had posted no opinions at IL deadline.
 

Opinions June 29, 2011

7th Circuit Court of Appeals
United States of America v. Brook Abebe
10-3966
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms sentence of 300 months in prison following guilty plea to armed bank robbery, discharge of a firearm during a crime of violence, and unlawful possession of a firearm by a convicted felon. There was no procedural error in the District Court’s calculation of Abebe’s sentence and his sentence is not substantively unreasonable.

Justices: Child placement statutes are constitutional

In a much-anticipated ruling, the Indiana Supreme Court has ruled three statutes relating to juvenile judges’ authority on out-of-state placement cases are constitutional and that the Department of Child Services has statutory power to consider costs when considering those placements.

High court divided on public intoxication charge

In deciding that a woman’s public intoxication conviction should stand, four Indiana Supreme Court justices declined to reverse her conviction on public policy grounds and found the conviction didn’t violate any constitutional right.

Court: Man may be classified as sexually violent predator

The Indiana Supreme Court ruled 4-1 that classifying a man as a sexually violent predator due to an amendment to the Sex Offender Registration Act doesn’t violate Indiana’s prohibition of ex post facto laws or the doctrine of separation of powers.

Attorney general appealing Planned Parenthood decision

Indiana Attorney General Greg Zoeller has filed a notice of appeal regarding the recent decision by U.S. Judge Tanya Walton Pratt to halt enforcement of a new law which withholds funding from abortion providers.

Opinions June 28, 2011 ILD

Indiana Court of Appeals
SJS Refractory Co., LLC, et al. v. Empire Refractory Sales, Inc.
02A04-1004-CT-233
Civil tort. Reverses $158,626 in damages to Empire for converted property that was subsequently returned and $12,600 in damages for certain materials. There is no evidence to support these awards. Reverses award of punitive damages on the breach of fiduciary duty claim. The complaint did not have a request for punitive damages on this claim and no request for these damages was made at trial. Affirms damages awarded to Empire for the converted property and tools not returned and the nearly $80,000 in attorney fees for conversion. Affirms order that Johnson, Salwolke, and SJS jointly and severally pay Empire’s attorneys $100,000. Remands for calculation of damages.

Winston D. Wilson v. State of Indiana (NFP)
49A02-1012-CR-1302
Criminal. Affirms convictions of Class D felony theft and Class B misdemeanor criminal mischief.

Rodney L. Houser v. State of Indiana (NFP)
92A03-1007-CR-399
Criminal. Affirms murder conviction.

Jane Gonzales, et al. v. Mike Fitousis, et al. (NFP)
09A05-1006-CT-375
Civil tort. Affirms jury verdict in favor of Indiana Head that it owed no duty to protect Gonzales’ daughter, who was employed by Indiana Head and killed by a co-worker.

Thomas Lee Keller, et al. v. Daniel Ray Keller (NFP)
17A03-1012-CC-644
Civil collections. Affirms calculation of the amount of tillable acreage as well as the determination that certain personal property should not be subject to the sale by public auction. Affirms calculation of cash rent due on two family farms.

Mark Wheatley v. Utility Trailers of Indianapolis, Inc. (NFP)
49A05-1012-CT-788
Civil tort. Affirms order denying Wheatley’s second motion for leave to amend his complaint against Utility Trailers of Indianapolis.

Ponie Clark v. State of Indiana (NFP)
71A03-1006-CR-340
Criminal. Affirms murder conviction.

Term. of Parent-Child Rel. of B.D.; A.D. v. I.D.C.S. (NFP)
52A05-1012-JT-803
Juvenile. Affirms termination of parental rights.

Term. of Parent-Child Rel. of Q.W., et al.; J.C. v. I.D.C.S. (NFP)
49A05-1010-JT-666
Juvenile. Affirms involuntary termination of parental rights.

Indiana Tax Court had posted no opinions at IL deadline.

Opinions June 28, 2011

Indiana Supreme Court
Randy Horton v. State of Indiana
48S04-1106-CR-386
Criminal. Affirms convictions of child molesting but reverses 324-year sentence and orders it be reduced to an aggregate executed term of 110 years. Enhances one Class A felony conviction to 50 years and orders the 30-year advisory sentence on the remaining Class A felony convictions. Orders the Class C felony convictions to be four years on each count. Remands for the trial court to issue an amended sentencing order.

Justices reduce molester’s sentence to 110 years

The Indiana Supreme Court found that an enhanced sentence for a man convicted of nine counts of molesting his girlfriend’s young daughter is warranted, but reduced the man’s 324-year sentence to 110 years.

Court of Appeals dismisses termination-order appeal

Because the parents of six children who were removed from their home did not timely initiate the appeal of termination of their parental rights, the Indiana Court of Appeals dismissed their appeal.

Recount commission rules in favor of secretary of state

Indiana Secretary of State Charlie White will remain in office. The Indiana Recount Commission voted 3-0 in favor of White, finding the Indiana Democratic Party didn’t provide sufficient evidence that White wasn’t eligible to take office.

High Court accepts 7 transfers

The Indiana Supreme Court has taken seven cases on transfer, including a case in which the lower appellate court was split on a construction manager’s duty to an injured worker.

Judge: Man did not knowingly waive right to counsel

An Indiana Court of Appeals judge raised six points in a dissent Monday as to why he disagreed with his colleagues’ decision to affirm the revocation of a man’s probation based on the conclusion that the defendant knowingly, intelligently, and voluntarily waived his right to counsel.

Appellate court divided over trust liability

The Indiana Court of Appeals split Monday in a probate suit involving whether trustees failed to distribute a portion of the trust corpus in a timely manner. The majority upheld finding the trustees liable, but ordered a re-evaluation of compensatory damages and attorney fees.

Opinions June 27, 2011 ILD

Indiana Supreme Court had posted no opinions at IL deadline.

Indiana Court of Appeals
Gary Ludban, et al. v. Ronald Burtch, et al.
44A05-1007-PL-437
Civil plenary. Affirms trial court ruling regarding the survey of land. The survey the Burtches had conducted was not erroneous as a matter of law, the trial court did not err in determining that the fence between the Ludban and Burtch properties establishes the property line, and the trial court did not err in denying the Ludbans’ adverse possession claim to a strip of land used for access to the lake. The trial court did not err in discrediting the survey the Ludbans had done or in implying that Gary Ludban disturbed the original monumentation between lots 29 and 30. The determination of the property line between the Reeds and the Ludbans based on the line of occupation is supported by the evidence.

Kimberly L. Benedict v. State of Indiana (NFP)
49A02-1012-CR-1359
Criminal. Affirms conviction of Class A misdemeanor resisting law enforcement.

Paternity of K.B.; J.B. v. J.D. (NFP)
02A04-1008-JP-533
Juvenile. Affirms trial court grant of permission to allow mother to relocate to Tennessee with daughter.

Jerry L. Coleman v. Marla J. Coleman (NFP)
38A05-1008-DR-490
Domestic relation. Affirms denial of Jerry Coleman’s motion to correct error after the court awarded custody of his son to ex-wife, Marla Coleman, and twice found Jerry in contempt of court.

Indiana Tax Court had posted no opinions at IL deadline.

 

Opinions June 27, 2011

Indiana Court of Appeals
Vincent M. Butler, Jr. v. State of Indiana
84A01-1008-CR-414
Criminal. Affirms revocation of Butler’s probation. The record shows that the trial court adequately advised Butler of his right to counsel and that he knowingly, intelligently, and voluntarily waived that right. The trial court did not abuse its discretion by imposing the balance of his four-year previously suspended sentence. Judge Kirsch dissents.

Judges halt enforcement of challenged laws

Two federal judges issued preliminary injunctions June 24 preventing parts of two new controversial laws regarding immigration and funding of Planned Parenthood of Indiana from being enforced.

Opinions June 24, 2011

Indiana Court of Appeals
Involuntary Commitment of S.S.
49A02-1011-MH-1251
Mental health. Affirms order for S.S.’s temporary commitment. There was no prejudice to S.S. due to the doctor’s report being filed 16 minutes after the end of her detention period. The timely filing of the report is a procedural requirement, not a jurisdiction prerequisite.