Opinions

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. 

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.

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.

Indiana Court of Appeals
Jeffrey Z. Hayden v. State of Indiana
55A04-1403-CR-116
Criminal. Affirms sufficient evidence to convict Hayden of burglary, theft and residential entry. Remands with instructions to vacate guilty verdict on residential entry as it is a lesser-included offense of burglary and to clarify the entry of judgment as to whether to enter judgment and sentence on the theft conviction or to vacate the jury’s guilty verdict.

All courts are closed Nov. 11 in observance of Veterans Day.

Indiana Court of Appeals
Christa Allen v. Richard Hinchman, M.D.; Richard Tanner, M.D.; and Jeffery Smith, M.D.
49A02-1311-PL-975
Civil plenary. Reverses summary judgment in favor of the doctors on Allen’s medical malpractice claim. Holds that the standard of care for doctors practicing in prisons is the same as the standard of care for doctors practicing outside of prison.

Indiana Supreme Court
Gregory F. Zoeller, Attorney General and Rick J. Ruble, Commissioner of the In. Dept. of Labor v. James M. Sweeney, David A. Fagan, Charles Severs et. al.
45S00-1309-PL-596
Civil plenary. Reverses finding by Lake Superior Court that I.C. 22-6-6-8 and 22-6-6-10 violate Article I, Section 21 of the Indiana Constitution. Any compulsion to provide services does not constitute a demand made by the state. Justice Rucker concurs in result with separate opinion.

Indiana Court of Appeals
Victor Keeylen v. State of Indiana
49A05-1308-CR-419
Criminal. Grants rehearing and affirms original opinion in all respects. Clarifies point from original opinion and still holds that it is unlikely the detective attempted to mislead the judicial officer into issuing the search warrant.

Indiana Court of Appeals
Erie Insurance Exchange v. Troy Sams and Teresa Sams
44A03-1403-CT-97
Civil tort. Affirms judgment ordering Erie Insurance to pay the Samses $63,924.89 for losses they suffered after a storm damaged their home. The trial court did not err in finding the policy covered the storm damage to the home and the judgment amount was not clearly erroneous.

Indiana Court of Appeals
In the Matter of the Termination of the Parent-Child Relationship of D.B.M. and H.B. (Father) v. Indiana Department of Child Services
02A03-1405-JT-171
Juvenile. Affirms trial court’s order to terminate father’s parental rights. Rules the testimony of Allen County Department of Child Services supervisor was cumulative of the other evidence so any error in admitting the testimony was harmless. Also finds the evidence presented at the hearing supports the trial court’s conclusion that the conditions which necessitated the child’s removal from the father’s care would not be remedied.

Indiana Court of Appeals
Michael Dwain Neal v. Amanda Lee Austin
49A02-1404-DR-225
Domestic relation. Reverses grant of Austin’s petition for post-secondary education expenses on behalf of her and Neal’s adult child. The trial court did not have authority to issue an order for educational support. Holds that I.C. 31-16-6-6(c) and -6(d) necessitates that where the most recent order establishing a child support obligation was issued after June 30, 2012, the child must file a petition for educational needs before he or she becomes 19 years of age.

Indiana Supreme Court
Wayne A. Campbell v. State of Indiana
13S05-1410-PC-682
Post conviction. Affirms denial of petition for post-conviction relief, finding no ineffective assistance by trial counsel for, in part, failing to object to an instruction on the definition of “intentionally.” The second sentence of the contested instruction serves to emphasize the heavy burden placed on the state to prove that a defendant acted intentionally.

7th Circuit Court of Appeals
Marshall G. Welton v. Shani J. Anderson, et al.
13-3336
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Civil. Affirms dismissal of Welton’s claims of malicious prosecution, violations of the Fourth and 14th amendments and state law violations. Welton failed to state a predicate constitutional violation in support of his malicious prosecution claim and failed to show the requisite malice.

7th Circuit Court of Appeals
United States of America v. Trevor Hinds
13-3543
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt.
Criminal. Affirms two-level sentencing enhancement for production or trafficking under U.S.S. G. 2B1.1(b)(11)(B)(i). Hinds’ crime involved the production of counterfeit access devices (credit cards) and the court did not err in applying the enhancement. Vacates the two special conditions imposed: that Hinds pay a portion of the court-ordered substance abuse treatment and drug testing and that he submit to suspicionless searches and seizures. The court did not make a finding whether Hinds could pay for the testing, and the government concedes that the search and seizure condition is unlawfully broad and invasive.

Indiana Court of Appeals
In Re the Adoption of K.W.: M.W. v. S.L. and T.L.
10A04-1309-AD-469
Adoption. Reverses decree granting S.L. and T.L.’s petition to adopt K.W. The trial court violated father’s due process rights when it failed to rule on his request for appointed counsel. Remands for the trial court to determine whether father, who is incarcerated, is indigent, and if so, to appoint counsel to represent him at a new adoption hearing.

Indiana Court of Appeals
219 Kenwood Holdings, LLC v. Properties 2006, LLC
45A03-1401-MI-49
Miscellaneous. Affirms finding that Properties 2006 LLC substantially complied with the requirements of I.C. 6-1.1-25-4.5(e), which requires the purchaser of property sold at a tax sale to notify the owner of record of, among other things, the purchaser’s intent to petition for a tax deed on or after a specified date.

Indiana Court of Appeals
Gabina Hernandez v. State of Indiana (NFP)
20A03-1403-CR-78
Criminal. Affirms convictions of Class A misdemeanors conversion and contributing to the delinquency of a minor.<

Indiana Supreme Court
Gary Wayne Oswalt v. State of Indiana
35S02-1401-CR-10
Criminal. Oswalt preserved appellate review of three for-cause challenges of prospective jurors, but because the trial court was within its discretion to deny all of them, affirms his convictions. Holds as a matter of first impression that parties satisfy the exhaustion rule the moment they use their final peremptory challenge, regardless of whom they strike. Also holds that if parties fully comply with the exhaustion rule and demonstrate they were unable to remove any prospective juror for lack of peremptories, appellate courts may review denial of any motion to strike for cause, regardless of whether a challenged juror actually served on the jury.

Indiana Court of Appeals
Gary A. Gallien v. State of Indiana
22A01-1402-PC-50
Post-conviction. Reverses denial of post-conviction relief due to defense attorney’s failure to raise the issue of maximum consecutive sentences under I.C. 35-50-1-2. The majority held Gallien was prejudiced by his defender’s failure to raise the issue regarding burglaries that were “closely related in time, place, and circumstance.” Dissenting judge Cale Bradford agreed with the majority’s analysis but would affirm the trial court because he didn’t believe Gallien was prejudiced by his counsel’s failure to raise the issue.

7th Circuit Court of Appeals
United States of America v. Kenneth Schmitt
13-2894
U.S. District Court for the Southern District of Indiana, Evansville Division, Chief Judge Richard Young.
Criminal. Affirms conviction for possessing a firearm while being a felon and sentence of 110 months in prison with three years of supervised release. Finds police officers did not violate the Fourth Amendment’s restrictions on warrantless searches because the officers were doing a protective sweep to secure the premises when they unlocked the basement door and searched the basement where the AK-15 semi-automatic assault rifle was found. Rules although the District Court erred in admitting evidence of Schmitt’s conviction for possession of methamphetamine, the error was harmless. And concludes District Court did not err in applying a four-level enhancement to Schmitt’s base offense level.