Opinions

Indiana Court of Appeals
Andrew C. Kesling, individually and as Trustee of the Andrew C. Kesling Trust v. Peter C. Kesling, et al.
45A03-1106-PL-271
Civil plenary. Reverses judgment in favor of father Peter Kesling that found he was entitled to rescission of stock purchase agreements entered into on June 25, 2004. Finds that Andrew Kesling’s trust declaration did not deprive him status as a shareholder and that he was a shareholder when he entered into the purchase agreements with Peter Kesling. Remands for the court to rule on the claims raised by Andrew Kesling’s siblings.

7th Circuit Court of Appeals
Securities and Exchange Commission v. First Choice Management Services Inc. et al.; SonCo Holdings LLC v. Joseph D. Bradley, receiver, and ALCO Oil & Gas Co. LLC
11-1702
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Civil. Affirms order insofar as it determines that SonCo willfully violated the agreed order, but vacates the $600,000 sanction and remands. On remand, the judge can: reimpose the sanction he imposed, upon demonstrating that it is a compensatory remedy for a civil contempt after all; impose a different or perhaps no sanction, whether for civil contempt or for misconduct not characterized as contempt; or proceeding under the rules governing criminal contempts.

Indiana Court of Appeals
D.A. v. State of Indiana
49A02-1108-JV-692
Juvenile. Affirms juvenile court’s decision to order inpatient treatment for D.A. who entered into a plea agreement admitting to Class B misdemeanor battery if committed by an adult and “conditionally” agreed to admit to Class C felony child molesting, if committed by an adult. D.A.’s placement is consistent with the goals for his rehabilitation. The appellate judges do not have jurisdiction to resolve the issue of whether the trial court erred in accepting his conditional plea to the child molesting charge because there was no evidence of D.A.’s intent with regard to the molesting. The conditional plea is the equivalent to a withheld judgment so there is no final judgment or appealable final order from which to appeal.

Indiana Court of Appeals
In the Matter of V.C., Child Alleged to be in Need of Services v. Indiana Dept. of Child Services
79A02-1112-JC-1172
Juvenile. Affirms determination that V.C. is a child in need of services. The juvenile court did not erroneously deny father’s request to issue a subpoena to the maternal aunt. Father also failed to demonstrate good cause for granting his request for a continuance, so the juvenile court acted within its discretion in denying his request.

Indiana Court of Appeals
Christopher King v. Karen Patrick (NFP)
49A02-1105-PL-444
Civil plenary. Reverses grant of partial summary judgment against Christopher King on Karen Patrick’s complaint against him alleging breach of contract. Remands for further proceedings.

Indiana Court of Appeals
John Ludack v. State of Indiana
49A02-1109-CR-930
Criminal. Affirms convictions of and aggregate 130-year sentence for two counts of Class A felony child molesting and being a habitual offender. Defense counsel, by first asking the detective whether Ludack had admitted the allegations of child molestation during the interview, opened the door to the detective’s testimony that Ludack neither admitted nor denied the allegations of child molesting and just asked to stop speaking. Ludack also failed to prove his sentence is inappropriate.

Indiana Court of Appeals
George Clements v. Kimberly Hall and Stanley Harmon
06A04-1106-MI-282
Miscellaneous. Reverses trial court’s award of summary judgment for Kimberly Hall and Stanley Harmon, holding their attorney failed to notify George Clements and his attorney that a motion had been filed. Remands for further proceedings consistent with its opinion.

Indiana Court of Appeals
Richard Leggs v. State of Indiana
49A02-1105-CR-522
Criminal. Affirms convictions of and sentences for one count of Class B felony criminal confinement and one count each of Class C felony intimidation, Class C felony criminal recklessness, and Class A misdemeanor resisting law enforcement. Reverses one count of Class B felony criminal confinement, due to the continuing crime doctrine and remands for resentencing.

Indiana Court of Appeals
Andre M. Perry v. State of Indiana (NFP)
45A05-1108-CR-397
Criminal. Affirms convictions of murder, Class A felony attempted murder and Class D felony residential entry.

Indiana Court of Appeals
Anthony Hogan v. State of Indiana
20A03-1103-PC-158
Post conviction. Affirms denial of petition for post-conviction relief. Hogan failed to show ineffective assistance of trial and appellate counsel.

Indiana Court of Appeals
Todd Walters and Matenia Walters v. Aaron Austin and Herman & Goetz, Inc.
20A04-1106-CT-342
Civil tort. Dismisses the Walterses’ appeal of the judgment on a jury verdict in favor of Austin and his employer on the Walterses’ complaint for damages arising from a multi-vehicle accident. The appellate court does not have jurisdiction. Judge Darden dissents.

7th Circuit Court of Appeals
United States of America v. Kimani Lanier Fleming
11-1404
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms Fleming’s revised sentence of 480 months imprisonment for convictions of several serious drug and firearm charges. There was no clear error in the District Court’s decision to include routine drug purchases as relevant conduct when it computed his revised sentencing guideline range. Denies Fleming’s implicit request for an expanded certificate of appealability. 

Indiana Court of Appeals
Whiskey Barrel Planters Co., Inc., n/k/a Diggs Enterprises, Inc., Robinson Family Enterprises, LLC, et al. v. American GardenWorks, Inc., and Millennium Real Estate Investment, LLC
04A03-1011-PL-582
Civil plenary. Reverses determination in favor of American GardenWorks and Millennium Real Estate on AGW and MRE’s fraud claims against Whiskey Barrel and judgment for $409,611.24 and attorney fees and costs. The trial court erred in denying Whiskey Barrel’s motion for partial summary judgment on the issue of whether AGW was entitled to loans made to Whiskey Barrel shareholders and on the issue of whether AGW was entitled to 2008 season football tickets to Purdue that were purchased with Whiskey Barrel funds. The trial court erred in determining that AGW acquired the previous owner’s personal property under the terms of the purchase agreement. Remands for the trial court to determine the amount of attorney fees – if any – that are recoverable.

The 7th Circuit Court of Appeals and Indiana appellate courts posted no opinions at IL deadline.

7th Circuit Court of Appeals
United States of America v. Jaymie T. Mount
11-2616
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane E. Magnus-Stinson.
Criminal. Remands for resentencing after the District Court denied the government’s motion for Mount to receive an additional one-level reduction following his guilty plea, citing Mount’s flight from charges. The additional reduction is mandatory once the government determines that the criteria spelled out in U.S.S.G. Section 3E1.1(b) are satisfied and it makes the necessary motion.

Indiana Court of Appeals
Anthony Wade v. Terex-Telelect, Inc.
29A05-1101-CT-72
Civil tort. Reverses jury verdict in favor of Terex-Telelect on Wade’s negligence claim under the Indiana Product Liability Act. Wade was prejudiced by the judge instructing the jury as to the rebuttable presumption under Indiana Code 34-20-5-1. Remands for a new trial. Judge Bradford concurs in part and dissents in part.

Indiana Court of Appeals
Salsbery Pork Producers, Inc., Richard K. Wilson, Tipton Co. Commissioners, Tipton Co. Highway Department, Chad Bergin, State of Indiana, Indiana Department of Transportation v. Latina Booth
49A02-1110-CT-983
Civil tort. Reverses trial court’s denial of motion for transfer of venue, holding that the state should have been dropped as a defendant because only Tipton County had control over the road where a crash occurred. Remands for proceedings consistent with its opinion that Tipton County is the preferred venue rather than Marion County.

Indiana Court of Appeals
In the Matter of the Involuntary Term. of the Parent-Child Rel. of L.J., and R.J., III; and V.A., and R.J. v. Marion Co. Dept. of Child Services and Child Advocates (NFP)
49A02-1108-JT-804
Juvenile. Affirms termination of parental rights for mother and father.

7th Circuit Court of Appeals
Beverly K. Copeland, et al. v. Penske Logistics LLC; Penske Logistics, Inc.; and Chauffeurs, Teamsters, Warehousemen and Helpers Local Union Number 135
11-1955
U.S. Ditrict Court, Southern District of Indiana, Indianapolis Division, Chief Judge Richard L. Young.
Civil. In hybrid breach-of-contract/duty-of-fair representation suit, affirms District Court’s grant of summary judgment in favor of the defendants in the matter of fair representation. Citing lack of subject matter jurisdiction, remanded for dismissal of the claim that the union failed to engage in good faith bargaining.

Indiana Court of Appeals
GMAC Mortgage, LLC v. Ronald Glenn Dyer
28A04-1107-MF-404
Mortgage Foreclosure. Reverses trial court’s order that GMAC Mortgage rewrite an agreement about an FHA-insured loan that Ronald Dyer defaulted on. Appellate court held that under federal law and HUD regulations, deeds in lieu of foreclosure release the borrower from any mortgage obligation and in this case the standard language GMAC used was sufficient.