Opinions

Indiana Court of Appeals
Corrine R. Finnerty, as Successor Personal Representaive of the Estate of Dora Grace Lee, deceased v. Joseph A. Colussi and the Colussi Law Office
39A01-1011-ES-622
Estate, supervised. Reverses grant of summary judgment in favor of Joseph Colussi and Colussi Law Office on legal malpractice claim, holding that genuine issues of material fact exist and preclude such judgment. Remands for proceedings consistent with opinion. 

Indiana Court of Appeals
An-Hung Yao and Yu-Ting Lin v. State of Indiana
35A02-1006-CR-678
Criminal. Affirms order dismissing the Class D felony counterfeiting charges against Yao and Lin and reverses the denial of their motion to dismiss counts of Class D felony theft and Class C felony corrupt business influence. The trial court lacked territorial jurisdiction because there is no evidence any conduct that is an element of the alleged offenses occurred in Indiana. Remands for the trial court to dismiss the remaining charges.

Indiana Court of Appeals
George W. Giltner, Jr. v. Betty L. Ivers, Martin Zacharias, Jr., and Bradi L. Zacharias
10A05-1010-PL-662
Civil plenary. Affirms trial court’s confirmation of a report that partitioned 16.5 acres of a 100-acre parcel to Giltner, who owned an undivided 20 percent interest in the parcel. Giltner has not shown that he was prejudiced by the division outlined in the report.

Indiana Supreme Court
Rod L. Avery and Marshall K. Avery v. Trina R. Avery
49S05-1102-PL-76
Civil plenary. Affirms default judgment entered against Rod and Marshall Avery. The Indiana Trial Rules apply to will contest actions, and the failure to file an answer or responsive pleading in accordance with Trial Rule 7 may result in a default judgment.

Indiana Court of Appeals
John Haegert v. Margaret McMullan
82A04-1008-CT-470
Civil tort. Affirms summary judgment for Margaret McMullan in John Haegert’s action alleging defamation, tortious breach of his employment contract, and intentional infliction of emotional distress. Haegert failed to show how he was injured by the contents of McMullan’s file as his termination was based only upon an incident involving McMullan. There is not properly designated evidence in the record that McMullan intended to cause Haegert emotional distress.

Indiana Court of Appeals
Jon Paul Tongate v. State of Indiana
29A02-1102-CR-223
Criminal. Affirms conviction of Class D felony receiving stolen property. The magistrate that presided over Tongate’s jury trial was not required to rule on the motion to correct error, and Tongate’s conviction is supported by sufficient evidence.

7th Circuit Court of Appeals
Cheryl A. Burns v. Orthoteck Inc. Employees’ Pension Plan and Trust, et al.
10-1521
U.S. District Court, Northern District of Indiana, South Bend Division, Chief Judge Philip P. Simon.
Civil. Affirms finding that Cheryl Burns’ consent to designate her husband’s three sons as beneficiaries was valid and affirms the denial of her claim for benefits. The unusual circumstances of the case lead to the conclusion that the pension plan was within its discretion to find that Dr. Burns, as plan representative, verified the authenticity of his wife’s signature on the written consent form and this satisfied 29 U.S.C. 1055’s witness requirement. The plan was also within its discretion to deny Burns’ claim for benefits.

Indiana Court of Appeals
Kenneth Dwayne Vaughn v. State of Indiana
45A05-1102-CR-57
Criminal. Reverses trial court’s denial of motion for mistrial, holding that restraining the defendant in the presence of the jury could have influenced the jury’s verdict.

Indiana Court of Appeals
Yasin Hory v. State of Indiana
01A04-1011-IF-717
Infraction. Affirms conviction of Class C infraction illegal parking, holding that Hory failed to establish an express or implied pre-emption of local traffic safety laws by federal motor safety regulations.

7th Circuit Court of Appeals
Kevin B. Arnett v. Thomas A. Webster, M.D., et al.
09-3280
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Affirms dismissal of the non-medical defendants from Arnett’s Bivens action for cruel and unusual punishment while he was in prison. Finds Arnett properly stated a claim against the medical defendants Beighley, Dr. Wilson, and Paul-Blanc and reverses dismissal with regards to those three. Affirms summary judgment in favor of Dr. Webster because Arnett failed to meet his burden to submit evidence upon which a reasonable jury could find that the doctor acted with deliberate indifference. Remands for further proceedings.

7th Circuit Court of Appeals
Autumn Eaton v. Indiana Department of Corrections, Pendleton Juvenile Corrections Facility
10-3214
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Jane Magnus-Stinson.
Civil. Reverses judgment of the District Court, finding that sufficient evidence exists to preclude summary judgment in favor of Eaton’s employer, the Indiana Department of Corrections, in her Title VII discrimination claim. Remands to the court for proceedings consistent with the opinion.

Indiana Court of Appeals
Cathy Minix, et al. v. Sheriff Frank Canarecci, Jr., et al.
71A04-1009-CT-591
Civil tort. Reverses summary judgment in favor of Canarecci on Minix’s wrongful death claim and affirms denial of the medical providers’ motion for summary judgment in Minix’s wrongful death claim and medical malpractice claim. Minix’s Child Wrongful Death Statute claim against the sheriff isn’t barred by the doctrine of res judicata, and an award of damages on both the federal and state claims at issue won’t result in double recovery.

Indiana Court of Appeals
Christopher A. Andrews v. Sara L. Ivie
55A01-1103-PO-110
Protective order. Affirms issuance of a protective order in favor of Ivie. Andrews engaged in a knowing or an intentional course of conduct involving repeated or continuing harassment of Ivie that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened.

7th Circuit Court of Appeals
Jeffrey William Paul v. Helen J. Marberry, et al.
10-3670
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge William T. Lawrence.
Civil. Reverses District Court’s denial of Paul’s motion to be allowed to proceed in forma pauperis on the grounds that he had three strikes and remands for further proceedings. Since most prisoners litigate their civil claims pro se, they should not be required to speculate on the grounds the judge could or even should have based the dismissal on. Classifying a strike depends on the grounds given for it.

7th Circuit Court of Appeals
Gary Williams and Nancy Meehan v. Rohm and Haas Pension Plan
10-1978, 10-2175, 10-3713
U.S. District Court, Southern District of Indiana, New Albany Division, Judge Sarah Evans Barker.
Civil. Affirms $180 million settlement and approval of $43.5 million in attorney fees. The District Court adequately addressed the expected value of the early retirees’ claims. The District Court did not abuse its discretion by not creating a separately represented subclass of early retirees. The 7th Circuit sees no reason to disturb the District Court’s assessment of attorney fees.

Indiana Court of Appeals
Mark E. Croy v. State of Indiana
48A02-1012-CR-1383
Criminal. Affirms convictions of Class D felony domestic battery and sentence imposed for that conviction and for Class D felony criminal confinement. The evidence is sufficient to show that Croy and Betty Cox had a spousal relationship at the time Croy attacked his ex-girlfriend. The sentence is appropriate.

Indiana Court of Appeals
Indiana Area Foundation of the United Methodist Church, Inc., d/b/a United Methodist Church, Bishop Michael Coyner, Ann Glass, and Robert Ostermeier v. Lynn Snyder
49A05-1011-CT-715
Civil tort. Reverses denial of the church’s motion for summary judgment on Rev. Snyder’s defamation claim. The church has made a prima facie showing that the trial court erred on this matter because the statements at issue involve Snyder’s fitness for ministry. Affirms summary judgment in favor of the church on Snyder’s breach of contract claim. The trial court couldn’t determine whether he had an enforceable contract without becoming excessively entangled in church doctrine in violation of the First Amendment. Remands for further proceedings.

Indiana Court of Appeals
Martin A. Villalon, Jr. v. State of Indiana
45A03-1010-CR-544
Criminal. Affirms conviction of felony murder and 60-year sentence, holding the juvenile court did not abuse its discretion in waiving Villalon to adult court, and that the Sixth Amendment does not apply to juvenile proceedings.

7th Circuit Court of Appeals
William Padula, administrator of the estate of Jerome Clement v. Timothy Leimbach, et al.
10-3395
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Joseph Van Bokkelen.
Civil. Affirms summary judgment for defendants, which include the City of East Chicago Police Department, on Padula’s suit for wrongful arrest, excessive force, failure to train officers, and condoning the use of excessive force, and the remand of state law claims to state court. The officers had probable cause to arrest Clement because they believed him to be intoxicated, the officers’ use of force was not excessive, and Padula’s claims of failure to adequately train and supervise officers and for condoning and ratifying excessive force fail.

7th Circuit Court of Appeals
Victoria Serednyj v. Beverly Healthcare, LLC.
10-2201
U.S. District Court, Northern District of Indiana, Hammond Division, Judge Robert L. Miller, Jr.
Civil. Affirms District Court’s grant of summary judgment in favor of Serednyj’s former employer, Beverly Healthcare, holding the employer did not violate the law in firing her, because she was unable to perform all the functions of her job due to pregnancy complications.