Opinions

Indiana Court of Appeals
Julie Nunley, n/k/a Waldrath v. Jeremy A. Nunley
68A04-1105-DR-269
Domestic relation. Affirms that Jeremy Nunley is entitled to a reduction of his child support obligation due to the decrease in his income due to his incarceration for Class D felony nonsupport of a dependent. Declines to create an exception to the rules set forth in Clark and Lambert for individuals incarcerated for the crime of nonsupport of a dependent.

7th Circuit Court of Appeals
United States of America v. Roger Loughry, also known as Mayorroger
10-2967
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence
Criminal. Reverses District Court’s decision to allow admission as evidence “hard core” pornography without examining it or without explaining its reasoning under Rule 403. Holds that the material was highly inflammatory and held only minimal probative value, but created extreme prejudice against Loughry. Remands to the District Court for proceedings consistent with opinion.

The state and federal appellate courts are closed Monday in observance of Columbus Day.

Indiana Court of Appeals
James Fernbach v. State of Indiana
69A01-1103-CR-151
Criminal. Affirms 60-year sentence for two counts of Class A felony attempted murder, holding that the jury’s rejection of Fernbach’s insanity defense was not erroneous.

Indiana Supreme Court
Putnam County Sheriff v. Pamela Price
60S01-1012-CV-665
Civil. Reverses trial court’s denial of the Putnam County Sheriff’s motion to dismiss Price’s negligence action for failure to state a claim. A county sheriff’s department that neither owns, maintains or controls a county road does not owe a common law duty to warn the public of known hazardous conditions upon the roadway. Justices David and Dickson concur in result.

Indiana Court of Appeals
P.J. v. State of Indiana
49A05-1102-JV-121
Juvenile. Affirms restitution order following adjudication, after a guilty plea, as a delinquent child for committing what would be Class B felony burglary if committed by an adult. P.J. waived his right to have the juvenile court inquire into his ability to pay, as he has acknowledged such ability in his plea agreement.

Indiana Court of Appeals
Saba Tesfamariam v. Moghes Woldehaimanot
49A02-1009-DR-1050
Domestic relation. Affirms decree of dissolution of marriage, which awarded father Moghes Woldehaimanot full custody of the minor children. The trial court abused its discretion by failing to establish that mother Saba Tesfamariam’s interpreter was qualified and by failing to administer an oath to the interpreter to provide an accurate translation. The failure to establish the qualifications or to administer an oath is not a fundamental error, and the trial court’s errors in the instant case were not fundamental.

7th Circuit Court of Appeals
Kristine P. Purcell v. Bank of America
10-3975
U.S. District Court, Northern District of Indiana, Fort Wayne Division, Judge James T. Moody.
Civil. Reverses dismissal of Purcell’s common-law claims against the bank without prejudice to allow her to refile in state court. Remands with instructions to enter judgment for the bank on all of Purcell’s state and federal claims. Section 1681t(b)(1)(F) and Section 16811h(e)of 15 U.S.C. are compatible, and Section 1681(t)(b) would preempt Purcell’s state-law theories.

Indiana Supreme Court
Franklin Electric Company, Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development
93S02-1102-EX-89
Agency appeal. Affirms determination of the liability administrative law judge that Franklin Electric Co. and its two newly created entities Franklin Electric Manufacturing and Franklin Electric Sales are a single employer. The manufacturing and sales entities did not acquire a distinct and segregable portion of Franklin Electric’s business, so they did not qualify as “employers” under the laws governing Indiana’s unemployment compensation arrangements.

7th Circuit Court of Appeals
Cedar Farm, Harrison County Inc. v. Louisville Gas and Electric Co.
10-2234
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge David F. Hamilton.
Civil. Affirms summary judgment for Louisville Gas and Electric on Cedar Farm’s attempt to eject Louisville Gas and Electric from its property and to terminate an oil and gas lease for violations of certain portions of the lease. The lease allows for a damages remedy and Cedar Farm hasn’t show that damages are inadequate to compensate for the harm to its property.

Indiana Supreme Court
Desmond Turner v. State of Indiana
49S00-0912-CR-565
Criminal. Affirms convictions of murder, criminal confinement, robbery and burglary, and the sentence of life in prison without parole for the murder convictions, plus a term of years for the other convictions. The trial court did not abuse its discretion in permitting firearms and tool mark examiner Michael Putzek’s testimony, and the admission of challenged testimony did not violate Indiana Evidence Rule 404(b). The trial court erred in admitting testimony on a statement made by Turner’s mother, but that does not require reversal.

Indiana Court of Appeals
Term. of Parent-Child Rel. of A.B.; E.B. v. IDCS (NFP)
79A05-1102-JT-102
Juvenile. Affirms termination of father’s parental rights.

Indiana Court of Appeals
Angela K. Farno v. Ansure Mortuaries of Indiana, LLC, et al.
41A05-1002-PL-104
Civil plenary. Affirms denial of Farno’s motion for class certification on superiority grounds regarding the alleged looting of cemetery trusts that had been funded from proceeds of purchases of pre-need burial services. The trial court did not err in finding the receiver’s action provided a superior method to recovery any of the missing trust funds.

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.