Opinions

Indiana Court of Appeals
Samuel Neal, Delores Neal and Hometown Transmissions, Inc. v. William J. Cure, et al.
49A04-0908-CV-468
Civil. Affirms summary judgment for the Cures on the Neals’ claims of environmental contamination under the Environmental Legal Act, nuisance, trespass, and negligence. The designated evidence does not, in light of the Cures’ lack of involvement in or knowledge of Masterwear’s actions, give rise to a genuine issue of material fact regarding the Cures’ liability for nuisance, trespass, negligence, or an ELA violation.

7th Circuit Court of Appeals
Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC
10-2327
U.S. District Court for the Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker
Civil. Affirms the judgment of the District Court that granted Anodyne’s request for an award of attorneys’ fees in the amount of $72,747. The award was based on 15 U.S.C. § 1117(a), which allows attorneys’ fees to be awarded to prevailing parties in Lanham Act suits, but only in “exceptional cases.” Nightingale contended no award of attorneys’ fees was justified because the case was not “exceptional.” Also grants Anodyne’s motion for fees and costs pursuant to Rule 38 of the appellate rules. Dismisses as moot Anodyne’s motion to strike Nightingale’s brief and appendix.

Indiana Court of Appeals
Levie S. Jackson v. State of Indiana
79A02-0912-CR-1230
Criminal. Affirms convictions of seven counts of Class C felony forgery, six counts of Class D felony theft, and finding Jackson is a habitual offender The trial court did not err in denying Jackson’s motion to sever. Because he did not present any explanation of how he was prejudiced by the timing of the additional charge, the trial court declined to reverse the habitual offender enhancement.

Indiana Court of Appeals
Florence R. Lacy-McKinney v. Taylor Bean and Whitaker Mortgage Corp.
71A03-0912-CV-587
Civil. Reverses summary judgment in favor of Taylor Bean & Whitaker Mortgage Corp. on its action to foreclose on Lacy-McKinney’s mortgage that was insured by the Federal Housing Administration. Views the affirmative defense of noncompliance with HUD regulations as the failure of the mortgagee to satisfy a HUD-imposed condition precedent to foreclosure. To hold otherwise would circumvent the public policy of HUD. Remands for further proceedings.

7th Circuit Court of Appeals
David N. Rain and Paramount International Inc. v. Rolls-Royce Corp.
10-1290
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Civil. Affirms partial summary judgment in favor of Rolls-Royce on Rain’s claim for breach of contract by breaching a non-disparagement provision in a settlement agreement after Rolls-Royce filed a Texas lawsuit involving Rain and Paramount. Affirms the judgment following a bench trial on breach of contract in favor of Rolls-Royce after Rolls-Royce asked Rain to leave an event.

7th Circuit Court of Appeals
United States of America v. Rosalio Cruz-Rea and Zoyla Garcia-Rea
09-3591, 10-1355
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Criminal. Affirms convictions of and sentences of Cruz-Rea for conspiracy to possess with intent to distribute more than five kilograms of cocaine and possession with intent to distribute 500 grams or more of cocaine, and convictions of and sentences for Garcia-Rea for conspiracy to possess with intent to distribute more than five kilograms of cocaine. The government didn’t abuse its discretion in determining that the government laid sufficient foundation for an officer’s voice identification testimony under Fed. Evid. Rule 901(b)(5). Affirms in all other respects.

Indiana Court of Appeals
Kevin L. Hampton v. State of Indiana
84A04-1002-PC-122
Post conviction. Affirms denial of petition for post-conviction relief. There was no error in omitting the requested sentence and appellate counsel did not fail to provide effective assistance.

7th Circuit Court of Appeals
United States of America v. Lorenzo Tavarez
09-3879
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge William T. Lawrence.
Criminal. Affirms convictions of two counts of distributing 50 grams or more methamphetamine. Tavarez failed to show that the confidential informant was available only to the government. The District Court therefore did not err by refusing the missing witness instruction. Concludes that the jury could reasonably reach its guilty verdict on the circumstantial evidence presented here.

Indiana Supreme Court
In the Matter of William J. Rawls
49S00-0908-DI-355
Discipline. Disbars Rawls for violating Indiana Professional Conduct Rules 1.2(a), 1.3, 1.4(a), 1.16(d), 8.1(a), 8.1(b), 8.4(b), and 8.4(c). Rawls has demonstrated a pattern of neglect of his clients' cases, resulting in adverse dispositions, suspension of one client's driver's license, a missed opportunity to settle, and undue delay.

The courts are closed today in observance of Veterans Day. 

Indiana Court of Appeals
Scott D. Wells v. Herman Bud Bernitt, et al.
53A01-0910-CV-494
Civil. Affirms summary judgment in favor of the Bernitts on Wells’ claim against them for defamation because there was no admissible evidence before the court to establish actual malice, an element of defamation. Affirms summary judgment in favor of J.D. Maxwell and Travis Coryea as to Wells’ claim for negligent and intentional torts finding the evidence establishes the officers didn’t use excessive force. Affirms summary judgment for Wells on the Bernitts’ cross appeal alleging abuse of process.

Indiana Court of Appeals
Anthony A. Parish v. State of Indiana
02A03-1002-CR-74
Criminal. Affirms Parish’s convictions of murder, Class B felony robbery, and Class A misdemeanor carrying a handgun without a license, and his sentence to an aggregate term of 86 years of incarceration. On appeal, Parish claimed a protective search of a locked glove box during a traffic stop was constitutionally improper, and therefore evidence found during the search should have been suppressed. COA concluded the protective search was permissible under the Fourth Amendment.

Indiana Court of Appeals
Timothy Cranston v. State of Indiana
29A02-1003-CR-374
Criminal. Affirms conviction of Class A misdemeanor operating a vehicle while intoxicated with an alcohol concentration of 0.15 or greater. The admission of the Datamaster machine printed ticket stating his BAC without live testimony from the equipment technician didn’t violate Cranston’s Sixth Amendment right to confrontation.

Indiana Court of Appeals
S.A. v. Review Board
93A02-1004-EX-568
Civil. Affirms the Review Board of the Indiana Department of Workforce Development’s ruling that S.A.’s acceptance of an early retirement package made her ineligible to continue receiving unemployment benefits. S.A. left employment without good cause in connection with the work.

Indiana Court of Appeals
DBL Axel LLC v. Lasalle Bank National Association
15A01-1003-PL-205
Civil plenary. Affirms order directing immediate turnover of funds in favor of LaSalle Bank. The checks paid by the city of Lawrenceburg to DBL concerned the property in question and were within the scope of and subject to the receivership order, and DBL’s failure to include that money paid or otherwise notify the receiver of the settlement agreement was a violation of that order. Remands for the trial court to amend its order directing immediate turnover of funds and enter an order directing turnover in the amount of $1,365,500.

Indiana Court of Appeals
James K. Oberst v. State of Indiana
14A05-1003-PC-157
Post conviction. Affirms denial of petition for post-conviction relief. Because Oberst gave his statement that he had sex with the victim to police in counsel’s presence before adversary criminal proceedings had been initiated, he had no Sixth Amendment right to counsel and therefore no right to the effective assistance of counsel.

The Indiana Supreme Court, Indiana Court of Appeals, and Indiana Tax Court were closed in observance of Election Day.

Indiana Court of Appeals
Michael J. Shepard v. State of Indiana (NFP)
82A05-1002-CR-94
Criminal. Affirms conviction of Class D felony resisting law enforcement and Class C misdemeanor operating a vehicle with an alcohol concentration of 0.08 or more

Indiana Court of Appeals
John Taele and Sarah Taele v. State Farm Mutual Automobile Insurance Co.
06A01-1004-CT-259
Civil tort. Affirms summary judgment in favor of State Farm. The Taeles aren’t entitled to recover uninsured motorist benefits under their State Farm policy because they themselves were neither directly impacted nor directly physically injured by the accident that killed their daughter. Judge Crone dissents.

Indiana Court of Appeals
Robert D. Davis v. State of Indiana
32A01-1003-CR-144
Criminal. Affirms denial of Davis’ motion for leave to amend his motion to correct erroneous sentence. The information before the appellate court doesn’t allow it to decide whether he was erroneously sentenced.