Opinions

Indiana Court of Appeals
Gregory Wilson, Sr., in his capacity as the Executive Director of the State of Indiana Civil Rights Commission v. Betty Jo Wilkening
20A-PL-1960
Civil plenary. Reverses the Lake Superior Court’s grant of judgment on the evidence in favor of Betty Jo Wilkening and against Gregory L. Wilson Sr. in his capacity as the executive director of the State of Indiana Civil Rights Commission. Finds that the trial court erred in granting Wilkening’s motion because it misinterpreted the “shall” in Indiana Code § 22-9.5-6-8 to be mandatory rather than directory in a housing discrimination suit brought against her. Remands for a new trial.

Indiana Court of Appeals
Terrance Leroy Smoots, Jr. v. State of Indiana
20A-CR-2101
Criminal. Affirms Terrance Smoots Jr.’s convictions of Level 5 felony battery resulting in serious bodily injury, Level 4 felony criminal confinement resulting in moderate bodily injury, Level 6 felony obstruction of justice, Level 6 felony attempted obstruction of justice and a finding that he is a habitual offender, and his 24-year aggregate sentence. Finds the state proved by a preponderance of the evidence that Smoots’ conduct was designed to prevent Robert Simmons from testifying against him, so Smoots forfeited his right to confront Simmons at trial in light of that wrongdoing and his Sixth Amendment right to confrontation was not violated by the admission of Simmons’ statements at trial. Also finds the Madison Circuit Court did not abuse its discretion in sentencing Smoots. Finally, finds Smoots’ sentence is not inappropriate.

Indiana Court of Appeals
William Hoppe, as Father and Natural Guardian of Madison Hoppe, a Minor, and Shellie and Christopher Knoll v. Safeco Insurance Company of Indiana
21A-PL-73
Civil plenary. Affirms the Hamilton Superior Court’s grant of summary judgment in favor of Safeco Insurance Company of Indiana in Safeco’s declaratory judgment action to determine whether it had a duty to indemnify their insureds, Shellie and Christopher Knoll, in a lawsuit filed by William Hoppe, as father and natural guardian of Madison Hoppe, a minor. Finds coverage under the liability section of the homeowner’s insurance policy issued by Safeco to the Knolls does not apply to bodily injury arising from the use of the golf cart. Thus, there’s no coverage under the policy for any entrustment, supervision, act, decision or omission concerning the golf cart. Also finds the trial court properly granted summary judgment to Safeco.

7^th Circuit Court of Appeals
United States of America v. Kashawn Morrow
20-2259
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Criminal. Affirms Kashawn Morrow’s convictions on counts of Hobbs Act robbery and firearms offenses in relation to four robberies across Indiana and Ohio. Vacates the restitution award against Morrow. Finds Morrow failed to satisfy the plain error requirements to successfully challenge count 8. Also finds Hobbs Act robbery is a crime of violence. Finally, finds it was error for the district court to order restitution for property stolen during the Troy, Ohio robbery. Remands for a determination of the appropriate restitution award for the Ohio robbery.

The following 7^th Circuit Court of Appeals opinions were posted after IL deadline on Wednesday.

Joseph McCavitt v. Kilolo Kijakazi, Acting Commissioner of Social Security
20-2727
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Robert L. Miller, Jr.
Civil. Affirms the rejection of Joseph McCavitt’s petition for Social Security disability benefits for his child, N.A.M. Rejects McCavitt’s argument that N.A.M., is disabled by attention deficit hyperactivity disorder, intellectual limitations, oppositional defiant disorder, and nocturnal enuresis and that his son’s conditions meet, or are functionally equivalent to three of six “domains of functioning”. Agrees with the ALJ and Indiana Northern District Court’s finding that N.A.M. did not meet any of the listings and has a marked limitation in only one functional category. Finds substantial evidence supports that conclusion.

7^th Circuit Court of Appeals

City of Fishers, Indiana v. DIRECTTV
20-3478
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Jane Magnus-Stinson.

Civil. Affirms the Southern Indiana District Court’s abstention under the teachings of Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010) from a case brought by several Indiana cities against Netflix and other video streaming platforms alleging they owe the cities past and future franchise fees under an Indiana statute. Finds the district court properly abstained and that it did not err by applying the Levin abstention factors.

Indiana Court of Appeals
In Re: The Paternity of B.G.H.; Kelsey Morrison v. Aaron Harmon
20A-JP-2387
Juvenile paternity. Affirms the Delaware Circuit Court’s orders in a paternity action involving Kelsey Morrison and Aaron Harmon that determined Indiana was a more convenient forum than Michigan; awarded the parties joint legal custody of their son, two-year-old B.H.; awarded father parenting time in Indiana on alternating weekends; and ordered father to pay $85 per week in child support. Finds the Delaware Circuit Court did not err or abuse its discretion. Judge Elizabeth Tavitas concurs in result with separate opinion.

The following 7^th Circuit Court of Appeals opinion was posted after IL Deadline on Friday.

Peggy Jo Smith v. Professional Transportation and Ronald D. Romain
20-2046
Appeal from United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard L. Young.

Civil. Vacates the Southern District Court’s summary judgment order in part and remands with instructions to permit Peggy Jo Smith’s individual claims to proceed against Professional Transportation Inc. Finds that the district court erred by refusing to allow Smith to proceed on her individual claims and that she is entitled to proceed individually, regardless of what happens to the collective action.

Indiana Court of Appeals
Carl Eugene McDonald v. State of Indiana
21A-CR-363
Criminal. Dismisses in part, affirms in part, reverses in part. Finds Carl McDonald may not challenge on direct appeal the validity of his convictions for operating a vehicle while intoxicated, endangering a person with a passenger less than e18 years old, a Level 6 felony; three counts of Level 6 felony neglect of a dependent; operating a motor vehicle without ever receiving a license, a Class C misdemeanor; and for being a habitual vehicular substance offender. Also finds that the Cass Superior Court abused its discretion in sentencing McDonald but that remand to the trial court is only necessary so that the HVSO enhancement may be attached to a specific felony. Dismisses McDonald’s double jeopardy claims without prejudice so that they may be brought through a petition for post-conviction relief. Remands with instructions to correct the abstract of judgment.

Indiana Court of Appeals

Stephen M. Davis v. State of Indiana (mem. dec.)
21A-CR-52
Criminal. Affirms Stephen M. Davis’ sentence to five years executed in the Department of Correction for his conviction of Level 5 felony attempted overpass mischief. Finds the Madison Circuit Court did not abuse its discretion when it sentenced Davis. Also finds Davis’ sentence is not inappropriate in light of the nature of the offense and his character. Judge Elizabeth Tavitas concurs in result with separate opinion.

7^th Circuit Court of Appeals

Mike Butler v. Kilolo Kijakazi, Acting Commissioner of Social Security
20-3187
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Damon R. Leichty.

Civil. Affirms the denial of Mike Butler’s request for disability insurance benefits under Title II of the Social Security Act. Finds the administrative law judge did not fail to consider Butler’s age. Also finds the ALJ followed the procedures that are appropriate to a case such as this one in which exertional and nonexertional impairments impede the claimant’s ability to perform some jobs within a category. Finally, finds any error in the district court’s failure to recite expert testimony as to the number of jobs available to Butler to Indiana was harmless.

Indiana Court of Appeals

In re the Matter of D.L. (Minor Child), M.L. (Father) v. Indiana Department of Child Services (mem. dec.)
20A-JC-2108
Juvenile CHINS. Affirms the adjudication of father M.L.’s minor child, D.L., as a child in need of services. Finds M.L. has not established that his due process rights were violated or that the juvenile court abused its discretion when it refused to take judicial notice of his pending post-conviction relief petition. Also finds the Department of Child Services proved D.L. is a CHINS.

Indiana Court of Appeals
Marcos Leon v. State of Indiana (mem. dec.)
21A-CR-107
Criminal. Affirms the sentencing order entered after Marcos Leon pleaded guilty to Level 6 felony attempted voyeurism. Finds the Vanderburgh Circuit Court’s reasoning for declining to enter Leon’s conviction as a Class A misdemeanor was based on the circumstances of the crime, not because the state objected, so Leon failed to show there is a need for a remand. Also finds the trial court did not abuse its discretion by denying Leon’s request to enter his conviction as a misdemeanor.

Indiana Court of Appeals

D.W. v. State of Indiana (mem. dec.)
20A-JV-1811
Juvenile. Affirms the order waiving D.W. into adult court following the state’s petition alleging him to be a delinquent. Finds the juvenile court did not abuse its discretion in waiving D.W. into adult court given his history of sexually abusing multiple children since 2012.

Indiana Court of Appeals
Linda G. Holsten, individually and as surviving spouse of Paul A. Holsten, Deceased v. Lynn Faur, M.D., and Cameron Memorial Community Hospital, Inc. a/k/a Urgent Care of Cameron Hospital
20A-CT-2072
Civil tort. Vacates the Steuben Circuit Court’s entry of partial summary judgment to Cameron Memorial Community Hospital on the sepsis theory of Linda Holsten’s medical malpractice complaint. Finds the trial court lacked subject matter jurisdiction over the sepsis theory portion of Holsten’s claim because it was not presented to the medical review panel. Remands with instructions for the trial court to dismiss, without prejudice, the sepsis theory portion of her claim.

Craig Blackwell v. Superior Safe Rooms, LLC, et al.
20A-PL-02081
Civil plenary. Reverses the denial of Craig Blackwell’s motion to pierce judgment of defendant’s – Superior Safe Rooms, LLC – corporate veil and hold garnishee defendants – Superior, Wharff Excavating, LLC, Michael M. Wharff, and John H. Byers –liable for plaintiff’s judgment. Finds the Hendricks Circuit Court erred when it failed to find as a fact that the contract for the safe room was between Blackwell and Superior, failed to make necessary findings, as requested by Blackwell, about factors relevant to disregarding Superior’s corporate form. Also finds the trial court clearly erred in concluding “Blackwell presented no evidence that any of the Aronson vs. Price, 644 N.E.2d 864, 867 (Ind. 1994)… factors CAUSED [his] damages.”

Indiana Court of Appeals
Charles William Smith, Jr. v. State of Indiana (mem. dec.)
20A-CR-2311
Criminal. Affirms Charles Smith Jr.’s conviction for Level 2 felony dealing in cocaine. Finds Smith unambiguously waived his right to be free from searches without reasonable suspicion as a condition of his placement in community corrections, so Marion County Community Corrections had Smith’s consent to search his residence. Also finds sufficient evidence to support the conviction.

The following Indiana Supreme Court opinion was posted after IL deadline on Wednesday:

Kevin Charles Isom v. State of Indiana
45S00-1508-PD-00508
Post conviction. Affirms the post-conviction court’s judgment against Kevin Isom. Finds the post-conviction court was correct to hold Isom to his burden of presenting developed legal theories and establishing the grounds for relief. Finds Isom has not established that the post-conviction court erred on multiple grounds, including in denying his renewed motion for a competency hearing; denying his discovery request for the State’s lethal-injection protocol and finding execution-validity challenge waived; denying his discovery request for juror contact information and finding issue waived; limiting the testimony of two expert witnesses; and finding his challenge to his petition’s filing date waived.

Indiana Supreme Court
Jeffrey B. Cutchin v. Amy L. Beard
21S-CQ-48
Certified question. Finds the Indiana Medical Malpractice Act applies when a plaintiff alleges that a qualified health care provider treated someone else negligently and that the negligent treatment injured the plaintiff. Declines to answer the question of whether the act prohibits the Patient’s Compensation Fund from contesting the act’s applicability to a claim after the claimant concludes a court-approved settlement with a covered health care provider. Justice Steven David concurs in result with separate opinion.

Indiana Supreme Court
Russell G. Berg v. Stacey L. Berg
21S-DC-320
Domestic relations with children. Affirms the award of half of Russell Berg’s stock to his ex-wife Stacey Berg. Finds that documents produced in anticipation of mediation fall under the confidentiality requirement of settlement negotiations. Also finds that the Allen Circuit Court erroneously admitted a marital balance sheet prepared for mediation to allow Stacey to avoid the parties’ settlement agreement. Finally, finds the trial court incorrectly determined that fraud, constructive fraud, mutual mistake or representation had occurred, but did not abuse its discretion in finding that Russell breached the warranty clause of the agreement.