Opinions

The following 7^th Circuit Court of Appeals opinions were posted after IL deadline Friday:
P.W., a minor, by Dominque Woodson, his mother and guardian, et al. v. United States of America
20-1142
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Senior Judge Theresa L. Springmann.
Civil. Affirms the district court’s grant of summary judgment to the United States on the Federal Tort Claims Act action brought by Dominque Woodson on behalf of her son, P.W. Finds the plaintiffs’ claims were untimely, and they do not satisfy the second element of the savings provision of the Westfall Act. Also finds the plaintiffs’ claims do not qualify for equitable estoppel or equitable tolling. Judge David Hamilton dissents with separate opinion.

Indiana Court of Appeals
Christopher M. Hubbert v. State of Indiana
20A-CR-1617
Criminal. Reverses Christopher M. Hubbert’s 18-year executed sentence for his conviction of Level 2 felony dealing in methamphetamine. Finds Hubbert’s sentence is inappropriate in light of the nature of the offense and his character. Remands to the Bartholomew Superior Court to impose a sentence of 18 years, with four years executed in the Indiana Department of Correction and the remaining years served on probation with substance abuse counseling and placement in community corrections.

Indiana Court of Appeals
Benjamen P. Chastain v. State of Indiana
20A-CR-1553
Criminal. Affirms Benjamen Chastain’s sentence to the maximum 23 years, all executed in the Department of Correction, for his conviction of Class B felony child molesting. Finds the Orange Circuit Court did not abuse its discretion in sentencing Chastain, and his sentence is not inappropriate in light of the nature of the offense and Chastain’s character.

The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
In the Matter of the Adoption of I.B. (Minor Child): J.P. v. V.B.
21S-AD-90
Adoption. Affirms the Hamilton Superior Court’s ruling that biological mother J.P.’s consent was not required for the adoption of her child I.B. because, for a period of one year, she failed to communicate significantly with her child and failed to support her child when able and required to do so. Finds the trial court’s determinations were supported by sufficient evidence.

Indiana Court of Appeals 

Christopher Johnston v. State of Indiana

20A-PC-1135

Post conviction. Affirms the denial of Christopher Johnston’s petition for post-conviction relief. Finds Johnston received the effective assistance of his trial and appellate counsel. Judge Terry Crone concurs in result without separate opinion.

Indiana Court of Appeals 

In Re the Termination of the Parent-Child Relationship of: A.L. (Minor Child) and A.N. (Mother) v. Indiana Department of Child Services (mem. dec.); In Re the Termination of the Parent-Child Relationship of: G.L. (Minor Child) and A.N. (Mother) v. Indiana Department of Child Services; In Re the Termination of the Parent-Child Relationship of: R.L. (Minor Child) and A.N. (Mother) v. Indiana Department of Child Services
20A-JT-1631; 20A-JT-1633; 20A-JT-1639

Juvenile termination of parental rights. Affirms the termination of mother A.N.’s parental rights to her three children, A.L., G.L. and R.L. Finds A.N. has waived her challenge to the admission of Petitioner’s Exhibit 1 by failing to provide a cogent argument, and even if there were a discovery violation, the Jay Circuit Court did not abuse its discretion. Also finds A.N. has waived her argument that the Indiana Department of Child Services violated her due process rights because she failed to object on due process grounds in the trial court and she failed to specific any constitutional basis for her due process claim; waiver notwithstanding, her due process argument fails on the merits because she did not establish a risk of error arising from DCS’ actions. Finally, finds there is sufficient evidence to support the trial court’s termination judgment.

Indiana Court of Appeals

Heather Harvey v. Keyed In Property Management, LLC
20A-SC-01459

Small claims. Affirms the Brown Circuit Court’s damages award of $1,500 plus $125 in court costs in favor of Keyed In Property Management, finding that it was entitled to the maximum award for an LLC not represented by legal counsel under Indiana Small Claims Rule 8(C). Rejects Heather Harvey’s argument on appeal that the award was excessive and that she had been subject to constructive eviction.

Indiana Court of Appeals
Carl Z. Swallow v. State of Indiana (mem. dec.)
20A-CR-1825
Criminal. Affirms the revocation of Carl Z. Swallow’s probation and the order for him to serve the entirety of his suspended two-year sentence in the Indiana Department of Correction. Finds the Delaware Circuit Court’s sanction was not an abuse of discretion. Also finds Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App. 2016), does not compel a different result in this case.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
Jennifer L. Karr v. Andrew M. Saul, Commissioner of Social Security
20-1939
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Judge Philip P. Simon.
Civil. Affirms the district court’s decision upholding an administrative law judge’s determination that Jennifer Karr was not disabled because she still could perform sedentary work with some restrictions. Finds the ALJ’s decision was supported by substantial evidence.

Indiana Court of Appeals
Andrew Conley v. State of Indiana
19A-PC-3085
Post conviction. Affirms and reverses in part Andrew Conley’s amended petition for post-conviction relief. Finds Conley’s trial counsel failed to adequately present mitigating evidence, missed opportunities to present expert testimony on scientific evidence regarding the juvenile brain, and missed opportunities to zealously present evidence and challenge the state’s evidence regarding Conley’s mental health. Also finds Conley has shown that his trial counsel’s performance fell well short of prevailing profession norms, and his trial counsel’s deficient performance prejudiced his defense to the extent there is a probability sufficient to undermine confidence in the outcome. Finally, finds the post-conviction court’s denial of Conley’s ineffective assistance of trial counsel claim is clearly erroneous, but the court’s denial of the remainder of Conley’s claims is not clearly erroneous. Remands to the Ohio Circuit Court for a new sentencing hearing.

Indiana Court of Appeals
Terrence Brodnik v. Cottage Rents LLC
20A-SC-2036
Small claims. Reverses the Hendricks Superior Court’s dismissal of Terrence Brodnik’s claim against Cottage Rents LLC based on a lack of subject matter jurisdiction and a failure to state a claim upon which relief can be granted. Finds dismissal was improper under Trial Rules 12(B)(1) and 12(B)(6). Remands for further proceedings.

7^th Circuit Court of Appeals
United States of America v. Teria L. Anderson
19-2361
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker.
Criminal. Vacates Teria Anderson’s conviction of distributing a controlled substance and her sentencing enhancement for serious bodily injury. Finds there is no evidence from which a rational trier of fact could conclude that Anderson aided and abetted the May 30, 2017, transaction between Frankie Ray and Ian Buchanan. Also finds the district court did not err in finding the two-level leadership enhancement applicable. Remands to the district court for resentencing on the conspiracy conviction without a serious-bodily-injury enhancement. 

Indiana Court of Appeals

Daniel Welbourne, et al. v. Betty Mays

20A-MI-01001

Miscellaneous. Remands for further proceedings an order of the Johnson Superior Court granting paternal grandmother Betty Mays overnight visitation rights. Finds that while there is some evidentiary support for grandparent visitation, there is an absence of particularized findings necessary to evaluate the propriety of the order. Remands for more particularized findings relative to the child and child’s relationship with Mays.

Indiana Court of Appeals
In the Matter of the Adoption of E.M.M.; C.G. and D.G. v. O.M.
20A-AD-1474
Adoption. Affirms the denial of grandparents C.G. and D.G.’s petition to adopt their grandchild, E.M.M. Finds the St. Joseph Probate Court did not abuse its discretion when it found that adoption is not in E.M.M.’s best interests and denied grandparents’ adoption petition.

Indiana Court of Appeals

Muir Woods Section One Association, Inc., and Nantucket Bay Homeowners Association, Inc. v. Claudia O. Fuentes, Marion County Treasurer; Julie Voorhies, Marion County Auditor; and Joseph P. O’Connor, Marion County Assessor

20A-CC-1144

Civil collection.

Reverses the Marion Superior Court’s dismissal of the amended complaint and petition for mandate of Muir Woods Section One Association Inc. and Nantucket Bay Homeowners Association Inc. Finds that although the cases “arises under” Indiana tax law, there has been no final determination by the Indiana Board of Tax Review, so administrative remedies have not been exhausted and the Indiana Tax Court does not have jurisdiction. Remands to the trial court for a determination on the homeowners associations’ mandamus action to compel the Marion County treasurer, auditor and assessor to act.

The following 7^th Circuit Court of Appeals opinions were posted after IL deadline Friday:

In re: Kevin T. Hall

20-3245

Petition for a writ of mandamus. Issues a writ of mandamus directing the Southern Indiana District Court to rescind the transfer order of Kevin Hall’s case to the Middle District of Florida after Hall was transferred from a federal prison in Indiana to a federal prison in Florida, thus returning the case to the Southern District of Indiana. Finds that Hall’s case is similar to Ex parte Endo, thus requiring transfer back to Indiana. Also finds that mandamus is the proper vehicle for obtaining review of a transfer decision. Finally, finds that Hall does not have an adequate remedy available through his pending motion under 28 U.S.C. § 2255, and that Hall did not need to show prejudice before pursuing his venue challenge.

Indiana Court of Appeals
Mark Waterfill and Aegean, LLC v. Erie Insurance Exchange (mem. dec.)
20A-CP-1321
Civil plenary. Affirms the Marion Superior Court’s grant of summary judgment in favor of Erie Insurance Exchange, dismissing the appeal in a duty-do-defend dispute as untimely.

Indiana Court of Appeals
Corey Desean Coleman v. State of Indiana
20A-CR-817
Criminal. Affirms Corey Coleman’s sentence of two years suspended to probation on the condition he attend and complete classes in anger management and conflict resolution. Finds the sentence imposed in Marion Superior Court after his conviction of Level 6 felony strangulation was not an abuse of discretion.

The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
Cooper’s Hawk Indianapolis, LLC d/b/a Cooper’s Hawk Winery & Restaurant v. Katherine Ray
21S-CT-56
Civil tort. Grants transfer and dismissal Cooper’s Hawk Winery & Restaurant’s appeal of the Marion Superior Court’s grant of summary judgment to Katherine Ray on her negligence complaint stemming from a slip-and-fall accident. Finds there are no extraordinarily compelling reasons to restore the forfeited untimely appeal. Remands to the trial court for further proceedings.

Indiana Court of Appeals
Travis W. Phelps v. State of Indiana (mem. dec.)
20A-CR-831
Criminal. Affirms Travis Walker Phelps’ convictions for murder and attempted murder but reverses his firearm enhancement. Finds the trial court did not abuse its discretion in instructing the jury or admitting evidence. Also finds that the Vanderburgh Superior Court failed to advise Phelps of his rights and therefore Phelps did not knowingly, intelligently and voluntarily waive his right to a jury trial on the enhancement. Remands for a new proceeding on the firearm enhancement.