Opinions

Indiana Court of Appeals 
Indiana Alcohol and Tobacco Commission and PNC Bancorp, LLC (mem. dec.)
18A-MI-2522
Miscellaneous. Reverses the Marion Superior Court’s denial of the Indiana Alcohol and Tobacco Commission’s motion to dismiss PNC Bancorp, LLC’s amended petition for judicial review. Finds PNC’s failure to timely file the agency record precludes judicial review of the commission’s decision. Remands for further proceedings consistent with the opinion. 

Friday’s opinions
Indiana Court of Appeals
Yvonne Malukutila v. State of Indiana (mem. dec.)
18A-CR-2827
Criminal. Affirms Yvonne Malukutila’s conviction of Class A misdemeanor operating a vehicle with an alcohol concentration equivalent of 0.15 or more and Class C misdemeanor operating a vehicle while intoxicated. Also affirms an enhancement for both counts based on her previous conviction of operating a vehicle while intoxicated. Finds Malukutila invited any error by stipulating to the facts in the enhancement phase of her trial without the intervention of a jury. However, remands to the trial court to vacate the conviction on Count II and have the written sentencing order reflect that Count II was merged with Count I and that Count II was vacated.

The following 7th Circuit Court opinion was posted after IL deadline Tuesday.
Emmis Communications Corporation v. Illinois National Insurance Co
18-3392
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Reverses and remands for further proceedings the Southern District Court’s award of summary judgment to Emmis Communication Corp. against Illinois National Insurance Co. Finds correct Illinois National’s proposed interpretation of “as reported” in its insurance policy with Emmis. Concludes summary judgment should have been entered in favor of Illinois National.

Indiana Court of Appeals
Sabrina Graham v. Thomas S. Wininger (mem. dec.)
18A-PL-2262
Civil plenary. Affirms the Martin Circuit Court’s judgment regarding Sabrina Graham’s claim against her brother, Thomas Wininger. Finds the trial court’s judgment against Graham regarding the lack of existence of an oral agreement with Wininger was not contrary to law. Graham’s procedural arguments also fail. Judge Terry Crone concurs in result without opinion.

Indiana Court of Appeals
Sabrina Graham v. Thomas S. Wininger (mem. dec.)
18A-PL-2262
Civil plenary. Affirms the Martin Circuit Court’s judgment regarding Sabrina Graham’s claim against her brother, Thomas Wininger. Finds the trial court’s judgment against Graham regarding the lack of existence of an oral agreement with Wininger was not contrary to law. Graham’s procedural arguments also fail. Judge Terry Crone concurs in result without opinion.

The following opinions were posted after IL deadline Friday.  
7th Circuit Court of Appeals
John Doe v. Purdue University et al., 17-3565
Appeal from the U.S. District Court for the Northern District Court of Indiana, Hammond Division
Magistrate Judge Paul Cherry.
Civil tort. Reverses dismissal of John Doe’s lawsuit against Purdue University. Doe sued Purdue after he was suspended for one year and was forced to resign from the Navy ROTC program following the university’s investigation into allegations that he sexually assaulted a female student. The 7th Circuit found Doe pleaded facts sufficient to state a claim under both the 14th Amendment and Title IX of the Education Amendments Act of 1972. Remands for proceedings.   

The following opinions were posted after IL deadline Thursday.
7th Circuit Court of Appeals
Division Six Sports, Inc. v. Finish Line, Incorporated
19-1070
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Sarah Evans Barker.
Civil. Affirms the Southern District Court’s dismissal of an alleged breach of contract case between Division Six Sports, Inc. and The Finish Line, Inc. for failure to state claim, holding the contract was not in force at the time of the alleged breach. Finds the agreement and its amendments are not ambiguous and the plain language did not provide for any extension after the end of 2013. Finds the district court properly dismissed the action.

Indiana Supreme Court
Michael Hodges v. State of Indiana
19S-MI-117
Miscellaneous. Affirms the turnover of cash seized from a parcel shipped by Michael Hodges and intercepted by an interdiction officer. Finds the totality of the circumstances established the necessary probable cause to believe the money was proceeds of drug trafficking.

The following 7th Circuit Court of appeals opinion was posted after IL deadline Tuesday.
Donald Fessenden v. Reliance Standard Life Insurance Company and Oracle USA, Inc., Group Long Term Disability Plan  
18-1346
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Philip P. Simon.
Civil. Vacates the Northern District Court’s summary judgment determination in favor of Reliance Standard Life Insurance Company and remands for proceedings consistent with the opinion. Holds that the “substantial compliance” exception does not apply to missed deadlines. Finds that because Reliance violated a hard‐and‐fast obligation, its late decision to deny Fessenden benefits is not entitled to deference.

7th Circuit Court of Appeals 
SelectSun GmbH v. Porter, Inc., d/b/a Thunderbird Products
18-3149
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Chief Judge Theresa L. Springmann.
Civil. Affirms the Northern District Court’s judgement against SelectSun GmbH in its contract and warranty dispute over whether the exhaust system on a $1 million yacht manufactured by Porter, Inc. complied with particular regulatory requirements imposed by the European Union. Finds SunSelect did not meet its burden of proving damages to a reasonable certainty on either its breach of contract or warranty claims. Also finds SelectSun failed to carry its burden in demanding a return of the yacht’s entire purchase price.

Indiana Court of Appeals
Raul Ibarra Serrano v. State of Indiana (mem. dec.)
18A-CR-2808
Criminal. Affirms Raul Serrano’s convictions for Level 4 felony burglary and Level 6 felony theft. Finds there is sufficient evidence to support the convictions.

Indiana Court of Appeals 

In the Matter of the Termination of the Parent-Child Relationship of: A.B. (Minor Child), and C.B. (Mother) v. Indiana Department of Child Services
18A-JT-3110.
Juvenile termination of parental rights. Reverses the Tippecanoe Superior Court’s termination of C.B.’s parent-child relationship with her daughter, A.B. Finds there is insufficient evidence to prove that the conditions resulting in the placement of A.B. outside mother’s custody will not be remedied, that the continuation of the parent-child relationship poses a threat to A.B.’s well-being, and that the termination of the parent-child relationship is in A.B’s best interest. Remands for further proceedings. 

Indiana Court of Appeals
James E. Martin, Jr. v. State of Indiana
18A-CR-2726
Criminal. Affirms the Vanderburgh Circuit Court’s issuance of a restitution order in the amount of $2,000 after James Martin Jr. pleaded guilty to Level 6 felony auto theft. Finds the restitution order is within the range of evidence presented as to the stolen vehicle’s pre-theft value and that there is sufficient evidence to support the order.

Indiana Court of Appeals
Golden Corral Corporation v. Kristina M. Lenart
18A-CT-704
Civil tort. Affirms the Clark Circuit Court’s award of $240,000 in damages on Kristina Lenart’s claim for negligence against Golden Corral Corporation for her claim of food poisoning. Finds the trial court did not abuse its discretion in allowing Dr. Julie Hutchinson to testify as an expert witness on Lenart’s behalf; in denying Golden Corral’s motion for judgment on the evidence; or by instructing the jury on spoliation and res ipsa loquitur. Also finds the trial court did not err in concluding Lenart’s claim was not governed by the Indiana Products Liability Act.

7th Circuit Court of Appeals
Catherine Wanko v. Board of Trustees of Indiana University
18-2767
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Affirms the Southern District’s grant of summary judgment to Indiana University on Catherine Wanko’s Title VI racial discrimination claim. Finds Wanko was unable to show a sufficient comparator for her discrimination claim and that the district court did not abuse its discretion in resolving the case’s discovery disputes.

Indiana Supreme Court
In the Matter of Hilary Bowe Ricks
18S-DI-574
Attorney discipline. Suspends Hilary Bowe Ricks for at least two years without automatic reinstatement, effectively immediately. Finds Ricks violated Indiana Rules of Professional Conduct 1.3, 1.4(a)(3), 1.4(a)(4), 1.4(b), 1.16(d), 8.1(b) and 8.4(d) by neglecting clients’ cases and failing to cooperate with the disciplinary process. Justices Steven David and Geoffrey Slaughter concur and dissent in part without separate opinion, believing Ricks should be disbarred.

Indiana Court of Appeals
Flatrock River Lodge v. Morris Stout and Tonia Sue Stout
18A-CC-1919
Civil Collection. Reverses the Rush Circuit Court’s order denying Flatrock’s motion to execute its judgment lien on Morris Stout’s interest in 46 acres of real estate previously owned by second-generation owner Stout and third-generation owner Tonia, as joint tenants with right of survivorship. Finds that the appeal is not mooted by Morris’ death and that the real estate is not exempt from execution on the judgment lien.

Indiana Court of Appeals
Bryce A. Burton v. Martin Benner and Indiana State Police
19A-CT-135
Civil tort. Reverses the Benton Circuit Court’s grant of partial summary judgment in favor of Indiana State Police Trooper Martin Benner in Bryce A. Burton’s lawsuit arising from a personal injury motorcycle crash. Finds the trial court erred by finding as a matter of law that Benner was acting within the scope of his employment at the time of the crash. Remands for proceedings.

Indiana Court of Appeals
Cody A. Stinson v. State of Indiana
18A-CR-2925
Criminal. Affirms Cody Stinson’s conviction of Level 1 felony attempted murder, Level 5 felony battery with a deadly weapon and his adjudication as a habitual offender. Finds the Allen Superior Court did not abuse its discretion in admitting statements under the excited utterance exception to the rule against hearsay. Also finds the trial court did not abuse its discretion when it allowed the state to ask the victim leading questions during direct examination.