Opinions

Indiana Court of Appeals
Ryan Baxter v. State of Indiana
18A-CR-2050
Criminal. Affirms Ryan Baxter’s conviction of Level 1 child molesting, finding the Elkhart Superior Court did not err in admitting a medical report, and the victim’s testimony was not incredibly dubious.

7th Circuit Court of Appeals
USA v. Joshua Herman
18-3057
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Senior Judge James T. Moody.
Criminal. Majority led by Chief Judge Diane Wood denies en banc review, reverses and remands for resentencing of Joshua Herman on a charge of felon in possession of a firearm. Holds that the act of pointing a gun and ordering someone still, by itself, is not “physical restraint” under federal sentencing guidelines. Judges Joel Flaum and Michael Kanne dissent and would grant en banc review, and would find that the action of pointing a gun and ordering compliance is physical restraint. Judge William Bauer would affirm Herman’s 10-year sentence, with the physical restraint enhancement, for the reasons spelled out in Flaum’s dissent. Noting a now 5-4 circuit split on the conflicting views on the meaning of U.S.S.G. § 2B3.1(b)(4)(B), orders the Clerk of Court to send this opinion to the U.S. Sentencing Commission for its consideration.

Indiana Court of Appeals
Jesse L. Smith v. State of Indiana
18A-CR-2597
Criminal. Affirms Jesse Smith’s conviction of Level 6 felony criminal recklessness, finding no double-jeopardy violation. Finds the actual evidence presented at trial in Vigo Superior Court supports separate convictions of Level 6 felony criminal recklessness and Level 3 felony attempted aggravated battery.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
American Homeland Title Agency, Inc., John Yonas, and Martin Rink v. Stephen W. Robertson, Commissioner of the Indiana Department of Insurance
18-3293
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker.
Civil plenary. Affirms summary judgment for Stephen Robinson and the Indiana Department of Insurance on American Homeland’s suit alleging the department discriminated against it for the loss of its licenses for its out-of-state residency. Finds that because American Homeland surrendered its licenses in its agreement with the department and has provided no valid reason to void that agreement, judicial review is unavailable.

Indiana Court of Appeals
River Ridge Development Authority v. Outfront Media, LLC, David Watkins, No Moore, Inc., The Schlosser Family Limited Partnership, The Town of Utica, and the Utica Board of Zoning Appeals
18A-PL-2347
Civil plenary. Reverses an order of the Clark Circuit Court requiring River Ridge Development Authority to pay a total of $237,440 in attorney fees to opposing parties. Holds that the trial court’s findings of fact were clearly erroneous, therefore nullifying its conclusions of law that River Ridge owed any attorney fees.

7th Circuit Court of Appeals
Oliver Collins v. University of Notre Dame Du Lac
18-2579, 18-2559
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Joseph S. Van Bokkelen.
Civil. Reverses the Northern District Court’s grant of summary judgment and award of $501,367 in damages to former Notre Dame professor Oliver Collins following his guilty plea to a federal felony charge for theft of government grant funds. Finds Collins’ contract with Notre Dame did not prohibit one faculty member from participating in informal mediation and then serving on the hearing committee in Collins’ case. Finds the facts show “serious cause” sufficient to warrant Collins’ dismissal. Remands for the trial court to award Notre Dame judgment.

Indiana Court of Appeals
Matthew Purnell v. Kayla Purnell
19A-JP-162
Juvenile paternity. Affirms the award of sole legal and primary physical custody of S.P. to Kayla Purnell. Finds that although the Johnson Circuit Court abused its discretion in considering Matthew Purnell’s active duty status in the United States Air Force, the remaining findings of fact and conclusions thereon are sufficient to support the grant of sole legal custody and primary physical custody to Kayla.

Indiana Court of Appeals
Damian Justin Harris v. State of Indiana (mem. dec.)
18A-PC-1835
Post conviction. Affirms the denial of Damian Harris’ petition for post-conviction relief. Finds the Allen Superior Court did not err in rejecting his claim of ineffective assistance of trial counsel.

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.