Opinions

Indiana Court of Appeals

Angela Brewer, Individually and as Personal Representative of the Estate of Rickey A. Brewer, Deceased v. PACCAR, Inc., d/b/a PETERBILT MOTORS CO.
55A05-1709-CT-2168
Civil tort. Grants Angela Brewer’s petition for rehearing following the decision of the Court of Appeals. Reaffirms the Court of Appeals’ original decision in all respects. Finds it is not advisable for parties to file simultaneous motions to correct error and notices of appeal. Also finds the appellate court did not hold as a matter of law that Peterbilt’s glider kit was defective.

Indiana Court of Appeals
James T. Horejs, James Harris, and Robert Horejs, as Co-Administrators of the Estate of Laura A. Shaner, Deceased v. Albert Milford, D.O., St. Margaret Mercy Healthcare Centers, Inc., et al.
45A03-1709-CT-2173
Civil Tort. Affirms the trial court’s grant of the providers’ motion for partial summary judgment. Finds Laura Shaner’s estate has no heirs to receive survivor damages under the wrongful-death statute following the death of David, her husband. Concludes survivor damages passed on to the state are contrary to the wrongful-death statute.

Indiana Court of Appeals
Brian K. Wynne v. Tyson Burris and Brian K. Alsip
41A04-1710-SC-2363
Small claims. Affirms claims brought by Brian Wynne against Tyson Burris and Burris’ attorney,  Brian K. Alsip, were in bad faith. Finds trial court did not abuse its discretion by admitting evidence from recorded jail telephone calls made by Wynne. Finds evidence showed Wynne gave his girlfriend actual authority to act as his agent regarding settlement with Burris, and the trial court did not err in rejecting Wynne’s self-representation and negligence claims against Alsip.

Indiana Court of Appeals
Matthew E. Koch v. State Department of Revenue (mem. dec.)
49A02-1708-MI-1767
Miscellaneous. Affirms the denial of Matthew Koch’s petition to compel production of a confidential public record from the Indiana Department of Revenue related to his late grandparents’ estate. Finds Koch failed to show his entitlement to the record. 

Indiana Court of Appeals
Erica Manis v. Trista McNabb 
18A-GU-96 
Guardianship. Affirms the Madison Circuit Court’s denial of mother Erica Manis’ petition to terminate Trista McNabb’s guardianship of her child, J.F., but reverses the court’s denial of Manis’ request for parenting time. The trial court erred by refusing to consider the petition for visitation time because it believed it lacked authority to order parenting time for mother.

Indiana Court of Appeals
Lockerbie Glove Factory Town Home Owners Association, Inc., Andre B. Lacy, Julia L. Lacy, Elliot J. & Serena Androphy, et al. v. Indianapolis Historic Preservation Commission, and Dan Jacobs
49A02-1708-CT-1681
Civil Tort. Affirms judgment of the trial court denial of a petition for judicial review of the Indianapolis Historic Preservation Commission’s certificate of appropriateness to Dan Jacobs for constructing a retail, residential and parking project in the Lockerbie Square Historic District of Indianapolis. Finds the Remonstrators failed to prove that the Commission decision was invalid due to bias.

Indiana Court of Appeals
Steven Davenport v. State of Indiana (mem. dec.)
34A04-1712-CR-2983
Criminal. Affirms the trial court’s order requiring Steven Davenport, who pleaded guilty to child solicitation, to serve the remainder of his suspended sentence in the Department of Correction for violating probation. The trial court did not abuse its discretion in finding he violated probation on three occasions and was given multiple chances to no avail.

Indiana Court of Appeals
In Re the Adoption of S.O., A.O., and N.O.: P.P. v. A.O. (mem. dec.)
41A01-1712-AD-2967
Adoption. Affirms stepmother Am.O.’s petition to adopt the children of P.P. (mother), and the termination of mother’s the parental rights.

7th Circuit Court of Appeals
Cheryl Dalton v.  Teva North America, et al.
17-1990
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Richard L. Young, Judge.
Civil. Affirms summary judgment against Cheryl Dalton and in favor of Teva North America in a products liability case. Finds the district court properly applied Indiana law when it found that Dalton did not provide expert evidence on the issue of causation.

Indiana Court of Appeals
BioConvergence, LLC, and Alisa K. Wright v. Julie Menefee
53A04-1708-PL-1810
Civil plenary. Affirms the denial of attorney fees sought by BioConvergence in an investor lawsuit brought by Julie Menefee. An indemnity provision in the parties’ contract for ownership shares did not explicitly permit an award of attorney fees nor refer to the recovery of attorney fees in an indemnity action. Accordingly, reversal is not warranted.

Indiana Court of Appeals
BioConvergence, LLC, and Alisa K. Wright v. Julie Menefee
53A04-1708-PL-1810
Civil plenary. Affirms the denial of attorney fees sought by BioConvergence in an investor lawsuit brought by Julie Menefee. An indemnity provision in the parties' contract for ownership shares did not explicitly permit an award of attorney fees nor refer to the recovery of attorney fees in an indemnity action. Accordingly, reversal is not warranted.
 

Indiana Court of Appeals
Tyler Dale Knutson v. State of Indiana
12A04-1709-CR-2246
Criminal. Reverses the denial of Tyler Dale Knutson’s motion to dismiss his charge of Level 5 felony unlawful possession of a syringe. Finds the offense of unlawful possession of a syringe cannot be enhanced to a Level 5 felony based on a prior conviction pursuant to Indiana Code section 16-42-19-27, but can only be charged as a Level 6 felony. Remands with instructions to dismiss the Level 5 felony enhancement.

7th Circuit Court of Appeals
Bobbi Kilburn-Winnie and Michelle Allen-Gregory v. Town of Fortville, et al.
17-2498
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Civil. Affirms the grant of summary judgment in favor for the Town of Fortville, Fortville Waterworks and Fortville Utilities on Bobbi Kilburn-Winnie and Michelle Allen Gregory’s 14th Amendment complaint. Finds res judicata bars Kilburn-Winnie and Allen-Gregory’s claim.

Indiana Court of Appeals
Jeffery Certa v. Steak 'n Shake Operations, Inc., Mikal Gillham, and Matthew Hulett
79A05-1708-CT-1873
Civil tort. Reverses the grant of summary judgment to Steak ‘n Shake. Finds Steak ‘n Shake owed a duty to Jeffery Certa, so the Tippecanoe Superior Court erred in granting summary judgment. Remands. 

The following opinions were posted after IL deadline Thursday:
Indiana Supreme Court
In the Matter of Fronse W. Smith, Jr.
71S00-1711-DI-707
Disciplinary. Disbars Fronse W. Smith, Jr. Finds Smith engaged in attorney misconduct by committing the crime of intimidation after he threatened to kill his estranged wife with an ax.

Indiana Court of Appeals
Gerald G. Gray v. Medical Licensing Board of Indiana
26A01-1707-PL-1595
Civil plenary. Affirms the denial of Dr. Gerald Gray’s petition for judicial review of a Medical Licensing Board of Indiana order indefinitely suspending his medical license. Finds substantial evidence supports the suspension.

The following Indiana Supreme Court opinion was posted after IL deadline Tuesday:
In the Matter of Stephen W. Schuyler
18S-DI-184
Disciplinary. Disbars Stephen Schuyler. Finds Schuyler engaged in attorney misconduct by stealing hundreds of thousands of dollars from six supervised estates, failing to comply with court orders and failing to cooperate with the disciplinary process.

Indiana Court of Appeals
Lakesha L. Norington (aka) Shawntrell H. Norington v. State of Indiana (mem. dec.)
49A05-1707-PC-1966
Post-conviction. Affirms the denial of Lakesha Norington’s petition for post-conviction relief. Finds Norington did not follow the procedure for filing a successive petition.

The following opinions were posted after IL deadline on Friday:
7th Circuit Court of Appeals
Carleton Harris v. Allen County Board of Commissioners
17-2577
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Chief Judge Theresa L. Springmann.
Civil. Affirms the grant of summary judgment in favor of the Allen County Board of Commissioners on Carleton Harris’ complaint for alleged violations of the Americans with Disabilities Act. Finds Harris failed to present adequate evidence to show the board was his employer for the purpose of the complaint.

The following opinions were posted after IL deadline on Thursday:
7th Circuit Court of Appeals
Frederick A. Laux v. Dushan Zatecky
16-3282
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Affirms the denial of Frederick A. Laux’s petition for writ of habeas corpus. Finds the state courts’ conclusion that Laux received effective assistance of counsel was not unreasonable.