Opinions May 30, 2018

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
Racxon Cruze McDowell v. State of Indiana
82A01-1710-PC-2469
Post-conviction. Affirms the denial of Racxon Cruze McDowell’s petition for post-conviction relief. Finds the post-conviction court did not clearly err in concluding McDowell was not denied effective assistance of trial counsel.

Rickie Henderson v. Elliott Kleinman, D.P.M.
84A01-1710-CT-2566
Civil tort. Affirms the grant of summary judgment to Dr. Elliott Kleinman on Rickie Henderson’s medical malpractice complaint. Finds Henderson failed to present evidence requiring resolution by a trier of fact. Judge Edward Najam concurs with separate opinion.

In Re the Estate of James E. Hurwich, Scott D. Hurwich v. Stacey R. MacDonald
71A04-1705-EU-990
Estate, unsupervised. Affirms the denial of Scott Hurwich’s motion for leave to amend his complaint against Stacey McDonald. Reverses the closure of the estate of James E. Hurwich. Finds the St. Joseph Probate Court did not err in denying Hurwich’s motion. Also finds the probate court erred in dismissing Hurwich’s complaint with prejudice, but Hurwich did not timely appeal that issue. Finally, finds the probate court failed to follow statutory procedure when closing the estate. Remands for further proceedings.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of C.M., A.M. and Z.M. (Minor Children), and N.M. (Father) v. The Indiana Department of Child Services (mem. dec.)
34A02-1711-JT-2578
Juvenile termination of parental rights. Affirms the involuntary termination of N.M.’s parental rights to his minor children, C.M., A.M. and Z.M. Finds the Howard Circuit Court did not abuse its discretion in denying N.M.’s motion to continue. Also finds sufficient evidence supports the trial court’s conclusions that there is a reasonable probability of unchanged conditions, and that termination of N.M.’s parental rights is in the children’s best interests.

David Johnson, IV v. State of Indiana (mem.dec.)
45A05-1710-CR-2434
Criminal. Affirms David Johnson, IV’s conviction of murder, two counts of felony murder and Class A misdemeanor resisting law enforcement. Finds the Lake Superior Court did not err in granting the state’s motion to join two causes, or by denying Johnson’s subsequent motion to sever the causes.

Dustin Eugene Harpring v. State of Indiana (mem. dec.)
73A01-1711-CR-2693
Criminal. Affirms the revocation of Dustin Eugene Harpring’s probation. Finds the Shelby Circuit Court did not abuse its discretion. Remands to the trial court for clarification of its sentencing decision.
 
J.C. v. E.C. (mem. dec.)
65A01-1712-DR-2978
Domestic relation. Affirms the denial of J.C.’s petition to modify child support. Finds J.C.’s motion was an impermissible collateral attack on the parties’ agreed summary dissolution decree.

James W. Geary, II v. State of Indiana (mem. dec.)
34A02-1711-CR-2724
Criminal. Affirms the revocation of James W. Geary, II’s probation and order for him to serve the remainder of his suspended three-year sentence in the Department of Correction. Finds Geary overtly failed to abide by three probation conditions he agreed to follow. Also finds the Howard Circuit Court did not abuse its discretion.
 
Elaine Davey v. Richard E. Boston (mem. dec.)
89A01-1712-PL-2955
Civil plenary. Reverses the grant of summary judgment to Richard Boston on Elaine Davey’s legal malpractice claim. Finds any attempt to probate Bruce Davey’s will after Boston failed to sign it as a witness before Bruce’s death would have been fruitless. Remands for further proceedings.

In the Matter of the 2013 Lake County, Indiana Real Estate Tax Sale: Jennifer Brozak, and Barden Procurement Group, LLC v. Wintering, LLC, and BMO Harris Bank, NA (mem. dec.)
45A05-1711-MI-2674
Miscellaneous. Affirms the order determining priority to and disbursement of tax sale surplus funds following the tax sale of Lake County property owned by Jennifer L. Brozak. Finds Brozak failed to show error.
 
In re the Matter of M.C. (Minor Child), J.C. (Father) v. Indiana Department of Child Services (mem. dec.)
31A01-1712-JC-2973
Juvenile CHINS. Affirms the determination that J.C.’s 15-year-old daughter M.C. was a child in need of services. Finds there was insufficient evidence to support a CHINS finding under Indiana Code section 31-34-1-1, but there was ample evidence to supports the Harrison Circuit Court’s finding under I.C. 31-34-1-3 and 31-34-12-4.5 Also finds the trial court did not commit fundamental error when it did not exclude certain testimony during a fact-finding hearing.

G.K. v. State of Indiana (mem. dec.)
49A02-1711-JV-2540
Juvenile. Vacates the true findings of receiving stolen auto parts and theft, both Level 6 felonies if committed by an adult, entered against G.K. Finds the true findings violate federal and state constitutional protections against double jeopardy because G.K. was previously acquitted of those counts. Remands for resentencing.
 
In re Adoption of A.R., S.R. v. J.W. (mem. dec.)
82A01-1710-AD-2426
Adoption. Affirms the decree allowing M.W. to adopt S.R.’s minor child, A.R. Finds M.W. proved that S.R. failed to significantly communicate with A.R. or support A.R. for at lest one year, that S.R. is not fit to parent A.R., and that adoption was in A.R.’s best interests. Also finds S.R.’s consent to the adoption was unnecessary.

Jody A. Cliver v. State of Indiana (mem. dec.)
18A-CR-194
Criminal. Affirms the revocation of Jody A. Cliver’s probation. Finds the Vigo Superior Court did not abuse its discretion when it ordered Clive to serve the balance of her sentence.
 
In re the Termination of the Parent-Child Relationship of L.S., C.H., and A.H. (Minor Children), and L.H. (Mother) v. Indiana Department of Child Services (mem. dec.)
90A05-1712-JT-2954
Juvenile termination of parental rights. Affirms the termination of L.H.’s parental rights to her minor children, L.S., A.H. and C.H. Finds the Wells Circuit Court did not clearly err when it terminated L.H.’s parental rights.