Opinions June 28, 2019

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
NIPSCO Industrial Group v. Northern Indiana Public Service Company, and Office of the Utility Consumer Counselor,
18S-EX-475
Agency action. Majority affirms the Indiana Utility Regulatory Commission, finding NIPSCO Industrial Group’s arguments on appeal are estopped and that the commission’s findings are sufficient to support its ruling. Justice Geoffrey Slaughter dissents, joined by Justice Steven David, and would have affirmed the Indiana Court of Appeals opinion in favor of NIPSCO Industrial Group.

Friday’s opinions
Indiana Court of Appeals
Cheryl Underwood v. Judith M. Fulford, et al.
18A-PL-1744
Civil Plenary. Affirms in part, reverses in part, the Monroe Circuit Court’s orders in an estate case arising from a real estate dispute dating to 2002. Affirms the trial court’s finding that the estate was entitled to indemnification from Underwood for an earlier judgment and its judgment in favor of the estate on Underwood’s contribution action and fraudulent transfer action. Reverses the trial court’s partition order, finding its continued retention of respective shares of the proceeds belong to Underwood and the Estate. Remands with instructions for the trial court to disburse the remaining partition proceeds.

Anonymous Doctor A, Anonymous Hospital B, and Anonymous Medical Facility C v. Carol Foreman
18A-CT-2785
Civil tort. Reverses on interlocutory appeal the Fulton Circuit Court order denying summary judgment to Anonymous Doctor A, Anonymous Hospital B, and Anonymous Medical Facility C in Carol Freeman’s medical malpractice suit. Finds the trial court erred because the malpractice claim was not filed within two years of the date of the alleged malpractice. Remands with instructions for the trial court to enter summary judgment in favor of the medical providers.

Jeana M. Horner, et al. v. Terry R. Curry, et al.
18S-PL-333
Civil plenary. Affirms the ruling against the Marion County Prosecutors Office and in favor of Jeana and Jack Horner, on behalf of Indiana citizens and taxpayers. Finds the taxpayers have taxpayer standing to bring the constitutional claim. Also finds Article 8, Section 2 of the Indiana Constitution applies to civil forfeitures. Finally, finds the Indiana Legislature may decide how and when forfeiture proceeds accrue to the Common School Fund, so Indiana’s civil forfeiture statute is not unconstitutional. Chief Justice Loretta Rush concurs, concurs in result and dissents with separate opinion. Justice Steven David concurs and concurs in result and partially joins Rush’s opinion. Justice Geoffrey Slaughter concurs in the judgment with separate opinion.

Josh McBride v. State of Indiana
18A-CR-580
Criminal. Affirms Josh McBride’s conviction for Level 5 felony intimidation. Finds there is sufficient evidence supporting McBride’s conviction. However, because the Dubois Circuit Court imposed a term of probation that both conflicts with another term and with federal law, remands to the trial court to modify the terms of probation consistent with the opinion.

Alain Kiiwon Powell, Jr. v. State of Indiana
18A-CR-1812
Criminal. Affirms and reverses in part Alain Kiiwon Powell Jr.’s conviction of Level 1 felony attempted murder. Finds the state presented sufficient evidence to prove Powell committed Level 1 felony attempted murder as to Davyn Nichols. Also finds the Tippecanoe Circuit Court did not commit fundamental error when it allowed an instruction regarding transferred intent. Finally, finds Powell’s two attempted murder convictions violate double jeopardy because they arose from the same incident of brutality and, thus, vacates his convictions of Level 1 felony attempted murder as to Nichols and reinstates his conviction of Level 3 felony aggravated battery as to Nichols. Remands for resentencing.

Gabriel A. Merriweather v. State of Indiana
18A-CR-2270
Criminal. Affirms the conviction and 12-year sentence imposed by an Allen Superior jury for Gabriel A. Merriweather’s guilty verdicts for Level 5 felony counts of domestic battery and intimidation and Level 6 felony domestic battery, as well as his adjudication as a habitual offender. The charging information for the intimidation count was not fundamental error and the evidence was sufficient to support that conviction. Likewise, Merriweather’s sentence was not inappropriate, and the trial court did not err in instructing the jury.

Joshua E. Asher v. State of Indiana
18A-CR-2679
Criminal. Affirms the denial of Joshua E. Asher’s plea of guilty to two counts of Level 1 felony attempted murder. Finds the Brown Circuit Court did not abuse its discretion in denying Asher’s motion.

In the Matter of the Paternity of T.M.-B. (Child), Robert E. Bush v. Julie Mapletoft
18A-JP-2907
Juvenile paternity. Affirms in part, reverses in part, remands for further proceedings. Finds the Lake Superior Court did not abuse its discretion in calculating Robert Bush’s income, clarifying that the parties must find a horse for their child in the $3,000 to $10,000 price range, crediting Julie Mapletoft for the payment of healthcare premiums, or finding Bush in contempt for failing to pay for the child’s horseback riding lessons in 2017 and 2018. However, finds the trial court abused its discretion in finding Bush in contempt for failing to purchase a saddle.

Guy Sheets v. State of Indiana (mem. dec.)
18A-CR-2027
Criminal. Affirms Guy Sheets’ aggregate 42-year sentence for conviction for Level 1 felony child molesting and two counts of Level 4 felony child molesting. Finds his first two counts do not constitute double jeopardy. Finds his sentence is not inappropriate in light of the nature of the offenses and his character.

Mark Bogue v. State of Indiana (mem. dec.)
18A-CR-2648
Criminal. Affirms Mark Bogue’s conviction for Level 5 felony battery resulting in bodily injury. Finds there is sufficient evidence to negate Bogue’s claim of self-defense. Finds the Marion Superior Court properly inquired into Bogue’s ability to pay restitution and did not abuse its discretion in imposing its restitution order. Bogue has waived his claim for recalculation of his restitution obligation.

Timothy J. Etter v. State of Indiana (mem. dec.)
18A-CR-2181
Criminal. Affirms Timothy Etter’s conviction for Level 3 felony criminal confinement, Class B misdemeanor battery and Level 4 felony burglary. Finds there is sufficient evidence to support the burglary conviction and that the trial court did not commit fundamental error.  

Charles E. Justise, Sr. v. State of Indiana (mem. dec.)
18A-PC-1420
Post conviction. Affirms the denial of Charles Justise’s petition for post conviction relief. Finds his claim of newly discovered evidence does not warrant a new trial and that his remaining claims are barred by the doctrines of res judicata and waiver.

George Harrison v. State of Indiana (mem. dec.)
18A-CR-3148
Criminal. Affirms George Harrison’s conviction for Level 4 felony aggravated battery. Finds there is sufficient evidence to rebut his self-defense claim.

Regal Homes & Restoration, LLC, and Scott Williams v. Richard Swenke (mem. dec.)
18A-PL-1067
Civil plenary. Affirms the Hendricks Superior Court did not abuse its discretion in denying Regal Homes & Restoration, LLC’s motion to correct error and motion to change venue to Putnam County. Finds Swenke’s action does relate to the land located in Hendricks County and that Hendricks County is a preferred venue under Trial Rule 75(A)(2).

Justin R. Shaul v. State of Indiana (mem. dec.)
18A-CR-2260
Criminal. Affirms Justin Shaul’s conviction for two counts of Level 2 felony dealing in methamphetamine and one count of Level 3 felony dealing in methamphetamine. Finds Madison County was a proper venue, Shaul has not demonstrated the prosecutor engaged in misconduct, and his aggregate 25-year sentence was not inappropriate given his long criminal history and the large amounts of narcotics involved in these offenses.

Nicholas D. Thrash v. State of Indiana (mem. dec.)
18A-CR-2434
Criminal. Affirms Nicholas Thrash’s aggregate 160-year sentence for 10 counts of Level 1 felony child molesting. Finds the grant Superior Court did not abuse its discretion by removing Thrash from the courtroom for the remainder of his trial or admitting into evidence photographs of S.D. and her baby. Finds Thrash’s sentence is not inappropriate given the nature of the offenses and his character.

In the Matter of the Termination of the Parent-Child Relationship of Mal.C., Maj.C., M.S., & E.M. (Children) and A.M.C. (Mother); A.M.C. (Mother) v. The Indiana Department of Child Services (mem. dec)
18A-JT-3053
Juvenile termination. Affirms the termination of A.M.C.’s parental rights to Mal.C., Maj.C., M.S., and E.M. Finds the Delaware Circuit Court’s unchallenged findings support its conclusions that the conditions under which Children were removed from Mother’s care would not be remedied; that termination was in Children’s best interests; and that there existed a satisfactory plan for Children following termination. Accordingly, we affirm the termination of Mother’s parental rights to Children.

Orlando Antonio Feliz, III v. State of Indiana (mem. dec.)
18A-CR-14
Criminal. Affirms the Hendricks Superior Court’s order granting the state’s motion to correct erroneous sentence for Orlando Feliz, III. Finds the trial court did not abuse its discretion by granting the motion to correct erroneous sentence.

Quintein S. Walker v. State of Indiana (mem. dec.)
71A03-1708-CR-1837
Criminal. Affirms Quintein Walker’s conviction of Level 1 felony child molestation. Finds the evidence was sufficient to convict Walker. Additionally, because Walker did not meet any of the exceptions in Indiana Evidence Rule 412, the St. Joseph Superior Court properly refused to permit him to question N.J. about prior sexual behavior. Finally, the trial court’s denial of Walker’s request to question N.J. about prior sexual behavior did not violate Walker’s Sixth Amendment rights.

Matt Hansen v. State of Indiana (mem. dec.)
19A-CR-294
Criminal. Affirms the Ripley Circuit Court’s order revoking the remaining portion of Matt Hansen’s work release sentence, his GPS-home incarceration sentence, and six months of his suspended sentence. Finds the trial court did not abuse its discretion.

Michael S. Hauser v. The GEO Group Inc., Lt. Storms, Sgt. Cross, Sgt. A. Brown, and Sgt. H.N. Driscoll (mem. dec.)
18A-SC-1240
Small claims. Affirms the Henry Circuit Court’s denial of Michael Hauser’s motion for telephonic hearing. Finds the trial court did not abuse its discretion and that Hauser failed to demonstrate that he is entitled to the recovery sought.