Opinions Sept. 20, 2017

7th Circuit Court of Appeals
E.T. Products, LLC v. D.E. Miller Holdings, Inc., et al.
16-1204
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge Philip P. Simon.
Civil. Affirms the district court’s judgment that a noncomplete clause between Doug and Tracy Miller and E.T. Products LLC was enforceable, but that the Millers did not breach it. Finds the noncompetition agreement is not overbroad. Also finds the Millers’ assistance to John Kuhns of Petroleum Solutions, E.T.’s distributor, was not a violation of the agreement because a distributor is not a competitor. Finally, finds the noncompete clause, read reasonably, did not require Doug Miller to break his preexisting lease with Kuhns.

United States of America v. John D. Gries and James McCullars
15-2432 and 15-2447
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Criminal. Reverses John Gries and James McCullars’ sentences for conspiracy to distribute child pornography and to sexually exploit a child. Finds the district court’s decision not to merge Gries and McCullars’ convictions for the lesser-included conspiracy with their convictions of engaging in a child-exploitation enterprise, but instead to impose concurrent sentences on all three convictions, violated double jeopardy. Remands with instructions to vacate their sentences on the conspiracy counts and to enter new judgments accordingly.

Indiana Court of Appeals
The Hope Source, Max Sigmon, Julie Brant Gordon, and Dr. Momi Yamanaka v. B.T., by his mother and next friend, Melissa Troutman
49A02-1607-CT-1656
Civil tort. Affirms the Marion Superior Court’s preliminary decision regarding the procedure for determining the admissibility of testimony obtained by facilitated communication as evidence. Finds the trial court did not abuse its discretion.

In the Matter of the Revocable Trust Agreement created by the Settlor, Anil Kumar Sarkar Dipa Sarkar v. Anuradha ("Mili") Sarkar Naugle
84A01-1701-TR-67
Trust. Affirms and reverses in part the entry of summary judgment in favor of Anuradha Sarkar Naugle as successor trustee of the Anil Jumar Sarkar Revocable Trust Agreement dated Aug. 23, 1993. Finds Dipa Sarkar made a timely election to take against the Anil Jumar Sarkar’s will. Also finds the Vigo Superior Court abused its discretion in denying Dipa Sarkar’s motion to amend her petition to docket the trust. Finally, finds genuine issues of material fact remain that preclude summary judgment. Remands for further proceedings.

Perry Robbins v. State of Indiana (mem. dec.)
49A05-1703-CR-578
Criminal. Affirms Perry Robbins’ conviction of Class A misdemeanor battery. Finds the jury was presented with sufficient evidence from which it could have determined beyond a reasonable doubt that Robbins did not act in self-defense.

Carlos Ramirez v. State of Indiana (mem. dec.)
20A03-1703-PC-495
Post-conviction. Affirms the denial of post-conviction relief to Carlos Ramirez on the basis of ineffective assistance of trial counsel. Finds Ramirez failed to acknowledge the post-conviction court’s finding that his attorney informed him of a 25-year plea deal, that Ramirez turned down that deal and that his “self-serving” claim to the contrary was “not credible.”

Reginald Anthony Tate v. State of Indiana (mem. dec.)
45A04-1705-CR-998
Criminal. Affirms Reginald Anthony Tate’s sentence to 30 years following his guilty plea to child molesting as a Level 1 felony. Finds the Lake Superior Court’s admission of evidence of other allegations against Tate was not an abuse of discretion. Also finds the trial court did not abuse its discretion in finding aggravating and mitigating circumstances. Finally, finds Tate has failed to prove his advisory sentence is inappropriate.

Richard Lewis Roethler v. State of Indiana (mem. dec.)
71A03-1704-CR-799
Criminal. Affirms Richard Lewis Roethler’s conviction of Class A misdemeanor domestic battery. Finds the St. Joseph Superior Court did not abuse its discretion by admitting Christy Jackson’s hearsay statements to responding officers as evidence under the excited utterance exception. Also finds there was ample probative evidence presented from which the trial court could have found Roethler guilty beyond a reasonable doubt of battering Jackson.

Ronald A. Schwartz v. Shanna L. Wyatt (mem. dec.)
19A01-1610-PL-2355
Civil plenary. Affirms and reverses in part the Dubois Circuit Court’s grant of Shanna L. Wyatt’s request for partition of Ronald A. Schwartz’s property and order for Schwartz to pay his outstanding obligations to Wyatt from his share of the sale proceeds. Finds Wyatt did not breach a fiduciary duty to Schwartz. Also finds the trial court erred in granting Wyatt’s request for partition, but did not err in awarding her possession of the property. Finally, finds the relevant deeds should be declared void. Remands for consideration of Schwartz’s repayment to Wyatt in calculating her damages.

Donald Miller and Dorothy Miller v. Crawfordsville Electric Light and Power and City of Crawfordsville (mem. dec.)
54A01-1608-PL-2048
Civil plenary. Affirms the dismissal of Donald and Dorothy Miller’s complaint. Finds the Millers waived any inverse condemnation claim by failing to present a claim of inverse condemnation in their complaint and by not pointing to the record to show they raised the claim at an evidentiary hearing. Also finds the Millers’ notice of claim was not filed within the period required by the Indiana Tort Claims Act and, thus, their claim is barred.