Opinions Jan. 2, 2019

7th Circuit Court of Appeals
Derrick Neely-Bey-Tarik-El v. Daniel Conley, et. al.
17-2980
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil plenary. Affirms in part, reverses in part and remands Derrick Neely-Bey-Tarik-El’s prison religious freedom suit against officials at the Indiana Department of Correction and the Pendleton Correctional Industrial Facility. Affirms summary judgment for defendants on the grounds of qualified immunity on Neely-Bey’s claims for damages under the Free Exercise Clause and the Establishment Clause. Remands for consideration of his complaint for injunctive relief under the Establishment Clause and under the Religious Land Use and Institutionalized Persons Act, if the issues presented are not now moot.

Indiana Supreme Court
The following Indiana Supreme Court opinion was posted after IL deadline Friday:
Lisa Livingston v. State of Indiana
18S-CR-623
Criminal. Grants transfer and reduces Lisa Livingston’s sentence from 30 years served in the Indiana Department of Correction to 23 years, with the time remaining served in community corrections, for her drug convictions and status as a habitual substance offender. Finds Livingston’s case is an “exceptional case,” and her 30-year sentence is inappropriate in light of her offenses and character. Summarily affirms the remainder of the Indiana Court of Appeals’ decision. Remands to the Orange Circuit Court to issue a revised sentencing order. Justice Geoffrey Slaughter dissents, believing transfer should be denied.

Indiana Court of Appeals
The following Indiana Court of Appeals opinions were posted on Monday, when the IL office was closed:
Benjamin P. Ingram and Ben's Quarry, LLC v. Diamond Equipment, Inc.
18A-CT-15
Civil tort. Affirms the Vanderburgh Superior Court’s entry of summary judgment in favor of Diamond Equipment, Inc. against Benjamin P. Ingram and Ben’s Quarry, LLC. Finds Diamond had probable cause to believe a fraudulent transfer occurred between Ingram Quarry LLC and Ingram and Ben’s Quarry. Concludes there was no error in the trial court’s decision.  

Nicholas L. Porter v. State of Indiana
18A-CR-1931
Criminal. Affirms the Bartholomew Circuit Court order imposing a probation violation sanction, requiring Nicholas Porter to serve the suspended two years of a sentence for his conviction of Level 6 felony theft. The trial court did not abuse its discretion in so doing.

Mindy (Engel) Speaks v. Vishnuvardhan Rao, D.O., Unity Physicians, Indiana Physician Services, LLC, Porter Hospital, Porter Hospital Pharmacy, and Keith Atassi, M.D.
18A-CT-131
Civil tort. Affirms in part, reverses in part. Finds Vishnuvardhan Rao, Unity Physicians, Indiana Physician Services, Porter Hospital, Porter Hospital Pharmacy and Keith Atassi are entitled to summary judgment on the issues of medical malpractice and negligence. Finds the Porter Superior Court erred in denying the defendants' motion for summary judgment. Remands for the entry of summary judgment on Speaks’ negligence claims.

NOW!, Inc. v. Indiana-American Water Company, Inc., and the City of Charlestown, Indiana, and Indiana Office of Utility Consumer Counselor
18A-EX-844
Agency action. Affirms the sale of the City of Charlestown’s water utility to Indiana-American Water Company, Inc., finding the approval of the transaction was in the public interest, supported by the facts and fulfilled statutory requirements.

The Commissioner of the Indiana Department of Insurance v. Jeffrey A. Schumaker
18A-MI-864
Miscellaneous. Affirms the Marion Superior Court order vacating the Indiana Department of Insurance’s decision not to renew Jeffrey A. Schumaker’s insurance producer license. The evidence supports the conclusion that Schumaker’s action of taking money from his homeowner’s association, under the specific circumstances of this case as set forth in the administrative record, did not constitute “practices” in Schumaker’s professional or personal life which warrant the severe sanction of refusal to renew his insurance producer license.

James Alvin Trimnell v. State of Indiana
18A-CR-987
Criminal. Reverses the Ripley Circuit Court’s denial of James Trimnell’s motion to dismiss a charge of felony murder. Finds that Trimnell’s action in purchasing and delivering what he believed was heroin did not “mediately or immediately” contribute to Rachel Walmsley’s overdose death. Chief Judge Nancy Vaidik concurred in result, arguing Trimnell’s actions were separate from the death. He delivered the drugs and then left. Later, Rachel was injected with the substance and subsequently died.  

Kevin L. Martin v. Hon. Nancy Vaidik, Charles Dugan, Makenzy Gilbert, and Greg Pachmayr (mem. dec.)
18A-CT-1980
Civil tort. Affirms the dismissal of Kevin Martin’s complaint against Indiana Court of Appeals Chief Judge Nancy Vaidik, two Department of Correction employees and Indiana appellate courts clerk Greg Pachmayr. Finds the Sullivan Circuit Court did not err.

Davon Lamont Cummings v. State of Indiana (mem. dec.)
18A-CR-1774
Criminal. Affirms Davon Lamont Cummings' conviction of Class A misdemeanor carrying a handgun without a license. Finds there is sufficient evidence to support the conviction.

Robert L. Rickard III v. State of Indiana (mem. dec.)
18A-CR-877
Criminal. Affirms Robert L. Rickard III 's convictions of Level 2 felony criminal confinement, Level 5 felony robbery and Level 6 felony auto theft. Finds the Madison Circuit Court did not abuse its discretion by denying Rickard’s motion to withdraw his guilty plea.

Chelsea Madden v. State of Indiana (mem. dec.)
18A-CR-1737
Criminal. Affirms Chelsea Madden’s conviction of Level 5 felony neglect of a dependent and Class A misdemeanor domestic battery. Finds there is sufficient evidence to support her conviction. Also finds the Allen Superior Court did not abuse its discretion in instructing the jury.

Amber Nicole Swoboda v. State of Indiana (mem. dec.)
18A-CR-1334
Criminal. Affirms Amber Swoboda’s 545-day sentence for conviction of Level 6 felony theft after she stole a television from Walmart. Finds there is sufficient evidence to support her sentence and conviction. Finds the Hamilton Superior Court did not abuse its discretion in sentencing her.

Cameron A. Britain v. State of Indiana (mem. dec.)
18A-CR-1776
Criminal. Affirms Cameron Britain’s 547-day sentence for conviction of Level 6 felony fraud. Finds the Bartholomew Circuit Court did not abuse its discretion in imposing the sentence.

In re the Termination of the Parent-Child Relationship of A.L., C.L., E.L., M.L., and J.P. (Minor Children) and N.L. (Mother) N.L. (Mother) v. Indiana Department of Child Services (mem. dec.)
18A-JT-1540
Juvenile termination. Affirms the termination of N.L.’s parental rights to her five children. Finds the trial court’s termination order complies with Indiana Code section 31-35-2-8. Also finds the trial court did not fail to consider Melanie Menser’s testimony and that it did not err by not ordering DCS to pay for Menser’s testimony.

Desha A. Richey v. State of Indiana (mem. dec.)
18A-CR-1489
Criminal. Affirms the Grant Superior Court’s revocation of Desha Rickey’s probation and order to serve three years executed in the Department of Corrections. Finds the trial court did not abuse its discretion when it ordered her to serve her previously suspended sentence.

Gerald Duane Lewis v. State of Indiana (mem. dec.)
18A-CR-1315
Criminal. Affirms Gerald Duane Lewis’ 36-year sentence for conviction of Level 1 felony attempted murder. Finds the Vanderburgh Circuit Court did not abuse its discretion and that Lewis’ sentence is not inappropriate in light of the nature of the offense and the character of the offender.

Raymond Strominger v. Robert J. Lang, D.O., and Corizon Health, Neil J. Martin, M.D., Samuel J. Byrd, M.D., Housman Kiani, M.D., and Paul A. Talbot, M.D. (mem. dec.)
49A04-1712-CT-2906
Civil tort. Affirms the Marion Superior Court’s dismissal of Raymond Strominger’s proposed complaint for damages in his medical malpractice action. Finds the trial court did not abuse its discretion when it dismissed Strominger’s proposed complaint.

Victoria Robinson v. 21st Century Charter School at Gary, Angela West, in her official and individual capacity, Dana (Johnson) Teasley, in her official and individual capacity, et al. (mem. dec.)
45A04-1710-CT-2441
Civil tort. Affirms the Lake Superior Court’s grant of summary judgment to 21st Century Charter School in Gary, Angela West, Dana (Johnson) Teasley, and others on defamation-related issues brought by Victoria Robinson. Finds the trial court did not err in granting summary judgment in favor of School Appellees on Robinson’s intentional infliction of emotional distress claim.

Leobardo Mercado v. State of Indiana (mem. dec.)
18A-CR-1280
Criminal. Affirms in part Leobardo Mercado’s conviction of Class A felony child molesting and Level 1 felony child molesting. Finds Mercado’s aggregate sentence is inappropriate considering his character and revises Mercado’s sentence to concurrent terms of 40-years. Chief Judge Nancy Vaidik dissents in a separate opinion.

Joshuah Rainbolt v. State of Indiana (mem. dec.)
18A-CR-1403
Criminal. Affirms Joshuah Rainbolt’s 60-year sentence for conviction of murder. Finds that Rainbolt’s character does not render the sentence inappropriate, nor does the nature of the offense, despite his age.

WFG-Williams & Bluitt Funeral Home, Inc. d/b/a Williams & Bluitt Funeral Home and Service Corporation International v. Bluitt & Son by Nathan L. Bluitt, Jr., Inc., et al. (mem. dec.)
18A-PL-819
Civil plenary. Reverses and remands the Marion Superior Court’s grant of partial summary judgment in favor of Bluitt & Son by Nathan L. Bluitt, Jr., Inc., a/k/a Bluitt & Sons by Nathan L. Bluitt, Jr., and Nathan L. Bluitt, Jr. Remands for proceedings consistent with the opinion.  

Ronald Graham v. State of Indiana (mem. dec.)
18A-CR-1346
Criminal. Affirms Ronald Graham’s conviction of three counts of Level 4 felony dealing in a narcotic drug. Finds the Marion Superior Court did not abuse its discretion by denying his motion for a continuance.

In re the Estate of Al Katz, Deceased Lawrence T. Newman v. Robert W. York, as Personal Representative; Internal Revenue Service; and, State of Indiana (mem. dec.)
18A-ES-1721
Estate, supervised. Affirms the Marion Superior Court’s order and grants Robert York’s request for appellate attorney fees. Remands for a determination of York’s reasonable appellate attorney fees.

In re Termination of the Parent-Child Relationship of: S.H. and A.H., Minor Children, K.H., Mother, and R.H., Father v. The Indiana Department of Child Services (mem. dec.)
18A-JT-1657
Juvenile termination. Affirms the involuntary termination of K.H. and R.H.’s parental rights to their children S.H. and A.H. Finds the Jackson Superior Court’s judgment terminating the parental rights of K.H.  and R.H. is supported by clear and convincing evidence.

Tyreoun D. Guy v. State of Indiana (mem. dec.)
18A-CR-1558
Criminal. Affirms Tyreoun Guy’s conviction of Class A misdemeanor trespass. Finds there is sufficient evidence to support the conviction.

State of Indiana v. Dylan S. Woolston (mem. dec.)
18A-CR-1091
Criminal. Reverses the Lawrence Superior Court’s judgment that ultimately suppressed evidence found from a warrantless search of Dylan Woolston following a traffic stop. Finds the trial court’s ruling on Woolston’s motion was contrary to law.  Remands for further proceedings consistent with the opinion. Judge John G. Baker dissents with a separate opinion.