Opinions

Indiana Court of Appeals
Estate of Bradley Kinser, et al. v. Indiana Insurance Company
29A02-1009-PL-1093
Civil plenary. Reverses summary judgment in favor of Indiana Insurance on its motion for declaratory judgment that it’s not obligated to cover any losses following Bradley Kinser’s accident and death while driving his girlfriend’s car because his policy excluded coverage for a vehicle furnished or available for his regular use. A genuine issue of material fact remains as to the scope and extent that Kinser felt he needed his girlfriend’s permission to drive her car, which affects the determination of whether the car was furnished or available for his regular use.

Indiana Court of Appeals
S.W. by P.W. v. B.K.
71A03-1012-PO-655
Protective order. Reverses trial court’s denial of S.W.’s motion to correct error, remands for a hearing on civil contempt petition, and orders S.W. to be reimbursed $250 appellate filing fee. Held that Indiana code states filing fees will not be assessed for a proceeding seeking relief from or enforcement of a civil protective order.

Indiana Court of Appeals
Jimmie E. Jones, Jr. v. State of Indiana
29A02-1008-CR-935
Criminal. Affirms conviction for felony murder, stating that the trial court did not err by refusing Jimmie Jones’s tendered instructions on reckless homicide and involuntary manslaughter, as evidence suggests Jones knowingly and willingly killed the victim.

7th Circuit Court of Appeals
Digitech Computer, Inc. v. Trans-Care, Inc.
10-1525 & 10-1652
Civil. Affirms decisions on fraud and breach of contract, but vacates damages awarded and remands for a new calculation of damages and fees in accordance with opinion.

Indiana Court of Appeals
James S. Tracy v. Steve Morell, et al.
59A01-1009-PL-488
Civil plenary. Affirms trial court’s ruling that James Tracy failed to meet his burden of proof on his fraud claim in the sale of a tractor. Reverses court’s ruling that Tracy owed a balance on the promissory note, stating the contract for sale of the tractor is unenforceable because there was a mutual mistake of fact between the parties and the contract violates public policy. Holds that Tracy is entitled to the contract for sale of the tractor and to a money judgment in the amount he has paid on the note together with interest.

Tyrus D. Coleman v. State of Indiana
20S03-1008-CR-458
Criminal. Affirms Coleman’s conviction of and sentence for attempted murder. The Double Jeopardy Clause of the U.S. Constitution doesn’t preclude the state from retrying a defendant where in the first trial the jury acquitted him of murder with respect to one person but failed to return a verdict on a charge of attempted murder with respect to another man.

Indiana Court of Appeals
Citimortgage, Inc. v. Shannon S. Barabas, et al.
48A04-1004-CC-232
Civil collection. Affirms grant of amended default judgment in favor of ReCasa Financial Group and Rick Sanders. The trial court did not abuse its discretion when it found that Indiana Code Section 32-29-8-3 precluded Citimortgage’s claim because Citimortgage failed to intervene more than a year after it first acquired interest in the property. When Irwin Mortgage filed a petition and disclaimed its interest in the foreclosure, MERS, as mere nominee and holder of nothing more than bare legal title to the mortgage, did not have an enforceable right under the mortgage separate from the interest held by Irwin Mortgage. Judge Brown dissents.

Indiana Court of Appeals
Melody D. Linenburg v. Mark A. Linenburg
82A01-1011-DR-625
Domestic relation. Affirms provisional order awarding father primary physical custody of the children and possession of the marital residence during the pendency of the dissolution proceeding. The mother failed to establish an abuse of discretion and the court declines to reweigh the evidence.

Indiana Supreme Court
State ex rel. Gregory F. Zoeller v. Aisin USA Manufacturing, Inc.
36S01-1009-CV-469
Civil. Holds the attorney general’s attempt to recover a “tax refund” from Aisin in Jackson Superior Court may proceed. It does not arise under the tax laws because the “refund” was the result of accounting and clerical errors with in the Department of Revenue that were wholly unrelated to any interpretation or application of tax law. Justices Rucker and Dickson dissent.

7th Circuit Court of Appeals
Bloomfield State Bank v. United States of America
10-3939
U.S. District Court, Southern District of Indiana, Terre Haute Division, Judge Larry J. McKinney.
Civil. Reverses summary judgment for the government in the bank’s suit that rent collected on a property in which the bank provided the mortgage should to the bank, not to the IRS to go toward a tax lien. The real estate that generated the rental income at issue in this case existed when the mortgage was issued and thus before the tax lien attached; the rental income was proceeds of that property, which preexisted the tax lien. Remands with directions to enter judgment for the bank.

Cornelius T. Lacey, Sr. v. State of Indiana
02S05-1010-CR-601
Criminal. Affirms denial of Lacey’s motion to suppress. The police did not have to present known supporting facts and obtain an advance judicial authorization for the no-knock entry. Summarily affirms the Indiana Court of Appeals as to all other issues.

Indiana Court of Appeals
Johnnie Stokes v. State of Indiana
49A04-1009-CR-578
Criminal. Affirms 44-year aggregate sentence for Class B felonies robbery, attempted robbery, and unlawful possession of a firearm, and Class C felony criminal recklessness. The trial court did not abuse its discretion in considering Stokes’ 2001 dealing in cocaine conviction and evidence of his extensive criminal record to enhance his sentences for his other present offenses. His sentences also do not violate the double jeopardy clause of the Indiana Constitution.

7th Circuit Court of Appeals
United States of America v. Jermel C. Thomas
10-3566
U.S. District Court, Northern District of Indiana, South Bend Division,
Judge Robert L. Miller, Jr.
Criminal. Dismisses appeal, stating the District Court did not err in enforcing a plea agreement wherein Jermel Thomas had waived his right to appeal his sentence and conviction.

7th Circuit Court of Appeals
United States of America v. John L. Norris
10-1612
U.S. District Court, Southern District of Indiana, Indianapolis Division, Judge Sarah Evans Barker.
Criminal. Affirms denial of motion to suppress evidence. The police officers were acting pursuant to a valid warrant and in a reasonable manner.

Indiana Court of Appeals
Robert Eppl v. Christine DiGiacomo
45A03-1007-SC-402
Small claim. Reverses summary judgment for DiGiacomo and order that Eppl return DiGiacomo’s security deposit and pay her attorney fees. DiGiacomo’s mere delivery of the keys is not sufficient to demonstrate that Eppl actually accepted surrender of the premises and thereby released her from liability as of that date. Eppl’s itemization of damages letter was timely.

7th Circuit Court of Appeals
United States of America v. Donald Leach
10-1786
U.S. District Court, Northern District of Indiana, South Bend Division, Judge Robert L. Miller Jr.
Criminal. Affirms denial of Leach’s motion to dismiss his indictment for knowingly failing to register as a sex offender after traveling in interstate commerce in violation of the Sex Offender Registration and Notification Act. There is no ex post facto violation of the United States Constitution.

7th Circuit Court of Appeals
United States of America v. David Lee Runyan
10-3400
U.S. District Court, Northern District of Indiana, Hammond Division, Judge James T. Moody.
Criminal. Affirms 63-year sentence for being a felon in possession of a firearm. Runyan argued the District Court sentenced him without considering the care he gave his then-terminally ill father, but his argument rested on past caregiving rather than present caregiving and the District Court didn’t need to address it. Also finds the District Court’s commentary at sentencing to not be impermissibly one-sided.

Indiana Court of Appeals
Steven A. Coppolillo v. Anthony Cort
45A05-1007-PL-433
Civil plenary. Reverses summary judgment in favor of Cort on Coppolillo’s suit for unjust enrichment.  The parties’ contract does not preclude Coppolillo’s claim in equity against Cort. There is a material dispute of fact as to whether Cort was unjustly enriched. Remands for further proceedings.

7th Circuit Court of Appeals
Andrew C. Koons v. United States of America
09-3025
U.S. District Court, Southern District of Indiana, Evansville Division, Chief Judge Richard L. Young.
Civil. Affirms denial of Koons’ motion to vacate his guilty plea to being a felon in possession of a firearm. Koons failed to establish that his trial counsel’s performance was constitutionally deficient.

Indiana Supreme Court
Martin Serrano v. State of Indiana and the City of Fort Wayne
02S03-1104-CV-241
Civil. Reverses trial court judgment in favor of the state allowing for the forfeiture of Serrano’s truck. The state concluded he used the truck to transport or facilitate the transportation of a controlled substance for purposes of committing a drug-related offense. There was insufficient evidence to establish by a preponderance that Serrano’s drug possession at the time he was arrested was furthered by the use of his truck or that his truck was used for the purpose of possessing cocaine.