Opinions

The following 7^th Circuit Court of Appeals opinion was posted after IL Deadline Tuesday.
United States of America v. Marvin Cates
19-1042
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Senior Judge Robert L. Miller Jr.
Criminal. Affirms the denial of Marvin Cates’ motion to withdraw his guilty plea to possession a firearm with a prior felony conviction on the basis of ineffective assistance of counsel. Finds the record contains insufficient evidence to support Cates’ ineffective-assistance claim on direct appeal.

Indiana Supreme Court
Collins Asset Group, LLC v. Alkhemer Alialy|
19S-CC-531
Civil collection. Reverses and remands the Hamilton Superior Court’s dismissal of a complaint brought by Collins Asset Group LLC for missed payments on a promissory note entered into by Alkhemer Alialy. Finds that CAG can assert its claim under either Ind. Code § 34-11-2-9 (2019) or § 26-1-3.1-118(a) (2019).

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Thursday.
Brandi Lutes v. United Trailers, Inc.
19-1579
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Robert L. Miller.
Civil. Affirms in part and reverses in part the district court’s entry of summary judgment for United on the estate of Buddy Phillips’ wrongful termination claim. Affirms judgment for United on Phillips’ retaliation claim but reverses and remands for proceedings on his claim of interference with his rights under the Family and Medical Leave Act.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline on Wednesday.
DeWayne Perry v. Richard Brown
19-1683
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Judge William T. Lawrence.
Civil. Vacates the Southern District Court’s ruling that equitable tolling is only possible when an “external obstacle” impeded timely filing. Finds the district court needs to determine whether a brain injury caused DeWayne Perry’s delay in seeking habeas review under 28 U.S.C. §2254, and if so whether circumstances as a whole justify equitable tolling. Finds Perry’s medical condition could frustrate his ability to gather and present such evidence on his own, therefore making it appropriate for the district court to appoint counsel to assist him. Remands for proceedings.

Indiana Court of Appeals
Monika Schmidt v. Allstate Property and Casualty
19A-CT-01489
Civil tort. Reverses the Johnson Superior Court’s grant of Allstate Property and Casualty Insurance Co.’s motion for summary judgment on Monika Schmidt’s bad faith claim and its finding that an insurer does not owe a duty of good faith and fair dealing to an insured who is not the policyholder. Finds the trial court erred in granting summary judgment on that basis. Remands for further proceedings on Schmidt’s bad-faith claim, including her motion for sanctions and contempt.

7th Circuit Court of Appeals
Whirlpool Corporation v. Wells Fargo Bank, N.A.
18-3363
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Affirms the award of summary judgment to Wells Fargo Bank against Whirlpool Corporation in the latter’s adversary action against Wells Fargo. Finds the bankruptcy judge correctly subordinated Whirlpool’s reclamation claim to the debtor-in-possession financing lien.

Indiana Court of Appeals
Michael Shepard v. State of Indiana
19A-CR-02065
Criminal. Affirms Michael Shepard’s conviction of Level 6 felony battery resulting in moderate injury. Finds Shepard’s 30-month sentence imposed in Howard Circuit Court is not inappropriate considering the nature of the offense and his character.

7^th Circuit Court of Appeals
Gail Martin v. Andrew M. Saul
19-1957
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Magistrate Judge Susan Collins.
Civil. Reverses the denial of disability benefits to Gail Martin, finding a second administrative law judge’s decision was not supported by substantial evidence. Orders the award of benefits for Martin, finding her disabled.

Indiana Court of Appeals
Richard R. Shore v. State of Indiana (mem. dec.)
19A-CR-1463
Criminal. Affirms Richard Shore’s conviction of Class A misdemeanor intimidation. Finds sufficient evidence to support the conviction and to establish that proper venue was in Warren County.

Indiana Court of Appeals
Duke Energy Indiana, Llc v. J & J Development LLC
19A-PL-00735
Civil plenary. Reverses the Clark Circuit Court’s grant of summary judgment to J&J Development Company, LLC and against Duke Energy Indiana, LLC. Finds improvements made by J&J within an easement owned by Duke did unreasonably interfere with the easement’s use. Remands for the entry of summary judgment in favor of Duke, including an injunction requiring J & J to remove the challenged improvements.

The following Indiana Supreme Court opinion was posted after IL deadline Friday.
S.H. v. D.W.
19S-PO-118
Protective order. Reverses the Bartholomew Superior Court’s grant of a second protective order against S.H. that was requested by D.W. Finds insufficient evidence to support the trial court’s entry of another two-year protective order. Remands with instructions to vacate entry of the second protective order. Justice Christopher Goff dissents with a separate opinion in which Justice Mark Massa joins.

Indiana Court of Appeals
Small Business in Transportation Coalition, et al. v. Indiana Department of Revenue, et al.
19A-PL-370
Civil Plenary. Affirms the Marion Superior Court order in favor of the Indiana Department of Revenue on a complaint by Small Business in Transportation and other plaintiffs’ class-action suit seeking the reimbursement of potentially hundreds of millions of dollars in state motor carrier fees collected through an internet portal. Hold the plaintiffs’ efforts to recoup fees voluntarily paid through the portal is without basis in law.

Indiana Court of Appeals
City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corporation
19A-PL-00457
Civil plenary. Majority affirms the Monroe Circuit Court’s grant of UJ-Eighty Corp.’s petition seeking judicial review of the Bloomington Board of Zoning Appeals’ decision that affirmed the issuance of two notices of violation against UJ-Eighty. Finds the City of Bloomington improperly delegated authority to Indiana University in violation of the Due Process Clause of the Fourteenth Amendment. Affirms that the ordinance unconstitutionally violates due process. Judge L. Mark Bailey dissents with opinion.

Indiana Court of Appeals
Raymond E. Cook, III v. State of Indiana (mem. dec.)
19A-CR-1594
Criminal. Affirms Raymond Cook III’s aggregate seven-year sentence for conviction in Ripley Circuit Court of Level 5 felony dealing in methamphetamine and Level 6 felony maintaining a common nuisance. Finds the sentence is not inappropriate in light of the nature of the offenses and his character.

Indiana Court of Appeals
Termination: J H, et al. v. Child Advocates Inc, et al.
19A-JT-01549
Juvenile termination. Affirms the Marion Superior Court’s termination of J.H. and W.D.’s parental rights to their minor child, C.D. Finds the trial court did not clearly err in determining that there was sufficient evidence to support the termination of parental rights. Finds their right to consent to C.D.’s adoption was rightly terminated.

Indiana Court of Appeals
Stephen W. Peele v. State of Indiana
19A-CR-1775
Criminal. Reverses the dismissal of Stephen Peele’s petition for removal from the Indiana Sex Offender Registry. Finds the Marion Superior Court erred in dismissing Peele’s petition, finding Peele properly brought his petition for removal within a criminal cause in a qualifying court. Remands with instructions to the trial court to consider the merits of Peele’s petition.

The following 7^th Circuit Court of Appeals opinions were posted after IL deadline Wednesday:
United States of America v. Jose Trinidad Garcia, Jr., and Alfonso Pineda-Hernandez, also known as Flaco
18-1890, 18-2261
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson
Criminal. Reverses the 20-year mandatory minimum sentence for Jose Garcia after he pleaded guilty to a drug-dealing conspiracy count, finding the predicate Indiana offense used to enhance his sentence does not qualify as a federal drug offense. Remands for resentencing. Affirms the 25-year sentence imposed on Alfonso Pineda-Hernandez after he was found guilty on two trafficking charges, finding no error in his sentencing or conviction.