Opinions

Indiana Court of Appeals
Clark-Floyd Landfill, LLC v. Ricky Gonzalez, Yvonne Gonzalez, Robert Scoles, and Tamara Scoles, on Behalf of Themselves and All Others Similarly Situated
19A-CT-2680
Civil tort. Affirms the Clark Circuit Court’s certification of Ricky Gonzalez, Yvonne Gonzales, Robert Scoles, and Tamara Scoles’ complaint against Clark Floyd Landfill, LLC as a class action. Finds, among other things, that the trial court did not apply an incorrect legal standard in determining whether to certify the class action. Also finds the trial court’s adoption of the Homeowners’ class definition is supported by substantial evidence.

Valonte Deshoun Smith v. State of Indiana (mem. dec.)
19A-CR-2333
Criminal. Affirms Valonte Smith’s aggregate 12-year sentence for conviction of Level 3 felony rape. Finds the Madison Circuit Court did not abuse its discretion in denying admission of certain evidence. Finds Smith has failed to meet his burden that the deputy prosecutor committed misconduct and that the trial court did not abuse its discretion in instructing the jury. Also finds sufficient evidence to support the conviction, that Smith did not receive ineffective assistance of counsel and that his sentence is not inappropriate.

Indiana Court of Appeals
Mary Eve Kassen Moriarty v. Cathereine C. Moriarty, et al.
19A-PL-02342
Civil plenary. Affirms the Hamilton Superior Court’s order entering judgment in favor of daughters Catherine C. Moriarty and Paula A. Bowers against Mary Eve Kassen Moriarty on their claim to reject the probate of the purported last will and testament of William J. Moriarty on the basis of lack of testamentary capacity and/or undue influence and on their claim of tortious interference with inheritance. Finds the trial court did not abuse its discretion by permitting the daughters to reopen their case-in-chief. Finds the trial court’s legal conclusions that the purported will is invalid and its conclusions regarding tortious interference with inheritance are not clearly erroneous.

Indiana Supreme Court
In The Matter of Steven T Fulk
19S-DI-00277
Attorney discipline. Disbars Indianapolis attorney Steven Fulk effective immediately after finding that he committed attorney misconduct by neglecting a client’s case, converting an employee’s tax withholdings for his personal use, and failing to cooperate with the disciplinary process.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Thursday
USA v. Terrance Brasher
18-1997
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. Judge Tanya Walton Pratt.
Criminal. Affirms Terrance Brasher’s sentence of life in prison for conviction of engaging in a conspiracy to distribute narcotics. Finds no merit to any of Brasher’s arguments against his conviction and sentence, including that there was a fatal variance between the conspiracy as charged and the proof at trial, among others.

Indiana Court of Appeals
Christal Trowbridge v. In re the Estate of Everett Thomas Trowbridge, Michael T. Trowbridge
19A-ES-3022
Estate. Reverses the Clark Circuit Court’s refusal to probate the will of Christal Trowbridge’s ex-husband, Everett Thomas Trowbridge. While affirming the probate court’s conclusion that Everett’s estate is entitled to the presumption that Trowbridge destroyed his will with the intent to revoke it, agrees with Christal that the court did not engage in the proper analysis to determine whether she rebutted that presumption. Remands on that issue with instructions for the court to issue a new order applying the correct analysis.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
7th Circuit Court of Appeals
Erin Johnson v. Enhanced Recovery Company, LLC
19-1210 & 19-1334
Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. Judge Philip P. Simon.
Civil. Affirms the district court’s entry of summary judgment for Enhanced Recovery on Erin Johnson’s class-action complaint seeking damages under the Fair Debt Collection Practices Act. Finds Johnson failed to present any evidence other than her own opinions that a letter sent by ERC was misleading. Affirms on cross-appeal the district court’s denial of ERC’s prior motion to dismiss, finding denial was proper because the court found Johnson had presented a plausible claim.

Indiana Court of Appeals
In the Matter of G.B., K.W., and D.C. (Minor Children), Children Alleged to be in Need of Services; N.C. (Mother) v. Indiana Department of Child Services (mem. dec.)
19A-JC-2435
Juvenile CHINS. Affirms the adjudication of mother N.C.’s three minor children, G.B., K.W. and D.C., as children in need of services. Finds the Department of Child Services presented sufficient evidence to support the juvenile court’s determination that the children are CHINS.

Indiana Court of Appeals
Jesus Pedraza, Jr. v. State of Indiana
19A-CR-850
Criminal. Grants rehearing for the limited purpose of making a point of clarification regarding the circumstances of Jesus Pedraza’s Miranda waiver. Affirms the memorandum decision in all other respects.

Indiana Court of Appeals
In Re the Paternity of J.G.; Wendy Sonora Hernandez and Margarito Guzman v. Fredy Sanchez Cortes and State of Indiana
19A-JP-2429
Juvenile paternity. Affirms the denial in Elkhart Superior Court of Wendy Sonora Hernandez’s motion for summary judgment on the state’s action seeking to establish paternity of her child by Fredy Sanchez Cortez. Finds the trial court did not err in its denial, and that mother and husband, Margarito Guzman, have failed to meet their burden on appeal to demonstrate that the court abused its discretion when it dismissed husband as a party to the action. Also finds that mother has failed to demonstrate that she was prejudiced by the trial court’s failure to provide her with explicit notice of its intent to treat her motion to dismiss as a motion for summary judgment. Lastly, holds that the state timely filed its paternity petition and that putative father was not required to register with the putative father registry before the state could file its petition.

Indiana Court of Appeals
David E Killian v. State of Indiana
19A-CR-02628
Criminal. Affirms David Killian’s conviction of sexual misconduct with a minor. Finds that because sexual misconduct with a minor over 20 ago could not have been the source of the pregnancy, the Kosciusko Superior Court properly excluded evidence that Killian’s son could have been the “source” of the victim’s pregnancy. Finds Evidence Rule 412(b)(1)(A) does not allow for this speculation.

The following 7^th Circuit Court of Appeals opinions were posted after IL deadline Monday:
USA v. Carlos Maez, USA v. Matthew Jones, USA v. Cameron Battiste
19-1287, 19-1768, 19-2049
USA v. Maez is an appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Jon DeGuilio.
Criminal. Affirms judgment of the Northern District Court against Carlos Maez in United States v. Maez, 19‐1287. Affirms Matthew Jones’ conviction in United States v. Jones, 19‐1768, vacates his sentence and remands the case to the district court for resentencing. After applying plain‐error review, concludes that the asserted errors do not require reversing any of the convictions, but vacates Jones’ sentence because the district court made a Tapia error. Also affirms Cameron Battiste’s conviction in United States v. Battiste, 19‐2049.

7th Circuit Court of Appeals
Logan Owsley v. Mark Gorbett
19-1825
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Civil. Vacates dismissal of Logan Owsley’s federal lawsuit contending that the Bartholomew County Sheriff and his deputies have lost or destroyed evidence that would help his late father’s estate pursue claims against who Logan claims are Cary’s putative murderers. Finds the district court properly recognized that the state court’s decision to retain Lisa Owsley as the estate’s representative is not subject to collateral attack. Finds a first issue on remand to determine is whether an access-to-courts claim can be based on an assertion that the defendants concealed or destroyed evidence that could have been relevant, had suit been filed in state court.

Indiana Supreme Court
River Ridge Development Authority v. Outfront Media, LLC, David Watkins, No Moore, Inc., the Schlosser Family Limited Partnership, the Town of Utica, and the Utica Board of Zoning Appeals
19S-PL-645
Civil plenary. Reverses the Clark Circuit Court’s award of $237,440.63 in attorney fees to Outfront Media, LLC, David Watkins, No Moore, Inc., the Schlosser Family Limited Partnership, the Town of Utica, and the Utica Board of Zoning Appeals. Holds that the trial court’s decision was an abuse of discretion. Neither the common-law obdurate behavior exception nor the General Recovery Rule — both of which require a “prevailing party” — allow an award of attorney fees when a party voluntarily dismisses its complaint, as River Ridge did. The record also lacks evidence to show that River Ridge litigated in bad faith and that its conduct was calculatedly oppressive, obdurate, or obstreperous.

Indiana Court of Appeals
Universal Auto, LLC, d/b/a James Myers v. Cory Murray
19A-PL-1225
Civil plenary. Affirms the Marion Superior Court’s entry of judgment in Cory Murray’s favor on his contract claim for damages and Universal Auto LLC’s counterclaim for damages and attorney’s fees. Finds Murray had not defaulted on the sales contract when Universal repossessed his vehicle. Also finds that Universal failed to carry its burden of demonstrating prima facie error concerning its counterclaim and Murray’s contract claim.

Indiana Court of Appeals
In Re the Supervised Estate of Dorothy M. Hall (Decedent), Doloris Tilly v. Jeff Hall and Doris Andres
19A-ES-1450
Estate. Affirms the Floyd Circuit Court’s April 26, 2019 interlocutory order in the supervised estate of Dorothy M. Hall. Finds reversal is not warranted on Doloris Tilly’s argument that her stepbrother Jeff Hall’s affidavits were improperly considered by the trial court. Also finds no abuse of its discretion in denying her request to strike Hall’s responses to her request for admissions. Lastly, finds that Ind. Code § 29-1-14-1 does not require reversal and that Hall was not required to file a separate request to set aside the March 2010 deeds or join stepsister Doris Andres’s petition.

Indiana Court of Appeals
Community Health Network, Inc. v. Heather McKenzie and Daniel McKenzie, individually and as parents and natural guardians of J.M. and O.M., John McKenzie, Deborah West, Michael West, and Katrina Gray
19A-CT-873
Civil tort. Affirms and reverses in part the denial of Community Health Network Inc.’s Trial Rule 12(B)(1) motion to dismiss the complaint brought by Heather McKenzie, Daniel McKenzie, John McKenzie, Deborah West, Michael West, J.M. and O.M., and Community’s motion for summary judgment. Finds the appellees’ claims do not fall within the purview of the Medical Malpractice Act, and the Marion Superior Court properly denied Community’s motion to dismiss. Also finds genuine issues of material fact preclude summary judgment in Community’s favor on the claims involving respondeat superior, negligent training, supervision and retention, and negligence. Finally, finds Community is entitled to judgment as a matter of law, in part, on the respondeat superior claim. Remands with instructions to grant summary judgment in favor of Community on the appellees’ invasion of privacy/intrusion claim.

Indiana Supreme Court
Brandon L. Johnson v. State of Indiana
20S-CR-61
Criminal. Reverses the denial of Brandon Johnson’s request to file a belated notice of appeal. Finds the general waiver of Johnson’s “right to appeal,” particularly when contained in the same sentence as an unenforceable waiver of post-conviction relief, was insufficiently explicit to establish a knowing and voluntary waiver of Johnson’s right to appeal his 12-year sentence for his conviction of Level 4 felony dealing in methamphetamine. Remands with instructions for the Orange Circuit Court to grant Johnson’s motion for permission to file a belated notice of appeal. Justice Geoffrey Slaughter dissents without separate opinion.

Indiana Court of Appeals
Melvin Hall v. Bradley Shaw, Giovanni Narducci, and Central Indiana Protection Agency, Inc.
19A-CT-2533
Civil tort. Affirms and reverses in part the Marion Superior Court’s dismissal of Melvin Hall’s lawsuit against Bradley Shaw, Giovanni Narducci and Central Indiana Protection Agency Inc. alleging defamation, abuse of process, malicious prosecution and intentional infliction of emotional distress, and the partial denial of the defendants’ motion to dismiss Hall’s lawsuit. Finds the trial court erred in denying the defendants’ motion to dismiss Hall’s defamation and abuse of process claims based on Narducci’s July 2018 consumer complaint with the Attorney General’s Office. Also finds the trial court correctly dismissed Hall’s defamation claims based on alleged events that occurred before May 22, 2016, and on Gerald Alexander and Guillerma Lolla-Martinez’s trial testimony. Finally, finds the trial court erred in dismissing Hall’s malicious prosecution claims against all defendants based on his criminal prosecution, defamation claims against all defendants based on Alexander and Lolla-Martinez’s out-of-court statements made before Hall’s criminal trial, and IIED claims against Shaw and CIPA based on Narducci’s July 2018 voicemail. Remands for further proceedings.

Indiana Court of Appeals
Brice Holden v. State of Indiana
19A-CR-1795
Criminal. Affirms Brice Holden’s conviction for Level 4 felony child molesting. Finds the Clay Circuit Court did not commit fundamental error in admitting the polygraph examination report. Also finds the trial court did not abuse its discretion in admitting the certified polygraph examiner’s nonhearsay testimony.