Opinions

Indiana Court of Appeals
Neurological Institute and Specialty Centers, P.C. v. Subhasree Misra, M.D. (mem. dec.)
18A-PL-3039
Civil plenary. Affirms the denial of Neurological Institute and Specialty Centers, P.C.’s motion for preliminary injunction to enforce a restrictive covenant preventing Dr. Subhasree Misra from practicing medicine independently or as an employee for an organization within five Indiana counties for two years after the expiration or termination of her employment agreement with NISC. Finds the Lake Circuit Court did not abuse its discretion in denying NISC’s motion for preliminary injunction.

Indiana Court of Appeals
In the Matter of: R.G. (Child) and M.M. (Mother) and M.G. (Father) v. Indiana Department of Child Services
19A-JC-598
Juvenile CHINS. Affirms the Bartholomew Circuit Court’s order adjudicating R.G. to be a child in need of services. Finds that although the trial court erred in permitting a witness for the Department of Child Services to testify telephonically at the fact-finding hearing, the error is harmless in light of other probative evidence. Also finds the trial court did not abuse its discretion in ordering parents to participate in services.

Indiana Court of Appeals
Jim Brugh v. James L. Sailors, Cass County Commission, et al.
18A-PL-2730
Civil plenary. Affirms and reverses in part the Cass Superior Court’s determination that the City of Logansport had complied with an agreed judgment between the city, county and Jim Brugh concerning a Logansport war memorial. Finds the city did not comply with a section of the agreed judgment holding that it would execute a deed of dedication transferring the memorial jointly to itself and the county, expressly referring to its dedication and preservation as a war memorial pursuant to Indiana Code §§ 10-18-4-2(b)(3) and 10-18-4-12. Also finds Brugh wholly failed to prove the Cass County Council acted in contempt. Finally, finds the Cass County Council acted within its authority as the fiscal branch of county government and did not willfully disobey the agreed judgment. Remands for further proceedings regarding the enforcement of the deed provision of the agreed judgment.

Indiana Court of Appeals
Ryan Baxter v. State of Indiana
18A-CR-2050
Criminal. Affirms Ryan Baxter’s conviction of Level 1 child molesting, finding the Elkhart Superior Court did not err in admitting a medical report, and the victim’s testimony was not incredibly dubious.

7th Circuit Court of Appeals
USA v. Joshua Herman
18-3057
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Senior Judge James T. Moody.
Criminal. Majority led by Chief Judge Diane Wood denies en banc review, reverses and remands for resentencing of Joshua Herman on a charge of felon in possession of a firearm. Holds that the act of pointing a gun and ordering someone still, by itself, is not “physical restraint” under federal sentencing guidelines. Judges Joel Flaum and Michael Kanne dissent and would grant en banc review, and would find that the action of pointing a gun and ordering compliance is physical restraint. Judge William Bauer would affirm Herman’s 10-year sentence, with the physical restraint enhancement, for the reasons spelled out in Flaum’s dissent. Noting a now 5-4 circuit split on the conflicting views on the meaning of U.S.S.G. § 2B3.1(b)(4)(B), orders the Clerk of Court to send this opinion to the U.S. Sentencing Commission for its consideration.

Indiana Court of Appeals
Jesse L. Smith v. State of Indiana
18A-CR-2597
Criminal. Affirms Jesse Smith’s conviction of Level 6 felony criminal recklessness, finding no double-jeopardy violation. Finds the actual evidence presented at trial in Vigo Superior Court supports separate convictions of Level 6 felony criminal recklessness and Level 3 felony attempted aggravated battery.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
American Homeland Title Agency, Inc., John Yonas, and Martin Rink v. Stephen W. Robertson, Commissioner of the Indiana Department of Insurance
18-3293
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker.
Civil plenary. Affirms summary judgment for Stephen Robinson and the Indiana Department of Insurance on American Homeland’s suit alleging the department discriminated against it for the loss of its licenses for its out-of-state residency. Finds that because American Homeland surrendered its licenses in its agreement with the department and has provided no valid reason to void that agreement, judicial review is unavailable.