Opinions

Indiana Court of Appeals
Kroger Limited Partnership I v. Ruth Lomax
19A-CT-1201
Civil tort. Affirms the Marion Superior Court’s denial of Kroger Limited Partnership I’s motion for summary judgment against Ruth Lomax based on now-withdrawn admissions in a negligence case case. Finds, sua sponte, that Kroger failed to timely obtain certification of the trial court’s orders granting Lomax additional time to respond to Kroger’s request for admissions and deeming her subsequently filed response as timely. Also finds the trial court properly denied Kroger’s motion for summary judgment.

Indiana Court of Appeals
Malik Gardner v. State of Indiana (mem. dec.)
19A-CR-798
Criminal. Affirms Malik Gardner’s convictions in St. Joseph Superior Court of Level 6 felony counterfeiting and Class A misdemeanor resisting law enforcement. Finds the evidence was sufficient to support his conviction.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
United States of America v. Alex Guerrero
19-1676
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Chief Judge Theresa Springmann.
Criminal. Vacates the Indiana Northern District Court’s denial of former police officer Alex Guerrero’s 2018 motion under 18 U.S.C. § 3582(c)(2) for a reduced sentence. Finds Guerrero is entitled to but has not received an opportunity for full consideration of the merits of his request. Remands for proceedings consistent with the opinion.

Indiana Court of Appeals
Kay Kim and Charles Chuang v. David L. Gadis and Ylanda D. Gadis (mem. dec.)
19A-CT-1861
Civil tort. Affirms the Marion Superior Court’s grant of summary judgment to David and Ylanda Gadis against Kay Kim and Charles Chuang. Finds the trial court correctly granted summary judgment. Also finds Kim and Chuang’s appellate brief is “littered with frivolous, nonsensical arguments and scandalous, impertinent and racist statements,” while their appendix “is generally useless and does not contain the summary judgment pleadings and designated evidence” filed by Kim and Chuang. Finally, sua sponte finds appellate attorney fees are warranted under Indiana Appellate Rule 66(E). Remands for the trial court to calculate the Gadis’ reasonable appellate attorney fees and order Kim and Chuang to pay them.

Indiana Court of Appeals
Marcus Lee McCain v. State of Indiana
19A-CR-1113
Criminal. Affirms and reverses in part Marcus McCain’s enhanced 45-year sentence for his conviction of voluntary manslaughter. Finds the Lake Superior Court did not err in imposing a firearm enhancement. Also finds the trial court’s description of the killing of Marcel Harris was directly at odds with the jury’s finding of sudden heat and therefore was an improper aggravator as a matter of law. Remands with instructions for the trial court to sentence McCain to 35 years – 25 years for voluntary manslaughter enhanced by 10 years for using a firearm. Judge Elizabeth Tavitas concurs in part and dissents in part with separate opinion.

Indiana Court of Appeals
K.H. v. Ki. H. by Child’s Next Friend N.D. (mem. dec.)
19A-PO-1558
Protective order. Reverses the Monroe Circuit Court’s grant of a protective order requested for child Ki.H. by next friend and mother N.D. against father K.H. Finds the trial court did not make findings to support its conclusion that a protective order should be issued.

Indiana Court of Appeals
Progressive Southeastern Insurance Co. v. Gregory Smith and Nolan Clayton, and Erie Insurance Group, Brackett Restaurant Group, LLC, d/b/a Stacked Pickle, and Allstate Insurance Company
19A-PL-1094
Civil plenary. Reverses the Marion Superior Court’s order granting Gregory Smith’s motion to dismiss a declaratory judgment action and the order denying Progressive Southeastern Insurance Co.’s request for judgment on the bodily injury coverage and duty to defend declarations. Finds Progressive is entitled to judgement as a matter of law. Remands with instructions to declare that Smith is not entitled to bodily injury liability coverage under the policy and that Progressive does not have a duty to defend or indemnify Nolan Clayton; to deny Clayton’s motion for declaratory judgment; and to enter final judgement for Progressive.

Indiana Court of Appeals
Joann G. Sartain, by and through her attorney-in-fact, Cindy Harding v. Trilogy Healthcare of Hamilton II, LLC d/b/a Prairie Lakes Health Campus
19A-PL-1567
Civil plenary. Dismisses Joann G. Sartain’s lawsuit, finding that because she explicitly stipulated to the dismissal of the suit in its entirety in Hamilton Superior Court, there is no final judgment, and that the Indiana Court of Appeals therefore lacks jurisdiction.

Indiana Court of Appeals
Antonio Buford v. State of Indiana
19A-CR-956
Criminal. Vacates the Marion Superior Court’s contempt finding against Antonio Buford on double jeopardy concerns but affirms his 2 ½ – year sentence in community corrections for his conviction of domestic battery. Finds no abuse of the trial court’s discretion in its sentencing of Buford.

Indiana Court of Appeals
Jonathan Stanley Belcher v. State of Indiana
19A-CR-00830
Criminal. Affirms Jonathan Belcher’s guilty but mentally ill convictions for two counts of Level 3 felony aggravated battery and one count each of Class B misdemeanor battery and Class A misdemeanor resisting law enforcement, the finding that he is a habitual offender, and his aggregate 53-year-and-180-day sentence. Finds sufficient evidence that Belcher appreciated the wrongfulness of his actions. Also finds no abuse of discretion at sentencing. Finally, finds the sentence is not inappropriate given the nature of his offenses and his character.

Indiana Court of Appeals
Tyler Miller v. State of Indiana
19A-CR-768
Criminal. Affirms Tyler Miller’s aggregate 72-year sentence for his convictions of murder, Level 5 felony attempted robbery and Level 3 felony robbery. Finds the sentence is not inappropriate in light of the nature of the offenses and his character. Also finds Indiana Code § 35-50-1-2(c) and (d) do not prohibit the Marion Superior Court’s sentence under Count III, attempted robbery. Remands with instructions to enter an amended sentencing order and abstract of judgment which reflect Miller’s conviction for Level 5 felony attempted robbery under Count III.

Indiana Court of Appeals
James Ketchum v. State of Indiana
19A-CR-1341
Criminal. Affirms the denial of James Ketchum’s motion to modify his 12-year sentence, with six years suspended, for conviction of Level 3 felony aggravated battery, to be served consecutively to his two-year sentence for Level 6 felony intimidation in a separate cause. Finds the Rush Circuit Court did not err in denying Ketchum’s motion to modify his sentence because he did not have consent from the prosecuting attorney to file it.