Opinions

Indiana Supreme Court
Don H. Gunderson and Bobbie J. Gunderson, Co-Trustees of the Don H. Gunderson Living Trust v. State of Indiana, Indiana Department of Natural Resources, Alliance for the Great Lakes, et al.
46S03-1706-PL-423
Civil plenary. Affirms the LaPorte Superior Court’s ruling that the state holds title to the Lake Michigan shores in trust for the public. Reverses the trial court’s decision that private property interests here overlap with those of the state. Finds the boundary separating public trust land from privately-owned riparian land along the shores of Lake Michigan is the common-law ordinary high water mark and, absent legislative conveyance, the state retains exclusive title up to that boundary. Justice Geoffrey Slaughter did not participate.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:
David Thorne v. Member Select Insurance Company
17-1377
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Magistrate Judge John. E. Martin.
Civil. Affirms the denial of Member Select Insurance Company’s motion for judgment as a matter of law. Finds there was sufficient evidence to prove David Thorne was a resident of the house for purposes of his insurance policy. Also finds there was sufficient evidence for the jury to determine damages, and the district court did not misinterpret the policy’s loss coverage provision in evaluating whether the evidence was sufficient to support the jury’s damages award.

7th Circuit Court of Appeals
Vexol, S.A. de C.V. and Sergio Torreblanca Lopez v. Berry Plastics Corporation
17-2164
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Tanya Walton Pratt.
Civil. Affirms the district court’s dismissal of Vexol, S.A. de C.V. and Sergio Torreblanca Lopez’s business tort claims under Mexican law. Denies Berry Plastics Corporation’s motion for sanctions against Vexol. Finds Vexol failed to allege any wrongdoing in Mexico by Berry. Also finds the district court did not err in denying Vexol’s motion to file a third amended complaint. Finally, finds Berry failed to file a separate motion for sanctions, as is required under Federal Rule of Appellate Procedure 38.

Indiana Court of Appeals
Kelly Bagsby and Aaron Bagsby v. Riley T. Snedeker
79A02-1706-CT-1315
Civil tort. Affirms the grant of Riley T. Snedeker’s motion to transfer venue. Finds the Tippecanoe Circuit Court did not abuse its discretion when it granted Snedeker’s motion.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
National Foundation for Special Needs Integrity, Inc. v. Devon Reese, as Personal Representative for the Estate of Theresa A. Givens.
17-1817
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Reverses the district court’s ruling in favor of the National Foundation for Special Needs Integrity, Inc. in its dispute with Devon Reese as personal representative of the Estate of Theresa A. Givens. Finds Givens’ trust agreement is ambiguous on the question of the beneficiary of the trust. Also finds the overwhelming weight of evidence shows Givens intended for any remaining assets to pass to her children, rather than to the Foundation. Remands for entry of judgment for the estate and for an award of damages and prejudgment interest in favor of the estate.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
Terry Davis v. David Mason and Blake Thrasher
16-2707
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt.
Civil. Vacates the district court’s grant of summary judgment in favor of prison guards David Mason and Blake Thrasher on Terry Davis’ claims they violated his Eighth Amendment rights. Finds the evidence in the summary judgment record does not clearly show Davis failed to exhaust available administrative remedies. Remands for further proceedings.

Indiana Court of Appeals

Janet Freels v. James F. Koches and Sunset Builders, Inc.
91A02-1708-PL-1988
Civil plenary. Affirms the dismissal of Janet Freels’ complaint against James F. Koches and Sunset Builders, Inc. Declines Freels’ request to exempt small-claims proceedings from the doctrine of res judicata. Finds Freels’ additional claims should have been litigated in her first action. Also finds Freels’ second action is barred under the doctrine of claim preclusion.

Indiana Court of Appeals

Fort Wayne Community Schools and Jacalyn Butler v. Steffanie Haney, for next friend and minor daughter, M.H.
02A03-1708-CT-1829
Civil tort. Reverses the partial denial of Fort Wayne Community Schools and Jacalyn Butler’s motion for summary judgment on Steffanie Haney’s complaint alleging battery against her daughter M.H. and a violation of M.H.’s Fourth Amendment rights. Finds Fort Wayne Community Schools was entitled to summary judgment on the state law battery tort claim because as a matter of law, Butler’s alleged conduct falls within the scope of her statutory qualified immunity as a teacher managing a classroom. Also finds Haney failed to show Butler’s conduct could have violated a clearly established right. Remands.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Thursday:

Heraeus Kulzer, GmbH v. Biomet, Inc., et al., and Esschem, Inc.
17-1674
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Robert L. Miller, Jr.
Civil. Affirms the denial of Heraeus Kulzer’s three motions to modify the district court’s protective orders in his case against Biomet, Inc. Finds the 7th Circuit lacks jurisdiction to review the first two orders because Heraeus Kulzer failed to timely appeal those orders. Also finds the district court did not abuse its discretion in denying Haraeus Kulzer’s request to impose restrictions on Biomet’s internal use of the documents it produced subject to the third protective order.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
Gerardo Correa-Diaz v. Jefferson B. Sessions, III
16-3198
Petition for Review of a Final Administrative Removal Order of the Department of Homeland Security.
Denies Gerardo Correa-Diaz’s petition for review of the Department of Homeland Security’s final administrative removal order against him after he was convicted of of attempted sexual misconduct with a minor. Finds the Board of Immigration Appeals’ definition of sexual abuse of a minor requires deference under Chevron U.S.A. Inc. v. Nat. Res. Dec. Council, Inc. Also finds Correa-Diaz’s conviction under Indiana Code section 35-42-4-9(a) meets the board’s definition.

Indiana Court of Appeals
J.G. v. State of Indiana
49A02-1706-JV-1419
Juvenile. Affirms J.G.’s adjudication as a delinquent for dangerous possession of a firearm, a Class A misdemeanor if committed by an adult. Remands with instructions to vacate the true finding against J.G. of carrying a handgun without a license, a Class A misdemeanor if committed by an adult. Finds J.G.’s detention by police was constitutional and his confession to possessing the handgun was voluntary. Also finds the Marion Superior Court presumably disregarded inadmissible portions of an audio recording. Finally, finds the true finding for carrying a handgun without a license must be vacated on double jeopardy grounds.

7th Circuit Court of Appeals

Kristine Bunch v. United States of America
16-3775
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Reverses the grant of summary judgment to the United States on Kristine Bunch’s claim under the Federal Tort Claims Act. Finds summary judgment was premature because the record was not fully developed enough to support the conclusion that the intentional-tort exception to the general waiver of immunity in the FTCA applied. Remands for further proceedings.

Indiana Court of Appeals
Christopher Richardson v. Det. Arturo Azcona, Jr., Gary Police Department, and City of Gary, Indiana (mem. dec.)
45A05-1703-CT-00599
Civil tort. Affirms the motion to dismiss filed by Detective Arturo Azcona, Jr., Gary Police Department and the City of Gary. Finds any error by the Lake Superior Court in naming its order one of dismissal rather than of summary judgment was harmless as the trial court treated the motion as one of summary judgment. Also finds Christopher Richardson’s due process and liberty claims are unripe. Finally, finds Richardson’s false imprisonment claim is time-barred, and he presented no issue of material fact to overcome that bar.

Indiana Court of Appeals
Robert A. McAdams, Quinn Whitney and Vonda Whitney v. Foxcliff Estates Community Association, Inc.; Foxcliff Estates Community Association, Inc. v. Paul Harnishveger, Mary Harnishveger, et al.
55A04-1707-PL-1707
Civil plenary. Affirms the entry of summary judgment in favor of Foxcliff Estates Community Association, Inc. Finds Robert A. McAdams and Quinn and Vonda Whitney did not meet their burden to establish that an exculpatory clause in the subdivision’s covenants and restrictions was unenforceable.

7th Circuit Court of Appeals
United States of America v. Ronald Tingle
17-1604
Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. Judge Tanya Walton Pratt.
Criminal. Affirms Ronald Tingle’s convictions of possessing and distributing methamphetamine and possessing a firearm in furtherance of a drug trafficking crime. Finds a DEA agent had the requisite qualifications to testify as an expert. Also finds the agent’s testimony did not improperly opine on Tingle’s mental state. Finally, finds the district court did not err when it allowed the agent to testify, or when it denied Tingle’s motion to dismiss the charges and his motion for access to grand jury transcripts without a hearing.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
William Hurt, Deadra Hurt and Andrea Hurt v. Matthew Wise, et al.
17-1771, -1777
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson.
Affirms in part the denial of qualified immunity to the Evansville and Kentucky State police departments and individual officers. Reverses the denial of qualified immunity to officers William Arbaugh and Jason Pagett on Deadra Hurt’s malicious prosecution claim. Finds the district court properly denied qualified immunity. Also finds Arbaugh and Pagett were entitled to qualified immunity on the malicious prosecution claim. Also finds the district court should have eliminated the substantive due process theory.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Monday:

Talal S. Hamdan, M.D. v. Indiana University Health North Hospital, Inc.
16-1074
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge William T. Lawrence.
Civil. Affirms the jury verdict in favor of Indiana University Health North Hospital, Inc. on Dr. Talal Hamdan’s racial discrimination claim. Finds the district court did not abuse its discretion in allowing the hospital to ask him impeachment questions relating to his prior work at other hospitals.

Indiana Supreme Court
L.G. v. S.L., et al.
18S-AD-32
Adoption. Grants transfer for the limited purpose of vacating the section of the Indiana Court of Appeals opinion addressing whether the trial court judge should recuse himself on remand. Summarily affirms the remainder of the opinion. Finds a trial court judge is not required to recuse himself from a case solely because counsel for one of the parties served as a professional reference and wrote a recommendation letter in support of a judge’s application for another judicial role. Also finds that under the facts and circumstances of this case, the trial court judge is not required to recuse himself on remand. Remands for further proceedings. Justice Geoffrey Slaughter did not participate.

The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:  
Jessica McCain v. State of Indiana 
18S-CR-26 
Criminal. Grants transfer and affirms Jessica McCain’s sentence of 40 years, with 38 years executed and two years suspended to probation, for her conviction of Level 1 felony child molesting. Finds the judgment imposed by the Tippecanoe Superior Court is not inappropriate. Justice Geoffrey Slaughter votes to deny transfer. 

Indiana Court of Appeals
James Hill v. State of Indiana
45A04-1702-CR-325
Criminal. Affirms the denial of James Hill’s motion to dismiss charges of murder, murder in perpetration of robbery and attempted robbery. Finds Hill has not demonstrated prejudice in the 36-year delay in charging him. Remands.