Opinions

The following 7th Circuit Court of Appeals opinion was posted after IL deadline Friday:
Henry C. Wedemeyer and Martha L. Wedemeyer v. CSX Transportation, Inc.
15-3580
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Senior Judge Larry J. McKinney.
Civil. Affirms the district court’s grant of summary judgment to CSX Transportation on Henry and Martha Wedemeyer’s lawsuit seeking removal of CSX tracks and possession of the real property underlying the rail line. Finds that the Wedemeyers’ claims are pre-empted by the Interstate Commerce Commission Termination Act.

Indiana Court of Appeals
James E. Manley v. Keith Butts
33A05-1608-MI-1865
Miscellaneous. Reverses the Henry Circuit Court’s order dismissing James E. Manley’s petition for writ of state habeas corpus as an unauthorized successive petition for post-conviction relief. Because Manley’s habeas petition is challenging the validity of his convictions and sentence, Indiana Post-Conviction Rule 1(1)(c) requires that, under such circumstances, a trial court to transfer the petition to the court where the petitioner was convicted. Remands with instructions to the trial court to transfer the petition to Manley’s conviction court, the Monroe Circuit Court, where it shall be treated as a post-conviction petition.

Indiana Court of Appeals
Jay Garrison v. Pamela Garrison
27A05-1603-EU-507
Estate, unsupervised. Affirms the Grant Superior Court’s order of the return of two of Thomas R. Garrison’s cars to his estate, finding that they were gifts causa mortis for which Garrison was not competent to form donative intent. Finds Jay Garrison has not rebutted the presumption of undue influence and the estate is entitled to recovery of the vehicles.
 

Indiana Court of Appeals
Magic Circle Corp., D/B/A Dixie Chopper, Arthur Evans, Wesley Evans, and Jeffrey Haltom v. Crowe Horwath, LLP
71A03-1607-PL-1520
Civil plenary. Reverses and remands the St. Joseph Circuit Court’s grant of Crowe Horwath LLP’s motion to dismiss two counts brought against it by Magic Circle Corp. on the grounds the claims were barred by the economic loss rule and several exculpatory provisions. Finds the economic loss rule does not have the effect of barring an accountant malpractice claim at tort.

Indiana Supreme Court
In the Matter of Donald Edward James
02S00-1607-DI-389
Disciplinary. Disbars Donald E. James. Finds that James committed attorney misconduct by mismanaging his trust account, converting client funds and failing to cooperate with the disciplinary process.

Indiana Supreme Court
Cheryl L. Underwood v. Thomas Bunger, in his capacity as the personal representative of the estate of Kenneth K. Kinney; Judith M. Fulford; and Sheree Demming
53S01-1703-MI-126
Miscellaneous. Reverses the Monroe Circuit Court’s decision that Judith Fulford and Kenneth Kinney were tenants by the entireties of a Bloomington property purchased with Cheryl Underwood. Finds that the warranty deed’s unambiguous statement that the three grantees, including Kinney and Fulford, hold their interests in the property “all as Tenants-in-Common” overcomes the legal presumption favoring a tenancy by the entirety. Also finds that Underwood did not make a fatal judicial admission in her trial court petition. Remands for proceedings.

Indiana Court of Appeals
Caleb Riggen v. Tammy Riggen
67A04-1606-DR-1312
Domestic relation. Reverses the Putnam Superior Court’s grant of Tammy Riggen’s motion to correct error on its earlier grant of Caleb Riggen’s motion to modify custody of their child. Finds that the trial court abused its discretion when it granted the motion to correct error without providing a reason for doing so, contrary to Trial Rule 59(J). Remands with instructions to the trial court to comply with Trial Rule 59 when considering the motion to correct error.

Indiana Court of Appeals
Larenda Jones v. State of Indiana
49A05-1606-CR-1433
Criminal. Reverses the Marion Superior Court’s order revoking Larenda Jones’ placement in community correction and sentencing her to serve the remainder of her executed sentence in the Department of Correction. Finds that the trial court did not err in failing to inform Jones of her release date, but did err by refusing to let Jones speak in allocution. Remands. Judge John Baker concurs with separate opinion.

Indiana Court of Appeals
State of Indiana v. C.K.
49A02-1607-JV-1506
Juvenile. Reverses the juvenile court’s denial of the state’s petition for the court to waive jurisdiction over C.K. in two cases. Finds that C.K.’s felony conviction qualified as a prior felony for purposes of Indiana Code 31-30-3-6 and that when both elements of that statute have been established, the “juvenile court shall waive jurisdiction.” Remands for further proceedings.

Indiana Court of Appeals
Ronnie D. Ball, Jr. v. State of Indiana (mem. dec.)
02A03-1609-CR-2117
Criminal. Affirms Ronnie D. Ball’s three-year sentence for corrupt business influence as a Level 5 felony. Finds Ball’s sentence is not inappropriate in light of the nature of his offense and his character.

Indiana Court of Appeals
Emmett Reece Sandoval v. State of Indiana
21A01-1609-CR-2027
Criminal. Reverses the Fayette Circuit Court’s order that the balance of Emmett Reece Sandoval’s $2,000 bond be held in trust to be applied toward possible future appellate public defender fees. Finds it was an error for the trial court to hold the balance of Sandoval’s bond in trust. Remands with instructions to the clerk of the Fayette County Court to return the balance of Sandoval’s bond immediately.

Indiana Court of Appeals
Jay F. Vermillion v. State of Indiana (mem. dec.)
84A04-1604-PC-900
Post-conviction. Reverses the dismissal of Jay Vermillion’s petition for post-conviction relief. Finds the post-conviction court abused its discretion in dismissing Vermillion’s action without holding a hearing as required by Trial Rule 41(E). Remands for either a Trial Rule 41(E) hearing or reinstatement of his action.

Indiana Court of Appeals
Thomas E. Stettler v. State of Indiana
18A04-1607-CR-1638
Criminal. Affirms Thomas E. Stettler’s conviction of child molesting as a Class B felony. Finds the Delaware Circuit Court’s admission of evidence barred by Evidence Rule 404(b) was harmless error. Also finds the prosecution did not engage in misconduct during closing arguments, so there was accordingly no fundamental error.

Indiana Court of Appeals
Otis Sams, Jr. v. State of Indiana
67A01-1604-CR-814
Criminal. Vacates Otis Sams’ conviction of Level 4 felony possession of methamphetamine. Finds the state did not carry its burden to show that the inventory search of Sams’ truck was sufficiently regulated. Also finds that all fruits of the inventory search of the truck were inadmissible. Remands with instructions to grant Sams’ motion to suppress and for any further proceedings.

The following 7th Circuit Court of Appeals opinion was posted Friday after IL deadline: Indianapolis Airport Authority v. Travelers Property Casualty Co. of America 16-2675 Appeal from the United State District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Jane Magnus-Stinson. Civil. Affirms the district court’s narrow construction of the builders’ risk […]

Indiana Supreme Court
In the Matter of the Termination of the Parent-Child Relationship of Bi.B. And Br.B, D.B. and V.G. v. Indiana Department of Child Services
54S01-1612-JT-630
Juvenile termination of parental rights. Reverses the trial court’s decision to terminate D.B.’s parental rights to his daughters, Bi.B. and Br.B. Finds the Department of Child Services failed to allege the one of the statutorily required three waiting periods for terminating parental rights that had, in fact, passed – the father’s daughters had been removed from him for at least six months under a dispositional decree. Also finds that DCS failed to prove the other two waiting periods applied to its petition.

Indiana Supreme Court
Tresa Megenity v. David Dunn
22S04-1609-CT-465.
Civil tort. Affirms summary judgment in for David Dunn in a case arising from an injury to Tresa Megenity during a karate class. Extending and clarifying Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), holds that when a sports participant injures someone while engaging in conduct ordinary in the sport, and without intent or recklessness, the participant does not breach a duty.

Indiana Supreme Court
J.D.M. v. State of Indiana
21S01-1702-JV-84
Juvenile. Reverses J.D.M.’s adjudication as a delinquent for committing acts which, if committed by an adult, would constitute Class C felony child molestation, and the subsequent order for him to register as a sex offender Finds that the statutory prerequisites for placing a juvenile on the sex offender registry were not met. Remands to the juvenile court for further proceedings.

Indiana Court of Appeals
School City of Hammond District v. Chad Rueth
45A03-1603-CT-450
Civil tort. Reverses judgment pursuant to a jury verdict in favor of Chad Rueth on his claims of defamation and blacklisting, finding there is insufficient evidence to support a verdict in his favor, and the trial court abused its discretion by denying the School City of Hammond District’s motion to correct error.

Indiana Court of Appeals
Lori A. Spang v. Timothy R. Spang (mem. dec.)
02A03-1608-DR-1876
Domestic relation. Affirms the grant of Timothy Sprang’s objection to the relocation of his 12-year-old daughter, E.S., with her mother, Lori Sprang, and his petition for modification of custody. Finds the Allen Superior Court did not abuse its discretion because it properly considered all factors and Timothy Sprang met his burden of proof to demonstrate that the proposed location was not in E.S.’s best interest.