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Wednesday, March 23, 2016

Ind. Decisions - 7th Circuit decided 2 Indiana cases yesterday

In Eric D. Holmes v. Mark E. Levenhagen (SD Ind., Barker & Young), a combined appeal, Judge Posner concludes:

The challenge to the denial of a stay of the habeas corpus proceeding having failed and the petition for habeas corpus relief having been rejected, Holmes retains a right to a hearing to determine whether he is sufficiently mentally competent to be put to death for the murders he committed. * * *

We cannot jump the gun by ordering the district court to hold such a hearing, as that would violate the requirement in 28 U.S.C. § 2254(b)(1)(A) that a defendant exhaust all available state remedies before turning to the federal courts for relief should he strike out in the state court system. Those remedies will not be exhausted until the Indiana state courts decide whether Holmes is mentally competent to be executed.

Considering that he was convicted of the murders almost a quarter of a century ago and that if he fails to obtain relief in a hearing in the Indiana court system on his mental competency to be executed and having thus exhausted his state remedies files a further petition for habeas corpus in the federal district court and loses and appeals once again to us it will be the fourth time that we are called on to render a decision in this protracted litigation, we are dismayed at the prospect that looms before us of further and perhaps endless protraction of federal judicial review of Holmes’s conviction and sentence. But we are obliged by section 2254(b)(1)(A) to proceed as just indicated.

In conclusion, the rulings of the district court appealed from in appeals No. 14‐3359 and No. 04‐3549 are affirmed, and the appeal in No. 06‐2905 is dismissed.

In Continental Casualty Company v. Alan Symons (SD Ind., Young), a 34-page opinion, Judge Sykes writes:
IGF Insurance Company owed Con-tinental Casualty Company more than $25 million for a crop-insurance business it bought in 1998. In 2002 IGF resold the business to Acceptance Insurance Company for about $40 million. Continental alleges that IGF’s controlling fami-ly—Gordon, Alan, and Doug Symons—structured the sale so that most of the purchase price was siphoned into the cof-fers of other Symons-controlled companies, rendering IGF insolvent. More specifically, Continental claims that $24 mil-lion of the $40 million purchase price went to three Symons-controlled companies—Goran Capital, Inc.; Symons International Group, Inc.; and Granite Reinsurance Co.—for sham noncompetition agreements and a superfluous and over-priced reinsurance treaty. Continental, still unpaid, sued for breach of contract and fraudulent transfer.

After lengthy motions litigation and a bench trial, the district court found for Continental and pierced the corporate veil to impose liability on the controlling companies and individuals. Continental’s damages totaled $34.2 million, so the court entered judgment in that amount jointly and sever-ally against IGF, Symons International, IGF Holdings, Inc., Goran, Granite Re, and Gordon and Alan Symons. (Gordon has since died; his estate was substituted for him. Doug Sy-mons is in bankruptcy.)

Clearing away the factual complexity, this appeal presents three discrete questions for our review: (1) Is Symons International liable to Continental for breach of the 1998 sale agreement? (2) Are Symons International, Goran, Granite Re, Alan Symons, and the Estate of Gordon Symons liable as transferees under the Indiana Uniform False Transfer Act (“IUFTA”)? and (3) Are Alan Symons and the Estate of Gordon Symons liable under an alter-ego theory? For the most part, we answer these questions “yes” and affirm the judgment in its entirety. * * *

To summarize: The judge did not clearly err in finding Symons International liable as an obligor under the Strategic Alliance Agreement. Likewise, we find no error in the judge’s ruling that Symons International, Goran, and Granite Re are liable under the IUFTA. And while we are not prepared to say that Alan and the Estate of Gordon Symons are liable as transferees under the IUFTA, they are liable under alter-ego theory. AFFIRMED.

Posted by Marcia Oddi on March 23, 2016 10:32 AM
Posted to Ind. (7th Cir.) Decisions