Opinions March 31, 2015

Indiana Court of Appeals
Berthal O. Williams and Patricia Williams v. The Indiana Rail Road Company
77A04-1311-CC-580
Civil collection. Reverses summary judgment in favor of the Indiana Rail Road Company on the Williamses’ attempt to enforce a 1901 indenture regarding a dam on their property. Concludes the indenture was a covenant running with the land, that the terms set forth in the indenture required IRR to maintain the dam and the water level at a specific depth, and that it contained a covenant, perpetual in nature, that did not cease upon a prior breach. Remands for further proceedings.

County of Lake and the Lake County Plan Commission v. Alan J. Pahl and Roderick Pahl
45A03-1406-PL-214
Civil plenary. Reverses finding in favor of the Pahls regarding violation under a zoning ordinance. In failing to apply the relevant provisions of the zoning ordinance to the Pahls’ use of the land, the trial court erred by denying the county’s request for an injunction and abused its discretion in denying its motion to correct error. Remands with instructions to grant Lake County’s petition for an injunction to prevent the Pahls from keeping alpacas on the property.

Jacqueline A. Jackson v. State of Indiana
34A04-1409-CR-455
Criminal. Reverses revocation of probation. The probation condition in this case is ambiguous. The state did not present sufficient evidence to show Jackson violated the conditions of her probation when she was arrested while on probation for a charge that allegedly occurred before her probation began, and she did not notify her probation officer within 48 hours of the arrest. Judge Bradford dissents.

Wenzel Williams v. State of Indiana
48A05-1407-CR-321
Criminal. Affirms two counts of Class B felony dealing in cocaine. The trial court did not abuse its discretion by denying Williams’ motion for a continuance, limiting cross-examination of a confidential informant or allowing a witness to testify that he saw a drug transaction. Also, his alleged prosecutorial misconduct claim does not constitute reversible error.

Tyree Hill v. State of Indiana
49A02-1409-CR-632
Criminal. Reverses order Hill serve the entirety of his previously suspended sentence in the Department of Correction. The trial court erred when it did not credit him for the time served on home detention. Remands for resentencing.

Rapkin Group, Inc., as a minority member on behalf and for the benefit of The Eye Center Group, LLC, and Surgicenter Group, LLC v. Cardinal Ventures, Inc., successor in interest to Cardinal Health Partners LLC.
18A02-1408-CT-563
Civil tort. Reverses summary judgment in favor of Cardinal Ventures in a shareholder derivative suit brought by Rapkin Group on behalf of the Eye Center Group and Surgicenter, in which Cardinal was alleged to have breached a fiduciary duty and committed constructive fraud. The evidence designated by Rapkin is sufficient to create genuine issues of material fact with regard to whether Cardinal breached a fiduciary duty owed to its fellow shareholders and with regard to whether Cardinal committed constructive fraud by remaining silent about the LLCs financial state and encouraging its fellow shareholders to purchase worthless shares of the LLCs. Remands for further proceedings.

John Mark Nipp v. Amy Elizabeth Nipp (mem. dec.)
33A01-1410-DR-457
Domestic relation. Reverses grant of mother’s motion to clarify a 2014 order and the reduction of father’s parenting time with M.N.

Rodney L. Blakely v. State of Indiana (mem. dec.)
49A02-1406-CR-391
Criminal. Affirms convictions of two counts of Class C felony criminal confinement in one case and Class D felony strangulation in another case.

Amanda R. Lee v. State of Indiana (mem. dec.)
02A05-1409-CR-423
Criminal. Affirms 12-year sentence imposed following guilty plea to Class B felony dealing in methamphetamine, Class D felonies maintaining a common nuisance and dumping controlled substance waste, and Class A misdemeanor possession of paraphernalia.

John Randall Portis v. State of Indiana (mem. dec.)
45A03-1408-CR-285
Criminal. Affirms conviction of Class B felony dealing in cocaine.

Shamus L. Patton v. State of Indiana (mem. dec.)
49A04-1406-CR-277
Criminal. Affirms convictions for six counts of Class C felony forgery.

Monica McCall v. State of Indiana (mem. dec.)
49A04-1408-CR-366
Criminal. Affirms conviction of Class D felony domestic battery.

SVT, LLC d/b/a Ultra Foods v. Benny Becchino (mem. dec.)
45A03-1407-CT-238
Civil tort. Affirms trial court’s decision to give jury instructions on spoliation and the apportionment of damages.

Gregory A. Caudle v. State of Indiana (mem. dec.)
49A02-1412-CR-847
Criminal. Dismisses pro se appeal of the denial of Caudle’s verified motion for discharge and request for production of certified documents.

Jeremy Ryan v. State of Indiana (mem. dec.)
20A03-1408-PC-293
Post conviction. Affirms denial of petition for post-conviction relief.

Brandon Scroggin v. State of Indiana (mem. dec.)
64A03-1410-CR-352
Criminal.  Affirms convictions, including Class C felony receiving stolen auto parts and Class A misdemeanor criminal mischief, but reverses imposition of a six-year portion of Scroggin’s aggregate 19½-year sentence that related to the convictions of Class D felonies arson and intimidation since they were part of a single episode of criminal conduct. Remands for the trial court to impose a sentence that is consistent with the opinion.

Bradley Hunt v. State of Indiana (mem. dec.)
09A02-1409-CR-686
Criminal. Affirms juvenile court’s waiver of juvenile jurisdiction.

Rodney S. Perry, Sr. v. State of Indiana (mem. dec.)
45A03-1412-CR-448
Criminal. Affirms order refusing to allow Perry to file a motion to correct erroneous sentence.

In Re the Adoption of H.J.S., J.H.S. and P.L.S. v. B.M.C. and A.J.S. (mem. dec.)
76A04-1410-AD-502
Adoption. Reverses dismissal of paternal grandparents’ petition to adopt grandchild. Remands for further proceedings.

Henry Gooch v. State of Indiana (mem. dec.)
49A02-1408-CR-571
Criminal. Affirms conviction of Class A misdemeanor possession of marijuana.

Sylvester Dunn v. State of Indiana (mem. dec.)
49A05-1407-CR-327
Criminal. Affirms conviction of Class B misdemeanor battery.

Michael J. Weis v. State of Indiana (mem. dec.)
26A04-1409-CR-444
Criminal. Affirms denial of petition for post-conviction relief.

Beverly R. Newman, Ed.D. v. Meijer, Inc. (mem. dec.)
49A05-1409-PL-469
Civil plenary. Reverses denial of Newman’s motion to set aside the dismissal of her complaint. Remands for further proceedings.

Loyd Allen Sands v. State of Indiana (mem. dec.)
35A04-1408-CR-364
Criminal. Affirms convictions and sentence for five counts of Class A felony child molesting, one count of Class C felony child molesting and one count of Class B felony sexual misconduct with a minor.