Opinions Oct. 31, 2017

The following Indiana Court of Appeals opinion was posted after IL deadline Friday:
Indiana Department of Workforce Development v. Kristofer Hugunin
64A05-1703-CC-583
Civil collection. Reverses the denial of the Indiana Department of Workforce Development’s motion for summary judgment in its action against Kristopher Hugunin. Finds the department is entitled to judgment as a matter of law. Remands with instructions for the Porter Superior Court to grant the summary judgment motion.

Tuesday opinions
Indiana Supreme Court
Dale Sedam, Kim Sedam, and Bryan Norris, as co-personal representatives of the Estate of David C. Hamblin, Deceased v. 2JR Pizza Enterprises, LLC doing business as Pizza Hut #013413, et al.
39S05-1703-CT-171
Civil tort. Affirms the Jefferson Circuit Court’s partial grant of summary judgment for Pizza Hut, allowing only the negligence claim under the doctrine of respondeat superior to proceed. Reaffirms the holding in Tindall v. Enderle. Finds that when an employer admits that an employee was acting within the course and scope of his or her employment, the employer may only be held liable under the doctrine of respondeat superior, so the plaintiff is precluded from also bringing a negligent hiring claim in most circumstances.

Indiana Court of Appeals
Certain Home Place Annexation Territory Landowners v. City of Carmel, Indiana
29A05-1606-MI-1291
Miscellaneous. Affirms the trial court’s ruling in favor of the City of Carmel on its determination as to whether a group of landowners carried their burden of proof under Indiana Code section 36-4-3-13(e) (2004) in challenging an annexation attempt by the city. Finds the landowners failed to prove that fire protection is being adequately furnished by a provider other than Carmel.

WPTA-TV v. State of Indiana And John C. Mathew
35A02-1705-CR-1060
Criminal. Affirms the Huntington Circuit Court’s grant of WPTA-TV’s request for a digitally recorded version of a publicly available court record while limiting WPTA-TV’s use of the audio record and barring its broadcast or dissemination. Finds the trial court properly enforced Indiana Judicial Rule 2.17 to limit the use by a news media organization of an audio recording of a sentencing hearing. Also finds that prohibition does not violate the First Amendment.

Company v. Indiana Department of Workforce Development
93A02-1703-EX-650
Agency. Affirms the determination that claimant was an employee during the time she worked as a driver for Company, for purposes of Indiana’s unemployment compensation act, as enacted in Indiana Code article 22-4. Finds the liability administrative law judge’s determination was reasonable. Also finds the operation of the act in this case is not preempted by the Federal Aviation Administration and Authorization Act.

Performance Services, Inc., an Indiana Corporation and Huntingburg Machine Works, Inc., an Indiana Corporation v. Hanover Insurance Company, as Subrogee of the Southwest Dubois County Schools
19A01-1607-CT-1743
Civil tort. Reverses the denial of Performance Services, Inc. and Huntingburg Machine Works, Inc.’s joint motion for summary judgment on Hanover Insurance Company’s action against them. Finds the waiver-of-subrogation clause in the Construction Manager Contract waived any rights of Hanover to seek compensation from PSI and Huntingburg. Remands for entry of summary judgment in favor of PSI and Huntingburg.

Gerald F. Wagner v. Kevin E. Wagner, et al. (mem. dec.)
02A03-1610-PL-2473
Civil plenary. Affirms in part the Allen Superior Court’s entry of judgment against Gerald F. Wagner on a portion of Kevin E. Wagner and WDC Management, Inc.’s claims. Vacates the portion of the order permitting the procurement of a different accountant. Finds the trial court did not err in finding Gerald Wagner breached the contract, but did err in these circumstances in fashioning an equitable remedy that modified the parties’ obligations under a settlement agreement. Also finds the trial court did not abuse its discretion in reducing the attorney fee award. Remands for a determination regarding Kevin Wagner and WDC’s entitlement to appellate attorney fees pursuant to the agreement.

In the Matter of J.E., L.E., P.E., and A.G. (Minor Children), Children in Need of Services, and C.E. (Father) and A.G. (Mother) v. Indiana Department of Child Services (mem. dec.)
49A02-1705-JC-1026
Juvenile CHINS. Affirms the adjudication of C.E. and A.G.’s sons, J.E., L.E., P.E. and A.G., as children in need of services. Finds the Marion Superior Court did not clearly err in adjudicating the children as CHINS.

Jonathan Webster v. State of Indiana (mem. dec.)
71A03-1610-CR-2319
Criminal. Affirms Jonathan Webster’s conviction of Class A felony child molesting and his sentence to 30 years in the Department of Correction. Finds the state did not commit misconduct by referencing case law during its closing argument. Also finds the St. Joseph Superior Court did not abuse its discretion by responding to a jury question and that the court properly determined Webster was a credit-restricted felon. Finally, finds Webster’s sentence is appropriate in light of the nature of the offense and his character.

Kahteith Moeseley v. State of Indiana (mem. dec.)
49A05-1705-CR-905
Criminal. Affirms Kahteith Moeseley’s conviction of Level 6 felony operating a vehicle while intoxicated. Vacates Moeseley’s conviction of Class C misdemeanor operating a vehicle while intoxicated with an alcohol concentration equivalent of .08 or more. Finds the evidence was sufficient to support Moeseley’s Level 6 felony conviction. Also finds the Class C misdemeanor conviction violates double jeopardy. Remands with instructions for the Marion Superior Court to vacate Moeseley’s lesser conviction and sentence.

Jeremiah Roberts v. State of Indiana (mem. dec.)
49A05-1702-CR-289
Criminal. Affirms Jeremiah Roberts’ conviction of murder. Finds the evidence was sufficient to support Roberts’ conviction.

In the Termination of the Parent-Child Relationship of: M.O. (Minor Child) and, B.T. (Father) and R.O. (Mother) v. Indiana Department of Child Services (mem. dec.)
55A05-1705-JT-1209
Juvenile termination of parental rights. Affirms the termination of B.T. and R.O.’s parental rights to M.O. Finds the evidence was sufficient to support the termination of the parents’ parental rights.

Donald Roy Smith v. Autumn Trails Apt., et al. (mem. dec.)
49A04-1701-CT-13
Civil tort. Affirms the grant of summary judgment in favor of Vandy Marie Bauer, Autumn Trails Apartment Homes LLC, Gillian Downham, Muhamed Becovic and Becovic Management Group of Indiana Inc. Finds the Marion Superior Court properly granted summary judgment.

In re: The Adoption of C.G.C., M.T. v. C.C. and S.C. (mem dec.)
12A02-1607-AD-1759
Adoption. Affirms the grant of summary judgment in favor of C.C. and S.C. on their request for the Clinton Circuit Court to find that M.T. had given his irrevocable implied consent to the adoption by failing to register with the Putative Father Registry. Finds the trial court did not err in granting summary judgment to C.C. and S.C.

Clair Eugene Chaplin v. State of Indiana (mem. dec.)
31A05-1604-CR-779
Criminal. Affirms Clair Eugene Chaplin’s murder conviction. Finds that even if the Harrison Superior Court erred in admitting the testimony of a cellular-forensics analyst, such error was harmless because Chaplin’s conviction was supported by independent evidence of guilt such that there is no substantial likelihood that the analyst’s testimony contributed to the jury’s verdict.

Patricia Kittrell v. State of Indiana (mem. dec.)
49A02-1704-CR-845
Criminal. Affirms Patricia Kittrell’s conviction for Class A misdemeanor criminal trespass. Finds there was evidence to show that Kittrell, who did not have a contractual interest in the property of Meijer, knowingly or intentionally entered the Meijer property after having been denied entry by Meijer employees.

Duane Herron v. State of Indiana (mem. dec.)
71A04-1704-CR-743
Criminal. Affirms Duane Herron’s conviction of Level 6 felony battery with moderate bodily injury. Finds the state presented sufficient evidence to convict Herron of Level 6 felony battery with moderate injury. Also finds the St. Joseph Superior Court did not err when it denied Herron’s motion asking for her recusal.

Brian Carpenter v. State of Indiana (mem. dec.)
28A01-1706-CR-1381
Criminal. Affirms Brian Carpenter’s two-year sentence for his conviction of criminal confinement as a Level 6 felony. Finds Carpenter’s sentence is appropriate in light of the nature of the offense and his character.

Anthony Thigpen, Jr. v. State of Indiana (mem. dec.)
84A05-1611-CR-2643
Criminal. Reverses the Vigo Superior Court’s determination of Anthony Thigpen, Jr.’s credit time after the revocation of his direct placement to a community corrections program. Finds the community corrections program lacked the authority to deprive Thigpen of any good time credit. Remands with instructions to recalculate Thigpen’s earned credit time to include the 63 days he earned while serving the work release program.

In the Matter of the Termination of the Parent-Child Relationship of K.P., B.P., and R.P. (Children), and, D.P. (Mother) and R.P. (Father) v. The Indiana Department of Child Services (mem. dec.)
15A01-1704-JT-901
Juvenile termination of parental rights. Affirms the termination of D.P.’s parental rights to Ro.P., B.P. and K.P. Reverses the termination of R.P.’s parental rights to the children. Finds there is sufficient evidence to support the termination of D.P.’s parental rights, but insufficient evidence to support the termination of R.P.’s parental rights.

Devlin C. Decker v. State of Indiana (mem. dec.)
84A01-1702-CR-332
Criminal. Affirms Devlin C. Decker’s conviction of murder. Vacates Decker’s conviction of Class B felony aggravated battery. Finds Decker’s convictions for murder and aggravated battery run afoul of Indiana’s double jeopardy prohibition. Also finds that any perceived misconduct by the state was cured by the Vigo Superior Court’s admonishment with no need for a mistrial. Finally, finds the state presented sufficient evidence that Decker knowingly or intentionally killed Thomas.

Kelvin Williams v. State of Indiana (mem. dec.)
49A02-1703-CR-504
Criminal. Reveres Kelvin Williams’ conviction of possession of cocaine with a prior conviction as a Level 5 felony and possession of methamphetamine of less than 5 grams with a prior conviction as a Level 5 felony. Finds the Marion Superior Court committed fundamental error by proceeding to a bench trial on the enhancement charges absent Williams’ personal waiver of the right to trial by jury. Remands for a new trial.

Thomas Reichler v. State of Indiana (mem. dec.)
64A05-1611-CR-2626
Criminal. Affirms Thomas Reichler’s conviction of felony murder. Finds the Porter Superior Court did not err in denying Reichler’s instruction of reckless homicide because there was not a substantial evidentiary dispute.

Samuel G. Tuell v. State of Indiana (mem. dec.)
59A04-1704-CR-963
Criminal. Affirms Samuel G. Tuell’s sentence to an aggregate of six years for his conviction of Level 5 felony operating a vehicle while privileges were forfeited for life and Class B misdemeanor leaving the scene of an accident. Finds the Orange Circuit Court incorrectly found Tuell had committed the offenses in this cause while out on bond for another offense in another county, but remand for resentencing is not necessary because the trial court would have imposed the same sentence had it properly considered the reasons that enjoy support in the record. Also finds Tuell’s sentence is not inappropriate.

Andrew S. Raines v. State of Indiana (mem.dec.)
86A05-1705-CR-965
Criminal. Affirms Andrew S. Raines’ conviction of Level 6 felony auto theft and his sentence of two years. Finds Raines has failed to show the Warren Circuit Court abused its discretion when it sentenced him. Also finds Raines’ assertion of prosecutorial misconduct fails.

Jessie Rodarmel v. State of Indiana (mem. dec.)
41A01-1610-CR-2483
Criminal. Affirms Jessie Rodarmel’s conviction of molesting his two stepdaughters and disseminating pornography to the stepdaughters and his stepson and his sentence to an aggregate term of 30 years, with 25 years executed and five years suspended to probation. Finds the Johnson Circuit Court did not abuse its discretion in either admitting Rodarmel’s statement to Detective Thomas Wood into evidence or excluding the proffered evidence relating to other alleged sexual conduct. Also finds Rodarmel’s sentence is not inappropriate.

Jeffrey Alan Grigsby v. State of Indiana (mem. dec.)
11A01-1706-CR-1360
Criminal.  Affirms the revocation of Jeffrey Alan Grigsby’s probation. Finds the Clay Circuit Court did not abuse its discretion in ordering Grigsby serve the remainder of his suspended sentence.

David Denver Sasser v. State of Indiana (mem. dec.)
79A05-1705-CR-1020
Criminal. Affirms David S. Sasser’s conviction of Level 6 felony residential entry. Finds the evidence was sufficient to support Sasser’s conviction.

Dewayne Dunn v. State of Indiana (mem. dec.)
20A03-1705-PC-936
Post-conviction. Affirms the denial of Dewayne Dunn’s amended petition for post-conviction relief. Finds the evidence as a whole does not lead unerringly and unmistakably to the conclusion that there is a reasonable probability that the evidence produced from consulting with a forensic pathologist would have changed the outcome of Dunn’s murder trial.

Robert Reed v. State of Indiana (mem. dec.)
49A02-1704-CR-815
Criminal. Affirms Robert Reed’s conviction of theft as a Class A misdemeanor. Finds the Marion Superior Court did not abuse its discretion or err in limiting the scope of closing argument. Also finds Reed was not prejudiced or denied due process or an opportunity to present a closing argument.

JLP v. William Royce, Allen County Treasurer, Nicholas D. Jordan, Allen County Auditor, and BLN Investments, LLC (mem. dec.)
02A05-1703-MI-460
Miscellaneous. Affirms the denial of JLP’s motion to set aside a tax deed and the grant of summary judgment in favor of BLN Investments, LLC regarding its action to quiet title. Finds the Allen Circuit Court properly denied JLP’s motion to set aside the tax deed. Also finds the trial court did not err in granting summary judgment in BLN’s favor regarding its quiet title action.