Opinions Feb. 27, 2024

Court of Appeals of Indiana
Elpers Bros. Construction & Supply, Inc., et al. v. Deane L. Smith, II, M.D., et al.
23A-PL-437
Civil plenary. Affirms and reverses in part the grant of summary judgment in favor of Deane L. and Lori A. Smith. Finds the Vanderburgh Circuit Court properly granted summary judgment for the Smiths on their claim that Elpers Bros. Construction & Supply Inc. owed a non-delegable duty to properly design and construct a subdivision’s drainage system. Also finds the trial court erred in granting only partial summary judgment for the homeowners association and in denying Elpers Development’s motion for summary judgment. Finally, finds the trial court properly denied Elpers Construction’s motion for summary judgment on the Smiths’ fraud claim. Remands for further proceedings.

Marcus Dalton v. State of Indiana (mem. dec.)
23A-CR-984
Criminal. Affirms Marcus Dalton’s murder conviction. Finds the Marion Superior Court did not abuse its discretion in admitting certain video evidence.

Nikki Garrett v. Wider Group, Inc. (mem. dec.)
23A-CT-1222
Civil tort. Reverses the grant of summary judgment in favor of Wider Group Inc. on Nikki Garrett’s complaint alleging defamation, blacklisting and tortious interference with a business relationship based on allegations that Wider falsely reported to a prospective employer that Garrett had refused a drug test. Finds genuine issues of material fact exist making the grant of summary judgment inappropriate. Also finds Garrett’s claims are not precluded as a matter of law. Finally, finds Garrett’s challenges to the Marion Superior Court’s motion to compel, motion to strike and motion to correct error rulings are moot. Remands for further proceedings.

Joshua Wells v. Kristen Wells (mem. dec.)
23A-DC-1638
Domestic relations with children. Affirms and reverses in part the Hamilton Superior Court’s order modifying custody and granting Kristen Wells sole legal and primary physical custody of her children with Joshua Wells. Finds the trial court did not abuse its discretion by modifying custody or restricting Joshua’s parenting time. Also finds the trial court abused its discretion by granting Kristen authority over Joshua’s parenting time. Remands.

In the Termination of the Parent-Child Relationship of: A.H. and L.S. (Minor Children), and C.S. (Mother) v. Indiana Department of Child Services (mem. dec.)
23A-JT-1723
Juvenile termination of parental rights. Affirms the termination of mother C.S.’s parental rights to L.S. and A.H. Finds C.S. has waived her due process argument. Also finds C.S. did not receive ineffective assistance of counsel. Finally, finds the evidence demonstrated a reasonable probability that the conditions that led to the children’s removal would not be remedied, and that termination was in their best interests.

J.K. v. State of Indiana (mem. dec.)
23A-JV-1772
Juvenile. Affirms J.K.’s adjudication as a delinquent child for acts that would be Level 3 felony child molesting and Level 4 felony child molesting if committed by an adult, and the finding that J.K. violated the conditions of his probation in two other delinquency matters. Finds the Huntington Circuit Court did not abuse its discretion in holding a consolidated hearing, or in admitting K.B.’s statements to nurse Kathryn Hillman. Also finds there was sufficient evidence to support the true findings and the revocation of probation.

Jimmie Burkes v. State of Indiana (mem. dec.)
23A-CR-1844
Criminal. Affirms Jimmie Burkes’ convictions of unlawful possession of a firearm by a serious violent felon, possession with intent to deliver a Schedule I controlled substance and possession with intent to deliver a substance represented to be a controlled substance, and his enhanced 25-year sentence. Finds Burkes has failed to establish that his waiver of counsel was not voluntary, or that the Grant Superior Court abused its discretion in denying his request for hybrid representation. Also finds Burkes’ sentence enhancement does not violate substantive double jeopardy law.

Cincinnati Specialty Underwriters Insurance Company v. Melvin Hall, Bradley Shaw, Giovanni Narducci f/k/a John Roberson, and Central Indiana Protection Agency, Inc. (mem. dec.)
23A-PL-1897
Civil plenary. Affirms the grant of partial summary judgment to Melvin Hall and the Marion Superior Court’s conclusion that Cincinnati Insurance had a duty to provide a defense to Shaw, Giovanni Narducci and the Central Indiana Protection Agency. Finds no error.

Steven Michael Sandquist v. Heidi Lynne Sandquist (mem. dec.)
23A-DC-2064
Domestic relations with children. Affirms the order modifying Steven Michael Sandquist’s parenting time with his minor son, H.S., and the order that he pay his child support arrearage and attorney fees. Finds Sandquist has waived his appeal.

Daniel Joseph Martin, Sr. v. State of Indiana (mem. dec.)
23A-CR-2115
Criminal. Affirms Daniel Martin’s eight-year sentence for his convictions of Level 5 felony intimidation with a deadly weapon and Level 6 felony auto theft, and the finding that he is a habitual offender. Finds the Tippecanoe Superior Court did not abuse its discretion in failing to find certain mitigators. Also finds Martin has not proven that his sentence is inappropriate.

Daniel E. Payne v. State of Indiana (mem. dec.)
23A-CR-2350
Criminal. Affirms Daniel Payne’s conviction of Level 6 felony theft and the order for him to pay $1,845 in restitution. Finds the evidence is sufficient to sustain Payne’s conviction. Also finds the Vanderburgh Circuit Court did not abuse its discretion in ordering him to pay restitution.

Joshua Stewart Simons v. State of Indiana (mem. dec.)
23A-CR-2379
Criminal. Affirms the order for Joshua Simmons to serve 365 days of his previously suspended sentence. Finds the Ohio Circuit Court did not abuse its discretion.

Michael D. Woods v. State of Indiana (mem. dec.)
23A-CR-2432
Criminal. Affirms the revocation of Michael D. Woods’ probation. Finds the Jefferson Circuit Court did not abuse its discretion.

Mark Vincent Chavis, II v. State of Indiana (mem. dec.)
23A-CR-1062
Criminal. Affirms Mark V. Chavis’s convictions of Level 6 felony attempted residential entry and Level 6 felony intimidation. Finds the Elkhart Superior Court did not abuse its discretion by admitting into evidence four photographs taken of Chavis by Maria Hurley.

Ray Timothy Dampier v. State of Indiana (mem. dec.)
23A-CR-2151
Criminal. Affirms the finding that Ray Timothy Dampier committed two acts of direct contempt of court over the course of successive hearings. Finds that given Dampier’s boisterous and disrespectful behavior at each of the two hearings, the Lake Superior Court did not abuse its discretion in twice finding him to be in direct contempt of court.