Opinions April 28, 2021

Indiana Court of Appeals

Rebecca Minser and Tina Zion v. DeKalb County Plan Commission
20A-PL-2408
Civil plenary. Affirms the grant of summary judgment to the DeKalb County Plan Commission on its complaint alleging Rebecca Minser and Tina Zion constructed a pond in violation of the DeKalb County Unified Development Ordinance, as well as the finding that Minser and Zion can be ordered to fill in the pond. Reverses the award of attorney fees to the commission. Finds the DeKalb Superior Court did not err when it awarded summary judgment to the commission and ordered a fine of $1,000. Also finds the trial court did err in awarding attorney fees to the commission. Remands with instructions to vacate the attorney fee award.

Anthony Wampler v. State of Indiana
20A-PC-2043
Post conviction. Reverses the grant of the state’s motion to resentence Anthony Wampler for a Class B felony burglary. Finds that Wampler had already served his sentence for the burglary conviction and had been released from the Department of Correction before the Daviess Superior Court granted the state’s resentencing motion, but the trial court does not have the authority to resentence a defendant who has served his sentence and been released from the DOC. Also finds it would be manifestly unfair for the trial court to call Wampler back into court and potentially resentence him to additional time for the burglary conviction when he had already served his sentence for that conviction and been released from the DOC.

Dwayne Gray v. Three Fountains West Cooperative, Inc. (mem. dec.)
20A-PL-1739
Civil plenary. Affirms the grant of summary judgment in favor of Three Fountains West Cooperative Inc. in a dispute with Dwayne Gray. Finds the Marion Superior Court did not err.

Jody Smedley v. Indiana Spine Group, P.C., and Rick C. Sasso, M.D. and John W. Arbuckle, M.D. (mem. dec.)
20A-CT-2320
Civil tort. Affirms the grant of summary judgment to Indiana Spine Group P.C. in a medical malpractice dispute with Jody Smedley as it relates to the conduct of an employee nurse practitioner but reverses the grant of summary judgment to ISG on Smedley’s vicarious liability claim related to Dr. John Arbuckle’s actions. Remands for further proceedings. Notes that Smedley conceded summary judgment was proper with respect to Dr. Rick Sasso and with respect to ISG for claims related to a nurse practitioner’s actions. Finds the Hamilton Circuit Court erred by granting summary judgment on an issue not raised by ISG in its motion for summary judgment and without any designated evidence regarding vicarious liability. Also finds ISG has failed to demonstrate that no genuine issue of material fact exists or that it was entitled to judgment as a matter of law on the issue of vicarious liability. Remands for further proceedings.

John Jay Lacey v. State of Indiana, Kelly Inda, Kim Hobson, and Dr. Sims (mem. dec.)
20A-CT-1734
Civil tort. Affirms the denial of John Jay Lacey’s motion for default judgment against medical providers Kelly Inda, Kim Hobson and Dr. Mary Ruth Sims, the grant of the medical providers’ summary judgment motion, and the denial of his summary judgment motion. Finds the Sullivan Superior Court did not err.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of: J.P. (Minor Child) and S.H. (Father) v. The Indiana Department of Child Services (mem. dec.)
20A-JT-2093
Juvenile termination of parental rights. Affirms the termination of father S.H.’s parental rights to J.P. Finds the Hamilton Superior Court did not err by taking judicial notice of the child in need of services CCS and court orders. Also finds the Hamilton County Department of Child Services presented sufficient evidence to support the termination of S.H.’s parental rights.

Shanika Day, Individually and as Administrator for the Estate of Terrell Day, and Harvey Morgan v. Anonymous Corporation and Anonymous Medical Services (mem. dec.)
20A-MI-1565
Miscellaneous. Affirms the dismissal of Shanika Day’s motion for preliminary determination seeking an order requiring medical providers Anonymous Corporation and Anonymous Medical Services to redact from their submission to a medical review panel what Day characterized as legal argument. Finds the Marion Superior Court did not err in determining the medical providers’ submission did not contain legal argument and therefore did not need to be redacted.

John Shelton v. State of Indiana (mem. dec.)
20A-CR-1680
Criminal. Affirms John Shelton’s convictions of dealing in methamphetamine as a Level 2 felony and theft of a firearm as a Level 6 felony, and the finding that he was a habitual offender. Finds the Hendricks Superior Court did not abuse its discretion by admitting evidence of meth found in Shelton’s home or by admitting a video recorded statement.

Addam Blake Rushton v. State of Indiana (mem. dec.)
20A-CR-1731
Criminal. Affirms Addam Rushton’s convictions of Level 6 felony possession of methamphetamine, Level 6 felony possession of a narcotic drug and Level 5 felony possession of a narcotic drug. Finds that because there was probable cause to arrest Rushton at the time law enforcement opened a container found on his person during a lawful search incident to arrest, the search of the container was reasonable and the evidence obtained from the search was admissible.