Opinions June 9, 2021

Indiana Court of Appeals

Hicks & Sons, LLC v. Carewell International, LLC
20A-PL-1874
Civil plenary. Affirms the determination that Carewell International Inc. could continue displaying a Holiday Inn hotel sign within a driveway easement over Hicks and Sons LLC’s real estate. Finds the evidence presented at trial supports the Putnam Superior Court’s determination that the Holiday Inn sign is necessary to fulfill the purpose of the easement. Also finds the evidence supported the trial court’s findings of fact and those findings supports its judgement that Carewell’s continuing use of the Holiday Inn sign within the ingress-egress easement is a matter of right and not a trespass.

Thomas L. Hale v. State of Indiana
20A-PC-1887
Post-conviction. Affirms the denial of Thomas Hale’s petition for post-conviction relief. Finds the post-conviction court did not err in denying Hale’s PCR petition. Judge Edward Najam concurs with separate opinion.

William Pumphrey, III, RPM Pizza Midwest, LLC, d/b/a Domino’s Pizza, and Millbank Insurance Company v. Melody Jones
21A-CT-47
Civil tort. Reverses the denial of William Pumphrey’s motion for leave to amend the answer to assert a counterclaim against initial plaintiff Melody Jones. Finds the Hamilton Superior Court’s denial of the motion to amend was an abuse of discretion because “justice requires” the granting of the motion. Remands with instructions to permit the proposed amendment. Judge James Kirsch dissents with separate opinion.

Asher B. Hill v. State of Indiana
20A-CR-1956
Criminal. Affirms Asher B. Hill’s conviction for possession of methamphetamine as a Level 6 felony, two counts of counterfeiting as a Level 6 felony, one count of identity deception as a Level 6 felony and his adjudication as a habitual offender. Finds Hill’s search and seizure did not violate his rights pursuant to the Fourth Amendment to the United States Constitution.

Laura Johnson v. City of Michigan City
21A-CT-114
Civil tort. Affirms the grant of summary judgment in favor of the city of Michigan City on the negligence complaint brought by Laura Johnson after she was injured when her bicycle struck a pothole as she rode through the city. Finds the city was entitled to discretionary function immunity from Johnson’s negligence claim. Also finds the LaPorte Superior Court did not err in granting summary judgment in favor of the city. Judge Elaine Brown dissents with separate opinion.

Zane Dickson v. Sarah Ford (mem. dec.)
20A-DC-1906
Domestic relations with children. Reverses the Marion Superior Court’s order setting father Zane Dickson’s child support obligation at $398 per week plus $10 per week in arrearage but affirms the order awarding sole custody of his three children to mother Sarah Ford. Finds the trial court abused its discretion in setting Dickson’s child support obligation and arrearage payment. Also finds the trial court did not abuse its discretion in awarding custody to Ford.

In the Matter of the Adoption of S.N., Minor Child, M.O. v. B.N. (mem. dec.)
20A-AD-2055
Adoption. Reverses the order requiring the consent of father B.N. for the adoption of S.N. Finds B.N.’s admissions that he had not attempted to maintain substantial contact with his child before or during incarceration and that he had never voluntarily made a weekly child support payment support the conclusions that he both failed to communicate and failed to support the child for at least one year. Also finds stepfather M.O. has shown prima facie error because the record amply supported B.N.’s failure to communicate significantly and failure to support child for at least one year. Remands.

Nature’s Comfort, LLC, and David Nyhof v. First State Bank of Middlebury (mem. dec.)
20A-PL-2138
Civil plenary. Affirms the ruling that David Nyhof converted approximately $225,000 in collateral and ordering double damages for a final money judgment of approximately $450,000 in favor of First State Bank of Middlebury but reverses the same ruling against Nyhof’s company, Nature’s Comfort LLC. Finds the bank could pursue a conversion claim against Nyhof as a matter of law and that the evidence supports a conclusion that Nyhof converted the bank’s property. Also finds the LaGrange Circuit Court erroneously entered judgment against Nature’s Comfort for conversion because it was not named in the conversion count. Remands with instructions to alter the judgment.

In the Matter of T.C., A Child in Need of Services, S.H., Mother v. Indiana Department of Child Services (mem. dec.)
20A-JC-2176
Juvenile CHINS. Affirms the adjudication of mother S.H.’s child T.C. to be a child in need of services. Finds the S.H. waived her challenges to the dispositional order’s requirements and, waiver notwithstanding, the juvenile court did not abuse its discretion.

In the Matter of the Marriage of: Karen Ann Frazier v. Verlon B. Frazier (mem. dec.)
20A-DN-2206
Domestic relations no children. Affirms the order dissolving the marriage of Karen Ann and Verlon B. Frazier and dividing the parties’ marital property. Finds the Shelby Circuit Court did not abuse its discretion in the division of marital property by failing to conclude that Karen had rebutted the presumption that an equal division of the marital property was just and reasonable.

Maria Vazquez v. German Township Trustee (mem. dec.)
20A-CT-2302
Civil tort. Affirms the entry of summary judgment in favor of the German Township Trustee and the denial of Maria Vazquez’s motion to correct error. Finds German Township should not have expected that Vazquez would not discover or fail to protect herself against the snowy and icy condition presented by a walkway.

James Bolen Jr. v. State of Indiana (mem. dec.)
20A-CR-2371
Criminal. Affirms James Bolen Jr.’s conviction of Level 6 felony operating a vehicle while intoxicated with a passenger under the age of 18. Finds Bolen was on notice that the state would need to prove endangerment to obtain a conviction and he was not misled by the charging information. Also finds Bolen has failed to establish that he was prejudiced by the alleged lack of specificity in the charging information or that a fair trial was impossible. Finally, finds Bolen has failed to establish fundamental error.

Jeffery A. Spear v. State of Indiana (mem. dec.)
21A-CR-30
Criminal. Affirms the revocation of Jeffery A. Spear’s probation. Finds sufficient evidence that Spear committed a new criminal offense, so there was ample evidence supporting the Hendricks Superior Court’s finding of a probation violation.

Dashone Tamele Woods v. State of Indiana (mem. dec.)
21A-CR-87
Criminal. Affirms Dashone Tamele Woods’ sentence to 14 years executed in the Indiana Department of Correction for his conviction of Level 3 felony aggravated battery. Finds Woods has failed to demonstrate that his sentence is inappropriate in light of his character and the nature of his offense.

In the Matter of K.S., A Child in Need of Services, R.S., Father and S.S., Mother v. Indiana Department of Child Services (mem. dec.)
21A-JC-119
Juvenile CHINS. Affirms the finding that father R.S.’s child, K.S., is a child in need of services. Finds R.S. was not denied his right to due process. Also finds the conditions imposed on R.S. by the juvenile court through the dispositional order were not an abuse of discretion.

Timothy Johnson v. State of Indiana (mem. dec.)
21A-PC-218
Post-conviction. Affirms the denial of Timothy Johnson’s petition for post-conviction relief. Finds Johnson has failed to show that his trial counsel rendered him ineffective assistance during his trial. Also finds Johnson was not prejudiced at his sentencing hearing.