Opinions May 17, 2021

The following Indiana Tax Court opinion was posted after IL deadline Friday:

Express Scripts Incorporated v. Department of State Revenue
19T-TA-18
Tax. Denies the Indiana Department of State Revenue’s motion for partial summary judgment and grants summary judgment to Express Scripts on the issue of whether Express Scripts receives its Indiana income from the retail sale of prescription drugs or from the provision of services. Finds Express Scripts receives its Indiana income from the latter. Remands the matter to the department for action consistent with the opinion.

Monday opinions

Indiana Court of Appeals

Thomas R. Fox v. Judith Ann Barker
20A-PL-2003Civil plenary. Affirms the grant of partial summary judgment to Judith Barker in her suit to petition property shared with Thomas Fox. Finds summary judgment was proper.

Elda Corp. and Anderson Mounds Theater, LLC v. Holliday LLC
20A-PL-2316
Civil plenary. Affirms the grant of partial summary judgment in favor of Holliday LLC, which determined that Holliday was entitled to use various improvements on a parcel of land and was not obligated to pay rent to Elda Corporation and Anderson Mounds Theater LLC. Finds Holliday has title to the improvements parcel in fee simple, free and clear of all encumbrances including the prior ground lease, and its ownership of the parcel does not amount to a wrongful possession of the land. Also finds that because Holliday is neither a trespasser nor a lessee, Elda is not entitle to ejectment, rent or damages.

In the Matter of the Paternity of D.L.J. (Minor Child): Desiree L. Jennings v. LeeWayne Johnson (mem. dec.)
19A-JP-3045
Juvenile paternity. Affirms and reverses in part the denial of mother Desiree Jennings’ motion for unsupervised parenting time and the finding that she was in contempt for failure to pay her child support obligation. Finds that the Vanderburgh Superior Court failed to enter any finding that unsupervised parenting time between mother and child D.L.J. would physically endanger or emotionally impair child. Remands with instructions to either enter an order containing findings sufficient to support a parenting time restriction under Indiana Code §§ 31-14-14-1 and -2 based on the evidence already in the record, or else enter an order that does not contain a parenting time restriction. Also finds mother has waived her claim relating to her June 8, 2016, motion to modify child support.

Douglas B. Hendrickson, et al. v. Elizabeth Anne Stuart, as Successor Trustee of the Don Klippel Trust and as Personal Representative of the Estate of Donald C. Klippel, et al. (mem. dec.)
20A-TR-1412
Trust. Affirms the finding that Douglas B. and Marla G. Hendrickson failed to establish that Donald C. Klippel committed a breach of trust in his administration of the estate of Vera Lou Klippel. Finds the Hendricksons have not demonstrated that the judgment is clearly erroneous.

Natasha M. Furman v. Justin H. Furman (mem. dec.)
20A-DC-1597
Divorce with children. Affirms the denial of mother Natashia M. Furman’s petition to relocate to Florida with her three children she shares with Justin H. Furman. Finds the evidence does not support the Pike Circuit Court’s conclusion that mother’s proposed relocation was not in good faith and for a legitimate reason. Also finds the evidence does support the court’s conclusion that relocation was not in the minor children’s best interests.

David L. Kennedy v. State of Indiana (mem. dec.)
20A-CR-2182
Criminal. Affirms David L. Kennedy’s six-year sentence, with three years executed in a community corrections work release program and three years suspended to probation, for his conviction of Level 5 felony theft. Finds the Pike Circuit Court did not abuse its discretion in its determination of mitigating circumstances. Also finds Kennedy’s sentence is not inappropriate, including the portion ordered to be served on work release.

Daniel C. Frazzini v. State of Indiana (mem. dec.)
20A-CR-2234
Criminal. Affirms Daniel C. Frazzini’s aggregate eight-year executed sentence for his convictions of two counts of Level 4 felony dealing in cocaine and one count of Class A misdemeanor dealing in marijuana. Finds the Allen Superior Court did not abuse its sentencing discretion. Also finds Frazzini’s sentence is not inappropriate.

Deangelo L. Nelson v. State of Indiana (mem. dec.)
20A-CR-2245
Criminal. Affirms Deangelo Nelson’s aggregate eight-year sentence for his convictions of three counts of Level 5 felony dealing in a narcotic drug and his admission to being a habitual offender. Finds Nelson’s sentence is not inappropriate.

Dennis J. Price v. State of Indiana (mem. dec.)
20A-CR-2251
Criminal. Dismisses Dennis J. Price’s appeal of his aggregate 9-year sentence for his convictions of Level 5 felony battery on a law enforcement officer and his plea to being a habitual offender. Finds Price’s appeal of his sentence is contrary to the terms of his written plea agreement and Indiana Supreme Court precedent. Also finds the Vermillion Circuit Court’s judgment of conviction and abstract of judgment fail to identify Price’s adjudication and sentence for being a habitual offender. Remands with instructions to correct the judgment of conviction and abstract of judgment to identify Price’s adjudication and sentence for being a habitual offender.

Brian L. Spurlock and Brian L. Spurlock as Successor Trustee of Ben and Ruby Revocable Living Trust June 15, 1995 v. Regions Bank (mem. dec.)
20A-MF-2254
Mortgage foreclosure. Affirms the grant of summary judgment determining there were no genuine issues of material fact precluding judgment in favor of Regions Bank on Regions’ request for foreclosure against Brian Spurlock. Finds the Marion Superior Court properly granted summary judgment for Regions.

Tina L. Fleener-Tays v. State of Indiana (mem. dec.)
20A-CR-2289
Criminal. Affirms the judgment ordering Tina Fleener-Tays to serve the balance of her previously suspended sentence after she had violated her probation, and the imposition of the two-year sentence imposed after she pleaded guilty to Level 6 felony unlawful possession of a legend drug. Finds the Bartholomew Circuit Court did not abuse its discretion in order Fleener-Tays to serve the balance of her suspended sentence. Also finds Fleener-Tay’s two-year sentence is not inappropriate.

Dale K. Rinker v. Casual Lifestyles Realty, Inc. (mem. dec.)
20A-PL-2396
Civil plenary. Affirms and reverses in part the grant of summary judgment to Casual Lifestyles Realty Inc. on its breach of contract claim against Dale K. Rinker for $42,000 in commission fees, plus costs and interest. Finds the Madison Circuit Court did not err in granting summary judgment to the broker on its breach of contract claims, but did err to the extent it concluded that the listing contract was not applicable to the conditional sale of the property. Also finds the trial court did not err in granting the broker summary judgment as to Rinker’s claim that the broker breached its duty to inform him of an adverse material fact of which broker had actual knowledge, but did err in granting summary judgment to broker regarding Rinker’s claim that broker breached a duty to investigate Yule Golf Course LLC’s financial condition and counsel Rinker accordingly. Finally, finds the broker is entitled to its reasonable attorney fees and court costs in this action. Remands for a determination of the broker’s reasonable attorney fees and court costs, and for further proceedings on Rinker’s claim that the broker breached an implied duty to investigate Yule’s ability to purchase the property and counsel Rinker accordingly. Orders the trial court to stay its entry of summary judgment for the broker on its contract and attorney fees claims, pending final judgment on Rinker’s negligence counterclaim.

S.M. v. State of Indiana (mem. dec.)
21A-JV-17
Juvenile. Affirms the dispositional decree awarding guardianship of S.M. to the Indiana Department of Correction. Finds the juvenile court acted within its discretion.