Court opinions

Indiana Court of Appeals
Kevin Fitzgerald v. Sarah O’Brien
24A-DN-200
Domestic relations without children. Reverses Johnson Superior Court Judge Peter Nugent’s division of marital property following the dissolution of Kevin Fitzgerald’s marriage to Sarah O’Brien. Finds the trial court abused its discretion because it awarded O’Brien more than the net value of the marital estate in contravention of Smith v. Smith, 938 N.E.2d 857 (Ind. Ct. App. 2010). Remands this case to the trial court for a just and reasonable division of the marital estate not exceeding the net value of the marital estate. Attorney for appellant: Daniel Canon. Attorney for appellee: Heather Myers.

Indiana Court of Appeals
N.B v. L.B.
24A-PO-1856
Protection order. Affirms Daviess Circuit Court Judge Gregory Smith’s grant of a two-year order of protection to L.B. under the Indiana Civil Protection Order Act, based on a finding that N.B. stalked and harassed L.B. Finds the trial court did not violate N.B.’s due process rights because it held a hearing on its ex parte order of protection within thirty days of N.B.’s request for a hearing pursuant to Indiana Code section 34-26-5-10(a). Also finds there existed sufficient evidence to support the trial court’s grant of L.B.’s request for a protective order against N.B. Attorney for appellant: Tiffany McCoy. No attorney listed for appellee.

Indiana Court of Appeals
Akeem Eichelburger v. State of Indiana
24A-CR-906
Criminal. Reverses Akeem Eichelburger’s conviction in Marion Superior Court for carrying a handgun without a license. Finds the trial court abused its discretion in granting the state’s request for a mistrial when no manifest necessity warranted a mistrial. Also finds Eichelburger’s second trial violated his rights under the Fifth Amendment to the United States Constitution and Indiana Code Section 35-41-4-3(a)(2)(iv) to be free from procedural double jeopardy. Attorneys for appellant: Talisha Griffin, Joshua Vincent. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Steven Hosler.

Indiana Court of Appeals
Vernon L. Eversole v. State of Indiana
24A-CR-864
Criminal. Affirms a Vigo Superior Court jury’s conviction of Vernon Eversole for murder and reverses his conviction for Level 2 felony attempted robbery. Finds Eversole has established that the trial court violated his substantive double jeopardy rights when the court entered its judgment of conviction for both murder and Level 2 felony attempted robbery. Also finds that the proper remedy is to vacate the conviction for attempted robbery. Finally, finds Eversole’s aggregate sentence remains unchanged. Judge Elaine Brown dissents with a separate opinion. Attorney for appellant: Cara Wieneke. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General George Sherman.

Indiana Court of Appeals
Leesa A. Gatton v. Robert D. Gatton
24A-DN-716
Domestic relations without children. Grants in part and denies in part Leesa Garton’s petition for rehearing of the state appellate court’s opinion in Gatton v. Gatton. The court grants the wife’s petition in part and revise the order in part to read as follows: “The trial court gave the parties until November 27 to submit proposed findings. Both parties did so.” And revises to read as follows: “But neither Husband’s nor Wife’s proposed findings mentioned the IRA.” These revisions do not affect the original outcome, the court noted. Also, denies wife’s petition in part that the appellate court should remand so that the trial court can revamp its findings regarding the husband’s pension and award her a greater share of the marital estate. Attorney for appellant: Daniel Borgmann. No attorney listed for appellee.

Indiana Court of Appeals
Linda F. Slavick Trust v. Christmas Lake Properties Association, Inc.
24A-PL-1746
Civil plenary. Affirms Spencer Circuit Court Judge Jon Dartt’s summary judgment order in favor of Christmas Lake Properties Association, Inc. on claims and counterclaims related to whether the landowner was entitled to exclusive waterfront rights under covenants and restrictions adopted in 2005. Finds the trial court did not err in denying the landowner’s first motion for summary judgment. As to the HOA’s counterclaim concerning architectural review requirements, the appellate court reverses and remands for entry of summary judgment in favor of the landowner. Attorney for appellant: Kevin Patmore. Attorneys for appellee: Garrett Lewis, Karl Popowics.

7^th Circuit Court of Appeals
International Brotherhood of Teamsters, et. al. v. Republic Airways Inc., et al.
24-1530
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard Young. Affirms the district court’s decision deeming the  dispute between the International Brotherhood of Teamsters and Repulic Airways minor because its resolution centered on interpretation of the parties’ collective bargaining agreements and dismissing the unions’ complaint for lack of subject-matter jurisdiction. Finds the unions can present their arguments to an adjustment board. Also finds the parties’ dispute minor and therefore subject to arbitration. Attorneys for appellants: Jeffrey Macey, William Wilder. Attorneys for appellees: Robert Siegel, David Carr, Paul Sweeney, Apama Joshi, Ellie Hylton.

Indiana Court of Appeals
Kerry Silvers v. State of Indiana
24A-PC-277
Post-conviction relief. Affirms Lawrence Superior Court Judge Robert Cline’s denial of Kerry Silvers’ petition for post-conviction relief, which alleged he received ineffective assistance of trial counsel. Finds Silvers failed to meet his burden of showing he is entitled to post-conviction relief on any of his claims. Also finds the PCR court erred in determining that Silvers’ claims are barred by laches, but it did not err in denying Silvers’ PCR petition because Silvers’ did not meet his burden of showing he received ineffective assistance of trial counsel. Attorney for appellant: Victoria Casanova. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Daylon Welliver.

Indiana Court of Appeals
Tamara Kay v. The Irish Rover Inc.
24A-CT-335
Civil tort. Affirms St. Joseph Superior Court Senior Judge Stephen David’s order granting The Irish Rover, Inc.’s motion to dismiss Tamara Kay’s defamation claim. Finds the designated evidence established as a matter of law that The Irish Rover acted in good faith and in reasonable basis in law and fact. Also finds that the trial court properly dismissed Kay’s complaint under Indiana’s anti-SLAPP statute. Attorneys for appellant: Kimberly Jeselskis, William Brinkerhoff, Hannah Joseph. Attorneys for appellee: James Bopp, Jr., Taylor Shetina.

Indiana Court of Appeals
Aron Phillip Smith v. State of Indiana
24A-CR-548
Criminal. Affirms Madison Circuit Court Judge Mark Dudley’s denial of Aron Smith’s request for new court-appointed counsel. Finds the trial court did not abuse its discretion or violate Smith’s right to counsel under the United States or Indiana Constitutions when it allowed Smith to dismiss trial counsel from his case and denied his request for a new court-appointed attorney. Also finds the trial court did not abuse its discretion when it declined Smith’s request for additional testimony on the matter. Attorney for appellant: Mark Leeman. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Ian McLean.

Indiana Court of Appeals

Anthony Graff v. State of Indiana 

23A-CR-2546

Criminal. Affirms Dearborn Circuit Court Judge F. Aaron Negangard’s denial of Anthony Graff’s motion to suppress. Finds Graff’s statements were made voluntarily. Reverses the trial court’s grant of the state’s motion in limine, which was seeking to exclude evidence of the administration of the polygraph examination and any expert testimony related to it. Finds Graff should be allowed to present evidence regarding the polygraph examination. Remands for the trial court and parties to define the presentation of the evidence. Attorney for appellant: Michael Cunningham. Attorneys for appellee: Indiana Attorney General Todd Rokita and Supervising Deputy Attorney General Ian McLean.

Indiana Supreme Court
Charles Jennings v. Jessica A. Smiley and Progressive Southeastern Insurance Co.
24S-CT-186
Civil tort. Appeal from the Hamilton Superior Court. Affirms the trial court’s denial of Charles Jennings’ motion to compel. Finds that, because Jennings failed to meet his burden of showing how any benefit of producing Jessica Smiley’s iPhone for inspection outweighed Smiley’s privacy interest, the trial court did not abuse its discretion by denying Jennings’ motion to compel. Also finds Jennings’ request was overbroad and would produce duplicative evidence in part. Justice Derek Molter dissents with a separate opinion. Attorneys for appellant: Bryan Babb, Bradley Dick, Jonathan Hughes. Attorneys for appellees: Robert Durham, Matthew Trainor, Edward Kohan, Trevor Brown, James Hehner, Matthew Hobson, Benjamin Katchur.

Indiana Court of Appeals
Madison N. Thomas v. State of Indiana
24A-CR-1243
Criminal. Affirms Allen Superior Court Judge Frances Gull’s sentence of Madison Thomas to one-and-a-half years in prison after Thomas pleaded guilty to three counts of Level 6 felony drug possession, divided between two cases. Finds the trial court revoked her bond when she violated the terms of her pretrial release and Thomas then violated the terms of the drug court program, for which she was sanctioned with jail time, before being removed from the program for a second violation. Also finds Thomas has failed to demonstrate this is one of the exceptional cases in which the appellate court should exercise its power to revise sentences. Attorney for appellant: Donald Frew. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Sierra Murray, Certified Legal Intern Maya Stirm.

Indiana Supreme Court
Automotive Finance Corporation v. Meng Liu
24S-CC-223
Civil collections. Reverses Marion Superior Court Judge Cynthia Ayers’ order to grant Meng Liu relief from judgment under Trial Rule 60(B)(3). Finds the trial court misinterpreted the law in granting Liu relief under Trial Rule 60(B)(3) and abused its discretion. Also finds Liu did not follow the legal avenues available either to oppose Automotive Finance Corporation’s motion for summary judgment or to raise Ning Ao’s alleged fraud in a motion to correct error once final judgment was entered. Remands for the trial court to reinstate summary judgment for Automotive Finance Corporation. Justice Christopher Goff dissents with a separate opinion. Attorney for appellant: Joshua Casselman. Attorney for appellee: Randall Shouse.

7^th Circuit Court of Appeals
Kevin Johnson v. Martin Purdue, et al.
23-2478
Prisoner. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Jane Magnus-Stinson. Affirms the district court’s granting of summary judgment for Pendleton Correctional Facility medical personnel, prison officials, and Wexford of Indiana, the prison’s contracted medical provider. Finds Kevin Johnson’s claim fails because he had sufficient constructive notice of the summary judgment motions and has never challenged the merits of the district court’s decision. Also finds that he failed to take any action in this case despite being put on notice that the defendants’ motions would shortly be refiled, that the district court instructed defendants to notify the court of any issues with service, and that Johnson has offered no argument that the district court’s decision was wrong on the merits of the summary judgment motions. Attorneys for appellant: D. Dangaran, Samuel Weiss. Attorneys for appellees: Benjamin Jones, Abigail Recker, Douglass Bitner, Rachel Johnson, Erica Sawyer.

Indiana Court of Appeals
Shawn Senter v. Kosciusko County Board of Zoning Appeals
24A-MI-1863
Miscellaneous. Reverses a Kosciusko Superior Court Judge Karin McGrath’s denial of Shawn Senter’s petition for judicial review of the decision of the Kosciusko County Board of Zoning Appeals, which denied Senter’s request to conduct retail sales of gasoline on his property. Finds that because the zoning ordinance explicitly allows a retail business to be operated on Senter’s property and the ordinance’s exceptions are inapplicable, the BZA’s decision restricting Senter’s retail sale of gasoline on his property was improper. Remands with instructions to grant Senter’s petition for judicial review. Attorneys for appellant: William Ramsey, Caleb Peery. Attorney for appellee: Adam Turner.

7^th Circuit Court of Appeals
United States of America v. Lorenzo Johnson
21-3345
Criminal. Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge Philip Simon. Affirms the magistrate and district judges’ denials of Lorenzo Johnson’s requests for new counsel and the district judge’s denial of Johnson’s motion for a new trial. Finds the magistrate and district judges appropriately exercised their discretion in denying Johnson’s requests for new counsel. Also finds the district judge also properly denied Johnson’s motion for a new trial because it was undeveloped. Finally, finds Johnson’s claim of sentencing error is misplaced and not everything a judge says at sentencing is a factual finding. Attorneys for appellant: Jeremiah Newhall, Adam Tavitas. Attorneys for appellee: David Hollar, Nathaniel Whalen.

Indiana Court of Appeals
Adrian Cardenas v. Hook-SupeRx, L.L.C. d/b/a CVS Pharmacy, et al.
24A-CT-1942
Civil tort. Reverses Marion Superior Court Judge Kurt Eisgruber’s entry of summary judgment inf favor of HookSupeRx, LLC, d/b/a CVS Pharmacy. Finds that Jeremiah Sedam was, for purposes of respondeat-superior liability, an employee of CVS at the time he attacked Adrian Cardenas. Also finds that CVS’s Service Agreement with Protos— and, by extension, CVS’s relationship with Shield and Sedam—details control by CVS over the manner in which on-duty guards were to perform their security services. Judge Elaine Brown dissents with a separate opinion. Attorneys for appellant: Richard Waples, Thomas Crooks. Attorneys for appellees: Katherine Haire, Nicholas Brunette, Joseph Zumpano, III, Christopher Pearcy.

Indiana Supreme Court

In Re: The Adoption of P.J.W., J.D. and M.D. v. R.W.
24S-AD-117
Adoption. Reverses Montgomery Superior Court Judge Daniel Petrie’s order that adoption was not in P.J.W’s best interest because of J.D. and M.D.’s advanced ages and biological father R.W.’s purported rehabilitation. Finds that that the trial court based its best-interest determination on an erroneous legal conclusion that it is “inherently” in child’s best interest to be raised by a biological parent. Remands with instructions to consider the grandparents’ advanced ages in light of ability under Indiana Code subsection 31-19-11-1(a)(2) and to conduct a new best-interest determination using the proper legal standard. Attorneys for appellants: Robert Reimondo, Denise Hayden. Attorneys for appellee: Jon Laramore, Megan Stuart.

Indiana Court of Appeals
In the Matter of the Civil Commitment of: T.G. v. Community Health Network
24A-MH-1930
Mental health. Affirms Marion Superior Court Judge David Certo’s temporary involuntary civil commitment order for T.G. Finds sufficient evidence supported the trial court’s finding that T.G. was gravely disabled. Attorney for appellant: Talisha Griffin. Attorneys for appellee: Kathryn DeWeese, Joshua Radicke.