Court opinions

Indiana Court of Appeals
Indianapolis Public Transportation Corporation d/b/a IndyGo Public Transportation v. Norma Jean Bush, as Personal Representative of the Estate of Michael Rex Fergerson, Deceased
23A-CT-1483
Civil tort. Reverses the Marion Superior Court’s denial of IndyGo’s motion for directed verdict in a negligence action initiated by Norma Jean Bush, as Personal Representative of the Estate of Michael Rex Fergerson against IndyGo after Fergerson was struck by an IndyGo bus and later died of his injuries. Finds that Fergerson was at least a proximate cause of his being struck by the bus, and therefore contributorily negligent. Also finds the trial court erred when it declined to find that the defense of contributory negligence applied and denied IndyGo’s motion for directed verdict. Remands for trial court to enter judgment in favor of IndyGo. Judge Patricia Riley dissents with a separate opinion.

Indiana Court of Appeals
Tyrone D. Bradshaw v. State of Indiana
23A-CR-2700
Criminal. Reverses Tyrone Bradshaw’s conviction in Marion Superior Court for a Level 6 felony of pointing a firearm and remands with instructions for the trial court to vacate that conviction and its corresponding sentence. Finds the state cannot demonstrate a distinction between the criminal confinement allegation and the pointing-a-firearm allegation based on the facts from trial. Also finds the state failed to rebut the presumptive double jeopardy violation under step three of the state’s  substantive double jeopardy analysis. Judge Paul Felix dissents with a separate opinion.

Indiana Court of Appeals
Ross Graham Thomas v. Joseph Foyst
24A-MI-251
Miscellaneous. Reverses the Bartholomew Circuit Court’s order in favor of Joseph Foyst. Remands with instructions to declare Bryan Muñoz the winner of the 2023 general election for the District 6 seat on the Columbus City Council. Finds that Foyst’s candidacy should be nullified because the notice of caucus was not timely submitted. Also, finds the clerk was barred by statute from receiving both the notice of caucus and the certificate of candidate selection because both documents were not timely filed. Finally, finds the clerk’s actions in violation of the applicable statutes were, by definition, ultra vires, and thus Foyst’s candidacy never existed in the eyes of the law.

Indiana Court of Appeals
B & L Drywall, LLC v. R.L. Turner Corporation
23A-PL-2962
Civil plenary. Affirms the Boone Circuit Court’s order granting summary judgment and damages to R.L. Turner Corp. for B&L Drywall, LLC’s breach of contract. Finds the trial court did not err in denying B&L’s motion for summary judgment and granting RLTC’s motion for summary judgment as there are no genuine issues of material fact, and RLTC is entitled to judgment as a matter of law. Also finds the trial court did not abuse its discretion when it awarded RLTC damages in the amount of the difference between the contract sum and the cost to pay the replacement contractor, as such an award was permitted by the unambiguous terms of the contract.

7^th Circuit Court of Appeals
Indiana Land Trust #3082, et. al. v. Hammond Redevelopment Commission, et al.
24-1006
Civil. Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Magistrate Judge John Martin. Affirms the district court’s dismissal of Indiana Land Trust #3082 and trust’s beneficiaries Omar and Haitham Abuzir’s third amended complaint against the City of Hammond, the Hammond Redevelopment Commission and its members and Hammond Mayor Thomas McDermott with prejudice. Finds the Abuzirs have failed to state any claim that the city violated their constitutional rights. Also finds that adding a § 1983 conspiracy claim would have been futile, and so the district court did not abuse its discretion in denying that request.

Indiana Court of Appeals
Wade Wiley v. United Farm Family Mutual Insurance Company
24A-PL-76
Civil plenary. Affirms the Hancock Superior Court’s entry of summary judgment in favor of United Farm Family Mutual Insurance Company in a declaratory judgment action regarding insurance coverage and the court’s denial of Wade Wiley’s motion for summary judgment. Finds that Jonathan Howard did not have, and knew that he did not have, a valid driver’s license at the time of his accident with Wiley on Sept. 13, 2021. Also finds that because he was not legally entitled to drive, Howard did not have a reasonable belief that he was entitled to operate Amy Smith’s vehicle on a public highway.

Indiana Court of Appeals
Julia M. Guilfoyle and Thomas G. Guilfoyle v. Hannah M. Guilfoyle and Gregory C. Guilfoyle
23A-MI-2673
Miscellaneous. Affirms the Dearborn Circuit Court’s dismissal of Julie and Thomas Guilfoyle’s petition for grandparent visitation with their grandchild, R.M.G. Finds the trial court did not err when it concluded that the Guilfoyles lacked standing to petition for visitation with their grandchild. Also finds the grandparents make no argument that a compelling government interest warrants intrusion on the parents’ parental rights here.

Indiana Court of Appeals
Jose Miguel Zuniga v. State of Indiana
23A-CR-3107
Criminal. Affirms Jose Zuniga’s convictions in Cass Superior Court of dealing in methamphetamine, a Level 2 felony; possession of a narcotic drug, a Level 5 felony; and unlawful possession of a firearm by a serious violent felon, a Level 4 felony, based on evidence obtained from a search of his house. Finds that Zuniga lacks standing to challenge Louise Antonio Lopez-Aleman’s arrest under Article 1, Section 11 of the Indiana Constitution. Also finds the trial court did not err by declining to exclude the evidence against Zuniga.

Indiana Tax Court
Alice Luebke, Tina Hughes, Amanda Scheitlin, and Ann Cornewel v. Indiana Department of Local Government Finance, et. al.
24T-TA-7
Tax. Affirms the Indiana Tax Court’s subject matter jurisdiction and recognizes the existence of a substantial issue to be tried where a group of Allen County taxpayers are challenging the county’s plan to build a new jail. Denies a motion pursuant to the Public Lawsuit Statute, requesting that the taxpayers post a bond of more than $90 million to proceed with their appeal. Finds that the taxpayers’ verified petition for review raises a substantial question to be tried regarding the legality of the county’s funding method for a new jail. Also finds it is important that the tax court thoroughly examine whether the transfer and leasing of the courthouse to finance a new jail is authorized under the lease-purchase statutory framework. Finally, finds the taxpayers need not post a bond in the amount of $91,628,223 to proceed with this action.

Indiana Court of Appeals
James A. Abbott v. Daniel Wegert and Adela Wegert
23A-EV-3004
Eviction. Reverses the Miami Superior Court’s small claims eviction order in favor of Daniel and Adela Wegert against James Abbott. Finds the parties’ dispute falls outside the jurisdiction granted to small claims courts under Indiana Code section 33-29-2-4(b). Also finds the small claims court’s order of eviction is void. Remands with instructions to transfer the case to the superior court’s plenary docket.

Indiana Court of Appeals
Micah Henson v. State of Indiana
23A-CR-2550
Criminal. Affirms Micah Henson’s convictions in Morgan Superior Court for two counts of Level 4 felony child molesting. Finds Henson’s convictions for two separate acts of child molesting do not constitute double jeopardy and he is not being punished twice for the same offense.

7^th Circuit Court of Appeals
United States of America v. Zebulon Xavier Marzette
23-1646
Criminal. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Damon Leichty. Affirms Zebulon Marzette’s conviction for possessing a firearm as a felon. Finds that Marzette failed to persuade the court that any error allowing the 911 caller’s statements to come in through police testimony prejudiced him at trial. Also finds that allowing Marzette’s conviction to stand would not so detrimentally affect his rights as to call the entire fairness and integrity of the trial into question.

Indiana Supreme Court
Jeffrey L. Foster, Kathie J. Foster, and the Earl Goodwine Trust v. First Merchants Bank, N.A.
24S-PL-75
Civil plenary. Reverses the Benton Circuit Court’s order granting First Merchants Bank’s motion to dismiss Jeffrey and Kathie Foster’s case based on Indiana Trial Rule 41(E). Finds that although the plaintiffs did little to advance their case for several years, they resumed prosecution by requesting a case-management conference before the defendant moved for dismissal under Rule 41(E).  Also finds the case could not be dismissed under that rule, and the trial court abused its discretion in concluding otherwise. Also rejects the defendant’s alternative argument, as the court holds that the equitable doctrine of laches does not apply here. Justice Geoffrey Slaughter dissents with separate opinion.

Indiana Supreme Court
Cohen B. Hancz-Barron v. State of Indiana
22S-LW-310
Life without parole. Affirms Cohen Hancz-Barron’s convictions in Allen Superior Court of murdering a young mother and her three children and his four consecutive life without parole sentences. Finds sufficient evidence supports Hancz-Barron’s convictions and the trial court did not abuse its discretion in permitting the state to recall a witness. Also finds the jury’s weighing of aggravators and mitigators in recommending Hancz-Barron’s LWOP sentence is not subject to appellate review. Finally, finds Hancz-Barron has not shown his sentence is inappropriate and the sentence is not unconstitutional.

Indiana Court of Appeals
T’arel Jordan Justice v. State of Indiana
23A-CR-2592
Criminal. Reverses T’arel Justice’s conviction in Marion Superior Court for aggravated battery and remands for a new trial. Additionally, remands with instructions that the sentencing order and abstract of judgment be corrected to indicate that Justice’s conviction for resisting law enforcement was vacated. Finds the trial court misapplied the burden of proof for Justice’s claims of self defense and defense of a third party.

Indiana Court of Appeals
Corey Mirabal v. State of Indiana
23A-CR-1451
Criminal. Affirms Corey Mirabal’s conviction for murder in Marion Superior Court. Finds that the totality of this evidence is sufficient to support the jury’s finding that, beyond a reasonable doubt, Mirabal committed the offense of murder. Also finds Mirabal’s argument regarding the quality of the police investigation is simply a request to reweigh the evidence.

Indiana Court of Appeals
Mark D. Stanley v. Karlynne D. Akos, Jeffrey H. Stanley, Kevin A. Stanley and Hire Holdings, LLC v. Lisa Stanley
23A-DN-2810
Domestic relations without children. Reverses the Kosciusko Superior Court’s judgment that the entirety of the Lake House, lake front property deeded to Mark Stanley in the settlement of the estate of Karol Stanley, is marital property. Finds that the factual findings support the conclusion that an express trust was not created. Also finds that the findings do not support the conclusion that a resulting trust was not impressed upon the property and the judgment is clearly erroneous in this regard. Remands for further proceedings.

Indiana Court of Appeals
Keith Allison and Joan Allison v. Jon Roock
23A-PL-3057
Civil plenary. Affirms the Bartholomew Superior Court’s denial of Keith and Joan  Allison’s motion for summary judgment. Reverse the trial court’s grant of Jon Roock’s motion for summary judgment. Finds a genuine issue of material fact precludes the entry of summary judgment with respect to whether Roock’s maintenance of his lot was in violation of the Second Tamerix Lake Addition’s restrictions and covenants. Remands for further proceedings.

7^th Circuit Court of Appeals
Mary Rodgers-Rouzier v. American Queen Steamboat Operating Company, LLC and HMS Global Maritime LLC
23-1812
Civil. Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. Judge Sarah Evans Barker. Reverses the district court’s dismissal of Mary Rodgers-Rouzier’s Fair Labor Standards Act complaint against American Queen Steamboat Operating Company. Finds the the district court was in error when it went beyond sending the question of Rodgers-Rouzier’s argument waiver’s validity to arbitration and instead rejected her argument’s premise, suggesting that the waiver was entirely lawful. Also finds that, in this case, Indiana law would not compel Rodgers-Rouzier to arbitrate, for the simple reason that the agreement expressly states that it is governed by the Federal Arbitration Act. Remands for further proceedings.

Indiana Court of Appeals
Liam Parke v. Vishal Vishwam
23A-CT-245
Civil tort. Affirms the Delaware Circuit Court’s grant of summary judgment for Vishal Viswam in the personal injury action Liam Parke brought against Viswam after Parke fell and injured himself on property owned by Viswam.  Finds that as Parke failed to demonstrate a genuine issue of material fact about whether Viswam owed him a duty, Viswam was entitled to summary judgment.