Court opinions

Indiana Court of Appeals
Brian Randy Van Auken v. State of Indiana
23A-CR-1573
Criminal. Affirms Brian Van Auken’s convictions in Wells Circuit Court for three counts of Level 1 felony child molesting, Level 3 felony promotion of sexual trafficking of a younger child, six counts of Level 4 felony child solicitation, Level 4 felony sexual misconduct with a minor and five counts of Level 5 felony child solicitation. Finds the trial court did not abuse its discretion in admitting certain evidence. Also finds the evidence is insufficient to sustain Van Auken’s convictions. Finally, finds his aggregate 69-year sentence is appropriate.

Indiana Court of Appeals 

Steven C. Clear v. State of Indiana 

24A-CR-170

Criminal. Affirms the Shelby Superior Court’s denial of Steven Clear’s petition for additional credit time. Finds Clear failed to convince the appellate court that the trial court erred in denying his petition as the evidence does not lead unerringly and unmistakably to a decision opposite that reached by the trial
court.

Indiana Court of Appeals
Andrew Nemeth Properties, LLC, and Andrew J. Nemeth v. William A. Panzica, Thomas C. Panzica, Philip E. Panzica, & NP3, LLC
23A-PL-1383
Civil plenary. Reverses the Marshall Circuit Court’s award of summary judgment in favor of William Panzica, Thomas Panzica, Phillip Panzica and NP3, LLC on Andrew Nemeth’s breach of contract claim and its bench judgment in favor of the defendants on Nemeth’s unjust enrichment claim. Finds that an LLC’s initial membership can be established by oral contract and that there exist genuine issues of material fact as to whether Nemeth and the Panzica Brothers orally agreed to form NP3 as equal members. Also finds that Nemeth was entitled to a jury trial on his unjust enrichment claim.

7^th Circuit Court of Appeals
United States of America v. Bryant D. Aron
22-2364
Criminal. Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Chief Judge Holly Brady. Affirms the district court’s conviction of Bryant Aron on the charge of possession of a firearm and ammunition as a felon in violation and its sentence of him to the statutory maximum of 10years in prison. Finds Aron was given sufficient notice of the court’s rejection of the plea agreement to give him the opportunity to fully litigate the basis for the four-level enhancement in the PSR for use of the firearm during another felony offense. Also finds that Aron’s arguments that the court improperly inserted itself into the plea negotiation process and abused its discretion by failing to provide a sound reason for rejecting the binding plea agreement are lacking in merit.

Indiana Court of Appeals
Calvary Temple Church of Evansville, Inc v. Gerard A. Kirsch
23A-CT-1728
Civil tort. Affirms the Vanderburgh Superior Court’s denial of the Calvary Temple Church’s motion for summary judgment on Gerard Kirsch’s complaint alleging Calvary’s negligence. Finds that under Indiana Code section 34-31-7-2, “premises . . . used primarily for worship services” means only those portions of the premises that are used primarily for worship services.  Also finds that Calvary did not designate evidence that the shed where Kirsch was injured was used primarily for worship services. Finally, finds Calvary’s summary judgment motion turns solely on an interpretation of the statute that the appellate court rejects.

7^th Circuit Court of Appeals
United States of America v. Bradley Olson and Shirley Olson, doing business as Affordable Sewer Service
23-1864
Civil. Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Chief Judge Holly Brady. Reverses the district court’s denial of an injunction compelling Bradley and Shirley Olson to deposit withholding taxes into a bank using an approved payroll service and requiring the Olsons to pay their taxes ahead of private creditors, permit the Internal Revenue Service to inspect their books and records, and notify the IRS if they start another business. Finds the Department of Treasury’s injury from a continuation of the Olsons’ conduct is irreparable. Remands for entry of the proposed injunction.

Indiana Supreme Court
Sabrina L. Dunn v. State of Indiana
24S-CR-123
Criminal. Vacates Sabrina Dunn’s murder conviction in Orange Circuit Court. Finds the trial court’s final instruction use of “and/or” was ambiguous and misleading. Also finds that, considering the instructions as a whole and the unusual facts of the trial, the high court concludes that the language describing the state’s burden of proof on Dunn’s defenses was so misleading as to produce fundamental error. Finally, finds the ambiguous, repeated, and uncured use of “and/or” to instruct the jury on the state’s burden of proof impaired the sole defense strategy Dunn pursued throughout the trial and there is a serious risk she was wrongly convicted without the state disproving beyond a reasonable doubt that she acted in defense of her dwelling. Remands to the trial court for further proceedings.

Indiana Supreme Court 

G.W. v. State of Indiana 

23S-JV-246

Juvenile. Remands to the Rush Circuit Court for entry of its amended dispositional order. Finds the juvenile court acted prematurely, rendering its amended dispositional order void under the high court’s appellate rules. Justice Geoffrey Slaughter dissented with a separate opinion.

7^th Circuit Court of Appeals
Brenda K. Warnell v. Martin J. O’Malley, Commissioner of Social Security
23-1632
Civil. Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Judge William Lee. Affirms the administrative law judge’s determination that Brenda Warnell is not disabled and therefore not entitled to disability benefits or supplemental security income. Finds the ALJ provided a more than sufficient explanation for why the medical record led her to deny Warnell’s claim. Also finds the judge acknowledged and grappled with conflicting evidence, ultimately concluding that the treatment record as a whole supports a finding of non-disability.

Indiana Court of Appeals
Edward A. Rose v. State of Indiana
23A-CR-2139
Criminal. Affirms Edward Rose’s three convictions in Noble Circuit Court for felony failure to register as a sex or violent offender. Finds Rose failed to register his online social media accounts for three dating websites: Christianfilipina.com, Jollyromance.com, and Orchidromance.com. Also finds that because the state proved that the dating websites Rose joined were “social networking web sites,” the evidence is sufficient to support Rose’s convictions.

Indiana Court of Appeals
Bremni Onelio Villatoro LLC, Bremni Onelio Villatoro, and Lesly Yessenia Dominguez Reyes v. Progressive Commercial, and Progressive Southeastern Insurance Company (mem. dec.)
23A-CT-2831
Civil tort. Affirms the Marion Superior Court’s declaratory judgment for Progressive Commercial and Progressive Southeastern Insurance Company following a bench trial. Finds that Bremni Villatoro has not shown that the trial court erred when it found that the rejection form applied to the amended policy naming the LLC.

7^th Circuit Court of Appeals
United States of America v. Christopher Tate and Sandra Kellogg
22-2060 & 22-2124
Criminal. Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Tanya Walton Pratt. Affirms conviction and sentence of Christopher Tate for one count of conspiracy to distribute methamphetamine and heroin, two counts of distribution of methamphetamine and one count of possession of methamphetamine with intent to distribute it, and the conviction and sentence of Sandra Kellogg on one count of conspiracy to distribute methamphetamine and one count of possession of methamphetamine with intent to distribute it. Finds the district court’s employment of the manager-supervisor enhancement did not constitute reversible error.

Indiana Supreme Court
Safeco Insurance Company of Indiana as Subrogee of Ramona Smith v. Blue Sky Innovation Group, Inc., et.al.
23S-CT-272
Civil tort.  Affirms the Marion Superior Court’s dismissal of Safeco Insurance’s  third-party spoliation and negligence claims against the Michaelis Corporation. Finds the trial court did not err in dismissing Safeco’s amended complaint against Michaelis. Also finds the trial court did not err in dismissing Safeco’s negligence claim because it is substantively a third-party spoliation claim. Justice Christopher Goff concurs in part and dissents in part with separate opinion.

Indiana Court of Appeals
B.H. v. Review Board of the Indiana Department of Workforce Development (mem. dec.)
23A-EX-2976
Administrative. Affirms the Review Board of the Indiana Department of Workforce Development’s determination that B.H. is ineligible for unemployment benefits. Finds B.H. did not present evidence to show she had a medically substantiated disability or sufficiently advise her employer of the disability and accompanying limitations.

Indiana Court of Appeals
Emily Tingley v. First Financial Bank, As Trustee of Land Trust No.428
23A-PL-1226
Civil plenary. Reverses the Vigo Superior Court’s order granting First Financial Bank’s Trial Rule 12(B)(1) motion to dismiss a complaint filed by Emily Tingley. Finds the trial court’s grant of First Financial’s motion to dismiss under Trial Rule 12(B)(1) was in error because the court has subject matter jurisdiction over the class of case at issue. Remands for further proceedings.

Federal and state courts were closed for Good Friday. 

Indiana Court of Appeals
Linda E. Newman v. State of Indiana
23A-CR-2329
Criminal. Affirms Linda Newman’s conviction in Tippecanoe Superior Court for cruelty to an animal, a Class A misdemeanor. Finds the evidence is sufficient to sustain Newman’s conviction.

Indiana Court of Appeals
In the Matter of the Estate of Robin L. Ropp, Deceased. Kay L. Smith v. Jay T. Ropp
23A-EU-1168
Estate unsupervised. Affirms the Whitley Circuit Court’s order that determined Kay Smith did not have standing to challenge the final accounting of the Robin Ropp estate. Finds that while Smith had standing to object to the estate’s final accounting, the trial court did not err when it denied her repeated requests to do so because she unnecessarily prolonged the proceedings, which resulted in significant depletion of the estate’s assets meant for the children.

Heather McClure O’Farrell v. Guardian of Estate of George B. Drake (mem. dec.)

23A-GU-669

Guardian. Reverses the Hamilton Superior Court’s order instructing Heather McClure O’Farrell to repay $53,824.32 in legal and accounting fees she and her law firm collected for services purportedly rendered to George Baker Drake and the guardian of his estate. Finds the judgment entered with insufficient service of process is void for lack of personal jurisdiction.