Opinions

Indiana Court of Appeals
Steven R. Peabody, et al v. State of Indiana Office of the Secretary of State Securities Division
25A-MI-135
Civil miscellaneous. Affirms the Marion Superior Court’s denial of VoCare, Inc. employees’ motion to quash a subpoena from the Indiana Secretary of State Securities Division seeking those employees’ personal bank records from PNC Bank. Finds that because the employees’ challenges under both the Fourth and Fifth Amendments fail, the trial court’s denial of the motion to quash was not an abuse of discretion. Attorneys for appellants: Anthony Holton, Joseph Simms. Attorneys for appellee: Attorney General Todd Rokita, Benjamin Jones, Robert Yoke.

Indiana Court of Appeals
State of Indiana v. Kinshasha Johnson
24A-CR-2146
Criminal. Reverses the Tippecanoe Superior Court’s order granting Kinshasha Johnson’s motion to dismiss charges of Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 5 felony unlawful carrying of a handgun. Finds that the trial court abused its discretion in dismissing the unlawful carrying a handgun charge on the grounds that the Illinois conviction was not substantially similar to an Indiana offense. Also finds the trial court abused its discretion in dismissing the two charges because both had been sufficiently pled to apprise Johnson of the allegations against him and constituted crimes under the Indiana criminal code. Remands for further proceedings. Attorneys for appellant: Attorney General Todd Rokita, Courtney Staton. Attorney for appellee: Shay Hughes.

Indiana Court of Appeals
Philip K. Brown, et al. v. The Charles Sturdevant Post of the American Legion Post #46, et al.
25A-PL-513
Civil plenary. Affirms the Tipton Circuit Court’s denial of the Browns’ motions for summary judgment and the court’s granting of the American Legion Post 46’s motion for summary judgment, finding the Legion acquired a parcel of land behind its building in Tipton by adverse possession. Finds the trial court did not err in granting the Legion’s motion for summary judgment and any error in denying the Browns’ motion to strike to be harmless. Attorney for appellants: Zechariah Yoder. Attorneys for appellees: Gregory Schrage, Peter  Hutson.

Indiana Court of Appeals
Antoinette McNary v. State of Indiana
25A-CR-781
Criminal. Reverses Antoinette McNary’s conviction in Marion Superior Court for resisting law enforcement. Finds there is insufficient evidence that McNary forcibly resisted, obstructed, or interfered with the arresting officer in the course of his lawful enforcement duties. Remands with instructions for the trial court to enter a judgment of acquittal. Attorneys for appellant: Talisha Griffin, Timothy Burns. Attorneys for appellee: Attorney General Todd Rokita, Jennifer Anwarzai, certified legal intern Gabriela Alvarez.

Indiana Court of Appeals
Patricia Lynne Davidson v. Jamie Hammond
25A-SC-879
Small claims. Reverses the Perry Circuit Court’s small claims judgment in favor of Hammond and remands with instructions after determining the trial court erred in deeming Davidson to have waived her right to a jury trial. The court holds that under Indiana Small Claims Rules 2(B)(10) and 4(C), the trial court must rule on a timely jury-trial request before a defendant is required to pay the transfer fee, and here the court never made such a ruling but instead treated Davidson as having waived her right by failing to timely pay—contrary to the rules. Vacates the judgment, orders the trial court to rule on Davidson’s jury-trial request (if granted Davidson must pay the $70 transfer fee within 10 days), and expresses no view on the merits of the underlying claims. Appellant is pro se.

Indiana Court of Appeals
BioConvergence LLC and Alisa K. Wright v. Kathryn S. Eddy
24A-PL-2291
Civil plenary. Affirms the Marion Superior Court’s award of $832,578 in attorneys’ fees to Kathryn Eddy and the additional award of $259,963.50 in attorneys’ fees to Eddy. Rejects BioConvergence LLC’s argument that the trial court erred under Section 13.2 when it awarded an additional $259,963.50 in attorneys’ fees to Eddy for her costs in pursuing her fee claim. Finds that BioConvergence failed to show that it was entitled to an award of attorneys’ fees under Paragraph 9 of Eddy’s employment agreement. Agrees with Eddy that BioConvergence’s obligation under the operating agreement to indemnify her for her costs in defending herself is an ongoing one. Remands with instructions for the trial court to determine a reasonable amount of additional attorneys’ fees to award Eddy for her defense of this appeal. Attorney for appellants: Christopher Murray, Robert Burkart. Attorneys for appellee: Colin Flora, Jason Massaro.

Indiana Court of Appeals
Indiana Housing & Community Development Authority, et al. v. Cadence Blanchard, et al.
25A-PL-1383
Civil plenary. Reverses the Marion Superior Court’s order granting a preliminary injunction and certifying a class action regarding the Indiana Housing and Community Development Authority’s termination of the Indiana Emergency Rental Assistance 2 program, which was created to administer rental assistance using federal funding appropriated as a result of the Covid-19 pandemic. The trial court ordered IHCDA to reopen the program and granted the plaintiffs’ motion for certification of a class. Finds the trial court abused its discretion by granting the preliminary injunction because Plaintiffs lack standing under the Administrative Orders and Procedures Act, so they cannot succeed on that claim. Also finds that the trial court abused its discretion by certifying the class because, as currently defined, the class is not sufficiently definite regarding whether or not an individual is a member. Remands for further proceedings. Judge Paul Felix concurs in result with separate opinion. Judge Nancy Vaidik dissents with separate opinion. Attorneys for appellants: Attorney General Todd Rokita, Solicitor General James Barta, John Vastag. Attorneys for appellees: Fran Quigley, Ian Bensberg.

Indiana Court of Appeals
Dominick D. Jones v. State of Indiana
24A-CR-2608
Criminal. Affirms Dominick Jones’ convictions in Elkhart Superior Court for child molesting. Finds Jones failed to show that Victim 1’s testimony was inherently contradictory, and her testimony was corroborated by other testimony and circumstantial evidence. The evidence was sufficient to support Jones’s convictions. Reverses the trial court’s order denying Jones credit time for improperly filing pro se motions and other pleadings. Finds Jones is statutorily entitled to credit time while awaiting sentencing and the trial court was without discretion to deprive Jones of the credit time as a sanction for filing pro se pleadings and motions while represented by counsel. Remands this case to the trial court to calculate the correct amount of credit time to which Jones is entitled and issue a revised sentencing statement in accordance therewith. Affirms Jones’ 120-year aggregate sentence. Finds Jones failed to demonstrate that his sentence is inappropriate in light of the specific factors considered by the trial court that distinguished his offenses from those committed by the defendants in other cases. Also finds Jones’s sentence is not inappropriate and should not be revised. Attorney for appellant: Donald Shuler. Attorneys for appellee: Attorney General Todd Rokita, Kelly Loy.

Indiana Court of Appeals
Robert A. Rosenbourgh v. State of Indiana
24A-CR-1576
Criminal. Affirms the La Porte Superior Court’s t revocation of Robert Rosenbourgh’s probation and execution of the remainder of his suspended sentence for dealing in methamphetamine as a Level 4 felony. Finds Rosenbourgh was provided sufficient notice of his probation violation allegations such that his right to due process was not violated, and the trial court did not abuse its discretion by revoking Rosenbourgh’s probation or by executing the balance of Rosenbourgh’s sentence. Attorney for appellant: Jessica Merino. Attorneys for appellee: Attorney General Todd Rokita, Brandon Smith.

Indiana Court of Appeals
Matthew Joseph Dirig v. State of Indiana
25A-CR-119
Criminal. Affirms Matthew Dirig’s conviction in Huntington Circuit Court of Level 1 felony neglect of a dependent resulting in death. Finds no reversible error occurred in the admission of the evidence. Also finds the state presented sufficient evidence to support Dirig’s conviction. Finally, finds the erroneous jury instructions are not reversible error under the fundamental error doctrine. Attorney for appellant: Stacy Uliana. Attorneys for appellee: Attorney General Todd Rokita, Jodi Stein.

Indiana Court of Appeals
Paternity: J.O’S. v. K.S.
25A-JP-761
Juvenile paternity. Reverses Hancock Circuit Court Judge R. Scott Sirk’s order awarding J.O’S. a restricted amount of parenting time with his child, with a path towards eventually receiving parenting time in accordance with the Indiana Parenting Time Guidelines and also ordered the father to pay $941 per week in child support. Finds the juvenile court’s findings that could potentially support a finding of endangerment were largely unsupported by the record and the court’s order is therefore in contravention of statutory authority, which again requires specific findings of endangerment. Remand with instructions for the juvenile court to either enter an order containing sufficient findings to support a parenting-time restriction or that does not contain such restrictions and awards the father parenting time in accordance with the guidelines. Also finds that the juvenile court abused its discretion in setting the father’s child-support obligation at $941 per week. Remands with instructions that the juvenile court re-calculate the father’s child-support obligation based on the parties’ respective incomes at the time of the subsequent proceedings. Attorneys for appellant: Alexander Moseley, Adrian Deneen. No attorney listed for appellee.

Indiana Court of Appeals
Northern Indiana Public Service Company, LLC v. ACE American Insurance Company, Safway Services, LLC, and Headwaters Resources, Inc.
24A-PL-512
Civil plenary. Affirms Safway breached its duty to defend NIPSCO in the underlying lawsuit. Finds As damages for the breach, the Marion Superior Court did not err in ordering Safway to pay the defense costs NIPSCO incurred in the underlying lawsuit after Safway ceased defending NIPSCO. Also affirm the trial court’s judgment these costs are covered under the ACE-Safway Policy, subject to the applicable deductible. Finds NIPSCO’s attorney fees and costs incurred in bringing this action are not defense costs, but the trial court did not err in ordering Safway to pay them under the fee-shifting provision of the Safway Agreement. Reverses the trial court’s finding that ACE American Insurance Company provided insurance coverage for the attorney fees in this action. Remands for clarification on the sum of damages awarded and for further proceedings consistent with this opinion. Attorneys for appellant/cross-appellee: George Plews, Jeffrey Featherstun, Andrea Townsend, Joanne  Sommers. Attorneys for appellees/cross-appellants: Crystal Rowe, Matthew Ponzi, John Eggum, Lucy  Dollens ,Elizabeth Trachtman, Anthony Steinike, Lora LoCoco, Robert Foos Jr., Michael Giordano.

Indiana Court of Appeals
Zachary A. Lester v. State of Indiana
25A-CR-44
Criminal. Reverses a Blackford Superior Court’s jury’s conviction of Zachary Lester for a Level 6 felony intimidation charge based on a Snapchat message that he sent to a private group. Finds that there was a lack of evidence that Lester communicated the message in a way that indicated an intent to reach the target, if there was one. Also finds that while Lester’s Snapchat message was inappropriate and disturbing, the state did not present sufficient evidence to support a conviction for Level 6 felony intimidation. Attorneys for appellant: John Wright, Brandon Murphy. Attorneys for appellee: Attorney General Todd Rokita, Alexandria Sons.

Indiana Court of Appeals
Bradley Burgess v. The Board of Zoning Appeals for the Town of Utica, Indiana
24A-PL-1819
Civil plenary. Dismisses Bradley Burgess’ appeal of the Clark Superior Court’s order denying his petition for judicial review and affirming the decision of the Board of Zoning Appeals for the town of Utica that denied Burgess a variance of use for his real estate. Finds that Burgess did not timely petition for judicial review of the BZA’s decision and that the trial court erred when it found and concluded that he had timely filed his petition. Attorney for appellant: John Kraft. Attorney for appellee: Rebecca Lockard.

The following opinion was posted after The Indiana Lawyer’s deadline Wednesday:
7^th Circuit Court of Appeals
Jeffrey Lewis v. AbbVie Inc., f/k/a/ Allergan
24-3121
Civil. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Damon Leichty. Affirms the district court’s dismissal of Jeffrey Lewis’ lawsuit against AbbVie, Inc. under the False Claims Act. Finds that because Lewis only complained of regulatory, rather than fraudulent, violations in his internal communications with AbbVie, the company had no reason to think Lewis’s concerns revolved around the False Claims Act. Also finds AbbVie could not have retaliated against Lewis as a fraud whistleblower because he never blew the whistle on fraud. Attorneys for appellant: Ryan Milligan, Peter Hamann. Attorneys for appellee: John Maley, Elizabeth Hess, Brenton Rogers, Philip Cooper.

7^th Circuit Court of Appeals
Karen Moratz v. Reliance Standard Life Insurance Company
24-2825
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard Young. Affirms the district court’s summary judgment order in favor of Reliance Standard Insurance Company against Karen Moratz’s lawsuit under the Employee Retirement Income Security Act of 1974 for her disability coverage claim. Finds Moratz was not eligible for benefits in December 2020, when her first application indicated that she was unable to work. Also finds the additional information that Moratz supplied on appeal constituted information about a separate loss—her inability to work beginning in mid-September 2021—and that is a new claim for benefits, requiring Moratz to complete a separate claim process. Attorney for appellant: Robert Saint. Attorney for appellee: Joshua Bachrach.

Indiana Court of Appeals
Brandon L. Keener v. State of Indiana
24A-CR-1894
Criminal. Affirms Brandon Kenner’s conviction in Allen Superior Court of domestic battery, the revocation of his probation, Keener’s two-and-a-half years sentence for the domestic battery conviction and his suspended sentence being executed for the probation violation. Finds the trial court did not err by ignoring Keener’s meritless personal Criminal Rule 4(B) objections to his Nov. 28 trial date in the battery cause. Also finds Keener’s sentence in the battery cause is not inappropriate under Appellate Rule 7(B), and the trial court did not abuse its discretion by executing Keener’s sentence in the nuisance cause as a sanction for Keener violating his probation. Attorney for appellant: David Joley. Attorneys for appellee: Attorney General Todd Rokita, Andrew Sweet.

Indiana Court of Appeals
City of New Albany v. Ecosystems Connections, LLC, and the Indiana Department of Natural Resources
24A-PL-2969
Civil plenary. Affirms the Floyd Superior Court’s order that affirmed the Natural Resources Commission’s decision to allow Ecosystems Connections Institute to remove the Providence Mill Dam. Finds that based on the record before the administrative law judge and the commission, the commission did not err in finding that no issue of material fact remained that would preclude summary judgment. Attorney for appellant: Matthew McGovern. Attorneys for appellees: Bradley Sugarman, Daniel McInerny ,Jackson Schroeder, Attorney General Todd Rokita, Kathy Bradley.

7^th Circuit Court of Appeals
United States of America v. Earl Miller
23-3324
Criminal. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Jon DeGuilio. Affirms Earl Miller’s sentence in district court to a below-guidelines term of 97 months’ imprisonment after a federal jury convicted Miller, owner of several real-estate investment companies, of wire fraud and securities fraud for stealing millions of dollars from his investors. Finds the district court therefore did not abuse its discretion in its restitution award of $2.3 million. Attorneys for appellant: William Cohen, Jerome Flynn, William Bruce Jr. Attorneys for appellee: David Hollar, Nathaniel Whalen.

Indiana Court of Appeals
In the Matter of the Guardianship of Zachary Graykowski; Members Source Credit Union v. Zachary Graykowski
25A-GU-526
Guardianship. Reverses the Lake Circuit Court’s order finding Members Source Creidt Union in contempt for violating a guardianship order. Finds the trial court abused its discretion by finding that Members Source willfully violated the order. Also finds that given the lack of clarity in the guardianship order and the erroneous letters of guardianship, Members Source did not willfully disobey the court’s order and cannot be held in contempt of court. Attorneys for appellant: Kevin Steele ,Bryan Bott. Attorney for appellee: John Hughes.