Opinions

The following opinion was issued on March 31 after The Indiana Lawyer’s deadline. 

Indiana Tax Court
New Cingular Wireless PCS, LLC v. Indiana Department of State Revenue
No. 24T-TA-00004

Tax. Appeal from the Indiana Department of State Revenue. Grants in part and denies in part the parties’ cross-motions for summary judgment. Holds that under Indiana Code § 6-2.5-5-13, the phrase “radio or microwave transmitting or receiving equipment” includes cell phones based on its plain and ordinary meaning, and rejects the Department’s attempt to limit the exemption to central network infrastructure or equipment under the provider’s custody and control; the court further concludes New Cingular qualifies as the “person acquiring the property” for purposes of the exemption because the relevant acquisition is its purchase of the phones from suppliers, making its use of the phones exempt from use tax, but denies summary judgment on the refund amount due to unresolved factual issues. Judge McAdam authored the opinion. Petitioner’s attorney: Benjamin Blair, Faegre Drinker Biddle & Reath LLP, Indianapolis, Indiana. Respondent’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Travis S. Chandler v. State of Indiana
No. 25A-CR-2553

Criminal. Appeal from the Brown Circuit Court, Judge Mary Wertz. Affirms the denial of Chandler’s petition to file a belated appeal and remands with instructions to permit a belated notice of appeal. Holds the trial court did not abuse its discretion in denying relief under Post-Conviction Rule 2 because belated appeals are not available for probation revocation orders under controlling Indiana Supreme Court precedent; however, concludes extraordinarily compelling reasons justify resurrecting Chandler’s forfeited appeal where he timely communicated his desire to appeal, the failure resulted from counsel not hearing him, and he acted diligently once the issue was discovered. Judge Felix authored the opinion. Judges May and Mathias concur. Appellant’s attorney: Kurt A. Young, Nashville, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Nicole Olbera, et al. v. Tiara Sykes
No. 25A-JP-2005

Juvenile. Appeal from the Marion Superior Court, Magistrate Daun A. Weliever. Reverses and remands with instructions. Holds the trial court erred in dismissing Demaj Baker’s paternity petition and in determining Sykes was the child’s legal parent because, although the marital presumption applied to Sykes as a same-sex spouse, that presumption is rebuttable and Baker presented clear and convincing evidence rebutting it by establishing his biological parentage and the absence of any enforceable sperm donor agreement relinquishing his parental rights; the court further concludes the trial court improperly treated the presumption as a rule of parentage rather than a rebuttable presumption. Judge DeBoer authored the opinion. Judges Brown and Altice concur. Appellants’ attorneys: Thomas Roberts, Roberts Law, Noblesville, Indiana; Georgia Dunkerley, Harshman Ponist Smith & Rayl, Indianapolis, Indiana. Appellee pro se: Tiara Sykes.

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Indiana Court of Appeals
Munster Medical Research Foundation, Inc. v. Melodyann Clark, Individually and as Personal Representative of the Estate of Terry F. Clark Jr., Deceased
No. 25A-CT-1827

Civil. Interlocutory appeal from the Lake Superior Court, Judge Calvin D. Hawkins. Affirms in part, reverses in part and remands. Holds the trial court did not abuse its discretion by ordering the hospital to answer the Estate’s requests for admissions because the requests were not ambiguous, were properly used to narrow issues for trial and were proportional to the needs of the case; also concludes the hospital’s objections — including claims of improper purpose and burden — were not substantially justified. However, concludes the trial court erred in awarding attorney fees and expenses without first providing an opportunity for a hearing as required by Trial Rule 37, and that the error was not harmless because the hospital was denied a meaningful opportunity to challenge the amount and reasonableness of the fees. Judge Felix authored the opinion. Judges Brown and Scheele concur. Appellant’s attorney: Adam J. Sedia, Johnson & Bell, P.C., Crown Point, Indiana. Appellee’s attorney: Daniel B. Vinovich, Hilbrich Cunningham Dobosz Vinovich & Sandoval, LLP, Highland, Indiana.

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Indiana Court of Appeals
Robert Bruce Cole v. State of Indiana
No. 25A-CR-1996

Criminal. Appeal from the Tippecanoe Superior Court, Judge Steven P. Meyer. Affirms Cole’s conviction for Level 4 felony child molesting and habitual offender enhancement. Holds the trial court did not abuse its discretion in admitting the victim’s forensic interview under the Protected Person Statute after finding the victim was unavailable due to serious emotional distress that would prevent him from reasonably communicating if required to testify in Cole’s presence; the court also concludes Cole waived his specific challenge to the unavailability finding by failing to raise it at trial. Chief Judge Tavitas authored the opinion. Judges Weissmann and Foley concur. Appellant’s attorney: Bruce W. Graham, Graham Law Firm P.C., Lafayette, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Michael C. Davis v. State of Indiana
No. 25A-CR-1132

Criminal. Appeal from the Floyd Superior Court, Judge Jason M. Mount. Affirms the trial court’s revocation of Davis’s probation and order that he serve 2,502 days of his previously suspended sentence. Holds the trial court did not err in concluding Davis waived his right to counsel by his conduct, where he repeatedly engaged in dilatory, obstructive behavior, caused multiple attorneys to withdraw, refused to cooperate with evaluations and was repeatedly warned of the consequences of his actions; also concludes the trial court did not abuse its discretion in revoking probation, as the State proved by a preponderance of the evidence that Davis violated conditions prohibiting contact with minors and presence at a park, and the sanction was supported by the nature of his underlying offenses. Judge Mathias authored the opinion. Judges May and Felix concur. Appellant’s attorney: R. Patrick Magrath, West Sixth Law, Madison, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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The following opinion was issued on March 19 after The Indiana Lawyer’s deadline. 

Indiana Supreme Court
In the Matter of the Honorable J. Steven Cox
No. 25S-JD-80

Judicial discipline action. Publicly reprimands Cox and permanently bans him from judicial service. Holds Cox committed egregious judicial misconduct by engaging in and relying on ex parte communications with a criminal defendant and independently investigating facts outside the record, violating multiple Rules of Judicial Conduct, and concludes the misconduct — combined with prior discipline — warrants the most severe available sanction despite Cox no longer holding office; declines to resolve whether Cox’s blanket policy rejecting plea agreements independently violated the Code. Per curiam opinion. Chief Justice Loretta H. Rush concurs. Justice Derek R. Molter concurs with separate opinion in which Justice Mark S. Massa and Justice Geoffrey G. Slaughter join. Molter concurred in the sanction and in finding misconduct based on ex parte communications but declined to join the conclusion that Cox’s categorical rejection of certain plea agreements violated the Code of Judicial Conduct. He reasoned the issue was unsettled, the Commission may not have met its burden of proof, and categorical plea policies are not uncommon, raising concerns about disciplining judges without clearer guidance. Molter concluded the court should leave that question for resolution through direct appellate review or other procedural avenues rather than judicial discipline. Justice Christopher M. Goff did not participate. Respondent’s attorneys: Garrett R. Bascom, Jefferson C.M. Kisor, Bascom & Kisor, LLC, Lawrenceburg, Indiana. Attorneys for Indiana Commission on Judicial Qualifications: Adrienne L. Meiring, Stephanie K. Bibbs, Victoria H. Thomas, Mark R. Conner, Indianapolis, Indiana.

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Indiana Court of Appeals
Keenah Taylor v. State of Indiana
No. 25A-CR-2032

Criminal. Appeal from the Marion Superior Court, Judge Angela Dow Davis. Affirms Taylor’s convictions for Level 3 felony rape, Level 5 felony robbery and Level 5 felony criminal confinement, reverses the denial of pretrial good time credit and remands with instructions to award that credit. Holds the trial court properly admitted the victim’s deposition and statements to law enforcement under the forfeiture by wrongdoing doctrine because Taylor’s repeated jail calls instructing the victim not to appear caused her unavailability, and concludes Taylor forfeited his confrontation rights under both the Sixth Amendment and Indiana Constitution; also concludes sufficient evidence supports the rape conviction because the victim was compelled by force or threat of force, but determines the trial court erred by denying pretrial good time credit without the statutorily required hearing and the State waived the issue by failing to request one. Chief Judge Tavitas authored the opinion. Judges Weissmann and Foley concur. Appellant’s attorney: Jan B. Berg, Indianapolis, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Demarcus Solvontez Davis v. State of Indiana
No. 25A-CR-622

Criminal. Appeal from the Madison Circuit Court, Judge Angela Warner Sims. Affirms Davis’s convictions for murder and Level 3 felony robbery and his 96-year sentence. Holds Davis preserved appellate review of the trial court’s joinder decision by objecting to the State’s motion, but failed to demonstrate either an abuse of discretion or resulting prejudice, and further concludes the trial court did not err in denying his Batson challenge, no fundamental error occurred in the prosecutor’s rebuttal argument, and sufficient evidence supported the convictions, including text messages planning a robbery, surveillance video and physical evidence; the court also concludes Davis’s sentence is not inappropriate in light of the nature of the offenses and his character. Judge Mathias authored the opinion. Judges Vaidik and Pyle concur. Appellant’s attorney: Joshua Cumming, SDHMR Law Group, Noblesville, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
John Merchant v. Katz, Sapper & Miller, LLP
No. 25A-PL-1713

Civil. Interlocutory appeal from the Marion Superior Court, Judge James A. Joven. Affirms the trial court’s dismissal of Merchant’s claims for negligence and breach of fiduciary duty against Katz, Sapper & Miller, LLP. Holds the trial court properly granted the motion to dismiss because KSM owed no duty to Merchant, as there was no privity between them and Indiana law limits professional liability to clients or third parties known to rely on the professional’s work; the court also denies KSM’s request for appellate attorney’s fees, concluding Merchant’s appeal, while unsuccessful, was not frivolous or brought in bad faith. Judge Bradford authored the opinion. Judges Weissmann and DeBoer concur. Appellant’s attorney: Paul L. Jefferson, SLS Group, LLC, Carmel, Indiana. Appellee’s attorneys: Jayna M. Cacioppo, Vivek R. Hadley, Taft Stettinius & Hollister LLP, Indianapolis, Indiana.

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Indiana Court of Appeals
Norfolk Southern Railway Company v. Scott Sporner
No. 25A-CT-1138

Civil. Appeal from the Elkhart Superior Court, Judge Christopher J. Spataro. Affirms the denial of Norfolk Southern’s motion to correct error following a jury verdict finding the railroad liable under the Federal Employers’ Liability Act, or FELA, for injuries sustained by employee Scott Sporner in a train collision at a railyard and awarding $8.2 million in damages, with the railroad responsible for $4.92 million after fault was apportioned 60% to the railroad and 40% to Sporner. Holds the Federal Railroad Safety Act does not preclude a FELA negligence claim based on a railroad’s use of a one-person remote-control locomotive crew even if federal regulations permit such crews, concluding the statutes are complementary and do not bar the claim; also concludes the railroad was not entitled to judgment on the evidence regarding future lost wages because testimony from a vocational rehabilitation expert, an economist and medical evidence of permanent neurological symptoms provided sufficient evidentiary support for the jury’s award. Judge Foley authored the opinion. Judges May and Altice concur. Appellant’s attorneys: Barry L. Loftus, James F. Olds, Stuart & Branigin LLP, Lafayette, Indiana; Tobias S. Loss-Eaton, Charles W. Jetty, Sidley Austin LLP, Washington, D.C. Appellee’s attorneys: Gabriel A. Hawkins, Cohen & Malad, LLP, Indianapolis, Indiana; George Brugess, Cogan & Power, PC, Chicago, Illinois; Mark A. Psimos, Nathan M. Psimos, Psimos Law, Merrillville, Indiana.

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Indiana Court of Appeals
Bruce Mendenhall v. State of Indiana
No. 25A-CR-775

Criminal. Appeal from the Marion Superior Court, Judge Angela Dow Davis. Affirms Mendenhall’s murder conviction and 65-year sentence. Holds the evidence was sufficient to establish Indiana had territorial jurisdiction because a reasonable inference from the evidence was that the victim was killed at an Indianapolis truck stop before Mendenhall drove south on Interstate 65, rather than being kept alive until reaching Kentucky where her remains were later found; also concludes the trial court did not err in admitting evidence obtained during a Tennessee search of Mendenhall’s semi-truck because the Indiana constitutional protections described in Pirtle v. State did not apply where the Tennessee officer obtained consent to search while investigating a Tennessee matter and had no knowledge an Indiana crime was involved. Judge Vaidik authored the opinion. Judges Bradford and Altice concur. Appellant’s attorney: Casey Farrington, Marion County Public Defender Agency. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Brandon Lamont French v. State of Indiana
No. 25A-CR-1906

Criminal. Appeal from the Marion Superior Court, Judge Jennifer Prinz Harrison. Reverses French’s five convictions of Class A misdemeanor invasion of privacy and vacates the convictions. Holds the State presented insufficient evidence that French violated the no-contact order because the order prohibited contact with the victim only “while released from custody pending trial,” and all alleged contacts occurred while French was incarcerated in the Marion County Jail. Concludes that although French communicated with the victim through electronic messages, phone calls and intermediaries while jailed, those actions did not violate the express terms of the order. Judge May authored the opinion. Judges Felix and Weissmann concur. Appellant’s attorney: Peter Laramore. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Zachary Matthew Loveless v. State of Indiana
No. 25A-CR-1794

Criminal. Appeal from the Hancock Superior Court, Judge Dan E. Marshall. Judge May writes that the court affirms the trial court’s denial of Loveless’s motion to correct error seeking additional credit time after his probation was revoked. Holds Loveless was not entitled to credit toward his Hancock County sentence for time he spent incarcerated in the Marion County and Hamilton County jails because those periods of confinement were connected to separate criminal matters in those counties rather than the Hancock County case. Further holds that under the applicable test for credit time, confinement must result from the charge for which the sentence was imposed, and Loveless’s out-of-county confinement was attributable to other cases. Notes that although the credit time does not apply to the Hancock County sentence, Loveless may seek appropriate credit in the other jurisdictions where the confinement occurred. Judges Altice and Foley concur. Appellant’s attorney: Katherine D. Jack. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Folabi Oshinubi, Denzel Lewis and Clarence White v. Reiling Teder & Schrier, LLC
No. 25A-CT-940

Civil. Appeal from the Tippecanoe Circuit Court, Judge Sean M. Persin. Judge Mathias writes that the court affirms the trial court’s entry of summary judgment for Reiling Teder & Schrier, LLC on the tenants’ claims under the federal Fair Debt Collection Practices Act, or FDCPA. Holds the law firm established a prima facie entitlement to summary judgment by designating evidence that it acted in good-faith reliance on the landlord’s representations that he had sent the tenants the required statutory 45-day notice itemizing damages before attempting to collect repair costs. Further holds that once the firm made that showing, the burden shifted to the tenants to designate evidence or legal authority demonstrating a genuine issue of material fact, which they failed to do after not responding to the summary-judgment motion and failing to address the firm’s good-faith theory on appeal. Concludes the tenants did not demonstrate that the firm’s actions violated the FDCPA and therefore the trial court properly entered summary judgment for the firm. May and Felix concur. Appellants’ attorney: Duran L. Keller. Appellee’s attorneys: Crystal G. Rowe; Jacob W. Zigenfus; Nicholas W. Levi.

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The following opinion was issued on March 3 after The Indiana Lawyer’s deadline. 

United States Court of Appeals for the Seventh Circuit
Elizabeth Chitwood v. Ascension Health Alliance, d/b/a Ascension
No. 25-1933

Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, Judge Richard L. Young. Circuit Judge Taibleson writes that the court affirms the district court’s grant of summary judgment for Ascension Health Alliance on the employee’s claims of interference with and retaliation for the exercise of rights under the Family and Medical Leave Act. Holds the employee could not establish FMLA interference because she attempted to retroactively report intermittent FMLA leave only after her employment had already been terminated and failed to comply with notice requirements requiring same-day reporting of intermittent leave and notification to her supervisor as soon as practicable. Further holds the retaliation claim fails because the record shows the employer terminated her for failing to return to work after her approved continuous FMLA leave expired, not because of her use of FMLA leave. Concludes that evidence of internal emails discussing concerns about possible FMLA abuse did not demonstrate pretext or discriminatory intent, as the employer consistently relied on the employee’s failure to return to work as the basis for termination.

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This opinion was issued on March 2 after The Indiana Lawyer’s deadline. 

U.S. Court of Appeals for the Seventh Circuit
Crothersville Lighthouse Tabernacle Church, Incorporated v. Church Mutual Insurance Company, S.I.
No. 22-1082

Civil. Appeal from the United States District Court for the Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt. Circuit Judge Sykes writes that the court affirms the district court’s entry of summary judgment for Church Mutual Insurance Company in this insurance dispute over replacement-cost benefits following a fire at the Lighthouse Tabernacle Church. Holds that Lighthouse Tabernacle waived its argument that it was relieved of its contractual obligation to repair or replace the damaged property as a condition to receiving additional replacement-cost payments by failing to raise that argument in response to the summary-judgment motion, and that forfeited arguments in civil cases rarely warrant plain-error review absent extraordinary circumstances. Concludes that because the church chose which arguments to present and did not raise its new legal theory on appeal in a timely manner — which was based on state appellate precedent — it cannot now obtain relief under civil plain-error doctrine, and that the judgment for Church Mutual must be affirmed. Brennan, C.J., and Hamilton, J., concur. Appellant’s attorney: Jason M. Smith. Appellee’s attorneys: Todd D. Small, John B. Drummy.

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Indiana Court of Appeals
Renaissance Associates I L.P., Jonathan Petersen, and Austin Bertrand, Inc. v. City of Hammond, Indiana
No. 24A-PL-2312

Civil. Appeal from the Lake Superior Court, Judge Calvin D. Hawkins. Affirms the trial court’s denial of the landlords’ motion for summary judgment and grant of the City of Hammond’s cross-motion for summary judgment in an action seeking refunds of 2015 rental registration fees paid before legislative amendments disqualified Hammond from a statutory fee exemption. Senior Judge Robb writes that although the legislature amended Indiana Code section 36-1-20-1.2 in 2015 — with a retroactive effective date of Jan. 1, 2015 — to redefine “rental registration or inspection program” in a manner that removed Hammond from the fee exemption, the amendment did not create a refund obligation for fees lawfully collected before enactment. Holds the definitional amendment was not remedial and does not operate retroactively to require repayment, emphasizing the statute contains no express refund mechanism and that fees were required to be maintained in a dedicated fund for program costs. Further holds that under Armour v. City of Indianapolis, there is a rational basis for treating landlords who paid without protest differently from those who withheld payment or protested, noting administrative burdens and funding concerns associated with issuing refunds. Concludes Hammond did not commit a tort by collecting the fees under then-existing law and that absent explicit statutory language mandating refunds, the city is entitled to judgment as a matter of law. May, J., and Brown, J., concur. Appellants’ attorneys: David W. Stone IV; Jonathan D. Petersen. Appellee’s attorneys: Bryan H. Babb; Bradley M. Dick.

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Indiana Court of Appeals
Krista B. Gue v. Triple E Property Management, LLC, and M.C. Berber, LLC
No. 25A-CT-832

Civil. Appeal from the Marion Superior Court, Judge James A. Joven. Affirms in part, reverses in part and remands. Holds the trial court properly denied Triple E Property Management’s motion for summary judgment on the tenant’s claim of negligent hiring, retention and supervision, concluding genuine issues of material fact exist regarding the adequacy of the company’s background screening and whether it had reason to know of the need to control its employee. Further holds the trial court erred in granting summary judgment to Triple E on the tenant’s respondeat superior claims for invasion of privacy and intentional or reckless infliction of emotional distress, determining reasonable jurors could find the employee’s conduct — rummaging through the tenant’s bedroom and sniffing her underwear while present to perform plumbing repairs — arose from activities closely associated with his authorized work and therefore fell within the scope of employment. Concludes, however, that landlord M.C. Berber, LLC is not vicariously liable under the non-delegable duty doctrine, because the employee’s conduct did not breach the landlord’s statutory duty to maintain plumbing in safe working order and did not violate the lease’s covenant of quiet enjoyment, where there was no unlawful entry or interference with the tenant’s possessory interest. Appellant’s attorney: Neal F. Eggeson Jr. Appellees’ attorneys: Jynell D. Berkshire; Tammy J. Meyer; Kenneth A. Ewing.

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