Opinions

Indiana Court of Appeals
Dele Omije v. Bethany Whilby-Omije
24A-DR-2217
Domestic relations without children. Affirms Hendricks Superior Court Judge Ryan Tanselle’s order finding Dele Omije in contempt and ordering him to sell a marital asset—a home in California—and equally divide the proceeds from the sale of the home with Bethany Whilby-Omije. Finds that because Omije presented no evidence of the post-dissolution expenses he incurred on the California home, the trial court did not abuse its discretion by failing to credit him for any such expenses. Also finds the trial court did not assign any value to the California home and simply ordered Omije to sell the home and split the proceeds evenly with Whilby-Omije. Attorney for appellant: Julie Camden. No attorney listed for appellee.

Indiana Court of Appeals
Gary D. Bolcerek v. State of Indiana
24A-CR-2232
Criminal. Affirms Gary Bolcerek’s convictions  in Porter Superior Court for Level 2 felony burglary, Level 5 felony criminal recklessness, Level 5 felony battery, Level 5 felony intimidation, Level 6 felony strangulation, and Level 6 felony pointing of a firearm, and also affirm his aggregate 26-year sentence. Reverses Bolcerek’s conviction for Level 6 felony battery. Finds Bolcerek does not present any compelling evidence that portrays the nature of the offenses or his character in a positive light, and the appellate court agrees with the trial court’s assessment of the nature of the offenses and Bolcerek’s character. Also finds that his convictions for Count 3 (Level 5 felony battery) and Count 5 (Level 6 felony battery) violate substantive double jeopardy. Attorney for appellant: James Harper. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Robert Yoke.

Indiana Court of Appeals
Edgar R. Martinez-Orta v. State of Indiana
24A-CR-1456
Criminal. Affirms Edgar Martinez-Orta’s conviction after a Tippecanoe Superior Court bench trial of operating a vehicle with an alcohol concentration equivalent of .15 or more as a Class A misdemeanor and failure to dim headlights as a Class C infraction. Finds the trial court did not abuse its discretion in admitting the blood test results. Also finds the actions of Indiana State Trooper Mitchell McKinney during the traffic stop of Martinez-Orta did not violate the Fourth Amendment, and the state laid a proper foundation for admission of the blood test results. Attorneys for appellant: Bruce Graham, Shay Hughes, Michael Dean, Laura Blaydes. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorneys General Kathy Bradley, Steven Hosler.

Indiana Court of Appeals

Anthony Xavier Carr v. State of Indiana
24A-CR-1599
Criminal. Affirms a Lake County Superior Court’s jury finding Anthony Carr guilty of Brittany Smith’s murder and Judge Salvador Vasquez imposing an aggregate sentence of 68 years in prison. Finds that the trial court did not err in admitting into evidence the detective’s testimony that Carr was the only suspect and the text messages relating to a recent unrelated altercation between Smith and Carr. Also finds here is adequate evidence that Carr murdered Smith. Attorney for appellant: R. Brian Woodward. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Catherine Brizzi.

Indiana Court of Appeals
Norvell Dunem v. State of Indiana
24A-CR-1423
Criminal. Affirms LaPorte Superior Court Judge Jaime Oss’ denial of Norvell Dunem’s motion to suppress all evidence. Finds the police did not violate Dunem’s Fourth Amendment or Article 1, Section 11 rights. Also finds the trial court was right to deny his motion to suppress. Attorney for appellant: Scott King. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorneys General Justin Roebel and Andrew Sweet.

Indiana Court of Appeals
Daniel E. Baker v. State of Indiana
24A-CR-1311
Criminal. Reverses Daniel Baker’s conviction by a Marion Superior Court jury of criminal mischief. Finds the conviction must be vacated as it violates the state’s prohibition on substantive double jeopardy. Also finds that on remand, the trial court should prepare an abstract of judgment and amend the sentencing order and Chronological Case Summary as needed to clearly and correctly reflect the judgment. Attorney for appellant: Peter Laramore. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Daylon Welliver.

Indiana Court of Appeals
Andy Sandoval and The Paradise Properties Land Trust v. Willow Lake Estates Home Owners Association, Inc.
24A-MF-309
Mortgage foreclosure.  Affirms LaPorte Superior Court Judge Jeffrey Thorne’s grant of summary judgment to the Willow Lake Estates Home Owners Association, Inc. and the trial court’s denial of Andy  Sandoval’s motion to correct error. Finds the HOA demonstrated that it was entitled to judgment as a matter of law and that no genuine issues of material fact exist. Also finds the trial court properly granted summary judgment to the HOA and did not abuse its discretion by denying Sandoval’s motion to correct error. Attorney for appellant: Connor Nolan. Attorney for appellee: Bradley Adamsky.

Indiana Court of Appeals
Richard Shaling v. Biomet, Inc., et al.
24A-CT-516
Civil tort. Affirms St. Joseph Circuit Court Judge John Broden’s granting of summary judgment in favor of Biomet, Inc., Biomet Orthopedics, LLC, Biomet U.S. Reconstruction, LLC, and Biomet Manufacturing LLC. Finds that because Richard Shaling did not file his products liability complaint until June 10, 2019—nearly 18 years after the M2 system was implanted in his hip—his action is time-barred. Also finds that the trial court did not abuse its discretion in concluding that Shaling failed to give reasonable notice of his request for application of Alabama law. Attorneys for appellant: Crystal Rowe, Jacob Zigenfus. Attorneys for appellees: Brian Paul, Eldin Hasic, Blake Lehr.

Indiana Court of Appeals
Howard Larky v. Camp Livingston, Inc.
24A-CT-1529
Civil tort. Reverses Switzerland Circuit Court Judge’s W. Gregory Coy’s order allowing Camp Livingston, Inc.  to amend its answer to include a new affirmative defense of release and the granting of summary judgment to the camp. Finds the trial court abused its discretion by granting the camp’s motion to amend its answer to assert the affirmative defense of release more than five years into the litigation. Also finds that even if the late amendment was proper, the trial court erred in granting summary judgment in favor of the camp. Remands for further proceedings. Attorneys for appellant: Carol Joven, Kenneth Doane, Jr., Jeffrey Flores. Attorneys for appellee: Kevin Schiferl, Maggie Smith.

Indiana Court of Appeals
The Charter Oak Fire Insurance Company v. William Dougherty
24A-CT-1064
Civil tort. Affirms Henry Circuit Court Judge Bob Witham’s denial of Charter Oak Fire Insurance Company’s motion for summary judgment and the court’s grant of William Dougherty’s motion for summary judgment on his claim he was entitled to coverage under a commercial vehicle insurance policy his employer had purchased from Charter Oak. Finds Dougherty is entitled to coverage under the plain language of the policy. Attorneys for appellant: Dennis Dolan, Phillip Litchfield. Attorney for appellee: Robert Ebbs, Theresa Ebbs.

Indiana Court of Appeals
WBL SPO II, LLC v. G&I Realty, LLC, et.al.
24A-MF-2353
Mortgage foreclosure. Reverses Dubois Superior Court Judge Anthony Quinn’s entry of a  summary judgment order for G&I Realty LLC and  the court’s denial of WBL’s motion for summary judgment. Finds G&I’s arguments and designations against WBL’s motion for summary judgment do not establish a genuine issue of material fact. Also finds WBL is entitled to summary judgment on its complaint for an in rem judgment and foreclosure against G&I. Remands for further proceedings consistent with the opinion. Attorneys for appellant: Aaron Rodgers, Aaron Cole. Attorneys for appellee: Michael Einterz, Michael Einterz Jr.

Indiana Court of Appeals
Hartford Iron & Metal, Inc. v. August Mack Environmental Inc., et al.
24A-MI-1534
Miscellaneous. Affirms Marion Superior Court Judge James Joven’s dismissal of Hartford Iron’s claims against August Mack Environmental Inc. with prejudice pursuant to Indiana Trial Rule 41(A)(2). Finds the trial court was well within its discretion to dismiss Hartford Iron’s claims with prejudice given August Mack’s substantial litigation costs already incurred, the significant lengthy procedural history on claims that Hartford Iron suddenly represented, its repeated and documented noncompliance with the trial court’s order to initiate arbitration, and the fact that Hartford Iron only filed its notice of voluntary dismissal without prejudice when faced with an impending dismissal with prejudice leaving August Mack subject to future, relentless litigation. Attorney for appellant: Mark Shere. Attorneys for appellees: Todd Relue, Alexandra Pantos, Bradford Moyer, Dennis Cantrell, Scott Harkness, Thomas Bays.

Indiana Court of Appeals
Joseph C. Dickerson Jr. v. Genya Toney and State of Indiana
24A-RS-1492
Reciprocal support. Affirms Marion Circuit Court Magistrate Susan Boatwright’s order that found Joseph Dickerson Jr.’s  child support obligation for A.D.T. did not terminate in 2014 as he thought. Finds the trial court did not abuse its discretion in granting the state’s motion to correct error or denying Dickerson’s Trial Rule 60(B) motion for relief from the Indiana support order. Appellant pro se: Joseph C. Dickerson Jr. Attorneys for intervenor: Attorney General Todd Rokita, Marjorie Lawyer-Smith.

Indiana Court of Appeals

Stephen Turner v. KLS Services LLC

24A-PL-1512

Civil plenary. Affirms Hancock Circuit Court Judge R. Scott Sirk’s judgment in favor of KLS Services in the amount of $66,388.76. Finds Stephen Turner’s failure to pay KLS for the actual costs of constructing the house was a breach of that contract. Also finds any error the trial court might have made in the admission of testimony can only be considered harmless.

Indiana Court of Appeals 

Deshaun Lamont Tharpe v. State of Indiana 

24A-CR-2303

Criminal. Affirms Marion Superior Court Judge Marc Rothenberg’s order to destroy the two handguns seized at the time of Deshaun Tharpe’s arrest. Finds the record is sufficient to prove Tharpe was misusing the handguns. Attorney for appellant: Timothy Burns. Attorneys for appellant: Indiana Attorney General Todd Rokita and Deputy Attorney General J.T. Whitehead.

Indiana Court of Appeals

Georgia Ann Miller v. Trinh Tran M.D., and AllCare Rheumatology LLC

24A-CT-1187

Civil tort. Affirms Hamilton Superior Court Judge David Najjar’s denial of Georgia Miller’s motion in limine and his jury instruction. Finds Miller’s challenge to the motion in limine is waived. While the appellate court does find the former instruction erroneous, it concludes the trial court’s instructions do not constitute reversible error under the circumstances of the case. Attorneys for appellant: Brandon Tate, Ann Marie Waldron and Katherine Piscione. Attorneys for appellees: Kirk Bagrowski and Allison Pulliam.

Indiana Court of Appeals

Marcus A. Minor v. State of Indiana

24A-CR-895

Criminal. Affirms Marcus Minor’s convictions of murder and attempted murder. Finds the imperfections of his trial did not rise to the level of reversible error based on precedent.

Indiana Court of Appeals
Clinton David Collins v. State of Indiana
24A-CR-1233
Criminal. Reverses Clinton Collins’ conviction of Level 2 felony burglary. Affirms Collins’ convictions for Level 5 felony robbery and Class A misdemeanor theft. Finds that Jefferson Circuit Court Judge Donald Mote’s decision was based on its misapprehension of the law and substantial evidence supported giving a proposed jury instruction on residential entry, which is a lesser-included offense of burglary. Remands for retrial on the burglary charge. Also instructs the trial court to reconsider any double jeopardy concerns based on the ultimate resolution of the burglary count and to resolve record inconsistency as to the sentence for theft. Attorney for appellant: Jennifer Joas. Attorneys for appellee: Attorney General Todd Rokita and Supervising Deputy Attorney General Tyler Banks.

Indiana Supreme Court
Willow Haven on 106th Street, LLC v. Hari Nagireddy and Saranya Nagireddy
24S-PL-287
Civil plenary. Reverses Hamilton Superior Court Special Judge Matthew Kincaid’s granting of a preliminary injunction against further construction of a home being developed by Willow Haven on 106th Street, LLC to house up to ten residents with Alzheimer’s disease and dementia. Finds Hari and Saranya Nagireddy did not prove they are likely to win their public-nuisance claim, which alleges that Willow Haven’s proposed land use is illegal because it would violate Carmel’s unified development ordinance. Also finds the ordinance does not list Willow Haven’s type of home as an authorized use. Finally, finds because the trial court did not address the issue whether unspecified provisions of state or federal law nevertheless require the city to allow Willow Haven’s use, its entry of the preliminary injunction was premature and an abuse of discretion. Vacates the preliminary injunction, and remands for further proceedings consistent with the supreme court’s opinion. Attorneys for appellant: Thomas Bedsole, Maggie Smith, Todd Small. Attorneys for appellees: John Higgins, Michael Blinn.

Indiana Court of Appeals
Jacob McGee v. State of Indiana
24A-CR-1312
Criminal. Affirms Jacob McGee’s conviction in Marion Superior Court of Level 5 felony possession of a machine gun for possessing a Glock 22 handgun with a machine-gun conversion device attached to it. Finds that under step one of New York State Rifle & Pistol Ass’n v. Bruen, the Second Amendment does not protect machine guns because they are dangerous and unusual. Also finds that the evidence is sufficient to prove that McGee knew the conversion device made his gun a machine gun. Attorney for appellant: Jan Berg. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Justin Roebel.