Opinions

Court of Appeals of Indiana
Parimala Kumaresan v. Arul Anthony George (mem. dec.)
23A-DC-1304
Domestic relations with children. Affirms the Bartholomew Superior Court’s dissolution order awarding Parimala Kumaresan and Arul Anthony George joint legal custody of their two children and an equal division of the marital estate. Finds the trial court did not abuse its discretion in awarding joint legal custody of the children to the parents. Also finds the trial court did not abuse its discretion in finding the SBI bank account to be a vested interest or in valuing Kumaresan’s interest in the account as the full value of the account. Finally, finds the trial court did not abuse its discretion when it determined that an equal division was just and reasonable.

The following 7^th Circuit Court of Appeals opinion was published after IL deadline on Tuesday:
United States of America v. Sergio Gamez
22-2278
Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Judge Jon E. DeGuilio.
Criminal. Vacates Sergio Gamez’s 15-year mandatory minimum federal sentence under the Armed Career Criminal Act for arson. Finds a conviction under Indiana’s 2002 arson statute does not constitute a “violent felony” within the meaning of 18 U.S.C. § 924(e), so Gamez’s arson conviction does not qualify as a crime of violence. Remands for resentencing.

Tuesday opinions
Indiana Supreme Court
Expert Builders, LLC v. Paul Vangundy
23S‐PL‐171
Civil plenary. Affirms the St. Joseph Superior Court’s default judgment for Paul Vangundy, due to Expert Pool Builders LLC not filing a timely response to Vangundy’s complaint. Finds nothing in the trial court’s decision is unlawful, illogical or unreasonable, and the default judgment did not come at the expense of professionalism, civility or common courtesy.

Court of Appeals of Indiana
Brandon Lee Kendall v. State of Indiana
23A-CR-1473
Criminal. Affirms Brandon Lee Kendall’s convictions for Level 6 felony identity deception. Finds that the crime of false informing is distinguishable from identity deception and thus there is no Article 1, Section 16 violation. Also finds the state presented evidence of a probative nature from which a reasonable trier of fact could find Kendall guilty of identity deception and it cannot state the state’s exhibit 2 was not relevant or that the probative value of the exhibit was substantially outweighed by the danger of unfair prejudice.

Court of Appeals of Indiana
Matthew A. Disbro v. City of Bedford (mem. dec.)
23A-PL-1454
Civil plenary. Affirms the Lawrence Circuit Court’s grant of the city of Bedford’s motion to dismiss a complaint filed by Matthew Disbro. Finds the trial court did not err when it dismissed Disbro’s complaint because he did not substantially comply with the Indiana Torts Claim Act, he failed to meet his burden on appeal to demonstrate that his public nuisance claim does not fall under the ITCA, and he failed to preserve any claim regarding the takings clause.

Court of Appeals of Indiana
Professional Construction Inc., and West Bend Mutual Insurance Company v. Historic Walnut Square LLC
23A-PL-654
Civil plenary. Reverses the Marion Superior Court’s denial of Professional Construction Inc. and West Bend Mutual Insurance Company’s motion to enforce an arbitration agreement and stay litigation in a lawsuit brought by Historic Walnut Square, LLC. Finds the trial court erred in determining that the contractor waived its right to demand arbitration and in refusing to stay the proceedings pending arbitration. Remands with instructions for the trial court to stay the litigation pending arbitration.

The following Indiana Tax Court opinion was published after Indiana Lawyer’s deadline Friday:
Muir Woods Section One Assn., Inc., Muir Woods, Inc., Spruce Knoll Homeowners Assoc., Inc., and Oakmont Homeowners Assoc., Inc. v. Marion County Assessor
22T-TA-1
Tax. Grants the Marion County Assessor’s motion to dismiss. Finds the Indiana Tax Court lacks subject matter jurisdiction to hear the appeal. Also finds the Muir Woods Section One Assn., Inc., Muir Woods, Inc., Spruce Knoll Homeowners Assn., Inc. and Oakmont Homeowners Assoc. initiated an appeal before they consummated the administrative review process and received a final determination from the Indiana Board of Tax Review. Remands the matter to the tax review board for action consistent with the opinion.

Court of Appeals of Indiana
Justin Mercer v. Maribel Vega-Jimenez (mem. dec.)
23A-DC-993
Domestic relations with children. Affirms the Newton Superior Court’s order granting Maribel Vega-Jimenez’s request to modify parenting time. Finds the trial court did not abuse its discretion because it implicitly found modification was in the children’s best interests when it indicated Vega-Jimenez met her burden to modify the parenting time schedule.

Court of Appeals of Indiana
Lake Imaging LLC v. Franciscan Alliance Inc. f/d/b/a Saint Margaret Mercy Health Care Centers
22A-CT-2783
Civil tort. Affirms the Johnson Superior Court’s summary judgment on remand in favor of Franciscan Alliance Inc. f/d/b/a Saint Margaret Mercy Health Care Centers on its claim from Lake Imaging’s contract to provide radiology services. Finds the trial court properly declined to apply the Professional Services Statute’s two-year statute of limitations period and properly entered summary judgment in favor of Franciscan on its indemnification claim.

Court of Appeals of Indiana
Lacey Ann Murphy v. William Cook
23A-SC-1614
Small claims. Reverses the denial of Lacey Ann Murphy’s Motion to Set Aside Body Attachment. Finds the requirements of Indiana Trial Rule 64(A) were not satisfied and the body attachment was expired. Remands with instructions to grant Murphy’s motion.

Court of Appeals of Indiana
Gerard M. Dierckman v. Sandra E. Dierckman
22A-DN-2801
Domestic relations, no children. Affirms the final dissolution order as it relates to the marital property. Finds the Decatur Circuit Court’s findings challenged by husband Gerard M. Dierckman are supported by the evidence and/or are not contrary to law. Also finds the trial court did not abuse its discretion by valuing the farm and its income as of the end of 2020/beginning of 2021, nor did it err in valuing the farm inventory, accounts receivable and marital debt as of the date of the dissolution petition in December 2019. Finally, finds the trial court acted within its discretion when it decreased wife Sandra E. Dierckman’s equalization payment by the amount she paid Gerard for her personal expenses while the dissolution was pending.

Courts of Appeals of Indiana
Aaron Isby v. Richard Brown and Robert Carter Jr. (mem. dec.)
23A-MI-76
Miscellaneous. Affirms the denial of Aaron Isby’s petition for writ of habeas corpus. Finds Isby is not entitled to relief for discovery issues because he failed to avail himself of procedures set forth in trial rules and did not provide cogent reasoning supporting a discovery-related due process claim. Also finds Isby did not demonstrate that the Miami Circuit Court erred in denying the habeas petition.

Court of Appeals of Indiana
Cameron O’Brien Wade v. State of Indiana (mem. dec.)
23A-CR-274
Criminal. Affirms Cameron O’Brien Wade’s convictions of Level 5 felony domestic battery, Level 6 felony criminal confinement, Class A misdemeanor interference with the reporting of a crime and Class B misdemeanor disorderly conduct. Finds the Noble Circuit Court did not abuse its discretion by admitting evidence pursuant to a stipulation.

Court of Appeals of Indiana
BMI Properties, LLC v. Daewoong, LLC; Tabor/Bruce Architecture & Design, Inc.; Building Associates, Inc.; and Edwards Masonry, Inc.
23A-PL-988
Civil plenary. Reverses the Monroe Circuit Court’s order granting summary judgment in favor of Tabor/Bruce Architecture & Design Inc., Building Associates Inc. and Edwards Masonry Inc. Finds that neither the acceptance rule nor the economic loss rule entitles the defendants to summary judgment. Remands to the trial court for further proceedings.

Court of Appeals of Indiana
In the Matter of the Paternity of A.J.L.B., a Minor by his next friend Grisel Bonilla Lemus v. Jaime Lazo Alvarenga
23A-JP-1436
Juvenile paternity. Reverses the denial of mother Grisel Bonilla Lemus’ motions to correct error and to amend the pleadings to conform to the evidence seeking to amend the paternity petition to add a request for the findings required for special immigrant juvenile status. Finds the requested SIJ findings were before the Bartholomew Superior Court, so the court abused its discretion by denying the motion to correct error and the motion to amend the pleadings. Remands with instructions to grant the motions, allow amendment of the petition and amend the judgment to include the requested findings.

Court of Appeals of Indiana
Charles Jennings v. Jessica A. Smiley and Progressive Southeastern Insurance Company
23A-CT-303
Civil tort. Affirms the jury verdict finding Charles Jennings 99% at fault and Jessica Smiley 10% at fault after Smiley struck Jennings with her car while he was crossing the street, and the subsequent judgment in favor of Smiley. Finds the Hamilton Superior Court did not abuse its discretion in denying Jennings’ motion to compel.

Court of Appeals of Indiana
Thomas Owens v. State of Indiana
23A-CR-985
Criminal. Affirms Thomas Owen’s conviction of Level 5 felony battery by means of a deadly weapon. Finds the Marion Superior Court didn’t err in denying Owen’s motion to supplement the record. Also finds the trial court properly instructed the jury on elements of the charge and the state presented sufficient evidence of the victim’s identity and the use of a deadly weapon.

Court of Appeals of Indiana
Mark A. Goodlett v. Town of Clarksville and Town of Clarksville Fire Department (mem. dec.)
23A-CT-460
Civil tort. Affirms the Town of Clarksville Board of Police and Fire Commissioners’ decision to terminate Mark A. Goodlett. Finds the board properly exercised its authority under Indiana Code § 36-8-3-4 and the departments general orders, so its decision to terminate Goodlett for neglect of duty, immoral conduct, conduct unbecoming an officer, violations of department rules and breaches of discipline was not arbitrary and capricious and did not otherwise violate Goodlett’s due process rights.

7th Circuit Court of Appeals
Heather Tutwiler v. Kilolo Kijakazi, Acting Commissioner of Social Security
22-2808
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Senior Judge William C. Lee.
Civil. Affirms the district court’s order affirming the denial of benefits for Heather Tutwiler. Finds the administrative law judge’s decision was supported by substantial evidence and was not otherwise contrary to law.

Court of Appeals of Indiana
De’Torio Ty Lurentus Berneard Fleming v. State of Indiana (mem. dec.)
22A-CR-2741
Criminal. Affirms De’Torio Ty Lurentus Berneard Fleming’s convictions of felony murder and Level 3 felony armed robbery and his aggregate 64-year sentence. Finds the Madison Circuit Court did not abuse its discretion when it admitted a photograph of Fleming’s hands taken during the trial into evidence. Also finds the trial court did not abuse its discretion when it sentenced Fleming.