Opinions

Court of Appeals of Indiana
James Joseph Zentko v. Cassandra Lynn Zentko (mem. dec.)
23A-DR-1455
Domestic relations. Affirms the Clay Superior Court’s order modifying James Zentko’s obligation to pay college expenses for his child, J.D.Z. Finds the trial court did not err when it modified Zentko’s post-secondary educational expenses obligation to cover the child’s enrollment at Illinois Eastern Community Colleges at Olney. Also finds the trial court did not abuse its discretion when it found the father in contempt and ordered him to pay a portion of mother’s attorney’s fees.

The following 7^th Circuit Court of Appeals opinion was published after IL’s deadline Friday:
United States of America v. David Hueston
23-1057
Appeal from the U.S. District Court for the Northern District of Indiana, Fort Wayne Division. Chief Judge Holly A. Brady.
Criminal. Affirms the judgment of the U.S. District Court for the Northern District of Indiana in its denial of a motion to suppress evidence. Finds the district court reasonably found the detectives’ testimony was credible and because the good-faith exception applied, it correctly denied David Hueston’s motion to suppress evidence. Also finds Hueston failed to present evidence that the issuing judge was not acting in a neutral and detached way.

Court of Appeals of Indiana
Thomas Stone v. State of Indiana
23A-CR-625
Criminal. Affirms Thomas Stone’s convictions of three counts of Level 3 felony rape. Finds that for two of Stone’s rape convictions, as neither is included in the other, they do not constitute violations of double jeopardy principles.

Court of Appeals of Indiana
In Re: The Paternity of V.D.; Brittney Kozenko (Mother) v. Isaac Diaz (Father)
23A-JP-688
Juvenile paternity. Affirms the portion of the Carroll Circuit Court’s order denying mother Brittney Kozenko’s request to relocate to Utah with the parties’ child, but reverses the grant of primary physical custody to father Isaac Diaz. Finds sufficient evidence was presented to support the determination that relocation was not in the child’s best interests. Also finds the trial court clearly erred when it awarded primary physical custody to father. Remands with instructions to enter an order that reflects the trial court’s reconsideration and clarification of that issue and includes a determination regarding what physical custody award is in child’s best interests.

Court of Appeals of Indiana
Jeremy W. Kelly v. State of Indiana
23A-CR-1805
Criminal. Affirms Jeremy W. Kelly’s conviction of Level 2 felony voluntary manslaughter. Finds the Jay Circuit Court did not abuse its discretion when it refused to grant an attorney’s motion to withdraw on the morning of the sentencing hearing.

Indiana Supreme Court
Jennifer Pennington and Joshua Pennington v. Memorial Hospital of South Bend, Inc., d/b/a Beacon Health and Fitness, Spear Corporation, and Panzica Building Corporation
23S-CT-182
Civil tort. Affirms the St. Joseph Superior Court’s summary judgment order for Spear Corporation and Panzica Building Corporation. Reverses summary judgment for Beacon Health and Fitness. Finds Beacon was not entitled to summary judgment on any count, except as to the count regarding the single issue of the level of the water. Also finds some evidence that the risk of harm was foreseeable regarding the injury suffered by Jennifer Pennington, who collided with the corner of a swimming pool wall. Finally, finds the plaintiffs designated no admissible evidence that Spear or Panzica breached their professional duty of care. Remands for trial on all the claims against Beacon.

Court of Appeals of Indiana
Emanuel Jamel England v. State of Indiana (mem. dec.)
23A-CR-1558
Criminal. Affirms the Hamilton Circuit Court’s order for Emanuel England to serve the remaining five years of his previously suspended sentence in the Indiana Department of Correction after he admitted to committing Level 5 felony robbery and consuming marijuana. Finds the trial court did not err by rejecting lesser sanctions or in selecting the most severe sanction for England’s probation violations.

The following 7th Circuit Court of Appeals opinion was posted after IL deadline on Thursday:
United States of America v. Byron Pierson
21-3248
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Jane Magnus-Stinson.
Criminal. Affirms Byron Pierson’s conviction of one count of unlawful possession of a firearm by a felon. Finds the district court did not abuse its discretion in not holding an evidentiary hearing on the proffer letter or in allowing the government to present course-of-investigation evidence.

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.