Opinions

Court of Appeals of Indiana
Marion Superior Court Probation Department v. Cheryl Trapuzzano and Jennifer Trapuzzano, as Co-Personal Representatives of the Estate of Nathan Trapuzzano, Deceased
23A-CT-61
Civil tort. Reverses the denial of the Marion Superior Court Probation Department’s motion for summary judgment regarding claims brought by Cheryl and Jennifer Trapuzzano, as co-personal representatives of the Estate of Nathan Trapuzzano. Finds the probation department has quasi-judicial immunity from liability for the estate’s claims. Remands.

Court of Appeals of Indiana
Herman O. Fritz v. State of Indiana
22A-CR-2340
Criminal. Affirms and reverses in part Herman O. Fritz’s convictions of Level 6 felony possession of methamphetamine, Class A misdemeanor resisting law enforcement, Class A misdemeanor possession of marijuana with a prior conviction and Class C misdemeanor possession of paraphernalia. Finds the Elkhart Superior Court did not abuse its discretion in the admission of evidence seized from a pat-down search and subsequent search incident to Fritz’s arrest. Also finds the state failed to present sufficient evidence to sustain Fritz’s possession-of-marijuana conviction. Remands with instructions for the trial court to vacate Fritz’s conviction and sentence for the Class A misdemeanor possession-of-marijuana conviction.

Thursday opinions
Court of Appeals of Indiana
Laurie Gardner v. Anonymous Physician
23A-CT-345
Civil tort. Reverses the Lake Superior Court’s order dismissing Laurie Gardner’s medical malpractice complaint against Anonymous Physician based on Indiana Trial Rule 12(B)(1) for lack of subject-matter jurisdiction. Finds that while Gardner may not proceed against Anonymous Physician based on his treatment of another patient or his actions as a medical director at the hospital, she may pursue a medical malpractice action related to any treatment she received from Anonymous Physician for her workplace injury. Remands for further proceedings.

Court of Appeals of Indiana
In the Matter of the Adoptions of S.S. and A.S. M.S. (Mother) v. Dr.S. and De.S. (mem. dec.)
23A-AD-1237
Adoption. Reverses the issuance of an adoption decree for mother M.S.’s two children. Finds the issuance of the Decree of Adoption was premature. Also finds the Morgan Superior Court did not err in concluding that adoptive grandparents Dr.S. and De.S. proved by clear and convincing evidence that for at least one year, M.S. failed without justifiable cause to communicate significantly with the children when able to do so. Remands.

Court of Appeals of Indiana
Brandon E. Klein v. Leanne Salatas (mem. dec.)
23A-DR-1640
Domestic relations. Affirms Lake Superior Court’s denial of Brandon Klein’s motion to set aside the default judgment entered against him on pending motions in the child custody proceeding. Finds the trial court did not abuse its discretion when it denied Klein’s Trial Rule 60(B) motion. Also finds father should have pursued a direct appeal from the trial court’s denial of his motion to correct error.

Court of Appeals of Indiana
Dustin J. McKee v. State of Indiana (mem. dec.)
23A-CR-549
Criminal. Affirms Dustin McKee’s conviction for murder and aggregate 83-year sentence in the Elkhart Circuit Court. Finds any instructional error was invited. Also finds the evidence is sufficient to rebut McKee’s claim of self-defense and to negate sudden heat. Finally, finds his aggregate sentence is not inappropriate.

Indiana Supreme Court
In the Matter of Theodore E. Rokita
23S-DI-258
Attorney discipline. Publicly reprimands Indiana Attorney General Todd Rokita for violating Indiana Professional Conduct Rules 3.6(a) and 4.4(a) by making an extrajudicial statement that had a substantial likelihood of materially prejudicing an adjudicative proceeding and had no substantial purpose other than to embarrass or burden Dr. Caitlin Bernard. The costs of the proceeding, $250, are assessed against Rokita. Chief Justice Loretta Rush and Justice Christopher Goff dissent without separate opinion, finding the discipline too lenient based on Rokita’s position and the scope and breadth of the admitted misconduct.

Court of Appeals of Indiana
Frank Garber v. Robert Blair (mem. dec.)
23A-CT-953
Civil tort. Affirms the judgment in favor of Frank Garber on his counterclaim against Robert Blair in which Garber sought to foreclose on Blair’s mortgage and recover damages for breach of contract. Finds Garber has not shown any error in the Kosciusko Circuit Court awarding him $100,200 plus $5,000 in attorney fees.

Indiana Supreme Court
State of Indiana v. $2,435 in United States Currency and Alucious Q. Kizer
23S-CR-72
Criminal. Affirms the Allen Circuit Court’s order vacating its previous order granting the state’s motion to strike Alucious Kizer’s demand for a jury trial. Finds a claimant in an action brought under Indiana’s civil forfeiture statute has a constitutional right to trial by jury. Remands for a jury trial.

Court of Appeals of Indiana
Jennifer L. Dean v. State of Indiana
22A-CR-2104
Criminal. Affirms Jennifer Dean’s conviction of felony murder and her 60-year sentence. Finds the Carroll Circuit Court’s remark endorsing an 80% certainty as a description of the reasonable doubt standard was improper but does not rise to the level of fundamental error. Also finds sufficient evidence supports Dean’s conviction. Finally, finds her sentence is not inappropriate.

Court of Appeals of Indiana
Louis J. Kalozi v. State of Indiana
22A-CR-2797
Criminal. Affirms the Lake Superior Court’s denial of Louis Kalozi’s motion to dismiss two counts of sexual misconduct with a minor. Finds Indiana’s double jeopardy statute does not bar Kalozi’s state prosecution, even though he pleaded guilty in his federal case and received a 15-year aggregate sentence. Remands for further proceedings.

Court of Appeals of Indiana
D.M. v. State of Indiana
23A-JV-395
Juvenile. Reverses D.M.’s adjudication as a delinquent child for dangerous possession of a firearm. Affirms D.M.’s adjudications for possession of a firearm on school property and criminal recklessness. Finds the adjudications for possession of a firearm on school property and dangerous possession of a firearm constitute double jeopardy. Also finds the state presented sufficient evidence to support the adjudication for criminal recklessness. Remands with instructions to vacate the dangerous possession adjudication. Judge L. Mark Bailey concurs in result with separate opinion.

Court of Appeals of Indiana
Donald K. Ingram v. State of Indiana (mem. dec.)
23A-CR-838
Criminal. Affirms Donald Ingram’s Level 4 felony child molesting conviction and 12-year sentence in Morgan Superior Court. Finds the state presented sufficient evidence beyond a reasonable doubt to support Ingram’s conviction. Also finds his sentence is not inappropriate in light of the nature of the offense and his character.

Court of Appeals of Indiana
In Re: The Termination of the Parent-Child Relationship of C.C. and De.C. (Minor Children); D.C. (Mother) v. The Indiana Department of Child Services, and Kids’ Voice of Indiana
23A-JT-848
Juvenile termination of parental rights. Reverses the Marion Superior Court’s orders terminating D.C.’s parental relationships with her children. Finds the orders terminating the mother’s parental rights were void for lack of personal jurisdiction because the Indiana Department of Child Services did not properly serve the mother. Remands for further proceedings.

Court of Appeals of Indiana
Richard Dolsen Jr. v. VeoRide Inc.
23A-CT-945
Civil tort. Reverses the Allen Superior Court’s entry of summary judgment in VeoRide’s favor. Finds that genuine issues of material fact exist regarding whether VeoRide’s failure to warn Richard Dolsen of the condition and the risk involved was a breach of duty and a failure to exercise reasonable care under the circumstances pursuant to Restatement Section 342(b). Remands for further proceedings.

Court of Appeals of Indiana
Kimberly J. Brook v. State of Indiana
22A-CR-2110
Criminal. Affirms Kimberly J. Brook’s convictions of Class A misdemeanor resisting law enforcement, Class A misdemeanor driving while suspended, Level 6 felony unlawful possession or use of a legend drug and Level 6 felony obstruction of justice, and her two-year sentence, with one year executed and one year served on community corrections. Finds Brook was not entitled to bifurcation, so the Cass Superior Court did not abuse its discretion in denying her request. Also finds the trial court did not erroneously invade the province of the jury by giving instructions that created a mandatory presumption indicating that Lorazepam was classified as a legend drug, and there was sufficient evidence to prove that Brook possessed Lorazepam. Finally, finds the trial court did not abuse its discretion in the admission of testimony, and Brook’s sentence is not inappropriate. Judges Nancy Vaidik and Elizabeth Tavitas concur and dissent in part with separate opinions.

Court of Appeals of Indiana
Shannon Leeann Zimmerman v. State of Indiana (mem. dec.)
23A-CR-685
Criminal. Affirms the Montgomery Superior Court’s order revoking Shannon Leeann Zimmerman’s probation. Finds the trial court didn’t abuse its discretion when it ordered Zimmerman to serve the entirety of her previously suspended sentence.

Court of Appeals of Indiana
James Huspon v. State of Indiana (mem. dec.)
22A-PC-2853
Post-conviction relief. Affirms the Marion Superior Court’s denial of post-conviction relief to James Huspon. Finds Huspon’s 100-year sentence does not violate the Eighth Amendment. Also finds Huspon has failed to establish that his proffered evidence relating to juvenile brain development would result in a shorter sentence. Declines to address Huspon’s argument that his sentence violates Article 1, Section 16 of the Indiana Constitution because he did not raise an argument based on the nature of his offenses.

Court of Appeals of Indiana
Russell G. Finnegan v. State of Indiana
23A-MI-442
Miscellaneous. Reverses the Pulaski Circuit Court’s finding that Russell Finnegan was in indirect criminal contempt of court. Finds the trial court abused its discretion in failing to act on Finnegan’s notice of intent to file an insanity defense and appoint medical personnel to evaluate his mental health and testify at his criminal contempt hearing. Remands for further proceedings.

Court of Appeals of Indiana
Luse Thermal Technologies, LLC v. Graycor Industrial Constructors, Inc. and BP Products North America, Inc.
23A-PL-633
Civil plenary. Affirms the Lake Superior Court’s grant of partial summary judgment in favor of Graycor Industrial Constructors Inc. on Luse Thermal Technologies Inc.’s request for damages and unjust enrichment claim; the grant of summary judgment in favor of BP Products North America Inc. on Luse’s claims based on the personal liability notice statute and unjust enrichment; the grant of BP’s motion to strike certain evidentiary materials; and the denial of Luse’s partial motion for summary judgment with respect to Graycor’s counterclaim relating to the recovery of certain contractual costs. Finds the trial court did not abuse its discretion in granting BP and Graycor’s motions to strike, nor did it err in granting Graycor and BP’s motions for summary judgment. Also finds genuine issues of material facts remain as to Luse’s motion for partial summary judgment. Finally, finds Graycor’s request for appellate attorney fees is not ripe for review.