Opinions

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.

Indiana Court of Appeals 

City of Bloomington v. Catherine Smith and State of Indiana

24A-PL-1775

Civil plenary. Affirms Special Judge Nathan Nikirk’s judgment granting partial summary judgment in favor of the state in this annexation dispute. Finds Bloomington’s constitutional arguments are not barred by claim preclusion and that Bloomington lacks enforceable rights against the state under the Contract Clauses of the U.S. and Indiana Constitutions. Also finds the 2019 Act does not substantially impair Bloomington’s contracts. Attorneys for appellant: Margie Rice, Andrew McNeil, Stephen Unger, and Jacob Antrim. Attorneys for intervenor: Indiana Attorney General Todd Rokita, Solicitor General James Barta and Deputy Attorney General Katelyn Doering.

7th Circuit Court of Appeals 

United States of America v. Martin Devalois 

24-1787

Criminal. Appeals from the U.S. District Court for the Northern District of Indiana, South Bend Division, Judge Damon Leichty. Affirms the district court’s decision denying Martin Davalois’s motion to suppress the gun found during a traffic stop. Finds the traffic stop was not prolonged to conduct a dog sniff.

Indiana Court of Appeals
Kevin Fitzgerald v. Sarah O’Brien
24A-DN-200
Domestic relations without children. Reverses Johnson Superior Court Judge Peter Nugent’s division of marital property following the dissolution of Kevin Fitzgerald’s marriage to Sarah O’Brien. Finds the trial court abused its discretion because it awarded O’Brien more than the net value of the marital estate in contravention of Smith v. Smith, 938 N.E.2d 857 (Ind. Ct. App. 2010). Remands this case to the trial court for a just and reasonable division of the marital estate not exceeding the net value of the marital estate. Attorney for appellant: Daniel Canon. Attorney for appellee: Heather Myers.

Indiana Court of Appeals
N.B v. L.B.
24A-PO-1856
Protection order. Affirms Daviess Circuit Court Judge Gregory Smith’s grant of a two-year order of protection to L.B. under the Indiana Civil Protection Order Act, based on a finding that N.B. stalked and harassed L.B. Finds the trial court did not violate N.B.’s due process rights because it held a hearing on its ex parte order of protection within thirty days of N.B.’s request for a hearing pursuant to Indiana Code section 34-26-5-10(a). Also finds there existed sufficient evidence to support the trial court’s grant of L.B.’s request for a protective order against N.B. Attorney for appellant: Tiffany McCoy. No attorney listed for appellee.

Indiana Court of Appeals
Akeem Eichelburger v. State of Indiana
24A-CR-906
Criminal. Reverses Akeem Eichelburger’s conviction in Marion Superior Court for carrying a handgun without a license. Finds the trial court abused its discretion in granting the state’s request for a mistrial when no manifest necessity warranted a mistrial. Also finds Eichelburger’s second trial violated his rights under the Fifth Amendment to the United States Constitution and Indiana Code Section 35-41-4-3(a)(2)(iv) to be free from procedural double jeopardy. Attorneys for appellant: Talisha Griffin, Joshua Vincent. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Steven Hosler.