Opinions

Court of Appeals of Indiana
S.D. v. G.D.
22A-PO-521
Protective order. Reverses the Starke Circuit Court’s order of protection against S.D. in favor of G.D. Finds insufficient evidence to establish that S.D. represents a present, credible threat to G.D.’s safety or the safety of their child, H.D. Also finds the trial court erred in not balancing any need for protection against the burden imposed by the protective order. Judge Robert Altice dissents with separate opinion.

Court of Appeals of Indiana
Karl W. Morgan v. State of Indiana (mem. dec.)
21A-CR-2864
Criminal. Affirms Karl W. Morgan’s two counts of Level 4 felony child molesting and his aggregate 20-year sentence. Finds the Adams Circuit Court neither erred in finding Morgan to be a sexually violent predator nor abused its discretion in denying his motion to correct erroneous sentence.

Court of Appeals of Indiana
Tracey Wheeler v. Wendy Knight and Jay Hall (mem. dec.)
21A-SC-2211
Small claims. Affirms the small claims judgment in favor of Wendy Knight and Jay Hall in a dispute with Tracey Wheeler. Finds Wheeler is not entitled to a new trial based on his argument that he was informed of the trial date one day before trial, because he was offered a continuance and declined, he did not object to appearing by telephone or show that his appearance by telephone prevented him from testifying as to any matter, and the record demonstrates that the Madison Circuit Court provided adequate opportunity for him to present his testimony and argument and to respond to the defendants’ arguments. Also finds the evidence and small claims court do not reach opposite conclusions.

Court of Appeals of Indiana
Travis Armes, Eric Settles, and Debra Pennington v. State of Indiana
21A-CR-2384
Criminal. Affirms opinion in Armes v. State, 191 N.E.3d 942 (Ind. Ct. App. 2022) which reversed the Marion Superior Court denial of the motions to dismiss the charging information against Travis Armes, Eric Settles and Debra Pennington. Finds LSA Document N. 20-516(E) which is the emergency rule that designated MDMB-4en-PINACA as a Schedule I controlled substance did not provide the chemical composition so a person of ordinary intelligence would not be able to determine through appropriate testing whether a material contained it.

Court of Appeals of Indiana
Damon Daniels v. Jeffrey Drake and Lisa Drake
22A-CT-68
Civil tort. Reverses and remands the Franklin Circuit Court’s grant of summary judgment to Jeffrey and Lisa Drake after FedEx driver Damon Daniels sued them for damages after the Drakes’ dog bit him on the job. Finds a genuine issue of material fact as to the dangerous tendencies of Great Danes, which, if true, the Drakes are likely to be aware of. As a result, finds that would generate a genuine issue as to whether the Drakes took reasonable precautions under the circumstances to prevent their dog from causing injury to Daniels, an invitee on their land. Remands for further proceedings.

Court of Appeals of Indiana
In Re the Paternity of E.P. (Minor Child) Stephanie A. Mercede Tonevich v. Kasey C. Perkins
22A-JP-57
Juvenile paternity. Reverses the Warrick Circuit Court’s award of joint legal custody of child E.P. to Stephanie Tonevich and Kasey Perkins. Finds the evidence supports the trial court’s findings, but its findings do not support the award of joint legal custody to the parents. Remands with instructions for the trial court to enter an award of sole legal custody to either Tonevich or Perkins. Judge Elizabeth Tavitas concurs with separate opinion.

Court of Appeals of Indiana
Khalil Payne v. State of Indiana (mem. dec.)
21A-CR-2813
Criminal. Affirms Khalil Payne’s conviction of unlawful possession of a firearm by a serious violent felon as a Level 4 felony. Finds the Tippecanoe Superior Court did not abuse its discretion when it provided the jury with a supplemental instruction on possession during deliberations.

Court of Appeals of Indiana
Jeramie M. Elston v. State of Indiana
22A-CR-316
Criminal. Affirms and reverses in part the denial of Jeramie Elston’s motion to dismiss the state’s petition to revoke his probation. Finds tthe petition to revoke filed on Oct. 22, 2019, was untimely with regard to Cause No. 39D01-1711-CM-991 and should have been dismissed as to that case. Also finds the petition to revoke in Cause No. 39D01-1805-F5-512 was timely filed, so the Jefferson Superior Court did not abuse its discretion by denying the motion to dismiss as to that case. 

Indiana Supreme Court
Joshua Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc.
22S-CP-302
Civil Plenary. Affirms the Marion Superior Court’s dismissal of Joshua Payne-Elliott’s lawsuit under Indiana Trial Rule 12(B)(6). Finds the church-autonomy which prohibits state interference into matters of internal church governance applies in this case. Modifies the trial court’s ruling to reflect he dismissal is without prejudice.

Court of Appeals of Indiana
 Lockerbie Glove Company Town Home Owner’s Association, Inc., Elliot J. Serena Androphy, Cherri D. Hobgood, Sashwati Roy, Chandan K. Sen, and Brian Edward West v. Indianapolis Historic Preservation Commission, Daniel C. Jacobs, and The Athenaeum Foundation, Inc.
22A-PL-204
Civil plenary. Affirms the Marion Superior Court’s grant of a motion for judgment on the pleadings on the basis of lack of standing by six residents challenging the construction of a retail, residential and parking project known as Block 20 in the Lockerbie Square Historic District in Marion County. Finds the appellants lack the necessary standing, so the trial court did not err in granting the motion for judgment on the pleadings filed by the Indianapolis Historic Preservation Commission, Daniel C. Jacobs and The Athenaeum Foundation Inc.

Court of Appeals of Indiana
David Bugay, et al. v. Jeffrey DeBoy, et al. (mem. dec.)
21A-PL-01667
Civil Plenary. Affirms the Tippecanoe Circuit Court’s judgment in favor of Jeffrey DeBoy and JBC Buildings, Inc. against David Bugay and Rolling Maul, LLC, for $139,601.98. Finds the trial court did not err when it declined to decrease DeBoy’s unjust enrichment award based on construction defects because Bugay had settled his defects crossclaim for $150,000 and dismissed that crossclaim with prejudice. Rules the trial court did not err when it refused to award DeBoy monies for disgorgement of profits from Legacy Sports Club.

Court of Appeals of Indiana
Indiana State Police and State of Indiana v. The Estate of Michael M. Damore
21A-CT-2536
Civil tort. Reverses a ruling in favor of the Estate of Michael M. Damore, who was killed in a vehicle accident involving Indiana State Police. Finds the Lake Superior Court abused its discretion by excluding evidence of Michael’s driving behavior in the minutes before the collision and by striking the entirety of the defendant’s expert’s testimony based on a minor violation of the motion in limine that posed no serious risk of prejudice to the estate. Finds the trial court erred in failing to give some of the defendant’s propose jury instructions. Finally, concludes that insufficient evidence was presented to establish that Michael’s mother was his dependent for purposes of the General Wrongful Death Statute, and her recovery must therefore be limited to the amounts permitted by the Adult Wrongful Death Statute.

Court of Appeals of Indiana
Ernest Ray Snow, Jr. v. State of Indiana, Bureau of Motor Vehicles
22A-IF-471
Infraction. Affirms the Marion Superior Court’s grant of relief from judgment for the Indiana Bureau of Motor Vehicles in a dispute with Ernest Ray Snow Jr. Finds Indiana Code § 34-28-5-15(b) does not apply to the BMV because the agency isn’t a case management system. Also finds the trial court did not err.