Opinions

Court of Appeals of Indiana
Jason Morehouse and Sarah Morehouse v. Dux North LLC
22A-PL-664
Civil plenary. Reverses summary judgment granted to Dux North on an easement of prior use over real property owned by Jason Morehouse and Sarah Morehouse. Also reverses the denial of the Morehouses’ motion for partial summary judgment on the alleged easement of necessity. Finds Dux North was required to designate evidence to show that an access road is absolutely necessary to access Parcel 3, which it did not do. Finds the designated evidence also does not show whether the access road either was or was not in use at the time that Parcel 3 was severed from the Morehouse property in April 1991. Remands for further proceedings.

Court of Appeals of Indiana
Indianapolis Power & Light Company (d/b/a AES Indiana) v. The Home Insurance Co., et al.
22A-PL-1211
Civil plenary. Affirms the order granting The Home Insurance Co.’s motion to dismiss AES Indiana’s request for a declaratory judgment seeking a declaration of its rights and its insurance carrier’s coverage obligation under an excess liability insurance policy. Finds the trial court properly dismissed AES Indiana’s complaint, according full faith and credit to an out-of-state liquidation order pursuant to Indiana Code §§ 27-9-4-3(c) and 27-9-3-12(b).

Court of Appeals of Indiana
Jay T. Cast v. State of Indiana (mem. dec.)
22A-CR-278
Criminal. Affirms Jay Cast’s 16-year sentence for conviction of Level 4 felony operating a vehicle while intoxicated and Level 5 felony causing serious bodily injury while operating a vehicle while intoxicated. Finds the Hamilton Superior Court did not abuse its discretion in the finding of mitigating and aggravating factors. Finds Cast’s sentence is not inappropriate in light of the nature of the offenses and his character.

Court of Appeals of Indiana
In Re: Petition to Docket Trust of Mary Ruth Moeder Susan Moeder v. Robert W. York, Temporary Successor Trustee of the Irrevocable Trust of Mary Ruth Moeder
21A-TR-2522
Trust. Affirms the Marion Superior Court’s imposition of attorney fees on Susan Moeder and a finding that her latest request for trust information violated an agreement between the parties that she refrain from such conduct. Finds the trial court did not erroneously limit Susan’s access to trust information. Also finds Susan’s arguments attacking the judgment are frivolous and reflect her continuing bad faith. Finally, finds Susan has offered no non-frivolous grounds for setting aside the attorney fees award. Remands for a determination of the trust’s appellate attorney fees to be paid by Susan. 

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.