Articles

Opinions July 26, 2022

7th Circuit Court of Appeals
Lelah Jerger, et al. v. Shannon Blaize, et al.
21-3011
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard L. Young.
Civil. Vacates the entry of summary judgment in favor of caseworkers for the Indiana Department of Child Services, who were sued for alleged violations of Fourth and 14th Amendment rights based on their actions in a case involving Lelah and Jade Jerger and their child, J.J. Finds the Jergers have done enough to create a jury question on whether the DCS defendants violated their and J.J.’s constitutional rights. Also finds neither summary judgment nor qualified immunity is available where the parties dispute facts material to the consent question. Remands.

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Opinions July 22, 2022

Court of Appeals of Indiana
John William Rosenbaum, III v. State of Indiana
21A-CR-1409
Criminal. Affirms John William Rosenbaum III’s conviction of Level 3 felony child molesting and Level 4 felony child molesting. Concludes that the Hendricks Superior Court abused its discretion when it admitted V.V.’s consistent recorded pretrial statement, but Rosenbaum failed to establish that his substantial rights were affected as a result. Finds that the trial court did not abuse its discretion when it rejected Rosenbaum’s request to depose his child victim pursuant to a valid statute limiting Rosenbaum’s right to do so.

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Opinions July 21, 2022

Indiana Supreme Court
City of Gary v. Jeff Nicholson, et al.
22S-MI-252
Miscellaneous. Grants transfer and dismisses. Finds the plaintiffs lack standing to challenge the city of Gary’s “welcoming ordinance” because they allege no injury. Also finds they do not have public standing. Finally, finds the state’s intervention does not alter the standing analysis. Remands to the Lake Superior Court with instructions to dismiss the action for lack of standing.

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Opinions July 20, 2022

Court of Appeals of Indiana
James E. Manley v. Eric Lowe, et al. (mem. dec.)
21A-PL-1073
Civil plenary. Affirms the dismissal of inmate James E. Manley’s “Civil Action for Mandate.” Finds the Henry Circuit Court did not err when it dismissed the portions of Manley’s request for mandate concerning statutory violations that allegedly occurred as part of the prison disciplinary process pursuant to Indiana Trial Rule 12(B)(1) because it did not have subject matter jurisdiction to review Manley’s challenge to prison disciplinary decisions. Also finds the trial court did not err when it dismissed Manley’s constitutional claim under Article 1, Section 2 of the Indiana Constitution pursuant to Indiana Trial Rule 12(B)(6) because Manley did not sufficiently allege what actions or inactions the defendants allegedly took that resulted in an alleged violation of his constitutional right to free exercise of religion. 

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Opinions July 19, 2022

Court of Appeals of Indiana
Justin M. James v. State of Indiana (mem. dec.)
21A-CR-2679
Criminal. Affirms the revocation of Justin M. James’ probation. Finds the Bartholomew Circuit Court did not abuse its discretion when it ordered James to serve all remaining suspended time after he violated the terms of his probation. Also finds the trial court did not violate James’ plea agreement when it applied time served to his sentence under F6-287.

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Opinions July 18, 2022

Joshua L. Barton v. State of Indiana
21A-CR-2165
Criminal. Affirms Joshua Barton’s convictions of two counts of Level 6 felony nonsupport of a dependent child. Finds the Brown Circuit Court did not abuse its discretion in admitting Barton’s diversion agreement as Exhibit 12, and if it had, any resulting error was harmless.

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Opinions July 15, 2022

Court of Appeals of Indiana
In the Matter of the Civil Commitment of: L.B. v. Richard L. Roudebush Veterans Affairs Medical Center
22A-MH-153
Mental health. Reverses the Marion Superior Court’s commitment of L.B. to the Richard L. Roudebush Veterans Affairs Medical Center. Finds the trial court erred in allowing L.B. to proceed pro se. Finds L.B. was not capable of knowingly, voluntarily, and intelligently waiving his right to counsel before accepting his waiver of that right. Remands for a new commitment hearing.

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Opinions July 14, 2022

Court of Appeals of Indiana
Franciscan Alliance Inc., d/b/a Franciscan Physician Network v. Louis S. Metzman, M.D.
21A-PL-2171
Civil plenary. Affirms the Montgomery Circuit Court’s ruling that Franciscan Alliance breached its contract with Dr. Louis S. Metzman when it deducted money from his base compensation for taking unpaid time off and that Metzman is not entitled to performance-based compensation or liquidated damages, as well as the trial court’s rejection of Franciscan’s claim-by-claim approach to the distribution of attorney fees. Finds the term “prevailing party” here refers to a single party — the one in whose favor judgment is rendered, even if not to the extent of the original claim. Concludes while it may not always be appropriate to award full fees to the prevailing party, doing so in this case was not an error.

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Opinions July 13, 2022

Court of Appeals of Indiana
Donald Kearschner v. American Family Mutual Insurance Company, S.I.

21A-CT -1888
Civil Tort. Reverses summary judgment granted to American Family Mutual Insurance Co. and remands for further proceedings in Owen Circuit Court. Finds American Family’s policy provision reducing Donald Kearschner’s underinsured motorist policy limit to zero based on the payment he received from worker’s compensation provided less coverage than the state’s underinsured motorist statute, Indiana Code § 27-7-5-2, required and is inconsistent with the view that the UIM Statute is a full-recovery, remedial statute. Concludes Kearschner is entitled to the difference between his underinsured policy limit of $100,000 and the $50,000 he received from the tortfeasor’s insurer.

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Opinions July 12, 2022

Court of Appeals of Indiana
Lake County Board of Commissioners v. Lake County Council
21A-MI-1805
Miscellaneous. Affirms the grant of summary judgment for the Lake County Council and the denial of summary judgment for the Lake County Board of Commissioners, and the denial of the commissioners’ motion to correct error, in their dispute over which entity had the statutory authority to act as the county’s purchasing agent and to create a data-processing agency. Finds the Lake Superior Court did not abuse its discretion by denying the commissioners’ motion to correct error as its award of summary judgment in favor of the council was proper.

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Opinions July 11, 2022


Court of Appeals of Indiana
Leon Casillas v. State of Indiana
21A-CR-2182
Criminal. Affirms Leon Casillas’ convictions of Level 2 felony dealing in a narcotic drug and Level 6 felony possession of methamphetamine, and the finding that he is a habitual offender. Finds Casillas did not waive his objection to the evidence police discovered after they entered his home. Also finds the Vanderburgh Circuit Court did not err in admitting the evidence found inside Casillas’ house because the facts and circumstances presented to the trial court support its finding that Casillas freely and voluntarily consented to the officers’ entry into his home.

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Opinions July 8, 2022

7th Circuit Court of Appeals

United States of America v. Joseph Furando, Appeal of: Christine M. Furando, et al.
20-1526
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker.
Criminal. Vacates the district court’s denial of the third-party claimants’ section 21 U.S.C. § 853(n) petition but affirms the grant of the government’s motion for interlocutory sale of real property. Remands for further proceedings.

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Opinions July 7, 2022

Court of Appeals of Indiana
701 Niles, LLC v. AEP Indiana Michigan Transmission Company, Inc., et al.
21A-PL-2123
Civil plenary. Reverses the St. Joseph Circuit Court’s denial of 701 Niles’ motion to enjoin. Finds AEP Indiana Michigan Transmission Company may constitutionally proceed with its project to build an underground electric transmission line on part of 701 Niles’ property. Also finds the University of Notre Dame’s attempt to use AEP’s easements for its hydropower project is an unconstitutional taking. Remands with instructions that the trial court enter an order enjoining AEP from installing the university’s line to the duct bank without 701 Niles’ express consent.

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Opinions July 6, 2022

Court of Appeals of Indiana
Jeffrey L. Awbrey v. State of Indiana
21A-CR-2867
Criminal. Reverses Jeffrey L. Awbrey’s conviction of Level 6 felony operating a vehicle while intoxicated. Finds that general testimony from a toxicologist about levels of methamphetamine consistent with those in Awbrey’s blood does not support the inference that Awbrey was impaired. Also finds the state failed to present sufficient evidence of the statutorily required impaired condition of thought and action and the loss of normal control of a person’s faculties. 

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Opinions July 5, 2022

Court of Appeals of Indiana
In the Matter of the Contempt of Christopher C. Myers; Adam Williams and Debbie Williams v. Shafer Pick A Part, LLC, and Paul Shafer
22A-CT-142
Civil tort. Affirms the Allen Superior Court’s imposition of sanctions on attorney Christopher C. Myers. Finds the trial court did not abuse its discretion by imposing Trial Rule 37(D) sanctions against Myers, as he was aware of the deposition date and aware that his motion to quash had been denied, but still failed to appear. Declines to recommend or remand for the imposition of appellate penalties.

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Opinions July 1, 2022

Court of Appeals of Indiana
Sophia Danley Edwards (Minor Child), by Next Friend Katherine Danley Glaser and Katherine Danley Glaser v. City of Carmel, Indiana
21A-CT-1823
Civil tort. Affirms the $8,700 award of attorney fees to the city of Carmel against Sophia Danley Edwards by Next Friend Katherine Danley Glaser and Katherine Danley Glaser. Finds the plaintiffs’ public policy argument and their contention that attorney fees award was unreasonable are waived for failure to comply with appellate rules and/or for improper presentation of an issue for the first time before the appellate court. Also awards appellate attorney fees to Carmel. Remands for a rehearing for appropriate appellate attorney fees.

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Opinions June 30, 2022

Court of Appeals of Indiana
Brian Young, Sandy Young, Tim Corbett, Dave Wells, Steve Richmond, Sheldon Scott, James Taylor, and Scott Hanley v. South Bend Common Council v. South Bend City Administration
21A-MI-1049
Miscellaneous. Affirms and reverses in part the dismissal of Brian young, Sandy Young, Tim Corbett, Dave Wells, Steve Richmond, Sheldon Scott, James Taylor and Scott Hanley’s claims for declaratory and injunctive relief alleging violations of the Federal Wiretap Act and the Indiana Wiretap Act. Finds the trial court erred in dismissing the original intervenors’ declaratory judgment complaint for lack of subject matter jurisdiction, but the original intervenors’ argument regarding their dismissal as interpleader defendants is essentially moot. Finds the trial court erred in limiting the new intervenors’ litigation to the cassette tapes. Finally, finds remand is appropriate for development of a factual record and a final determination of the legality of all the interpled recordings.

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Opinions June 29, 2022

Indiana Supreme Court
Terrance Trabian Miller v. State of Indiana
20A-CR-2315
Criminal. Affirms Terrance Trabian Miller’s convictions. Finds any error that arose during jury instruction was invited by Miller, which precludes relief on direct appeal. Also finds sufficient evidence that Miller was lawfully stopped in his vehicle by police. Finally, finds Miller did not comply with the exhaustion rule, which precludes review of the Cass Circuit Court’s refusal to strike juror T.M. for cause. Chief Justice Loretta Rush concurs in part and dissents in part with separate opinion.

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Opinions June 28, 2022

Court of Appeals of Indiana
In re the Termination of the Parent-Child Relationship of R.O. and R.D. (Minor Children) and C.D. (Mother) and E.O. (Father) C.D. (Mother) and E.O. (Father) v. Indiana Department of Child Services (mem. dec.)
21A-JT-1608
Juvenile termination. Affirms the termination of C.D. and E.O.’s parental rights to their children, R.O. and R.D. Finds the Hancock Superior Court did not err in determining a reasonable probability exists that the conditions resulting in the children’s removal and continued placement outside the home will not be remedied. Finds no due process violations.

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