Opinions

Indiana Court of Appeals
Michael Steury v. State of Indiana
23A-CR-2380
Criminal. Affirms Michael Steury’s convictions in Allen Superior Court of Level 3 felony rape and Level 6 felony sexual battery. Finds the trial court did not abuse its discretion when it denied Steury’s second proposed jury instruction because the term “unaware” in the rape statute does not have a technical or legal definition different from its plain and ordinary meaning and the proposed instruction risked confusing the jury. Also finds the trial court also did not abuse its discretion in rejecting Steury’s third proposed instruction because the content of that instruction was covered by the other instructions given by the trial court and the instruction conflated the elements of Count II and Count III. Finally, finds the state presented sufficient evidence to sustain Steury’s convictions.

Indiana Court of Appeals
Maurice McGraw, Jr. v. State of Indiana
24A-CR-16
Criminal. Affirms Maurice McGraw’s convictions in Marion Superior Court of Level 5 felony domestic battery causing serious bodily injury and Level 6 felony domestic battery occurring in the presence of a child, and his sentence of six year in prison with three years suspended to probation. Finds McGraw has failed to establish a substantive double-jeopardy violation.  Judge Terry Crone concurs with opinion and Judge Elizabeth Tavitas concurs in part and dissents in part with opinion.

Indiana Court of Appeals
Michael DeGrado, Sr. v. Kari A. DeGrado
24A-DC-187
Domestic relations with children. Affirms the Lake Superior Court’s granting of Michael DeGrado’s petition to modify his child support payments to Kari DeGrado. Finds that the trial court should have permitted Michael DeGrado to present argument and evidence regarding the extracurricular expenses. Reverses the trial court’s judgment to the extent that it refused to consider this issue. Remands with instructions that the trial court consider the issue of the parents’ share of extracurricular expenses. Also finds that the father has failed to establish clear error with regard to the issue of his reimbursed expenses.

Indiana Supreme Court
In the Matter of Robert T. Miller
24S-DI-236
Attorney discipline. Orders Robert Miller to be suspended for 120 days from the practice of law in Indiana, beginning Oct. 11, with automatic reinstatement. Finds Miller, as a staff attorney with the Indiana Department of Child Services, engaged in attorney misconduct by signing family case managers’ names to child in need of services petitions without their knowledge or consent. Also finds Miller’s misconduct had the potential for significant injury due to the fundamental interests at stake in CHINS proceedings. 

Indiana Supreme Court
Cave Quarries, Inc. v. Warex LLC
24S‐CT‐39
Civil tort. Affirms the Orange Circuit Court’s denial of Cave Quarries’ motion for summary judgment. Finds Indiana law has long treated blasting as an abnormally dangerous activity subject to strict liability for damage to neighbors and bystanders. Also finds the court does not extend strict liability for blasting damage to a customer who participated in the blasting by hiring the defendant to conduct the explosion. Remands for the trial court to enter judgment for Warex and against Cave Quarries on count one of Cave Quarries’ complaint for damages alleging a strict liability claim, and to proceed on Cave Quarries’ negligence claim in count two.

Indiana Court of Appeals
Nina Cahill and Kenneth S. Davis v. Charity Davis, Baptist Healthcare System, Inc., and Baptist Health Medical Group, Inc.
23A-PL-1682
Civil plenary. Affirms the Floyd Circuit Court’s grant of summary judgment to Baptist Healthcare Systems and Baptist Health Medical Group, Inc.  Finds Nina Cahill and Kenneth Davis had the burden to demonstrate they could avoid the statute of limitations for a claim sounding in “ordinary negligence,’ failed to cite the tolling statute in the trial court and failed to provide cogent argument regarding why a tolling provision from the Medical Malpractice Act should toll the statute of limitations for a lawsuit that asserts only claims of ordinary negligence. Also finds Baptist made a prima facie showing that it was entitled to summary judgment because the plaintiffs failed to file their ordinary negligence actions against Baptist within the two-year statute of limitations period for negligence actions.

7^th Circuit Court of Appeals
Demona Freeman v. Ocwen Loan Servicing, LLC and Bank of New York Mellon
23-2512
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Tanya Walton Pratt. Amended on petition for rehearing. Affirms the district court’s dismissal of Demona Freeman’s Fair Credit Reporting Act and Fair Debt Collection Practices Act claims. Finds Freeman failed to state an FCRA claim and lacks standing to bring an FDCPA claim.

Indiana Court of Appeals
Kenneth Ratliff v. State of Indiana
24A-CR-107
Criminal. Affirms Kenneth Ratliff’s affirm Ratliff’s convictions and sentences in Porter Superior Court  for Level 3 felony burglary and Level 3 felony rape, with Ratliff to serve 12 years on his Level 3 felony burglary conviction and 16 years on the Level 3 felony rape conviction, with three of those 16 years suspended to probation and the sentences to be served consecutively.. Reverses his conviction for Class A misdemeanor battery. Remands with instructions for the trial court to vacate that conviction and its sentence.

Indiana Tax Court
John E. Sparre v. St. Joseph County Assessor
23T-TA-18
Tax. Affirms he Indiana Board of Tax Review’s final determination that left unchanged John Sparre’s 2019, 2020, and 2021 property tax assessments and concluded that Sparre’s constitutional claims lacked merit and were unsupported by the evidence. Finds Sparre’s claims that the Indiana board’s procedures violated his rights under the First and Seventh Amendments to the United States Constitution are contrary to law. Also finds Sparre’s equal protection claims that Indiana’s property tax system, both generally and as applied to his property, are unavailing because they were unsupported by substantial and reliable evidence.

Indiana Court of Appeals
V.L. Davis Properties v. Deutsche Bank National Trust Company, as Indenture Trustee, on Behalf of the holders of the Accredited Mortgage Loan Trust 2004-3 Asset Backed Notes
23A-MF-2224
Mortgage foreclosure. Affirms the Jennings Superior Court’s denial of the motion to correct error that V.L. Davis Properties filed after the trial court granted summary judgment in favor of Deutsche Bank National Trust Company and entered a decree of foreclosure related to a property on Blossom Court in North Vernon. Finds the trial court did not have personal jurisdiction over Deutsche Bank because CSL Community Association Inc. did not serve Mortgage Electronic Registration Systems, and therefore the foreclosure decree entered in that case did not extinguish the bank’s interest.

7^th Circuit Court of Appeals
Indiana Green Party, et al. v. Diego Morales
23-2756
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge James Sweeney. Affirms the district court’s granting of summary judgment to the defendant, Indiana’s Secretary of State Diego Morales. Finds that U.S. Supreme Court and 7th Circuit precedent, requiring the signatures of 2 percent of the electorate, was constitutionally permissible and that the June 30 filing deadline for submitting signatures to the counties was also permissible. Also finds states have broad authority to impose reasonable, nondiscriminatory restrictions on access to the ballot. Finally, finds the ballot access restrictions challenged in the case easily pass the scrutiny that the U.S. Supreme Court and the 7^th Circuit have employed in similar cases.

Indiana Court of Appeals
James E. Brabson v. State of Indiana
24A-CR-174
Criminal. Affirms James Brabson’s convictions in Allen Superior Court for Level 6 felony criminal recklessness, Level 6 felony pointing a firearm and Level 4 felony unlawful possession of a firearm by a serious violent felon. Finds Brabson’s conviction for a Level 6 felony  of pointing a firearm did not constitute double jeopardy. Also finds the trial court did not abuse its discretion when it imposed a probation-violation sanction on Brabson.

Indiana Court of Appeals
Mercer Belanger Professional Corporation v. Edward Gaeta
23A-CT-1351
Civil tort. Affirms the Tippecanoe Circuit Court’s final judgment in favor of Edward Gaeta and against Mercer Belanger Professional Corporation in the amount of $463,130.81, including the original $331,000 plus $132,130.81 for attorney fees, paralegal fees, expenses, and foreclosure defense attorney fees. Finds Gaeta met the requirements for standing at summary judgment, and Gaeta did nothing at the district court that would have judicially estopped him from vigorously arguing standing at the trial court. Also finds Mercer has not convinced the court that the trial court erred in granting partial summary judgment in Gaeta’s favor.

Indiana Court of Appeals
Phillip D. Hinkle v. State of Indiana
24A-CR-136
Criminal. Affirms Phillip Hinkle’s conviction in Marion Superior Court for invasion of privacy, a Class A misdemeanor. Finds the trial court did not abuse its discretion by admitting the chronological case summary of the protective order case into evidence. Also finds that the state presented sufficient evidence beyond a reasonable doubt to support Hinkle’s conviction of invasion of privacy.

Indiana Court of Appeals
In the Matter of the Paternity of E.B.K.; Genesis E. Palma v. Zachary K. Keown
23A-JP-2316
Juvenile paternity. Reverses the Warrick Superior Court’s grant of a modification of custody regarding E.K., which was filed by Zachary Keown. Finds that the mother’s due process rights were violated by the extraordinary delays in conducting the final custody hearings and by the trial court’s denial of mother’s discovery requests to the guardian ad litem. Also finds the mother has demonstrated that the trial court failed to find a proper substantial change in circumstances and erred by granting the petition. Remands and returns the parties to their joint legal and physical custody agreement, which was in effect before the temporary emergency custody order was entered. Judge Terry Crone dissents with a separate opinion.

Indiana Supreme Court
Perdue Farms, Inc. v. L&B Transport, LLC, et.al.
24S-PL-40
Civil plenary.  Affirm the Daviess Circuit Court’s order dismissing Perdue Farms ’s claims against U.S. Security for improper venue. Enforces the forum-selection clause over the plaintiff’s objection, though that means some of its claims will be heard in Maryland, and others (against non-contracting defendants) will be heard in Indiana. Reject the plaintiff’s strategic pleading to avoid the forum-selection clause by suing the contracting defendant’s Indiana-based employees individually. Reverses the trial court’s order dismissing U.S. Security’s three employees. Declines to apply the forum-selection clause to the plaintiff’s claims against the individual employees. These employees (unlike their employer) are not parties to the forum-selection clause, and they are not in privity with their employer. Remands for further proceedings consistent with the court’s opinion. Chief Justice Loretta Rush concurs with separate opinion.

Indiana Tax Court
Majestic Properties, LLC v. Tippecanoe County Assessor
22T-TA-13
Tax. Reverses the Indiana Board of Tax Review’s decision that two uses of a single-family residence – as a residential rental property and as an owner-occupied home – are equivalent for purposes of assessment after relying on appraisals offered by the Tippecanoe County Assessor that valued a Majestic Properties, LLC home for its use as an owner-occupied residence to uphold the assessment. Finds the board’s additional concern that a more narrow conception of use risks valuing the property to the specific user (e.g., Majestic) is mitigated by the appropriate identification of the class of similar users to which the owner belongs under the regulatory standard. Also finds the failure to apply the regulatory standard may have led the board to conceive the current use of the subject property too broadly.  Remands the case to the board  for further proceedings consistent with this opinion.

Indiana Court of Appeals
Scott A. Blattert, Jr. v. State of Indiana
23A-CR-1571
Criminal. Affirms Scott Blattert’s convictions in Lawrence Superior Court for Level 3 felony aggravated battery, two counts of Level 5 felony domestic battery, Level 6 felony strangulation, Level 6 felony domestic battery, and Class A misdemeanor domestic battery. Finds the jury acted within its discretion when it concluded that Blattert’s actions underlying count 5 and count 6 were unreasonable. Also finds the state presented sufficient evidence to support Blattert’s conviction for Level 3 felony aggravated battery.

Indiana Court of Appeals
Timothy J. Brewer v. State of Indiana
24A-CR-105
Criminal. Reverses with instructions to vacate Timothy Brewer’s conviction in Morgan Superior Court for theft under Count 7 and issue an amended sentencing statement, sentencing order, and abstract of judgment consistent with this opinion. Affirms Brewer’s other convictions.

7^th Circuit Court of Appeals
United States of America v. Joshua R. Campbell
22-3283
Criminal. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Damon Leichty. Affirms the decision of the district court denying Joshua Campbell’s motion to suppress incriminating statements used as evidence. Finds Murphy and Cranley dictate that Campbell’s parole agreement did not threaten a penalty for exercise of his Fifth Amendment protections, and he was not in custody when he made the relevant incriminating statements. Also finds that because Campbell did not invoke his Fifth Amendment right, and it was not otherwise self-executing, the district court properly denied his motion to suppress the evidence.