Opinions

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.

Court of Appeals of Indiana
Robert Eugene Smith, Jr. v. State of Indiana
21A-CR-2493
Criminal. Affirms the Hendricks Superior Court’s denial of Robert Eugene Smith Jr.’s motion to dismiss the charging information alleging he committed two counts each of Level 5 felony failure to register as a sex or violent offender and Level 6 felony failure to register as a sex or violent offender. Finds that although Smith’s motion was timely, he was under a lifetime obligation to register as a sex offender at the time of the alleged offenses. Also finds the 2007 amendment to Indiana Code § 11-8-8-19 did not retroactively apply to Smith, and he is not similarly situated to sex offenders who committed their crimes under a different statutory regime than he did. Finally, finds Smith’s lifetime registration obligation follows from Indiana Code, and a letter from the Johnson County Sheriff does not remove that obligation.

Court of Appeals of Indiana
Donald Johnson v. State of Indiana
21A-CR-1234
Criminal. Affirms and reverses in part the denial of Donald Johnson’s motion to dismiss the 17 Class C felony securities-related charges filed against him. Finds the state sufficiently alleged Johnson committed positive acts of concealment that tolled the statute of limitations in all the challenged charges except two, and the charging information for all remaining 15 counts against Johnson were pled with sufficient certainty based on the language in the charging informations and probable cause affidavits. Also finds the arguments Johnson sets forth regarding the elements of the alleged crimes cannot be considered by the Court of Appeals as they are to be decided by the fact-finder, not within a motion to dismiss, so the Porter Superior Court did not abuse its discretion when it denied Johnson’s motion to dismiss, with the exception of the charges involving Randall Hunt. Finally, finds the trial court did not abuse its discretion when it granted the state permission to amend the charges against Johnson to include the word “knowingly.” Remands for further proceedings.

Court of Appeals of Indiana
Amberly Pointe Manufactured Home Community v. Stucker Fork Conservancy District
21A-EX-2805
Agency action. Affirms the Indiana Utility Regulatory Commission’s dismissal of Amberly Pointe Manufactured Home Community’s complaint for lack of subject matter jurisdiction, finding that Stucker Fork Conservancy District is not subject to Indiana Code § 8-1.5-3-8(l) or 170 Indiana Administrative Code (IAC) 6-1-16. Finds the commission did not err.

7^th Circuit Court of Appeals
Mathusala Menghistab v. Merrick B. Garland, Attorney General of the United States
21-2099
Petition for Review of an Order of the Board of Immigration Appeals.
Immigration. Denies the government’s petition for rehearing except to make changes to the original June 21 opinion to clarify that the Board of Immigration Appeals is not responsible for factfinding.

7^th Circuit Court of Appeals
United States of America v. Nain Galvan
21-2771
Appeal from the U.S. District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Tanya Walton-Pratt.
Criminal. Affirms the Indiana Southern District’s application of robbery guideline provision in sentencing Nain Galvan for illegally possessing a firearm after finding that the gun he used in that crime was also involved in a robbery he committed earlier that day. Finds the district court did not err.

Court of Appeals of Indiana
Greg Serbon and John Allen v. City of East Chicago, Indiana, City of East Chicago Common Council; Monica Gonzalez, Lenny Franciski, Terrence Hill, Stacy Winfield, Robert Garcia, Gilda Orange, Dwayne Rancifer, Jr., Emiliano Perez, and Kenneth Monroe, in their official capacities as City of East Chicago Common Council Members; Anthony Copeland, in his official capacity as City of East Chicago Mayor; City of East Chicago Police Department; and Hector Rosario, in his official capacity as City of East Chicago Chief of Police, State of Indiana
21A-PL-1046
Civil plenary. Reverses the Lake Superior Court’s ruling that plaintiffs Greg Serbon and John Allen did not have standing to bring a federal constitutional challenge to the city of East Chicago’s “welcoming ordinance” but did have standing to challenge the ordinance under Indiana law, and the determination that Sections 3, 6(a) and 6(c) of the ordinance violate state statute and the subsequent enjoining of those laws. Finds the plaintiffs do not have standing to challenge the ordinance. Remands with instructions to dismiss the complaint for lack of standing.

Court of Appeals of Indiana
Mario Sims v. Pete Buttigieg; Mike Schmul; Tim Corbett; St. Joseph County, by the Board of Commissioners of St. Joseph County, Indiana; City of South Bend, Indiana; Stephanie Steele, as Corporation Counsel for the City of South Bend; Tasha Reed Outlaw; Ann-Carol Nash; and Cristal Brisco
21A-CT-2309
Civil tort. Affirms the dismissal of Mario Sims’ complaint against officials and public entities from South Bend. Finds that pursuant to the screening procedure in Sims v. Scopelitis, 797 N.E.2d 348 (Ind. Ct. App. 2003), trans. denied (2004), Sims’ lawsuit should never had been filed, but there was no procedural error in the St. Joseph Circuit Court performing its mandated Scopelitis review after the premature filing of the complaint. Also finds that because the trial court determined Sims’ claims in the complaint cannot go forward, the appellees were not in default for not filing an answer or other responsive pleading as claimed by Sims in his appellate brief. Finally, finds the trial court properly dismissed Sims’ complaint with prejudice.

Court of Appeals of Indiana
Leandrew Beasley v. State of Indiana  
21A-PC-2115
Post-conviction. Dismisses Leandrew Beasley’s appeal of the denial of his petition for post-conviction relief. Finds Beasley forfeited his right to appeal from the denial of his petition for post-conviction relief, and no extraordinarily compelling reasons exist sufficient to restore that right.

Court of Appeals of Indiana
Tabetha Smith v. Shawn Smith
21A-DC-2820
Domestic relations with children. Affirms and reverses in part the division of property in the dissolution of the marriage of Tabetha Smith and Shawn Smith. Finds the Marion Superior Court’s valuation, method of distribution and consideration of the tax consequences were well within its discretion. Also finds the trial court erred by failing to award either survivor’s benefits or protection of Tabetha’s portion of Shawn’s Indiana Public Retirement System pension benefits through other means, such as life insurance. Remands for further proceedings. 

Court of Appeals of Indiana
Jordan M. Zirkle v. State of Indiana (mem. dec.)
21A-CR-1743
Criminal. Affirms Jordan M. Zirkle’s conviction of murder. Finds any error in the denial of Zirkle’s motion for a directed verdict is waived. Also finds Zirkle’s conviction is supported by ample evidence.

7^th Circuit Court of Appeals
Blake Stewardson v. Cameron Biggs
21-3118
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Damon R. Leichty.
Civil. Dismisses for lack of jurisdiction Deputy Cameron Biggs’ appeal of the denial of qualified immunity. Finds the 7^th Circuit may review district court orders denying qualified immunity on interlocutory appeal only when the appellant brings “a purely legal argument that does not depend on disputed facts.” Also finds the instant appeal does not meet that criteria, as Biggs’ argument is “inseparable from the question of fact identified by the district court” and presents no purely legal issue.

Court of Appeals of Indiana
Duke Energy Indiana, LLC v. Bellwether Properties, LLC, individually and on behalf of all others similarly situated
21A-CT-1848
Civil tort. Reverses the denial of Duke Energy Indiana LLC’s motion for summary judgment in a dispute with Bellwether Properties LLC. Finds Duke didn’t violate the takings clause of the Fifth Amendment or Article 1, Section 21 of the Indiana Constitution through its enforcement of the National Electric Safety Code horizontal clearance regulation. Also finds Duke is entitled to summary judgment as a matter of law.