Opinions

Court of Appeals of Indiana
In the Matter of the Guardianship of A.E.R. (Minor Child) Shawn Wright v. Gilberto Ruiz, Sr., and Teresa Ruiz
21A-GU-1682
Guardianship. Affirms the Lake Superior Court’s order appointing grandparents Gilberto Ruiz, Sr. and Teresa Ruiz as guardians of Shawn Wright’s child, A.E.R. Finds the trial court did not abuse its discretion in denying Wright’s motion to transfer venue and by appointing the grandparents as A.E.R.’s guardians. Finds the grandparents are not entitled to attorney fees.

Court of Appeals of Indiana
Monica C. Brown v. Review Board of the Indiana Department of Workforce Development
21A-EX-1474
Agency action. Affirms the Review Board of the Indiana Department of Workforce Development’s affirmation of an administrative law judge’s determination that Monica C. Brown was not eligible to receive pandemic unemployment assistance benefits under the CARES Act from the state of Indiana. Finds the ALJ judge erred in determining Brown wasn’t eligible in Indiana based on Section 2102(d)(1)(A)(i) of the CARES Act. Also finds Brown wasn’t eligible because she didn’t meet one of the 11 criteria listed in subsections (aa) through (kk) of Section 2102(a)(3)(A)(ii)(I) of the CARES Act.

Indiana Supreme Court
Sierra M. DeWees v. State of Indiana
21S-CR-410
Criminal. Affirms the Clay Superior Court’s denial of Sierra DeWees’ motion for bond reduction or conditional pretrial release. Finds the Indiana General Assembly’s statutory reforms enhance rather than restrict a trial court’s discretion in determining bail. Also finds the trial court did not abuse its discretion in finding DeWees is accused of an “extremely serious” crime and, facing a 30-year sentence, posed a flight risk. Urges the Court of Appeals of Indiana to act with “prudence and restraint” when deviating from Appellate Rule 65(E). If either party seeks modification of DeWees’ conditional release, remands with instructions for the trial court to conduct a hearing.

Court of Appeals of Indiana
U.S. Foods, Inc. v. Enspire Training, LLC (mem. dec.)
21A-SC-1259
Small claims. Reverses judgment in favor of Enspire Training LLC in a dispute with US Foods Inc. Finds US Foods has made a prima facie showing that the Allen Superior Court lacked personal jurisdiction.

Indiana Supreme Court
Carl Eugene McDonald v. State of Indiana
22S-CR-46
Criminal. Summarily affirms Carl Eugene McDonald can’t challenge the validity of his convictions on direct appeal and that Cass Superior Court improperly entered his HVSO sentencing enhancement as a separate, consecutive sentence. Affirms the HVSO statute does not contain a provision that is nonsuspendible. Remands for resentencing.

Court of Appeals of Indiana
Robert R. Wilmsen v. State of Indiana
21A-CR-1214
Criminal. Affirms Robert Wilmsen’s aggregate 190-year sentence for conviction of three counts of Level 1 felony child molesting; Level 1 felony attempted child molesting; two counts of Level 4 felony sexual misconduct with a minor; Level 4 felony attempted sexual misconduct with a minor; two counts of Level 5 felony sexual misconduct with a minor; and one count of Level 6 felony dissemination of matter harmful to minors. Also finds he is a repeat sex offender. Concludes Wilmsen’s sentence is not inappropriate in light of the nature of the offense and his character.

Indiana Supreme Court
Kevin Isom v. Ron Neal
21S-CQ-545
Certified question. Accepts the certified questions of the Indiana Northern District Court and answers both questions negatively. Finds that the unverified post-conviction petition tendered to the Lake Superior Court in January 2016 by death row inmate Kevin Isom was not “properly filed” as of the date of its initial submission, nor did the Indiana Supreme Court’s January 2017 order render Isom’s post-conviction petition “properly filed” as of the date of its initial submission.

Court of Appeals of Indiana
Moussa I. Dahab v. State of Indiana (mem. dec.)
21A-CR-1155
Criminal. Affirms Moussa I. Dahab’s conviction of battery by means of a deadly weapon as a Level 5 felony. Finds any error in the admission of evidence was harmless. Also finds the evidence was sufficient.

Court of Appeals of Indiana
Kimberly S. Vanderveer v. State of Indiana
21A-CR-1688
Criminal. Vacates, with the state conceding, Kimberly S. Vanderveer’s conviction of Level 6 felony making a false statement on a criminal history information form as it violated her right to be free from double jeopardy. Affirms Vanderveer’s Level 5 felony using false information to obtain a handgun (Ind. Code § 35-47-2-17(a)(1)(A)). Finds the evidence and inferences most favorable to the jury’s verdict could lead a reasonable jury to conclude Vanderveer’s falsification of Form 4473 was knowing or intentional.

Indiana Supreme Court
The Residences at Ivy Quad Unit Owners Association, Inc. v. Ivy Quad Development, LLC, et al.
21S-PL-294
Civil plenary. Affirms and reverses in part the dismissal of a complaint for breach of the implied warranty of habitability and for negligence filed by The Residences at Ivy Quad Unit Owners Association Inc. against defendants Matthews LLC, DMTM Inc., David Matthews and Velvet Canada. Finds David Matthews and Velvet Canada are builder-vendors and therefore could be held liable for breach of the implied warranty of habitability. Also finds DMTM Inc. and Matthews LLC were not builder-vendors. Finally, finds that although the economic loss doctrine may preclude recovery on the negligence claim as the facts mature, dismissal at this stage is premature. Remands for proceedings consistent with the opinion.

Court of Appeals of Indiana
Joy Adebola Adewopo v. Cheedy Thomas Jaja (mem. dec.)
21A-DC-880
Domestic relations with children. Affirms the division of martial assets arising from the dissolution of the marriage of Joy Adebola Adewopo and Cheedy Thomas Jaja. Finds the Hendricks Superior Court did not abuse its discretion by including certain items in the marital pot, including a house, Adewopo’s property interest in her inherited properties in Africa and Jaja’s student loans. Also finds the trial court did not err by equally dividing the martial estate between the parties.

Court of Appeals of Indiana
Holli Sullivan, Secretary of State, in her Official Capacity v. National Election Defense Coalition
21A-PL-349
Civil plenary. Affirms the ruling that the Indiana secretary of state failed to demonstrate that records withheld from the National Election Defense Coalition were excepted from disclosure under the Indiana Access to Public Records Act, as well as the award of attorney fees to NEDC. Finds the Marion Superior Court did not err in ordering the secretary to disclose documents for which it had not proven an exception applied. Also finds NEDC is entitled to reasonable trial and appellate attorney fees for substantially prevailing in this litigation. Remands for the trial court to award a reasonable appellate attorney fee.

Court of Appeals of Indiana
Patrick Smith v. State of Indiana (mem. dec.)
21A-CR-492
Criminal. Reverses the sex offender conditions of Patrick Smith’s probation, including the requirement that he register as a sex offender following his conviction of Class D felony battery of a child. Finds that, given the limited record on appeal, the Parke Circuit Court abused its discretion by imposing sex offender probation conditions as part of Smith’s sentence. Remands with instructions to vacate the sex offender conditions.

Indiana Supreme Court
State of Indiana v. Conner Katz
20S-CR-632
Criminal. Reverses on direct appeal the Steuben Circuit Court’s dismissal of Conner Katz’s case after the trial court determined Indiana Code section 35-45-4-8 was unconstitutional on state and federal levels.  Justices unanimously disagree with the trial court, concluding the state sufficiently alleged an offense and that the statute is constitutional. Remands for further proceedings consistent with the opinion.

Court of Appeals of Indiana
Sudhakar Kunwar v. State of Indiana (mem. dec.)
21A-PC-526
Post-conviction. Reverses the denial of Sudhakar Kunwar’s petition for post-conviction relief from his guilty plea of guilty to Level 6 felony sexual battery. Finds his guilty plea was not knowingly, intelligently and voluntarily entered and Kunwar is entitled to a new initial hearing. Remands for further proceedings. Judge Elaine Brown dissents with a separate opinion.