Opinions

Indiana Court of Appeals
M.M. v. L.P.
23A-PO-2089
Protection order. Affirms the Clinton Circuit Court’s grant of a protection order against M.M. to protect his ex-wife, L.P. Finds that transfer to the special judge was not required and, even if the trial court should have granted the transfer, any error in this case was harmless. Also finds the trial court did not err when it denied the father’s request to transfer the matter to the special judge in the dissolution matter. Judge Leanna Weissmann dissents with separate opinion.

7^th Circuit Court of Appeals
Geft Outdoor, LLC v. City of Evansville, Indiana
Civil. Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge James Sweeney. Affirms the district court’s dismissal of  Geft Outdoor’s  complaint against the City of Evansville that challenged the way the city’s ordinance handles permits and allows exceptions to (variances from) the height, spacing, and placement rules for off-premises signs. Finds that by focusing on its quest for a variance, GEFT disqualified itself from making a facial challenge. Also finds GEFT’s problem is not the lack of standing but the fact that it waged a facial challenge when it should have tried an as-applied challenge. Finally, finds the district court’s judgment is modified to make clear that GEFT loses on the merits rather than for lack of standing.

7^th Circuit Court of Appeals
United States of America v. Christopher Truett
22-1349
Criminal. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge James Hanlon. Affirms the district court’s decision to not hold a competency hearing for Christopher Truett and the court’s sentencing guidelines calculation for Truett’s drug conspiracy conviction. Finds that because the condition of Truett’s supervised release included only in the written judgment is a mandatory condition, the court declines to vacate that condition. Also finds that the district court did not abuse its discretion in not ordering a competency hearing sua sponte at the change-of-plea hearing.

Indiana Court of Appeals
James D. Frye v. State of Indiana
23A-CR-1691
Criminal. Reverses the Greene Circuit Court’s decision to grant the state’s request for a protective order to prohibit James Frye from questioning the alleged victim about her sexual history with Frye. Finds the trial court abused its discretion when it granted the state’s protective order to prohibit Frye from asking the alleged victim about their shared sexual history. Remands for further proceedings consistent with the appellate court’s opinion.

Indiana Court of Appeals
Matthew D. Coonce v. State of Indiana
23A-CR-1920
Criminal. Affirms the Elkhart Superior Court’s finding that Matthew Coonce is a habitual vehicular substance offender and and the trial court’s imposition of a sentence enhancement. Finds that prior unrelated vehicular substance offenses used to support an HVSO enhancement may be either felony or misdemeanor convictions. Also finds Coonce’s prior VSO convictions support the jury’s finding he is an HVSO, and the jury’s finding supports Coonce’s enhanced sentence of 540 days for being an HVSO, for a total of 900 days.

Indiana Court of Appeals
Gregory Darnell Henderson v. State of Indiana
24A-CR-667
Criminal. Reverses Gregory Henderson’s sentence in Marion Superior Court of 360 days with 296 days suspended for resisting law enforcement, a Level 6 felony. Finds the trial court misapprehended the law when sentencing Henderson. Also finds the appellate court cannot say with confidence that the trial court would reject alternative minimum sentencing in Henderson’s case regardless of his eligibility. Remands for resentencing.

Indiana Tax Court
Dr. Tulsi and Kamini Sawlani v. Lake County Assessor
21T-TA-44
Tax. Reverses the final determination of the Indiana Board of Tax Review that Tulsi and Kamini Sawlani were not entitled to the one percent tax cap credit on the contested acreage during the 2019 tax year. Finds that that the Indiana Constitution does not permit a fixed one-acre limitation on the amount of land eligible for the one percent tax cap. Remands the matter for further proceedings to determine whether the homeowners’ contested acreage is entitled to the one-percent tax cap in light of this decision.

7^th Circuit Court of Appeals
Donnell D. Wilson v. Ron Neal
23-2316
Criminal. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Jon DeGuilio. Affirms the district court’s denial of Donnell Wilson’s petitioned for a writ of habeas corpus. Finds Wilson’s 100-year sentence for committing two murders at the age of 16 does not violate the Eighth Amendment as construed by the U.S. Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012). Also finds the district court denied relief on the merits, finding that the Indiana Supreme Court decision rejected Wilson’s Eighth Amendment claim under Miller on the merits and that the rejection was neither contrary to nor an unreasonable application of Supreme Court precedent.

Indiana Court of Appeals
Walking With Jesus Ministries v. Bianca Alexander
24A-EV-419
Eviction. Reverses the St. Joseph Superior Court’s dismissal of the Walking With Jesus Ministries’ notice of claim, in which the landlord had sought possession of premises that the landlord had leased to Bianca Alexander, plus damages the landlord alleged that Alexander had caused to the premises during her tenancy. Finds that the 10 days’ notice requirement under Indiana Code section 32-31-1-6 does not apply here. Also finds the small claims court erred under Indiana Code sections 32-31-1- 6(1) and 32-31-1-8(5) when it dismissed the landlord’s notice of claim. Remands for further proceedings.

Indiana Court of Appeals
Indianapolis Public Transportation Corporation d/b/a IndyGo Public Transportation v. Norma Jean Bush, as Personal Representative of the Estate of Michael Rex Fergerson, Deceased
23A-CT-1483
Civil tort. Reverses the Marion Superior Court’s denial of IndyGo’s motion for directed verdict in a negligence action initiated by Norma Jean Bush, as Personal Representative of the Estate of Michael Rex Fergerson against IndyGo after Fergerson was struck by an IndyGo bus and later died of his injuries. Finds that Fergerson was at least a proximate cause of his being struck by the bus, and therefore contributorily negligent. Also finds the trial court erred when it declined to find that the defense of contributory negligence applied and denied IndyGo’s motion for directed verdict. Remands for trial court to enter judgment in favor of IndyGo. Judge Patricia Riley dissents with a separate opinion.

Indiana Court of Appeals
Tyrone D. Bradshaw v. State of Indiana
23A-CR-2700
Criminal. Reverses Tyrone Bradshaw’s conviction in Marion Superior Court for a Level 6 felony of pointing a firearm and remands with instructions for the trial court to vacate that conviction and its corresponding sentence. Finds the state cannot demonstrate a distinction between the criminal confinement allegation and the pointing-a-firearm allegation based on the facts from trial. Also finds the state failed to rebut the presumptive double jeopardy violation under step three of the state’s  substantive double jeopardy analysis. Judge Paul Felix dissents with a separate opinion.

Indiana Court of Appeals
Ross Graham Thomas v. Joseph Foyst
24A-MI-251
Miscellaneous. Reverses the Bartholomew Circuit Court’s order in favor of Joseph Foyst. Remands with instructions to declare Bryan Muñoz the winner of the 2023 general election for the District 6 seat on the Columbus City Council. Finds that Foyst’s candidacy should be nullified because the notice of caucus was not timely submitted. Also, finds the clerk was barred by statute from receiving both the notice of caucus and the certificate of candidate selection because both documents were not timely filed. Finally, finds the clerk’s actions in violation of the applicable statutes were, by definition, ultra vires, and thus Foyst’s candidacy never existed in the eyes of the law.

Indiana Court of Appeals
B & L Drywall, LLC v. R.L. Turner Corporation
23A-PL-2962
Civil plenary. Affirms the Boone Circuit Court’s order granting summary judgment and damages to R.L. Turner Corp. for B&L Drywall, LLC’s breach of contract. Finds the trial court did not err in denying B&L’s motion for summary judgment and granting RLTC’s motion for summary judgment as there are no genuine issues of material fact, and RLTC is entitled to judgment as a matter of law. Also finds the trial court did not abuse its discretion when it awarded RLTC damages in the amount of the difference between the contract sum and the cost to pay the replacement contractor, as such an award was permitted by the unambiguous terms of the contract.

7^th Circuit Court of Appeals
Indiana Land Trust #3082, et. al. v. Hammond Redevelopment Commission, et al.
24-1006
Civil. Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Magistrate Judge John Martin. Affirms the district court’s dismissal of Indiana Land Trust #3082 and trust’s beneficiaries Omar and Haitham Abuzir’s third amended complaint against the City of Hammond, the Hammond Redevelopment Commission and its members and Hammond Mayor Thomas McDermott with prejudice. Finds the Abuzirs have failed to state any claim that the city violated their constitutional rights. Also finds that adding a § 1983 conspiracy claim would have been futile, and so the district court did not abuse its discretion in denying that request.

Indiana Court of Appeals
Wade Wiley v. United Farm Family Mutual Insurance Company
24A-PL-76
Civil plenary. Affirms the Hancock Superior Court’s entry of summary judgment in favor of United Farm Family Mutual Insurance Company in a declaratory judgment action regarding insurance coverage and the court’s denial of Wade Wiley’s motion for summary judgment. Finds that Jonathan Howard did not have, and knew that he did not have, a valid driver’s license at the time of his accident with Wiley on Sept. 13, 2021. Also finds that because he was not legally entitled to drive, Howard did not have a reasonable belief that he was entitled to operate Amy Smith’s vehicle on a public highway.

Indiana Court of Appeals
Julia M. Guilfoyle and Thomas G. Guilfoyle v. Hannah M. Guilfoyle and Gregory C. Guilfoyle
23A-MI-2673
Miscellaneous. Affirms the Dearborn Circuit Court’s dismissal of Julie and Thomas Guilfoyle’s petition for grandparent visitation with their grandchild, R.M.G. Finds the trial court did not err when it concluded that the Guilfoyles lacked standing to petition for visitation with their grandchild. Also finds the grandparents make no argument that a compelling government interest warrants intrusion on the parents’ parental rights here.

Indiana Court of Appeals
Jose Miguel Zuniga v. State of Indiana
23A-CR-3107
Criminal. Affirms Jose Zuniga’s convictions in Cass Superior Court of dealing in methamphetamine, a Level 2 felony; possession of a narcotic drug, a Level 5 felony; and unlawful possession of a firearm by a serious violent felon, a Level 4 felony, based on evidence obtained from a search of his house. Finds that Zuniga lacks standing to challenge Louise Antonio Lopez-Aleman’s arrest under Article 1, Section 11 of the Indiana Constitution. Also finds the trial court did not err by declining to exclude the evidence against Zuniga.

Indiana Tax Court
Alice Luebke, Tina Hughes, Amanda Scheitlin, and Ann Cornewel v. Indiana Department of Local Government Finance, et. al.
24T-TA-7
Tax. Affirms the Indiana Tax Court’s subject matter jurisdiction and recognizes the existence of a substantial issue to be tried where a group of Allen County taxpayers are challenging the county’s plan to build a new jail. Denies a motion pursuant to the Public Lawsuit Statute, requesting that the taxpayers post a bond of more than $90 million to proceed with their appeal. Finds that the taxpayers’ verified petition for review raises a substantial question to be tried regarding the legality of the county’s funding method for a new jail. Also finds it is important that the tax court thoroughly examine whether the transfer and leasing of the courthouse to finance a new jail is authorized under the lease-purchase statutory framework. Finally, finds the taxpayers need not post a bond in the amount of $91,628,223 to proceed with this action.

Indiana Court of Appeals
James A. Abbott v. Daniel Wegert and Adela Wegert
23A-EV-3004
Eviction. Reverses the Miami Superior Court’s small claims eviction order in favor of Daniel and Adela Wegert against James Abbott. Finds the parties’ dispute falls outside the jurisdiction granted to small claims courts under Indiana Code section 33-29-2-4(b). Also finds the small claims court’s order of eviction is void. Remands with instructions to transfer the case to the superior court’s plenary docket.

Indiana Court of Appeals
Micah Henson v. State of Indiana
23A-CR-2550
Criminal. Affirms Micah Henson’s convictions in Morgan Superior Court for two counts of Level 4 felony child molesting. Finds Henson’s convictions for two separate acts of child molesting do not constitute double jeopardy and he is not being punished twice for the same offense.