Opinions

Court of Appeals of Indiana
Paul C. Burris III v. Bottoms Up Scuba-Indy, LLC, Michael Ellis and Renata Ellis
21A-CT-570,
Civil Tort. Affirms denial of Paul Burris’ anti-SLAPP motion to dismiss the complaint filed against him asserting claims of defamation and tortious interference. Holds the Montgomery Superior Court did not err in finding Burris failed to meet the first of two requirements needed to show the anti-SLAPP statute applied. Ruled Burris’ report to PADI about his own paperwork and his allegation that Ellis may have forged the doctor’s signature on the certification paperwork were not in furtherance of his right to free speech and not in connection with a public issue

Court of Appeals of Indiana
Michael C. Niccum v. State of Indiana
21A-CR-1533
Criminal. Reverses the Vigo Superior Court’s omission of Michael Niccum’s credit time from its calculation of his sentence following the revocation of his probation. In a question of first impression, finds the calculation of good time credit is a function of the defendant’s accrued time. Remands with instructions for the court to award to Niccum three days of accrued time and one day of good time credit.

Indiana Supreme Court
Clarence Lowe v. Northern Indiana Commuter Transportation District
21S-CT-295
Civil tort. Affirms the grant of summary judgment to the Northern Indiana Commuter Transportation District against Clarence Lowe. Finds the district is a political subdivision under the Indiana Tort Claims Act, so it was entitled to notice within 180 days of Lowe’s alleged injury. Also finds that because Lowe did not provide notice until 263 days after his injury, his notice was untimely and his suit is time-barred.

Court of Appeals of Indiana
Sjon Martin v. Top Quality Professional Construction, LLC, Joe Krise, Tina Krise
21A-SC-1337
Small claims. Affirms the $3,000 small claims judgment in favor of Sjon Martin on a breach of contract claim against Top Quality Professional Construction LLC, plus pre- and post-judgment interest. Finds the Washington Township Small Claims Court did not err in holding Top Quality, rather than Joe and Tina Krise, liable for breaching the contract.

Court of Appeals of Indiana
Dwayne Keith Washington v. State of Indiana
21A-CR-997
Criminal. Reverses Dwayne Keith Washington’s conviction for Class A misdemeanor possession of a schedule II controlled substance following a jury trial. Finds that the market reports exception to hearsay under Evidence Rule 803(17) does not apply to allow the admission of evidence from Drugs.com that was used to convict Washington. Also finds the Vigo Superior Court abused its discretion when it admitted the evidence purporting to show that the pills in Washington’s possession were hydrocodone based on the description on Drugs.com. Finally, finds the state presented no other evidence to show that the pills possessed by Washington were a controlled substance.

The following Indiana Supreme Court opinion was posted Dec. 6:
Paul Michael Wilkes v. Celadon Group, Inc., et al
19S-CT-564
Civil tort. Affirms the Marion Superior Court’s entry of judgment for Celadon and Cummins defendants and against Paul Michael Wilkes. Adopts the 4^th Circuit Court of Appeals’ “Savage rule,” which holds that carriers have the primary duty for loading and securing cargo. Applying the Savage rule, finds the trial court was correct in granting summary judgment for the shipper and its agent and against the driver. Justice Christopher Goff concurs in part and dissents in part with separate opinion, joined by Justice Steven David. 

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline on Monday.

7^th Circuit Court of Appeals
Sachin Gupta v. Chad Melloh and City of Indianapolis
18-cv-00427
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge James R. Sweeney II.
Civil. Reverses the summary judgment awarded to police officer Chad Melloh and the city of Indianapolis on an excessive force complaint made by Sachin Gupta. Finds a factfinder is needed due to material disputes. Finds the Southern District Court also erred in awarding summary judgment on additional claims made by Gupta. Remands to the district court for further proceedings.

Court of Appeals of Indiana
Roy Michael Johnson v. Samantha A. Johnson
21A-DN-1003
Domestic relations no children. Affirms in part and reverses in part the Hancock Circuit Court’s dissolution of marriage for Roy Johnson and Samantha Johnson. Remands with instructions for the trial court to remove the husband’s accumulated leave from the marital pot, award the wife all of the husband’s pension’s survivor benefits, clarify whether it is awarding Samantha attorney fees, and recalculate and re-determine a just and reasonable division of the marital estate. Finds the trial court clearly erred by including Roy’s accumulated leave in the marital pot but did not err by excluding the college loans executed after the date of filing. Also finds no abuse of discretion in determining that an unequal division of the marital estate in Samantha’s favor was just and reasonable.

Court of Appeals of Indiana
Jennifer Reinoehl and Jason Reinoehl v. St. Joseph County Health Department, Dr. Robert M. Einterz, Dr. Mark D. Fox, and Penn-Harris-Madison School Corporation
21A-CT-433
Civil tort. Affirms the St. Joseph Circuit Court’s dismissal of Jennifer and Jason Reinoehl’s lawsuit filed against the St. Joseph County Health Department, health officers Dr. Robert M. Einterz and Dr. Mark D. Fox, and Penn-Harris-Madison School Corporation. Finds the trial court did not err in dismissing the Reinoehls’ numerous claims.

Court of Appeals of Indiana
Auto-Owners Insurance Company v. Zachary Shipley
21A-CT-761
Civil tort. Affirms the Marion Superior Court’s denial of summary judgment to Auto-Owners Insurance Company on the issue of underinsured-motorist overage sought by Zachary Shipley. Finds Shipley is entitled to underinsured-motorist benefits after a runaway tire struck him on the job because he was using his roadside-assistance vehicle exactly as it is intended. Concludes that Shipley was using the van “as an auto.”

Court of Appeals of Indiana
Takila Walker v. Herman & Kittle Properties, Inc. and Washington Pointe Apartments
21A-CT-284
Civil tort. Affirms and reverses in part the grant of a motion to dismiss in favor of Herman and Kittle Properties Inc. and Washington Pointe Apartments against Takila Walker. Finds Walker’s habitability claim was barred by the principles of res judicata, but her other claims were not barred. Remands for further proceedings. Judge Elaine Brown concurs with separate opinion.

Court of Appeals of Indiana
Joshua Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc.
21A-CP-936
Civil plenary. Reverses the dismissal with prejudice of Joshua Payne-Elliott’s complaint for damages against the Roman Catholic Archdiocese of Indianapolis Inc. Finds the Marion Superior Court committed reversible error in summarily dismissing Payne-Elliott’s complaint for lack of subject matter jurisdiction pursuant to Indiana Trial Rule 12(B)(1), failing to treat the Archdiocese’s motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Trial Rule 12(B)(6), as a motion for summary judgment, and dismissing Payne-Elliott’s complaint with prejudice. Remands for further proceedings.

Court of Appeals of Indiana
David A. Fabela v. State of Indiana (mem. dec.)
21A-CR-00256
Criminal. Affirms David Fabela’s murder conviction. Finds Fabela cannot show that he was denied his right to due process. Also finds Fabela has not satisfied his burden on appeal to show fundamental error.