Opinions

Indiana Court of Appeals
David K. and Jane A. Burton, et al. v. Board of Zoning Appeals of Madison County, and Lone Oak Solar, LLC
20A-MI-2186
Miscellaneous. Affirms the denial of neighbors David and Jane Burton, Bob and Jean Mills, Curtis and Rebecca Harrison, Kara and Richard Brown, Ross and Katrina Hunter, Joshua Hiday, John Doe and Jane Doe’s petition for judicial review in favor of the Board of Zoning Appeals of Madison County and Lone Oak Solar Energy LLC. Finds the votes of BZA members Mary Jane Baker and Beth VanSickle in favor of Lone Oak were valid and that there was substantial evidence to support Lone Oak’s special use applications and setback variances.

Opinions June 18, 2021 Indiana Court of Appeals A.C. James, Jr. v. State of Indiana (mem. dec.) 19A-PC-2311 Post-conviction. Affirms the denial of A.C. James Jr.’s petition for post-conviction relief. Finds the errors he alleged do not amount to ineffective assistance of counsel. Marq Hall v. State of Indiana (mem. dec.) 19A-PC-2919 Post-conviction. Affirms the […]

Indiana Supreme Court
City of Marion v. London Witte Group, LLC, Chad Seybold, Estate of Michael Y. An, Global Investment Consulting, Inc., and World Enterprise Group, Inc.
20S-MI-00567
Miscellaneous. Affirms and reverses in part the grant of summary judgment to London Witte Group in a dispute with the city of Marion. After applying the adverse domination doctrine, finds summary judgment was inappropriate for all of the city of Marion’s claims because there are genuine issues of material fact as to whether former Mayor Wayne Seybold adversely dominated the city, and whether London Witte Group helped him do so. Remands for further proceedings.

7^th Circuit Court of Appeals
Design Basics, LLC, et al. v. Kerstiens Homes & Designs, Inc, et al.
18-3202, 19-3118 & 20-1515
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Tanya Walton Pratt.
Civil. Affirms the Indiana Southern District Court’s award of $518,457.80 in attorney fees to Kerstiens Homes & Designs Inc. and the dismissal of Design Basics LLC’s copyright infringement suit against Kerstiens. Finds the allegedly infringing floor plans consist largely of standard features found in homes across America.

Indiana Court of Appeals
Michael Bousum v. Amber Bousum
20A-DR-1834
Domestic relations. Affirms the Clinton Superior Court’s order awarding appellate attorney fees to Amber Bousum from the father of her child, Michael Bousum. Finds Amber’s request for appellate attorney fees is not barred by res judicata or by the law of the case doctrine.

Indiana Court of Appeals
Pradeep Kumar Toppo v. State of Indiana
20A-CR-2099
Criminal. Affirms Pradeep Toppo’s conviction for Level 6 felony operating a vehicle while intoxicated and Class C infraction driving left of center. Holds that the traffic stop was lawful based on Toppo’s traffic violation and that the trial court did not err when it admitted evidence that law enforcement had obtained following a traffic stop.

7^th Circuit Court of Appeals
United States of America v. Jeffrey Esposito
20-1124
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Jane E. Magnus-Stinson.
Criminal. Affirms Jeffrey Esposito’s sentence to 200 years in prison, a de facto life sentence, for his convictions of multiple counts of sexually exploiting a child as well as possession of child pornography. Finds the district court did not err when sentencing Esposito.

Indiana Supreme Court
State of Indiana v. Tyson Timbs
20S-MI-289
Miscellaneous. Affirms the order for the return of Tyson Timbs’ Land Rover, seized in 2013 after Timbs pleaded guilty to dealing and theft charges. Finds that under the proportionality framework set forth in State v. Timbs, 134 N.E.3d 12, (Ind. 2019), Timbs met his high burden to show that the harshness of his Land Rover’s forfeiture was grossly disproportionate to the gravity of the underlying dealing offense and his culpability for the vehicle’s misuse. Justice Geoffrey Slaughter concurs in the judgment with separate opinion. Justice Mark Massa dissents with separate opinion.

Indiana Court of Appeals Hicks & Sons, LLC v. Carewell International, LLC 20A-PL-1874 Civil plenary. Affirms the determination that Carewell International Inc. could continue displaying a Holiday Inn hotel sign within a driveway easement over Hicks and Sons LLC’s real estate. Finds the evidence presented at trial supports the Putnam Superior Court’s determination that the […]

Indiana Court of Appeals
Indiana Board of Pharmacy v. Paul J. Elmer
20A-PL-2200
Civil plenary. Affirms the Marion Superior Court’s order reversing the decision of the Indiana Board of Pharmacy to revoke Paul J. Elmer’s pharmacist’s license. Finds the board does not have statutory authority to revoke an expired license. Remands for further proceedings.

Indiana Court of Appeals Jesse E. Atwood v. State of Indiana 20A-CR-02391 Criminal. Affirms Jesse Atwood’s conviction for Level 5 felony corrupt business influence and his aggregate 11-year sentence with one year suspended. Finds sufficient evidence to support the conviction. Judge Nancy Vaidik dissents, arguing the Indiana RICO statute “should not be construed to include […]

The following 7th Circuit opinions were posted after IL deadline on Thursday. Justin Castelino v. Rose-Hulman Institute of Technology 19-1905 Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Senior Judge William T. Lawrence. Civil. Affirms the Indiana Southern District Court’s entry of summary judgment for Rose-Hulman Institute […]

Indiana Supreme Court

James Combs v. State of Indiana
20S-CR-616
Criminal. Affirms the trial court’s judgment that denied James Combs’ motion to suppress after concluding that that police officers had probable cause to believe his van was connected to criminal activity and therefore could be seized without a warrant. Finds that the seizure and search of Combs’ van fell under recognized exceptions to the Fourth Amendment’s warrant requirement. Justice Rush and Justice David concur. Justice Slaughter concurs in result. Justice Goff dissents.

Indiana Court of Appeals
Edward Koziski v. State of Indiana
20A-CR-1889
Criminal. Affirms and reverses in part Edward Koziski’s convictions of two counts of Level 1 felony child molesting and one count each of Level 5 felony criminal confinement and Level 5 felony kidnapping. Finds the test in Wadle v. State, 151 N.E.3d 227 (Ind. 2020) applies. Also finds that under Wadle, Koziski’s Level 1 felony convictions do not violate double jeopardy. Finally, finds Koziski’s Level 5 felony convictions do violate double jeopardy under Wadle, because confinement is an included offense of kidnapping. Remands with instructions to vacate Koziski’s conviction and sentence for Level 5 felony criminal confinement.

Indiana Court of Appeals
In Re: the Adoption of K.T.; J.J. and C.T. v. G.C. and C.B.
20A-AD-2102
Adoption. Affirms the order finding that mother C.T. and father J.J.’s consent to the adoption of their minor child, K.T., was not necessary. Finds the Fulton Circuit Court did not err as a matter of law when it considered whether C.T. and J.J.’s consents to the adoption were required despite an ongoing CHINS proceeding with K.T. Also finds the record supports the trial court’s findings that J.J.’s consent to the adoption is not required, and the court’s findings support its judgment dispensing with J.J.’s consent.

Indiana Court of Appeals
Sandra A. King and Danielle D. Benge v. Dan Dejanovic and Alice Dejanovic
20A-PL-2366
Civil plenary. Affirms the order for Sandra A. King and Danielle D. Benge to remove or reduce the size of their pole barn within 90 days. Finds that even though there are other violations of the covenants in the subdivision, they are on the “other” side of the subdivision and “not practically within sigh” of the property owned by Dan and Alice Dejanovic. Also finds the Dejanovics’ failure to object to the other violations does not deprive them of the right to enforce the covenant for a violation right next door that directly interferes with the use and enjoyment of their property.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
David Jones v. Rodney Cummings, et al.
20-1898
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker. Civil. Affirms the dismissal of David Jones’ complaint alleging Madison County prosecutors maliciously prosecuted him in violation of his due process rights. Finds that longstanding principles of 42 U.S.C. § 1983 and prosecutorial immunity block him at the threshold.

Richard Jefferson Deibel v. Larry Hoeg, Aaron Hoeg, and Roger Steffen
20-3378
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Tanya Walton Pratt. Civil. Affirms the dismissal of Richard Jefferson Deibel’s suit contending his settlement with Larry Hoeg and Roger Steffen allowed him to retain his shares in his former company Hy-Pro Corp. Finds Deibel’s suit was untimely and is not saved by a continuing wrong.

7^th Circuit Court of Appeals

Jay R. Thompson v. Frank Vanihel
20-2571
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Judge James R. Sweeney II.

Civil. Affirms the dismissal of Jay Thompson’s petition for writ of habeas corpus alleging ineffective assistance of counsel. Finds counsel’s alleged legal errors did not prejudice Thompson.

Indiana Court of Appeals

Jeromy D. Hurd v. State of Indiana (mem. dec.)
20A-CR-1671
Criminal. Reverses Jeromy D. Hurd’s conviction for theft but affirms his convictions for dealing in methamphetamine and dealing in marijuana. Finds the state provided insufficient evidence to support Hurd’s conviction of theft but provided sufficient evidence that Hurd possessed meth and marijuana. Also finds that any error in the admission of messages received by Hurd’s phone was harmless. Remands.