Opinions

Indiana Court of Appeals
Linda G. Holsten, individually and as surviving spouse of Paul A. Holsten, Deceased v. Lynn Faur, M.D., and Cameron Memorial Community Hospital, Inc. a/k/a Urgent Care of Cameron Hospital
20A-CT-2072
Civil tort. Vacates the Steuben Circuit Court’s entry of partial summary judgment to Cameron Memorial Community Hospital on the sepsis theory of Linda Holsten’s medical malpractice complaint. Finds the trial court lacked subject matter jurisdiction over the sepsis theory portion of Holsten’s claim because it was not presented to the medical review panel. Remands with instructions for the trial court to dismiss, without prejudice, the sepsis theory portion of her claim.

Craig Blackwell v. Superior Safe Rooms, LLC, et al.
20A-PL-02081
Civil plenary. Reverses the denial of Craig Blackwell’s motion to pierce judgment of defendant’s – Superior Safe Rooms, LLC – corporate veil and hold garnishee defendants – Superior, Wharff Excavating, LLC, Michael M. Wharff, and John H. Byers –liable for plaintiff’s judgment. Finds the Hendricks Circuit Court erred when it failed to find as a fact that the contract for the safe room was between Blackwell and Superior, failed to make necessary findings, as requested by Blackwell, about factors relevant to disregarding Superior’s corporate form. Also finds the trial court clearly erred in concluding “Blackwell presented no evidence that any of the Aronson vs. Price, 644 N.E.2d 864, 867 (Ind. 1994)… factors CAUSED [his] damages.”

Indiana Court of Appeals
Charles William Smith, Jr. v. State of Indiana (mem. dec.)
20A-CR-2311
Criminal. Affirms Charles Smith Jr.’s conviction for Level 2 felony dealing in cocaine. Finds Smith unambiguously waived his right to be free from searches without reasonable suspicion as a condition of his placement in community corrections, so Marion County Community Corrections had Smith’s consent to search his residence. Also finds sufficient evidence to support the conviction.

The following Indiana Supreme Court opinion was posted after IL deadline on Wednesday:

Kevin Charles Isom v. State of Indiana
45S00-1508-PD-00508
Post conviction. Affirms the post-conviction court’s judgment against Kevin Isom. Finds the post-conviction court was correct to hold Isom to his burden of presenting developed legal theories and establishing the grounds for relief. Finds Isom has not established that the post-conviction court erred on multiple grounds, including in denying his renewed motion for a competency hearing; denying his discovery request for the State’s lethal-injection protocol and finding execution-validity challenge waived; denying his discovery request for juror contact information and finding issue waived; limiting the testimony of two expert witnesses; and finding his challenge to his petition’s filing date waived.

Indiana Supreme Court
Jeffrey B. Cutchin v. Amy L. Beard
21S-CQ-48
Certified question. Finds the Indiana Medical Malpractice Act applies when a plaintiff alleges that a qualified health care provider treated someone else negligently and that the negligent treatment injured the plaintiff. Declines to answer the question of whether the act prohibits the Patient’s Compensation Fund from contesting the act’s applicability to a claim after the claimant concludes a court-approved settlement with a covered health care provider. Justice Steven David concurs in result with separate opinion.

Indiana Supreme Court
Russell G. Berg v. Stacey L. Berg
21S-DC-320
Domestic relations with children. Affirms the award of half of Russell Berg’s stock to his ex-wife Stacey Berg. Finds that documents produced in anticipation of mediation fall under the confidentiality requirement of settlement negotiations. Also finds that the Allen Circuit Court erroneously admitted a marital balance sheet prepared for mediation to allow Stacey to avoid the parties’ settlement agreement. Finally, finds the trial court incorrectly determined that fraud, constructive fraud, mutual mistake or representation had occurred, but did not abuse its discretion in finding that Russell breached the warranty clause of the agreement.

Indiana Court of Appeals

Krause-Franzen Farms, Inc., David P. Krause, Jane E. Krause, and Philip C. Krause v. Tippecanoe School Corporation
21A-PL-115
Civil plenary. Affirms the Tippecanoe Superior Court’s order in favor of Tippecanoe School Corporation on its condemnation action and overruling Krause-Franzen Farms Inc., David P. Krause, Jane E. Krause and Philip C. Krause’s objection. Finds TSC is not appropriating property because it might wish to use the property in the future. Also finds the evidence does not point solely to a conclusion that TSC has exceeded its authority.

Michael R. Jent v. Bureau Of Motor Vehicles (mem. dec.)
20A-CT-02096
Civil tort. Affirms the dismissal of Michael Jent’s complaint against the Indiana Bureau of Motor Vehicles. Finds any error committed by the Marion Superior Court in granting the BMV’s motion to dismiss Jent’s complaint with prejudice was harmless.

Indiana Court of Appeals
Kennic T. Brown v. State of Indiana
20A-CR-2261
Criminal. Affirms the denial of Kennic Brown’s motion to dismiss his charge of Level 6 felony battery against a public safety officer. Finds the disciplinary action taken by the Indiana Department of Correction against Brown for his conduct violation does not preclude the state’s criminal prosecution of him for the same act. Also finds Brown’s motion to dismiss the criminal charge against him on double jeopardy grounds was correctly denied.

Indiana Court of Appeals
Thomas D. Hunter v. State of Indiana (mem. dec.)
20A-PC-1293
Post-conviction. Affirms the denial of Thomas Hunter’s petition for post-conviction relief following his guilty plea to felony murder. Finds Hunter failed to prove he was denied due process based on an alleged Brady violation or that he received ineffective assistance of trial counsel.

Indiana Supreme Court
State of Indiana v. Justin Jones
21S-CR-50
Criminal. Reverses an order requiring a confidential informant in Justin Jones’ case to have a face-to-face interview with opposing counsel. Finds that an informant’s identity is inherently revealed through their physical appearance at a face-to-face interview. Also finds that when a defendant requests such an interview, the state has met its threshold burden to show the informer’s privilege applies. Finally, finds the Marion Superior Court did not apply the established balancing test before ordering disclosure. Remands.

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 […]