Opinions

7^th Circuit Court of Appeals
United States of America v. Zebulon Xavier Marzette
23-1646
Criminal. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Damon Leichty. Affirms Zebulon Marzette’s conviction for possessing a firearm as a felon. Finds that Marzette failed to persuade the court that any error allowing the 911 caller’s statements to come in through police testimony prejudiced him at trial. Also finds that allowing Marzette’s conviction to stand would not so detrimentally affect his rights as to call the entire fairness and integrity of the trial into question.

Indiana Supreme Court
Jeffrey L. Foster, Kathie J. Foster, and the Earl Goodwine Trust v. First Merchants Bank, N.A.
24S-PL-75
Civil plenary. Reverses the Benton Circuit Court’s order granting First Merchants Bank’s motion to dismiss Jeffrey and Kathie Foster’s case based on Indiana Trial Rule 41(E). Finds that although the plaintiffs did little to advance their case for several years, they resumed prosecution by requesting a case-management conference before the defendant moved for dismissal under Rule 41(E).  Also finds the case could not be dismissed under that rule, and the trial court abused its discretion in concluding otherwise. Also rejects the defendant’s alternative argument, as the court holds that the equitable doctrine of laches does not apply here. Justice Geoffrey Slaughter dissents with separate opinion.

Indiana Supreme Court
Cohen B. Hancz-Barron v. State of Indiana
22S-LW-310
Life without parole. Affirms Cohen Hancz-Barron’s convictions in Allen Superior Court of murdering a young mother and her three children and his four consecutive life without parole sentences. Finds sufficient evidence supports Hancz-Barron’s convictions and the trial court did not abuse its discretion in permitting the state to recall a witness. Also finds the jury’s weighing of aggravators and mitigators in recommending Hancz-Barron’s LWOP sentence is not subject to appellate review. Finally, finds Hancz-Barron has not shown his sentence is inappropriate and the sentence is not unconstitutional.

Indiana Court of Appeals
T’arel Jordan Justice v. State of Indiana
23A-CR-2592
Criminal. Reverses T’arel Justice’s conviction in Marion Superior Court for aggravated battery and remands for a new trial. Additionally, remands with instructions that the sentencing order and abstract of judgment be corrected to indicate that Justice’s conviction for resisting law enforcement was vacated. Finds the trial court misapplied the burden of proof for Justice’s claims of self defense and defense of a third party.

Indiana Court of Appeals
Corey Mirabal v. State of Indiana
23A-CR-1451
Criminal. Affirms Corey Mirabal’s conviction for murder in Marion Superior Court. Finds that the totality of this evidence is sufficient to support the jury’s finding that, beyond a reasonable doubt, Mirabal committed the offense of murder. Also finds Mirabal’s argument regarding the quality of the police investigation is simply a request to reweigh the evidence.

Indiana Court of Appeals
Mark D. Stanley v. Karlynne D. Akos, Jeffrey H. Stanley, Kevin A. Stanley and Hire Holdings, LLC v. Lisa Stanley
23A-DN-2810
Domestic relations without children. Reverses the Kosciusko Superior Court’s judgment that the entirety of the Lake House, lake front property deeded to Mark Stanley in the settlement of the estate of Karol Stanley, is marital property. Finds that the factual findings support the conclusion that an express trust was not created. Also finds that the findings do not support the conclusion that a resulting trust was not impressed upon the property and the judgment is clearly erroneous in this regard. Remands for further proceedings.

Indiana Court of Appeals
Keith Allison and Joan Allison v. Jon Roock
23A-PL-3057
Civil plenary. Affirms the Bartholomew Superior Court’s denial of Keith and Joan  Allison’s motion for summary judgment. Reverse the trial court’s grant of Jon Roock’s motion for summary judgment. Finds a genuine issue of material fact precludes the entry of summary judgment with respect to whether Roock’s maintenance of his lot was in violation of the Second Tamerix Lake Addition’s restrictions and covenants. Remands for further proceedings.

7^th Circuit Court of Appeals
Mary Rodgers-Rouzier v. American Queen Steamboat Operating Company, LLC and HMS Global Maritime LLC
23-1812
Civil. Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. Judge Sarah Evans Barker. Reverses the district court’s dismissal of Mary Rodgers-Rouzier’s Fair Labor Standards Act complaint against American Queen Steamboat Operating Company. Finds the the district court was in error when it went beyond sending the question of Rodgers-Rouzier’s argument waiver’s validity to arbitration and instead rejected her argument’s premise, suggesting that the waiver was entirely lawful. Also finds that, in this case, Indiana law would not compel Rodgers-Rouzier to arbitrate, for the simple reason that the agreement expressly states that it is governed by the Federal Arbitration Act. Remands for further proceedings.

Indiana Court of Appeals
Liam Parke v. Vishal Vishwam
23A-CT-245
Civil tort. Affirms the Delaware Circuit Court’s grant of summary judgment for Vishal Viswam in the personal injury action Liam Parke brought against Viswam after Parke fell and injured himself on property owned by Viswam.  Finds that as Parke failed to demonstrate a genuine issue of material fact about whether Viswam owed him a duty, Viswam was entitled to summary judgment.

Indiana Tax Court
Steven W. Osborn v. Michael R. Schultz, in his official capacity as the Assessor of La Porte County, Indiana
22T-TA-12
Tax. Affirms the Indiana Board of Tax Review’s final determination affirming Steven Osborn’s 2020 and 2021 property tax assessments. Finds Osborn has not demonstrated that the Indiana Board’s final determination is contrary to law. Also finds Osborn’s frequent references to the Ninth Amendment and inalienable rights in his briefs do not establish that Indiana’s annual real property tax assessment infringes on his state or federal constitutional rights.

Gerald A. Sanders v. AHEPA 78 VI Apartments, Inc.
23A-EV-1502
Eviction. Affirms the Lake Superior Court’s order of eviction against Gerald Sanders. Finds the trial court did not err by entering a judgment of eviction. Also finds Sanders failed to show that he is disabled and thereby protected under the FHAA and/or Rehabilitation Act, and the persistent urine odor emanating from his apartment and infiltrating the common areas of the building constituted a material noncompliance with the terms of the lease agreement.

7^th Circuit Court of Appeals
Lester Sumrall and Lester Sumrall Family Trust v. Lesea, Inc., et. al.
23-2833
Civil. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Philip Simon. Affirms the district court’s granting of LeSEA, Inc.’s motions for summary judgment and motion to dismiss copyright counterclaims brought by Lester Sumrall and the Lester Sumrall Family Trust. Finds the trust’s claim for Dr. Lester Frank Sumrall’s (Lester Sumrall’s grandfather) works is untimely, while Lester Sumrall’s Traveler Photo claim fails because LeSEA owns the photo’s copyright. Also finds the district court correctly dismissed the trust’s claim for use of Dr. Sumrall’s right of publicity for failing to plead the required half-ownership.

Indiana Court of Appeals
William R. Mishler v. Union-North United School Corporation
23A-MI-1019
Miscellaneous. Affirms the St. Joseph Circuit Court’s resolution of summary judgment for the Union-North United School Corporation on the grounds that the school district complied with the state’s Access to Public Records Act. Reverses on the grounds that William Mishler did not comply with the Claims Against Public School Act notice requirement. Remands with instructions to dismiss the action without prejudice under Indiana Code section 34-13-3.5-7.

Indiana Court of Appeals 

Regina Geels v. Lindsay Flottemesch, Mackenzi Hatfield, and Stephanie Malinowski as Guardian for Marley Malinowski

23A-PL-2303

Civil plenary. Reverses the Allen Superior Court’s judgment imposing a constructive trust. Finds dispositive and preemption applies and defeats the daughters’ claim for a constructive trust pursuant to Indiana substantive law. Remands with instructions for the trial court to order the Clerk of Allen County to distribute the proceeds of the life insurance policies to Regina Geels. Judge Peter Foley dissents with a separate opinion.

7^th Circuit Court of Appeals
United States of America v. Echo A. Scheidt
23-2567
Criminal. Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Chief Judge Holly Brady. Affirms Echo Schiedt’s convictions on five counts of knowingly making a false written statement likely to deceive a firearms dealer in violation of 18 U.S.C. § 922(a)(6) and one count of knowingly making a false statement to a government agent in violation of 18 U.S.C. § 1001(a). Finds the Second Amendment does not immunize firearm purchasers from knowingly providing misstatements in ATF Form 4473.

Indiana Court of Appeals
McKinley Kelly v. State of Indiana
23A-PC-1025
Post conviction relief. Affirms the Lake Superior Court’s denial of McKinley Kelly’s successive petition for post-conviction relief. Finds that the post conviction court’s denial of Kelly’s successive petition for post conviction relief is not clearly erroneous.

Indiana Court of Appeals
Jordon M. Norton v. State of Indiana
23A-CR-2336
Criminal. Affirms Jordan Norton’s conviction in Elkhart Circuit Court of battery with a deadly weapon and criminal recklessness and his seven-year aggregate sentence to be served in the Indiana Department of Correction. Finds the trial court did not commit reversible error in administering its self-defense jury instruction and did not issue an inappropriate sentence.

7^th Circuit Court of Appeals
David L. Lewicki v. Donald Emerson, Warden, Plainfield Correctional Facility
23-3030
Prisoner. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Tanya Walton Pratt. Reverses the district court’s conditional writ of habeas corpus for David Lewicki and order for the State of Indiana to release Lewicki unless it provided him with a new appeal. Finds Lewicki, in his argument that he suffered prejudice and did not receive a speedy trial, does not explain why DNA evidence would have been unavailable had the case been tried earlier, and the amendment to which he alludes (the habitual offender allegation) can be made until 30 days before trial. Also finds prosecutors did not need or use delay to discover Lewicki’s criminal record.

7^th Circuit Court of Appeals
Morgan Morales v. Martin J. O’Malley, Commissioner of Social Security
23-2796
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Magistrate Judge Kellie Barr. Affirms an administrative law judge’s determination that Morgan Morales is not disabled and therefore not entitled to Social Security disability benefits. Finds there was abundant evidence that supports that decision. Also finds the magistrate judge’s analysis addressed Morales’s primary challenges to the ALJ’s decision with clarity and efficiency.

Indiana Supreme Court
Duke Energy Indiana, LLC v. City of Noblesville, Indiana
23S-PL-130
Civil plenary. Reverses the Hamilton Superior Court’s judgment in favor of the City of Noblesville and ordering Duke Energy to comply with the city’s unified development ordinance and obtain permits, as well as the imposition of a $150,000 penalty against Duke for starting demolition without required permits and the awarding to Noblesville $115,679.10 in attorneys’ fees, expert fees, and costs. Finds that whether the Indiana Utility Regulatory Commission finds Noblesville’s unified development ordinance reasonable will dictate whether the trial court in turn grants Noblesville’s request to enforce its ordinance against Duke. Remands for further proceedings.