Opinions

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.

Indiana Court of Appeals
Heidi Carter v. State of Indiana
23A-CR-817
Criminal. Affirms the Vanderburgh Circuit Court’s conviction of Heidi Carter for murder. Finds the trial court did not err when it denied Carter’s motion to dismiss the refiled murder charge. Also finds there is sufficient evidence to support her murder conviction.

Indiana Court of Appeals
Aaron Dashawn Brackenridge v. State of Indiana
23A-CR-2496
Criminal. Reverses the Boone Superior Court’s denial of Aaron Brackenridge’s motion to dismiss the charge of unlawful possession of a firearm by a serious violent felon, a Level 4 felony. Finds the felony on which the charge was based had been converted to a misdemeanor. Also finds that at the time the state charged Brackenridge with being a serious violent felon in unlawful possession of a firearm, Brackenridge was not a felon because his Class D felony conviction had been vacated and replaced with a Class A misdemeanor conviction pursuant to the Alternative Misdemeanor Sentencing statute.

The following opinion was published after IL’s deadline Friday:

Indiana Tax Court
Convention Headquarters Hotels, LLC v. Marion County Assessor
19T-TA-21
Tax. Finds that the Marion County Assessor did assess all commercial properties under construction in Marion County on the assessment dates between 2006, and therefore, the 2010 assessment of Convention Headquarters Hotel LLC’s JW Marriott Indianapolis hotel property did not violate its constitutionally guaranteed rights. Also finds that that Convention HQ has not shown that the assessor treated its under-construction property differently than other commercial properties under construction in Marion County during those years.

Indiana Court of Appeals
Great American Insurance Company v. Cline Avenue Bridge, LLC, and United Bridge Operating, LLC v. Figg Group, Inc., et al.
23A-PL-2162
Civil plenary. Affirms the Lake Superior Court’s entry of summary judgment for Cline Avenue Bridge, LLC and United Bridge Operating, LLC. Finds the trial court did not err when it concluded that Great American Insurance Company had no contractual or equitable basis upon which Great American could seek to recover attorneys’ fees from the project owners.

Red Lobster Restaurants LLC v. Abigail Fricke

23S‐CT‐304

Civil tort. Affirms the Marion Superior Court’s denial of Red Lobster’s summary judgment motion. Finds Abigail Fricke’s initial ommission did not deprive her of standing.

7^th Circuit Court of Appeals
Charles Brumitt v. Sam Smith
23-1321
Civil. Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Chief Judge Tanya Walton Pratt. Reverses the district court’s denial of Sam Smith’s motion for summary judgment on the grounds the force he used was objectively reasonable and that, because no clearly established law held otherwise, he was entitled to qualified immunity. Finds Smith’s conduct did not violate Charles Brumitt’s clearly established Fourth Amendment rights. Remands with instructions to enter judgment in Smith’s favor on the Fourth Amendment claim. Judge Doris Pryor concurs with a separate opinion. 

Indiana Court of Appeals
Angela Hendrix v. Donald Campbell, et al.
23A-PL-2234
Civil plenary. Affirms the Owen Circuit Court’s denial of Angela Hendrix’s motion for a “set-off” of Donald and Pamela Campbell’s judgment  against Hendrix by an amount equal to a judgment Hendrix won against Pamela Campbell in the separate case. Finds Hendrix cannot set off Judgment 1 by Judgment 2 because mutuality does not exist between the parties owing the judgments, because only Pamela Campbell was responsible for Judgment 2. Also finds Hendrix has not demonstrated that an irremediable injustice supports dispensing with the mutuality requirement.

Indiana Supreme Court
In the Matter of the Honorable Scott A. Norrick, Judge of the Madison Circuit Court
24S-JD-35
Judicial discipline. Suspends Madison Circuit Court Judge Scott Norrick, without pay for 45 days commencing June 3, with the suspension terminating and Norrick being automatically reinstated to office July 18. Finds Norrick engaged in judicial misconduct by: failing to supervise his staff in the processing of orders, which resulted in him presiding over civil cases in which he or his son were the attorneys of record; erroneously issuing an ex parte change-of-custody order without giving the opposing party notice or an opportunity to respond; and failing to supervise his staff in the processing of criminal cases, which led to delays in issuing warrants, missing orders and chronological case summary (entries, and involuntarily dismissing sixteen criminal cases. All justices concurred except for Justice Geoffrey Slaughter, who would reject the conditional agreement, believing more severe discipline is warranted.

Indiana Court of Appeals
Jason Kelly and Myka Kelly v. State of Indiana, et al.
23A-CT-1845
Civil tort. Affirms the Wabash Circuit Court’s granting of a partial motion by the State of Indiana to dismiss Jason and Myka Kelly’s breach of contract claim against the Indiana Department of Child Services and several individual DCS employees. Finds that the trial court did not err in entering judgment as a matter of law in favor of the state. Also finds the Kellys have not alleged and there is no evidence in the record that the state engaged in acts of contractual sabotage or bad faith. Finally, finds that because the approval of the governor, which is statutorily required, and the approval of the attorney general were not obtained, and, where there is no evidence in the record that the state engaged in acts of contractual sabotage or bad faith, the agreement is not enforceable.

Indiana Court of Appeals
Thomas S. Gray v. State of Indiana
23A-CR-1871
Criminal. Affirms the Allen Superior Court’s revocation of Thomas Gray’s probation. Finds that Gray admitted that he committed Level 5 felony child exploitation when he pled guilty and a person of ordinary intelligence would understand that active participation in a treatment program intended to treat criminal behavior would require the person to take responsibility for committing that crime. Also finds that Additional Condition of Probation #2 adequately informed Gray that his failure to comply with the conditions of the sexual perpetrator treatment program would result in a probation violation, and therefore, it was not unconstitutionally vague.

Indiana Court of Appeals
Johnny W. Brown v. State of Indiana
23A-CR-330
Criminal. Reverses Johnny Brown’s conviction of Class C felony child molesting. Finds that When Brown turned 21 years old, his case fell into the jurisdictional gap the Indiana Supreme Court identified in D.P. and Neukam. Also finds that while statutes that became effective on July 1, 2023, cured this jurisdictional gap, retroactive application of these statutes to Brown would violate his right under the United States Constitution to be free of ex post facto laws. Remands with instructions for the trial court to dismiss.

Indiana Court of Appeals
Carol Fluhr, Individually and as Personal Representative of the Estate of Ed Fluhr, Deceased v. Anonymous Doctor 1, et.al.
23A-MI-1632
Civil miscellaneous. Affirms the Marion Superior Court’s granting of summary judgment to Anonymous Doctors 1,2,3 and 4 and Anonymous Medical Centers 1,2 and 3 on grounds that they were immune from Carol Fluhr’s complaint under Indiana’s COVID-19 immunity statute. Finds that because Fluhr does not rebut the defendants’ designated evidence that the health care providers were acting under policies intended to prevent or minimize the spread of COVID-19, there is no genuine issue of material fact and the defendants are entitled to immunity as a matter of law.

Indiana Court of Appeals
Mark Campbell v. Andrew Campbell and Campbell Research & Consulting, LLC
23A-CT-2178
Civil tort. Reverses the Hendricks Superior Court’s dismissal of Mark Campbell’s complaint of defamation and false light invasion of privacy against his son, Andrew Campbell. Finds that because Andrew Campbell has failed to prove that his statements were made in connection with a public issue, the anti-Strategic Lawsuit Against Public Participation defense does not apply and the trial court erred in dismissing Mark Campbell’s complaint. Remands the case to the trial court to continue the litigation of Mark Campbell’s claims and Andrew Campbell’s counterclaim.

Indiana Supreme Court
Christine Cosme and Roy Cosme v. Debora A. Warfield Clark, Dan Churilla d/b/a Churilla Insurance, and Erie Insurance Exchange
24S-CT-159
Civil tort. Affirms the Lake Superior Court’s directed verdict for Churilla Insurance. Finds that, lacking evidence on the duty element of their professional-negligence claim, the Cosmes cannot meet the quantitative prong of the directed verdict standard. Reverses the trial court’s directed verdict for Erie Insurance Exchange. Finds the trial court erred in directing the verdict for Erie Insurance Exchange. Also finds a reasonable jury could find that the insurance policy was still in effect at the time of the accident, and that Erie’s communications in cancelling the policy and its subsequent denial of the Cosmes’ insurance claim were a bad-faith breach of contract. Remands for further proceedings.

Indiana Court of Appeals
Mark Hyzy, individually and on behalf of Carolyn Hyzy,Deceased v. Anonymous Provider 1 v. Amy L. Beard, Commissioner of the Indiana Department of Insurance
23A-CT-2581
Civil tort. Affirms the Lake Superior Court’s dismissal of Mark Hyzy’s negligent infliction of emotional distress claim, brought individually and on behalf of Carolyn Hyzy, in a wrongful death action against Anonymous Provider 1. Finds that the trial court properly dismissed Hyzy’s negligent infliction of emotional distress claim which was brought under the Adult Wrongful Death Statute and pursuant to the procedures of the Medical Malpractice Act.

Indiana Supreme Court
Dustin A. Lane v. State of Indiana
24S-CR-150
Criminal. Affirms Dustin Lane’s aggregate sentence of more than eight years for 10 misdemeanors he committed by sending letters from prison to his former partner, while serving time after a domestic battery conviction and in violation of a no-contact order. Finds that a lengthy sentence of incarceration for such offenses is necessary to protect victims and the community from an offender with a history of violence. Also finds that Lane’s crimes and character indicate that he poses a continuing danger of restarting a cycle of physical and emotional abuse towards A.N. Justice Derek Molter dissents with separate opinion in which Justice Mark Massa joins.

Indiana Court of Appeals
James P. Devlin v. Horizon Bank, successor in interest to Salin Bank & Trust Company by merger
23A-MF-1986
Mortgage foreclosure. Affirms the Hendricks Superior Court’s amended judgment in favor of Horizon Bank, the successor in interest to Salin Bank & Trust Company, and its ruling to foreclose on the mortgage and its amended in rem judgment against James Devlin’s property. Finds that Devlin’s arguments, if adopted, would undermine good-faith dealings between lenders and debtors and would empower sureties to litigate any subsequent action of a debtor as “misconduct” entitling the surety to discharge. Also finds that Devlin’s position is not consistent with Indiana law.