Opinions

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.

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.