Opinions

Indiana Court of Appeals

Northern Indiana Public Service Company v. Aqua Environmental Container Corp. and Joki Leasing, LLC
91A04-1707-PL-1653
Civil plenary. Affirms on interlocutory appeal the trial court’s denial of NIPSCO’s motion for default judgment for spoliation of evidence. Affirms the trial court’s determination that there was no intentional spoliation of evidence by Aqua. Remands with instructions for the trial court to determine the appropriate remedy, if any, for Aqua’s negligent spoliation of evidence.

Indiana Supreme Court
Douglas Kirby v. State of Indiana
18S-CR-79
Criminal. Affirms the denial of Douglas Kirby’s petition for post-conviction relief, but does not reach the merits of Kirby’s ex-post facto claim. Finds Indiana’s post-conviction rules do not let Kirby bring his ex post facto claim in a post-conviction proceeding because Kirby is challenging a collateral consequence instead of his conviction or sentence. Also finds the post-conviction rules do not bar Kirby from pursuing his claim in a declaratory judgment action.

Indiana Court of Appeals
Scott Randall v. State of Indiana
49A02-1708-CR-1779
Criminal. Affirms the denial of Scott Randall’s motion to suppress evidence resulting from a police officer’s observations while conducting a welfare check. Finds the Marion Superior Court erroneously applied the community caretaking function, but Randall’s seizure was reasonable under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution pursuant to the emergency aid doctrine. Also finds Randall’s statements were not made in violation of Miranda.

Indiana Court of Appeals
City of Muncie Unsafe Building Hearing Authority, James Lee, Doug Marshall, Deborah Malitz, Aaron Wood, and Brad King, in their official capacities v. Popatlal Patel (mem. dec.)
18A02-1707-PL-1729
Civil plenary. Reverses a Delaware Circuit Court order in favor of Popatlal Patel and remands for the trial court to enter judgment in favor of the City of Muncie Unsafe Building Hearing Authority parties, who had issued a second demolition order on a former motel property owned by Patel. The Authority’s demolition order and its decision not to release a $22,000 performance bond to Patel were not arbitrary and capricious, and the trial court abused its discretion by substituting its judgment for that of the Authority. The court expresses no opinion on whether Patel is entitled to release of the bond if the demolition work is satisfactorily completed.

Indiana Court of Appeals
State of Indiana v. Daniel L. Myers
69A01-1708-CR-1805
Criminal. Reverses the dismissal of three counts of operating while intoxicated against Daniel L. Myers under Indiana Trial Rule 4(C). Because Myers did not timely object to the Ripley Superior Court setting his trial more than one year beyond the filing of charges, he acquiesced to the date. Remands with instructions for proceedings.

Indiana Court of Appeals
Kathy Sue Reed v. State of Indiana (mem. dec.)
71A03-1710-CR-2448
Criminal. Affirms the finding that Kathy Sue Reed violated the terms of her probation. Finds the St. Joseph Superior Court did not abuse its discretion in the admission of evidence or in finding Reed violated her probation.

Indiana Court of Appeals
Kavonya Jones v. State of Indiana
49A02-1708-CR-1950 
Criminal. Affirms Kavonya Jones’ Class A misdemeanor convictions of resisting law enforcement and driving while suspended. The evidence was sufficient to uphold the conviction, and the Marion Superior Court did not abuse its discretion in instructing the jury or in finding the alleged prosecutorial misconduct did not warrant a mistrial.

Indiana Court of Appeals
Currant Barnes v. State of Indiana (mem. dec.)
49A02-1711-CR-2542 
Criminal. Affirms Currant Barnes’ conviction of Class B misdemeanor possession of marijuana. The evidence is sufficient to support the conviction.

Michael Flowers v. State of Indiana
10A01-1703-CR-586 
Criminal. Reverses revocation of Michael Flowers’ placement in community corrections, with the majority finding the Clark Circuit Court erred in its analysis of whether it had authority to order Flowers to community corrections. The majority found the trial court also acted on flawed analysis when it stated in a hearing that any order by a senior judge can be reviewed and modified or altered by the presiding judge. Remands for proceedings and a new order. Judge Patricia Riley dissents and would affirm the trial court, finding it had inherent judicial authority to modify the placement order under I.C. 33-23-2-4.

Indiana Court of Appeals
City of Gary Police Civil Service Commission v. Raymond Robinson
45A05-1706-PL-1414
Civil plenary. Affirms the denial of the City of Gary Police Civil Service Commission’s motion to dismiss Raymond Robinson’s petition for judicial review and the trial court’s admission of evidence on summary judgment. Reverses the entry of summary judgment for Robinson. Finds the Lake Superior Court did not err when it denied the motion to dismiss. Also finds the commission did not preserve for appellate review its claim that the trial court considered inadmissible evidence on summary judgment. Finally, finds the trial court erred in entering summary judgment for Robinson. Remands for further proceedings.

Indiana Court of Appeals
In re the Termination of the Parent-Child Relationship of D.P., K.P., and M.P. (Minor Children), and J.P. (Mother) v. The Indiana Department of Child Services (mem. dec.)
53A01-1709-JT-2144
Termination of parental rights. Affirms the termination of J.P.’s parental rights to her children D.P., K.P. and M.P. Finds the Indiana Department of Child Services established by clear and convincing evidence the requisite statutory elements to support the termination decision.

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

Elizabeth Roumbos v. Samuel G. Vazanellis & Thiros and Stracci, PC
45S03-1710-CT-635
Civil tort. Reverses the grant of summary judgment to Samuel G. Vazanellis and Thiros and Stracci, P.C. on Elizabeth Roumbos’ legal malpractice claim. Finds Vazanellis and the law firm failed to negate the causation element of Roumbos’ malpractice claim by failing to establish as a matter of law that Roumbos would not have succeeded in her premises liability claim. Remands.

Indiana Supreme Court
Kristopher L. Weida v. State of Indiana
79S02-1711-CR-687
Criminal. Affirms and reverses in part probation conditions imposed on Kristopher Weida after he was convicted of incest with his teenage niece. Finds the probation condition restricting Weida from accessing websites “frequented by children” is not vague, unreasonable or unduly intrusive on Weida’s constitutional rights. Also finds the probation condition prohibiting Weida from accessing the Internet without approval from his probation officer is unreasonable because it does not reasonably relate to his rehabilitation and to protecting the public. Remands for further proceedings.

Indiana Court of Appeals
Stephen Wirthlin v. State of Indiana
24A01-1711-CR-2662
Criminal. Reverses the denial of Stephen Wirthlin’s motion to withdraw his guilty plea to Level 6 felony charges of possession of methamphetamine and dealing in a synthetic drug or synthetic drug lookalike. Finds Wirthlin did not knowingly, intelligently and voluntarily waive his right to counsel at the initial or guilty plea hearings. Remands with instructions to withdraw Wirthlin’s guilty plea and vacate his conviction and sentence of two years, with 16 months suspended to probation, and for further proceedings.

7th Circuit Court of Appeals
Kelly Jean Linderman v. U.S. Bank National Association
17-1770
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Larry J. McKinney.
Civil. Affirms the district court’s judgment in favor of U.S. Bank National Association on Kelly Jean Linderman’s claim under the Real Estate Settlement Procedures Act. Finds U.S. Bank did not violate the act.

Indiana Court of Appeals

K.K. v. State of Indiana
49A02-1710-JV-2274
Juvenile. Affirms K.K.’s adjudication as a juvenile delinquent for committing acts that would be Level 4 felony burglary and Level 6 felony theft if committed by an adult. Finds the Marion Superior Court did not abuse its discretion in admitting fingerprint evidence.

Indiana Court of Appeals
U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust v. Delphine D. Spurgeon, Co-Trustee of the Spurgeon Family Trust
36A01-1711-MF-2521
Mortgage foreclosure. Reverses the dismissal of U.S. Bank, N.A.’s complaint for foreclosure. Finds U.S. Bank did not fail to comply with Indiana Trial Rule 9.2(A) or fail to state a claim upon which relief could be granted. Also finds U.S. Bank has established its security interest in the property subject to the mortgage. Remands with instructions to grant U.S. Bank’s request for default judgment.

Indiana Court of Appeals
Town of Brownsburg, Indiana, Town Council of Brownsburg, Indiana, and Jeanette M. Brickler v. Fight Against Brownsburg Annexation, et al.
32A01-1702-PL-215
Civil plenary. Affirms the entry of judgment against the Town of Brownsburg, the Brownsburg Town council and Jeanette M. Brickler and in favor of Fight Against Brownsburg Annexation. Finds the Hendricks Superior Court did not err in holding that Brownsburg failed to meet the “needed and can be used” requirement of Indiana Code section 36-4-3-13(c).

The following 7th Circuit Court of Appeals decision was posted after IL deadline Tuesday:
LeeAnn Brock-Miller v. United States of America
16-3050
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker.
Civil. Reverses the denial of LeeAnn Brock-Miller’s motion under 28 USC section 2255 challenging her conviction of conspiracy to possess with intent to distribute heroin. Finds Brock-Miller’s 2008 conviction did not qualify as a felony drug offense subjecting her to a recidivist enhancement. Also finds Brock-Miller has presented sufficient evidence to justify a hearing on both deficient performance and prejudice under Strickland v. Washington, 466 U.S. 668 (1984). Remands for a hearing on Brock-Miller’s motion.

Indiana Court of Appeals
In Re the Marriage of: William Lynch v. Lisa Lynch, and State of Indiana (mem. dec.)
29A02-1710-DR-2484
Domestic relation. Affirms the modification of William Lynch’s child support obligation. Finds the Hamilton Superior Court did not err when it calculated Lynch’s current child support obligation or when it made the modification of child support retroactive to the date he filed his motion for modification.