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Opinions Dec. 13, 2017

December 13, 2017

Indiana Supreme Court
Merchandise Warehouse Co., Inc. v. Indiana Department of State Revenue

49S10-1712-TA-735
Tax. Grants review and reverses the partial denial of Merchandise Warehouse Co., Inc.’s claims for refunds for sales tax paid on blast freezing equipment and the electricity used in operating that equipment. Enters summary judgment for MWC on the issue of direct production. Finds MWC’s blast freezing process constitutes direct production because it represents the crucial final step in creating a distinct marketable good – blast frozen food. Also finds the relevant statutes and regulations impose no requirement that MWC’s blast-freezing procedure be its own, separate production process. Remands for further proceedings.

Indiana Court of Appeals
DaShawn Powell v. Kevin Stuber d/b/a Bleachers Pub

71A03-1705-CT-967
Civil tort. Affirms the grant of summary judgment to Kevin Stuber d/b/a Bleachers Pubc on DaShawn Powell’s negligence claim. Finds the St. Joseph Superior Court did not err in reopening the deadline for dispositive motions in the case in light of the Indiana Supreme Court’s decision in Goodwin v. Yeakle’s Sports Bar and Grill, Inc.

Betty J. Rumell, as Personal Representative of the Estate of Margo Sue Rumell, Deceased v. Osolo Emergency Medical Services, Inc., Todd Byrket, Julie Calloway, and Kim Bryan
20A03-1704-CT-747
Civil tort. Affirms the grant of summary judgment in favor of Osolo Emergency Medical Services, Inc., Todd Byrket, Julie Calloway and Kim Bryan. Finds the Estate of Margo Sue Rummell’s medical malpractice complaint was time-barred. Judge John Baker concurs with separate opinion.

Tanesha McGowan v. State of Indiana
49A02-1706-CR-1421
Criminal. Affirms Tanesha McGowan’s convictions for three counts of neglect of a dependent as Class C felonies. Finds the evidence is sufficient to sustain McGowan’s convictions.

Childress Cattle, LLC v. The Estate of Roger F. Cain, Christie Cain, Personal Representative
70A05-1706-EU-1442
Estate, unsupervised. Affirms the Rush Superior Court’s disallowance of Childress Cattle, LLC’s claim against the Estate of Roger F. Cain for money owed. Finds the trial court did not err in the exclusion of evidence. Judge James Kirsch concurs with separate opinion.

Diana Zelman v. Central Indiana Orthopedics, P.C., and Francesca D. Tekula, M.D.
18A02-1705-PL-1121
Civil plenary. Reverses the entry of summary judgment in favor of Dr. Francesca D. Tekula and Central Indiana Orthopedics. Finds a genuine issue of material fact exists as to when Diana Zelman’s pain and diligent pursuit would have led her to discover that medical malpractice was the cause.

Mark Carter v. State of Indiana (mem. dec.)
49A04-1707-CR-1543
Criminal. Affirms Mark Carter’s convictions for Class A misdemeanor battery and Class A misdemeanor domestic battery. Finds the evidence is sufficient to support Carter’s convictions.

Stewart H. Hudson and Shelia D. Hudson v. The Winford D. Dixon Revocable Living Trust, Crystal J. Dixon, Trustee, Trevor Robbins, Amanda Robbins (mem. dec.)
47A01-1704-PL-865
Civil plenary. Affirms the Lawrence Circuit Court’s order granting a quiet title action filed by the Winford D. Dixon Revocable Living Trust and Trevor and Amanda Robbins. Finds the trial court did not err in determining the trust and the Robbinses established adverse possession of the disputed property, or in denying Stewart and Sheila Hudson’s request for an easement of necessity over a portion of land owned by the trust.

Dominique L. Gooden v. State of Indiana (mem. dec.)
02A05-1708-CR-1999
Criminal. Affirms the order for Dominique L. Gooden’s to serve her previously-suspended two-year sentence for her convictions of two counts of Class D felony receiving stolen property. Finds the Allen Superior Court did not abuse its discretion in ordering Gooden to serve her previously-suspended sentence.

In re the Matter of the Termination of the Parent-Child Relationship of L.H. (Minor Child) and N.B. (Mother) and J.H. (Father) v. Indiana Department of Child Services (mem. dec.)
03A01-1707-JT-1598
Juvenile termination of parental rights. Affirms the termination of J.H. and N.B.’s parental rights to L.H. Finds the evidence is sufficient to support the juvenile court’s order terminating the parents’ rights to L.H.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of: J.F., Minor Child, and J.F., Father v. The Indiana Department of Child Services (mem. dec.)
49A02-1707-JT-1633
Juvenile termination of parental rights. Affirms the termination of Jo.F.’s parental rights to J.F. Finds the order termination Jo.F.’s parental rights is supported by clear and convincing evidence.

George Neloms v. State of Indiana (mem. dec.)
18A05-1705-CR-1007
Criminal. Affirms George Neloms’ conviction of possession of a narcotic drug as a Level 3 felony and his sentence to nine-years. Finds the evidence is sufficient to support Neloms’ conviction. Also finds the Delaware Circuit Court did not abuse its sentencing discretion.

In the Matter of the Paternity of M.E., Michael A. Ewing v. Marcia Wagner (mem. dec.)
34A04-1705-JP-1089
Juvenile paternity. Affirms and reverses in part the denial of Michael A. Ewing’s petition to modify custody, support and parenting time. Finds Ewing has not shown the juvenile court abused its discretion when it denied his request to modify custody, or when it found him in contempt for failing to return his child to Marcia Wagner after exercising parenting time. Also finds Ewing has made a prima facie showing of a continuing and substantial change in circumstances making the prior child support order unreasonable. Finally, finds Ewing was not denied a fair and impartial trial due to Wagner being represented by a former judge in the case. Remands with instructions for the juvenile court to recalculate Ewing’s weekly child support obligation to exclude weekly child care expenses and to modify the amount of parenting time credit he is entitled to, if warranted.

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