Opinions May 22, 2019

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Indiana Court of Appeals
City of New Albany v. Board of Commissioners of the County of Floyd, New Albany Floyd County Indiana Building Authority

Miscellaneous. Reverses the Floyd Superior Court’s entry of judgment in favor of Floyd County against the New Albany Floyd County Indiana Building Authority and the City of New Albany. Finds the Building Authority lacked the statutory authority to agree to a turn-over provision in the 1992 lease, making it void. However, finds the county can still exercise a purchase option pursuant to the lease. Remands with instructions for the trial court to vacate the order granting title to the Criminal Justice Center in the County. Judge Elaine B. Brown concurs in part and dissent in part in a separate opinion.

Robert M. Judd v. State of Indiana (mem. dec.)
Criminal. Affirms Robert Judd’s aggregate 12-year sentence for Level 5 felony dealing in methamphetamine and Level 6 felony possession of a syringe, as well as his finding of being a habitual offender. Finds his sentence is not inappropriate.

In re the Unsupervised Estate of Margaret A. Exo Sarah Marie Exo and Amy Elizabeth Gould v. Timothy DonLevy, in his capacity as Personal Representative of the Estate of Margaret A. Exo (mem. dec.)
Estate, unsupervised. Affirms the Porter Superior Court’s order striking and dismissing Sarah Marie Exo and Amy Elizabeth Gould’s “Verified Petition to Compel Estate Inventory, to Docket the Margaret A. Exo Revocable Living Trust, and to Compel Trust Accounting.” Finds the probate court did not improperly grant personal representative Timothy DonLevy’s motions to strike and to dismiss the petition, filed in the estate case, to docket the Trust and compel a Trust accounting.

Sarah Marie Exo and Amy Elizabeth Gould v. The Margaret A. Exo Revocable Living Trust, Timothy DonLevy, as Trustee and Beneficiary of the Margaret A. Exo Revocable Living Trust, et al. (mem. dec.)
Trust. Reverses and remands the Porter Superior Court’s dismissal of Sarah Marie Exo and Amy Elizabeth Gould’s petition for failure to state a claim. Finds the dismissal was inappropriate and remands for further proceedings.

Michael G. McGinley v. State of Indiana (mem. dec.)
Criminal. Affirms Michael McGinley’s merged convictions of battery resulting in bodily injury and domestic battery, as well as his habitual offender finding. Finds McGinley’s self-defense claim fails.  

Brian L. Paquette v. State of Indiana (mem. dec.)
Criminal. Reverses in part, remands in part. Finds Paquette’s conviction for resisting causing the death of Jason Lowe must be vacated to avoid double jeopardy. However, instructs the trial court to enter a conviction under that count for the reduced offense of resisting law enforcement by fleeing in a vehicle with a 2½-year sentence to run consecutive to his other sentences. Finds Paquette’s reduced 41-year sentence is not in need of revision under Appellate Rule 7(B) and is not inappropriate.

In re the Termination of the Parent-Child Relationship of E.P. (Minor Child) and A.P. (Father) and K.D. (Mother) A.P. (Father) and K.D. (Mother) v. Indiana Department of Child Serivces (mem. dec.)
Juvenile termination. Affirms the termination of A.P. and K.D.’s parental rights to their child E.P. Finds the trial court did not err in the termination, or in finding that the termination was in E.P.’s best interests.

Scott W. Morris v. State of Indiana (mem. dec.)
Criminal. Affirms Scott Morris’ conviction of Class B felony criminal deviate conduct. Finds the Grant Superior Court did not abuse its discretion by admitting a nurse’s testimony of another nurse’s statements under the excited utterance exception to hearsay.

Luke W. Reese v. State of Indiana (mem. dec.)
Criminal. Affirms Luke Reese’s conviction of Level 5 felony criminal confinement, Class A misdemeanor domestic battery, and Class A misdemeanor battery. Finds sufficient evidence to support the Level 5 felony conviction. Also finds the state did not deny him due process when it failed to preserve photos and text messages as evidence of his wife’s affair.

Trustee of the Rose M. Luebbert Irrevocable Trust No. 1 for the Benefit of the Rose M. Luebbert Family v. Maple Family LLC (mem. dec.)
Civil collection. Affirms the Hamilton Superior Court’s denial of Robert Luebbert’s request for a writ of execution against Maple Family LLC. Finds the trial court was fully justified in ruling that service on Corporation Service Company was not reasonably calculated to notify Maple Family of the Nebraska lawsuit filed by Luebbert.

Indiana Tax Court
Madison County Assessor v. Sedd Realty Company

Tax. Reverses the Indiana Tax Board of Review’s final determination of the reduced the assessed value of Sedd Realty Company’s River Ridge shopping center for assessment years between 2009 and 2012. Finds the Board’s capitalization rate is improper and that Jay Allardt’s rate conclusion from his comparable properties was not reliable. Therefore, finds David Hall’s rate conclusion to be the sole remaining probative evidence of River Ridge’s capitalization rates. Remands with instructions for the Board to apply capitalization rates stated in the Assessor’s appraisal.

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