Opinions April 27, 2020

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Indiana Court of Appeals
The Davey Tree Expert Company and Davey Resource Group, Inc. v. The City of Indianapolis
Civil tort. Reverses the Marion Superior Court’s grant of the city of Indianapolis’ motion for judgment on the pleadings as to its cross-claim for declaratory judgment against The Davey Tree Expert Company. Finds Davey Tree’s defense obligation is only triggered if the city is sued for Davey Tree’s negligence. Because the claims against the city brought by Evelyn Smock in a wrongful-death lawsuit for her husband are based entirely on the city’s conduct, Davey Tree does not have to defend the city under the contract.

Gregory Jacob v. Dylan Vigh
Civil tort. Reverses the Marion Superior Court’s grant of Indianapolis attorney Dylan Vigh’s motion to dismiss Gregory Jacob’s complaint against him for failure to state a claim upon which relief can be granted. Finds that while Jacob’s complaint includes allegations that Vigh violated certain canons of the Rules of Professional Conduct, that does not mean the trial court lacks jurisdiction over his complaint alleging claims of fraud, breach of contract and breach of fiduciary duty and supports a claim for legal malpractice. Remands for further proceedings.

In Re the Paternity of A.J.: Coby Lee Jent v. Jerrilee Cave (Jent), and Elizabeth Stevens
Juvenile paternity. Affirms the Madison Circuit Court’s grant of custody and support to Jerrilee Cave with respect to her child, A.J., with Coby Jent. Finds the trial court did not clearly err in determining that it was in A.J.’s best interest to award custody to Cave or in ordering Jent to pay $75 per week in child support. Also finds no abuse of discretion in the trial court’s finding that Cave did not commit spoliation of evidence by redacting Facebook posts concerning Jent. Finally, finds no error in not ordering Cave to pay Jent’s attorney fees.

In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.R., et al. (Minor Children) and C.T. (Mother), et al. v. The Indiana Department of Child Services (mem. dec.)
Juvenile termination of parental rights. Affirms the termination of father J.R. and mother C.T.’s parental rights to A.R., Mad. R. and Mac. R. upon the petition of the Wayne County Department of Child Services. Finds DCS established by clear and convincing evidence the requisite elements to support the termination of parental rights.

Elpers Bros. Construction & Supply, Inc. and Elpers Development, Inc. v. Deane L. Smith, II, MD and Lori A. Smith (mem. dec.)
Civil plenary. Affirms the denial of Elpers Bros. Construction & Supply Inc. and Elpers Development Inc.’s motions for change of venue from Vanderburgh County and to disqualify Deane L. Smith II and Lori Smith’s counsel. Finds the Vanderburgh Circuit Court’s decision to deny the builders’ motion to disqualify attorney David L. Jones, as well as Craig R. Emig and their firm, Jones Wallace LLC, was not an abuse of discretion. Also finds the trial court did not abuse its discretion when it denied the builders’ motion to change venue from the county.

John Northerner v. State of Indiana (mem. dec.)
Criminal. Affirms John Northerner’s convictions two counts of Level 1 felony child molesting; three counts of Level 4 felony child molesting; two counts of Class A felony child molesting; and one count of Class C felony child molesting. Finds the Marion Superior Court did not abuse its discretion when it admitted Dr. Shannon Thompson’s testimony because it was not improper opinion testimony. Also finds trial court did not abuse its discretion in denying Northerner’s motion for a mistrial, and the deputy prosecutor did not commit misconduct during closing argument. Finally, given current Indiana Supreme Court precedent, declines to impose an additional corroboration requirement in cases involving abuse of a minor.

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