Opinions Aug. 8, 2022

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The following 7th Circuit Court of Appeals opinion was posted after IL deadline on Friday:
T.S., by and through his parents and guardians, T.M.S. and M.S., individually and derivatively on behalf of the Heart of CarDon, LLC Employee Benefit Plan v. Heart of CarDon, LLC & Heart of CarDon, LLC Employee Benefit Plan
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Tanya Walton Pratt.
Civil. Affirms the denial of judgment on the pleadings to Hear of CarDon LLC and Heart of CarDon LLC Employee Benefit Plan on T.S.’s complaint alleging the plan’s exclusion of coverage for autism treatment violates Section 1557 of the Patient Protection and Affordable Care Act. Finds T.S.’s suit jibes with Section 1557’s text and purpose and thus falls within the zone of interests that provision is meant to protection. Also finds the intended-beneficiary limitation CarDon advocates is based on precedent that Congress has effectively abrogated. Finally, finds T.S. is a proper plaintiff under Section 1557. 

Monday opinions
Court of Appeals of Indiana
Jordan M. Zirkle v. State of Indiana (mem. dec.)
Criminal. Affirms Jordan M. Zirkle’s conviction of murder. Finds any error in the denial of Zirkle’s motion for a directed verdict is waived. Also finds Zirkle’s conviction is supported by ample evidence.

Cherie M. Drew v. Southgate Development LLC and Charlestown Enterprises, Inc. (mem. dec.)
Civil plenary. Affirms and reverses in part the denial of Cherie M. Drew’s motion for declaratory judgment that real property she purchased in Clark County had an easement of necessity over Southgate Development LLC’s property. Finds Drew has not satisfied her burden on appeal to show that the undisputed facts prove that she is entitled to an easement of necessity over the Southgate property as a matter of law. Also finds the Clark Circuit Court must determine whether Southgate is a bona fide purchaser and, if so, whether that status defeats an easement of necessity in this case. Remands for further proceedings, including for the parties to pursue the claims further, either at trial or by way of motion practice.

X.N. v. State of Indiana (mem. dec.)
Juvenile. Affirms the award of wardship of X.N. to the Indiana Department of Correction. Finds the juvenile court did not abuse its discretion by modifying its dispositional decree and awarding wardship of X.N. to the DOC.

Michael Ghosh v. Meleeka Clary-Ghosh (mem. dec.)
Domestic relations with children. Affirms the denial of father Michael Ghosh’s motion to correct error and motion to set aside judgment following the Madison Circuit Court’s order granting, in part, mother Meleeka Clary-Ghosh’s petition to modify child support. Finds the trial court did not clearly err when it found that Clary-Ghosh had “reduced hours and hourly rate” while pursuing her Ph.D, nor did it abuse its discretion when it modified her child support obligation. Also finds Clary-Ghosh has not shown that the trial court abused its discretion when it declined to give her a credit for her claimed expenses related to her daughters.

Travis Andrew Swiderek v. State of Indiana (mem. dec.)
Criminal. Dismisses Travis Andrew Swiderek’s appeal of his aggregate 25-year sentence for his convictions of three counts of Level 5 felony child exploitation and two counts of Level 5 felony possession of child pornography, without prejudice to his ability to present his claim in a petition for post-conviction relief. Finds a double jeopardy challenge is a challenge to the underlying conviction, and the Indiana Supreme Court has held that a defendant may not appeal a conviction based on a guilty plea.

John Lake and Mary Lake v. City of Michigan City, Indiana (mem. dec.)
Civil tort. Reverses the dismissal of John and Mary Lake’s defamation suit against Michigan City. Finds the complaint falls under the Indiana Tort Claim Act and the comments made by former mayor Ron Meer were made in his official capacity toward the Lakes. Also finds Davidson v. Perron, 716 N.E.2d 29 (Ind. Ct. App. 1999), is applicable. Finally, finds the complaint isn’t insufficient as a matter of law.

Cory M. Jones v. State of Indiana (mem. dec.)
Criminal. Affirms Cory M. Jones’ sentence of 47½ years at the Indiana Department of Correction for Level 2 felony voluntary manslaughter. Finds his sentence, which has a 20-year enhancement, is not inappropriate in light of the nature of the offense and Jones’ character.

Christopher R. Salter v. State of Indiana (mem. dec.)
Criminal. Affirms Christopher R. Salter’s 17-year sentence and his conviction of Level 2 felony dealing in methamphetamine. Finds the Perry Circuit Court did not abuse its discretion when it denied Salter’s motion to withdraw his guilty plea.

Posey County Board of Zoning Appeals v. Derek Collins (mem. dec.)
Miscellaneous. Reverses the Posey Superior Court’s reversal of the Posey County Board of Zoning Appeals’ denial of a special exception application for Derek S. Collins. Finds the BZA’s decision to deny Collins’ special exception was reasonable and based on the facts of his particular case.

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