Opinions Feb. 16, 2021

Indiana Court of Appeals

Muir Woods Section One Association, Inc., and Nantucket Bay Homeowners Association, Inc. v. Claudia O. Fuentes, Marion County Treasurer; Julie Voorhies, Marion County Auditor; and Joseph P. O’Connor, Marion County Assessor


Civil collection.

Reverses the Marion Superior Court’s dismissal of the amended complaint and petition for mandate of Muir Woods Section One Association Inc. and Nantucket Bay Homeowners Association Inc. Finds that although the cases “arises under” Indiana tax law, there has been no final determination by the Indiana Board of Tax Review, so administrative remedies have not been exhausted and the Indiana Tax Court does not have jurisdiction. Remands to the trial court for a determination on the homeowners associations’ mandamus action to compel the Marion County treasurer, auditor and assessor to act.

John D. Wilder v. DeGood Dimensional Concepts, Inc.


Civil plenary. Affirms and reverses in part the Kosciusko Circuit Court’s decision regarding the attorney fees due to John D. Wilder’s attorney, Ronald Weldy, under Indiana Code § 22-2-5-2. Finds the trial court did not abuse its discretion when it awarded Wilder $3,329 in additional trial attorney fees, but did abuse its discretion when it awarded Weldy $10,410 in appellate attorney fees because there was no evidence to support the $300 hourly rate the trial court used to calculate the appellate attorney fees award. Also finds DeGood Dimensional Concepts Inc. has waived any argument regarding certain billing entries in Weldy’s billing invoice because it presented that issue for the first time in a motion to correct error. Remands for the trial court to enter an order awarding Wilder $13,520 in appellate attorney fees for 33.8 hours of work at a rate of $400 per hour. Also remands for the calculation of hours Weldy expended on the instant appeal and orders the trial court to award Wilder appellate attorney fees for those hours at a rate of $400 per hour.

Raymond O. Demby, Jr. v. State of Indiana


Criminal. Affirms Raymond Demby’s convictions of Level 1 felony counts of burglary and attempted murder but reverses his conviction of Level 3 felony aggravated battery. Finds Demby’s conviction of aggravated battery violates the prohibition against double jeopardy. Remands with instructions to vacate Demby’s aggravated battery conviction and his related sentence.

Nuell, Inc. v. Timothy D. Marsillett and Property-Owners Insurance Company


Civil plenary. Affirms the grant of summary judgment to Property-Owners Insurance Company on Nuell Inc.’s complaint for declaratory judgment in an insurance action. Finds the designated evidence demonstrates that Nuell did not have a valid lease on the property, so it did not have a financial interest in the property. Also finds the designated evidence demonstrates that Property-Owners had a legitimate reason for ultimately denying Nuell’s claim two years after it had originally approved the claim in part. Finally, finds the Kosciusko Circuit Court did not err when it entered summary judgment in favor of Property-Owners.

Juan E. Mendoza v. State of Indiana (mem. dec.)


Criminal. Affirms Juan Mendoza’s convictions of four counts of Class A felony child molesting, one count of Class A felony attempted child molesting, one count of Class C felony child molesting and one count of Level 4 felony attempted incest, and his aggregate 216-year sentence. Find Mendoza’s convictions on Counts II and III were for two sufficiently distinct acts of deviate sexual conduct, so those convictions and sentences do not violate the prohibition against double jeopardy. Also finds that Mendoza has failed to show alleged deficiencies in the charging language violated his right to due process, and that there was sufficient evidence to support his conviction for Class A felony attempted child molesting. Finally, finds Mendoza has failed to establish either that he received ineffective assistance of trial counsel or that his sentence was inappropriate. Judge Leanna Weissmann concurs and dissents in part with separate opinion.

Barbara A. Craig v. State of Indiana (mem. dec.)


Criminal. Affirms Barbara Craig’s conviction of Level 4 felony conspiracy to commit arson and her sentence to six years, with three years suspended to probation. Finds the evidence was sufficient to support Craig’s conviction. Also finds her sentence is not inappropriate in light of the nature of the offense and her character.

Montez L. Ellington v. State of Indiana (mem. dec.)


Criminal. Affirms the revocation of Montez Ellington’s placement on home detention and the order for Ellington to serve the balance of his sentence in the Department of Correction. Finds the Vigo Superior Court did not abuse its discretion.

Charnell Robinson v. State of Indiana (mem. dec.)


Criminal. Affirms Charnell Robinson’s conviction of Class B misdemeanor criminal mischief. Finds that a reasonably fact-finder could infer that King Wilkins did not consent to having Robinson damage his vehicle.

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