Opinions March 19, 2021

The following Indiana Supreme Court opinion was issued after IL deadline Thursday:

G&G Oil Co. of Indiana, Inc. v. Continental Western Insurance Co.
Civil plenary. Reverses the Marion Superior Court’s grant of summary judgment in favor of Continental Western Insurance Company but affirms the denial of G&G Oil Company of Indiana’s motion for summary judgment in a dispute over coverage of a ransomware attack. Finds that although G&G Oil’s losses resulted directly from the use of a computer, neither party is entitled to summary judgment. Remands for further proceedings.

Indiana Court of Appeals
The Department of Business and Neighborhood Services of the Consolidated City of Indianapolis, Indiana, Consolidated City of Indianapolis and Marion County, Indiana, and Metropolitan Board of Zoning Appeals of Marion County, Division I v. H-Indy, LLC, and HH-Indianapolis, LLC  
Civil plenary. Affirms the Marion Superior Court’s reversal of a decision by the Metropolitan Board of Zoning Appeals of Marion County, Division I requiring a variance for HH-Indianapolis LLC to open an “adult entertainment” business in a certain zoning area, the order for the BZA to issue HH-Indianapolis’ requested permits, and the trial court’s finding that H-Indy LLC’s constitutional rights were violated when the Department of Business and Neighborhood Services of the Consolidated City of Indianapolis, Indiana put a “litigation hold” on permit applications related to the site. Finds the BZA’s decision against HH-Indianapolis is arbitrary, capricious and unsupported by substantial evidence. Also finds H-Indy is entitled to judgment as a matter of law on its claim that its constitutional rights and property rights were violated. Remands for further proceedings.

Thomas A. Jackson, Jr. v. State of Indiana
Criminal. Affirms Thomas A. Jackson Jr.’s conviction of one count of Class A misdemeanor domestic battery. Finds the word “dating” is within the range of activities included in Indiana Code § 35-31.5-2-128(a)(1) and (2) (2012), which as applied to the totality of the facts and circumstances of the case at hand is sufficiently clear to have informed Jackson of the conduct that is prohibited. Also finds that the statutory elements “dating or has dated” as applied to the facts and circumstances in the case at hand are not vague. Finally, Finds there was sufficient evidence in Johnson Circuit Court that Meiry Araujo was married to Jackson to support his conviction for domestic battery.

Karim Jabr Al-Azawi v. State of Indiana
Post conviction. Affirms the Elkhart Superior Court’s denial of Karim Jabr Al-Azawi’s petition for post-conviction relief, concluding that he was not subject to ineffective assistance of trial or appellate counsel.

Christopher Owens v. State of Indiana
Criminal. Affirms the revocation of Christopher Owens’ placement in community corrections, finding the Marion Superior Court did not abuse its discretion in finding that Owens used a synthetic drug or because the statute that prohibited the use or possession of a synthetic drug had been repealed.

Kevin Washington, et al. v. Christina M. Perry, et al. (mem. dec.)
Civil plenary. Affirms in part and reverses in part rulings of the Hamilton Circuit Court in a dispute over a real estate lease purchase agreement. Affirms the trial court’s order denying the Washingtons’ tardy claim for breach of quiet enjoyment. However, finds genuine material issues of fact remain concerning whether the Washingtons breached the contract and whether the Perrys owe for repairs. Reverses and remands for further proceedings.

Nathaniel Morgan v. State of Indiana
Criminal. Affirms Nathaniel Morgan’s conviction in Marion Superior Court of Level 5 felony battery by means of a deadly weapon. Finds the evidence is sufficient to support Morgan’s conviction and to rebut Morgan’s self-defense claim.

Termination: E F v. Indiana Department of Child Services
Juvenile termination of parental rights. Affirms the termination of mother E.F.’s parental rights to her youngest child, C.F., finding the Elkhart Circuit Court’s decision was not clearly erroneous.

Leevi Chester Emery v. State of Indiana
Criminal. Affirms Leevi Emery’s 30-year sentence for conviction of Level 2 felony voluntary manslaughter after he pleaded guilty in Clark Circuit Court in the 2018 stabbing death of Stevie Cornett. Finds he has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.

Termination: O J, et al. v. Indiana Department of Child Services
Juvenile termination of parental rights. Affirms the termination of mother R.S. and father O.D.J.’s parental rights to their minor children, O.J. and H.J. Finds the Wayne Superior Court’s determinations were not clearly erroneous.

CT102 LLL, et al. v. NextGear Capital, Inc. (mem. dec.)
Civil collection. Affirms the Hamilton Superior Court’s order on damages and breach of contract in favor of NextGear Capital following a prior remand on appeal, finding the trial court did not abuse its discretion in admitting documents into evidence to prove the amount of damages under the business records exception to the rule against hearsay.

Frank J. Fugate, Jr. v. State of Indiana
Criminal. Affirms Frank J. Fugate’s conviction of Level 1 felony child molesting for which he was sentenced to 40 years in prison. Finds the Fulton Circuit Court did not commit fundamental error by failing to strike a line of questioning from the state or admonish the jury to disregard it. Further finds the court did not commit reversible error in excluding certain testimony offered by the defense.

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