Opinions March 31, 2022

Keywords Opinions

The following Indiana Tax Court opinion was posted after IL deadline Wednesday:
Michael Daugherty v. Benton County Assessor, Kelly Balensiefer
21T-TA-26
Tax. Affirms the Indiana Board of Tax Review’s final determination denying Michael Daugherty’s assessment appeal for the 2020 tax year. Finds Daugherty has not demonstrated that the Indiana board’s final determination is erroneous. 

Thursday opinions
Court of Appeals of Indiana
The Trustees of Indiana University v. Justin Spiegel; The Trustees of Purdue University v. Elijah Seslar, Zachary Church, Jordan Klebenow, and Luke McNally
21A-CT-175
Civil tort. Affirms the denial of Indiana University’s motion for judgment on the pleadings and Purdue University’s motion to dismiss following complaints filed by university students after in-person classes were canceled and university facilities were closed due to the COVID-19 pandemic. Finds the Monroe Circuit Court and Tippecanoe Superior Court did not err.

David Ross Sanford v. Elise Danielle Wilburn
21A-DR-1023
Domestic relations. Reverses the order changing primary physical custody of M.S. from David Ross Sanford to Elise Danielle Wilburn but affirms the order denying Sanford’s request for an ordering requiring Wilburn to reimburse him for probation fees he paid on behalf of M.S. stemming from an incident where Wilburn and M.S. keyed a car. Finds the Putnam Circuit Court erred in modifying custody when there was no substantial change with respect to the statutory considerations for M.S.’s best interests. Also finds the trial court did not err in denying Sanford’s request for reimbursement of probation fees based on a lack of evidence.

Tracy Williamson, et al., as the Cass County Council, and David Arnold, et al., as the Cass County Redevelopment Commission v. Patricia Razer, et al.
21A-PL-1167

Civil plenary. Reverses the denial of Cass County’s motion for Patricia Razer, Melissa Harrison, LeRoy Miller and Robert McDaniel to post a bond pursuant to the public lawsuit statute. Finds the Cass Superior Court erred when it denied the motion to post bond. Remands for further proceedings, including the setting of a bond as set forth in the public lawsuit statute.

PNC Bank, National Association v. Paul J. Page, et al.
21A-MF-1974
Mortgage foreclosure. Reverses the denial of PNC Bank N.A.’s motion to correct error following the exclusion of certain interest from a judgment and decree of foreclosure entered in favor of PNC. Finds that because the Indiana Supreme Court could not, by rule, change substantive law, the instructions in the court’s COVID-19 emergency orders that interest would not “be charged or due during the tolled period” cannot be construed to suspend the automatic accrual of nondiscretionary interest provided by the terms of a private loan instrument and as permitted by statute. Remands with instructions to the Marion Superior Court to award PNC interest from Nov. 24, 2017, to the date of the judgment at the rate specified in the note, including the period of March 16, 2020, through Aug. 14, 2020.

State of Indiana v. Derick S. Pemberton
21A-CR-668
Criminal. Affirms the dismissal of one count of Class B felony child molesting alleged to have been committed by 23-year-old Derick S. Pemberton when he was 16 years old. Finds the Legislature did not intend criminal courts to have jurisdiction over adults who allegedly committed delinquent acts as juveniles, unless the alleged delinquent act was an offense over which the Legislature explicitly gave jurisdiction to criminal courts when the actors were younger than 18. Also finds the criminal court would have automatically had jurisdiction of Pemberton when he allegedly committed Class B felony child molesting as a 16-year-old. Judge Derek Molter dissents with separate opinion.

Dorian Stephens v. State of Indiana (mem. dec.)
20A-PC-2411
Post-conviction. Affirms the denial of Dorian Stephens’ petition for post-conviction relief. Finds Stephens did not raise his challenge to his habitual offender adjudication at the time of his direct appeal, so that claim is waived, and the Indiana Supreme Court has limited the application of fundamental error in the context of post-conviction proceedings. Also finds Stephens’ trial counsel was not ineffective.

Douglas Smith v. Charles Coriaty, FreedomRoads, LLC, RWS Financial, LLC (mem. dec.)
21A-CC-1597
Civil collection. Affirms the denial of Douglas Smith’s motion for rule to show cause. Finds the Hamilton Superior Court did not abuse its discretion in finding that FreedomRoads LLC did not willfully disobey a court order and in denying Smith’s motion for contempt.

Adam Trenton Jewell v. State of Indiana (mem. dec.)
21A-CR-1868
Criminal. Reverses Adam T. Jewell’s conviction for Level 6 felony resisting law enforcement. Finds the evidence failed to establish the offense as charged, and the state concedes as much. Remands with instructions for the Tippecanoe Superior Court to vacate the conviction and resentence Jewell on his remaining convictions.

Andrew A. Dake v. State of Indiana (mem. dec.)
21A-CR-2041
Criminal. Affirms the order that Andrew A. Dake serve the entirety of his suspended sentence after he admitted to violating his probation. Finds the Shelby Superior Court did not abuse its discretion.

In Re: The Termination of the Parent-Child Relationship of A.Z., B.Z., E.Z., and F.Z. (Minor Children); C.Z. (Mother) v. Indiana Department of Child Services (mem. dec.)
21A-JT-2120
Juvenile termination of parental rights. Affirms the termination of mother C.Z.’s parent-child relationships with her four children, A.Z., B.Z., E.Z. and F.Z. Finds there is sufficient evidence to support hte termination of the parent-child relationships.

Ashley N. Edwards v. Dustin M. Edwards (mem. dec.)
21A-DC-2160
Domestic relations with children. Reverses the denial of mother Ashley N. Edwards’ motion for relief from judgment requesting that the Franklin Circuit Court set aside its order modifying custody, parenting time and child support. Finds Edwards’ counsel asserted that she made a good faith effort to make the court aware of her correct address, and the court stated that it agreed and that the record supported that assertion, so reversal is warranted. Remands to the trial court for an expedited evidentiary hearing on father Dustin M. Edwards’ motion to modify child custody and parenting time.

Ann Marie Johnson and Jaylen Johnson v. Mary Cahillane (mem. dec.)
21A-EV-2174
Eviction. Affirms the order evicting Ann and Jaylen Johnson from a residential property owned by Mary Cahillane. Finds the limited evidence submitted by the parties on appeal support the inference that Cahillane did not agree to accept funds from the Indiana Emergency Rental Assistance Program. Also finds the Johnsons failed to establish that either the funds issued by the program satisfied the amount of rent they owed or that they have provided the additional funds necessary to satisfy their rental obligations. Finally, finds the Johnsons have failed to satisfy their burden on appeal of proving that the Porter Superior Court erred in issuing the eviction order.

Linda L. Looney and Linda L. Looney as Personal Representative of the Estate of Joseph E. Looney v. Nestle Waters North America, Inc. (mem. dec.)
21A-CT-2227
Civil tort. Affirms the entry of summary judgment in favor of Nestle Waters North America Inc. in a dispute with Linda L. Looney and Linda L. Looney as Personal Representative of the Estate of Joseph E. Looney. Finds Joseph was not a reasonably foreseeable victim injured by a reasonably foreseeable harm. Also finds public policy does not weigh in favor of imposing a duty on Nestle for Aaron Henry’s conduct, where it was unaware of his conduct, which was in violation of its workplace principles, and his subsequent illegal operation of his vehicle while intoxicated. Finally, finds the Marion Superior Court did not err in entering summary judgment in favor of Nestle.

Michael Lee Anthony Moffatt v. State of Indiana (mem. dec.)
21A-CR-2252
Criminal. Affirms Michael Lee Anthony Moffatt’s sentence to one year and 180 days for failure to return to lawful detention as a Level 6 felony. Finds Moffatt has not sustained his burden of establishing that his sentence is inappropriate in light of the nature of the offense and his character.

Charles Walters v. State of Indiana (mem. dec.)
21A-CR-2359
Criminal. Affirms Charles Walters’ conviction for resisting law enforcement as a Class A misdemeanor. Finds evidence of probative value exists from which a reasonable trier of fact could find Walters guilty beyond a reasonable doubt.

Caleb Kaje Drake v. State of Indiana (mem. dec.)
21A-CR-2548
Criminal. Affirms the order that Caleb Drake serve the remainder of his previously suspended sentence in the Indiana Department of Correction following the revocation of his probation. Finds the Hamilton Superior Court did not abuse its discretion.

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