Opinions Sept. 21, 2021

Indiana Court of Appeals
Dustin R. Paul v. State of Indiana
Criminal. Affirms and reverses in part the the Howard Superior Court’s calculation and allocation of credit time for Dustin Paul in his three simultaneous causes. Finds the trial court erred with respect to credit time and remands for it to address those issues consistent with the COA’s opinion by focusing on the first sentence in his sequence of consecutive sentences. Otherwise fully affirms Paul’s sentencing orders.

John Levi Bird v. Valley Acre Farms, Inc., David Bagshaw
Civil tort. Reverses the Washington Circuit Court’s grant of summary judgment to Valley Acre Farms and David Bagshaw. Finds the criteria is satisfied for considering the three releases signed by John Levi Bird under the contemporaneous writing rule. Also finds Valley Acre did not meet its burden of showing the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Finally, finds the trial court did not abuse its discretion in its evidentiary rulings. Remands for trial.

LPC Surgery Center, LLC v. KJG Architecture, Inc., et al. (mem. dec.)
Civil plenary. Affirms the Tippecanoe Superior Court’s grant of summary judgment in favor of KJG Architecture Inc., RTM Consultants Inc. and ProDeComm Engineering Inc. as to all claims set out in the complaint and its denial of Shazia and Meraj Siddiqui and LPC Surgery Center LLC’s cross-motion. Also affirms its grant of KJG’s motion to strike LPC’s claim of negligent misrepresentation. Find LPC’s argument that the trial court erred in concluding that the economic loss doctrine barred its negligence claim against the defendants is waived. Waiver notwithstanding, also finds the trial court did not err in granting the defendants’ motions for summary judgment. Finally, finds the trial court did not err in striking LPC’s untimely claim of negligent misrepresentation.

Dewayne H. Mahone v. State of Indiana (mem. dec.)
Criminal. Affirms Dewayne Mahone’s 35-year sentence, with 20 years executed and 15 years suspended, for his conviction of Level 1 felony dealing in a controlled substance resulting in death. Finds the Marion Superior Court did not abuse its discretion in sentencing Mahone within the statutory range for a Level 1 felony. Also finds the trial court did not abuse its discretion in assigning weight to the challenged mitigators and aggravators or in failing to find two proffered mitigating factors. Finally, finds that even if the trial court could be said to have found the serious, violent nature of dealing offenses to be an aggravating factor, we cannot say that it abused its discretion in doing so.

Mario Mendez v. State of Indiana (mem. dec.)
Criminal. Affirms the denial of Mario Mendez’s motion to suppress evidence of cocaine found in his wallet. Finds that because the state’s search of Mendez’s wallet did not violate his right to be free from unreasonable searches and seizures under either the federal or state constitutions, the Bartholomew Superior Court did not err in denying Mendez’s motion to suppress evidence of the cocaine found as a result of that search.

Gary Gregory v. Joan Gregory (mem. dec.)
Domestic relations, no children. Affirms the denial of Gary Gregory’s request for reimbursement from Joan Gregory for damage to their marital residence. Finds the Jasper Superior Court did not err in denying husband’s request for reimbursement from wife.

Jonathan W. Opel v. State of Indiana (mem. dec.)
Miscellaneous. Affirms the denial of Jonathan Opel’s mislabeled petition for post-conviction relief. Finds the post-conviction court did not mischaracterize Opel’s PCR petition, the delay had good cause and other potential errors were harmless.

Phillip Marlin, Jr. v. State of Indiana (mem. dec.)
Criminal. Affirms Phillip Marlin’s convictions for two counts of Level 6 felony battery on a person less than 14-years-old and the finding that he is a habitual offender. Find sufficient evidence to support the convictions.

David A. Schelle v. ProMotor Engines and Components, Inc. (mem. dec.)
Civil plenary. Affirms the grant of summary judgment to Promotor Engines and Components Inc. in a dispute with customer David Schelle. Finds Promotor made a prima facie showing that it did not breach a contract with Schelle. Also finds Schelle failed to meet his responsive burden and the Elkhart Superior Court properly rendered summary judgment.

Donte Lansing Kidd v. State of Indiana (mem. dec.)
Criminal. Affirms Donte Lansing Kidd’s aggregate 2½-year sentence, with one year suspended to probation, imposed upon his guilty pleas to Level 6 felony counts of possession of methamphetamine and failure to return to lawful detention. Finds his sentence is not inappropriate.

Shawn A. Johnson v. Don Hobson Irrevocable Trust (mem. dec.)
Civil tort. Affirms the entry of summary judgment in favor of the Don Hobson Irrevocable Trust in a dispute with Shawn A. Johnson. Finds Johnson has not demonstrated that the grant of summary judgment was erroneous.

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