Court opinions

Indiana Court of Appeals
Matthew Joseph Dirig v. State of Indiana
25A-CR-119
Criminal. Affirms Matthew Dirig’s conviction in Huntington Circuit Court of Level 1 felony neglect of a dependent resulting in death. Finds no reversible error occurred in the admission of the evidence. Also finds the state presented sufficient evidence to support Dirig’s conviction. Finally, finds the erroneous jury instructions are not reversible error under the fundamental error doctrine. Attorney for appellant: Stacy Uliana. Attorneys for appellee: Attorney General Todd Rokita, Jodi Stein.

Indiana Court of Appeals
Paternity: J.O’S. v. K.S.
25A-JP-761
Juvenile paternity. Reverses Hancock Circuit Court Judge R. Scott Sirk’s order awarding J.O’S. a restricted amount of parenting time with his child, with a path towards eventually receiving parenting time in accordance with the Indiana Parenting Time Guidelines and also ordered the father to pay $941 per week in child support. Finds the juvenile court’s findings that could potentially support a finding of endangerment were largely unsupported by the record and the court’s order is therefore in contravention of statutory authority, which again requires specific findings of endangerment. Remand with instructions for the juvenile court to either enter an order containing sufficient findings to support a parenting-time restriction or that does not contain such restrictions and awards the father parenting time in accordance with the guidelines. Also finds that the juvenile court abused its discretion in setting the father’s child-support obligation at $941 per week. Remands with instructions that the juvenile court re-calculate the father’s child-support obligation based on the parties’ respective incomes at the time of the subsequent proceedings. Attorneys for appellant: Alexander Moseley, Adrian Deneen. No attorney listed for appellee.

Indiana Court of Appeals
Northern Indiana Public Service Company, LLC v. ACE American Insurance Company, Safway Services, LLC, and Headwaters Resources, Inc.
24A-PL-512
Civil plenary. Affirms Safway breached its duty to defend NIPSCO in the underlying lawsuit. Finds As damages for the breach, the Marion Superior Court did not err in ordering Safway to pay the defense costs NIPSCO incurred in the underlying lawsuit after Safway ceased defending NIPSCO. Also affirm the trial court’s judgment these costs are covered under the ACE-Safway Policy, subject to the applicable deductible. Finds NIPSCO’s attorney fees and costs incurred in bringing this action are not defense costs, but the trial court did not err in ordering Safway to pay them under the fee-shifting provision of the Safway Agreement. Reverses the trial court’s finding that ACE American Insurance Company provided insurance coverage for the attorney fees in this action. Remands for clarification on the sum of damages awarded and for further proceedings consistent with this opinion. Attorneys for appellant/cross-appellee: George Plews, Jeffrey Featherstun, Andrea Townsend, Joanne  Sommers. Attorneys for appellees/cross-appellants: Crystal Rowe, Matthew Ponzi, John Eggum, Lucy  Dollens ,Elizabeth Trachtman, Anthony Steinike, Lora LoCoco, Robert Foos Jr., Michael Giordano.

Indiana Court of Appeals
Zachary A. Lester v. State of Indiana
25A-CR-44
Criminal. Reverses a Blackford Superior Court’s jury’s conviction of Zachary Lester for a Level 6 felony intimidation charge based on a Snapchat message that he sent to a private group. Finds that there was a lack of evidence that Lester communicated the message in a way that indicated an intent to reach the target, if there was one. Also finds that while Lester’s Snapchat message was inappropriate and disturbing, the state did not present sufficient evidence to support a conviction for Level 6 felony intimidation. Attorneys for appellant: John Wright, Brandon Murphy. Attorneys for appellee: Attorney General Todd Rokita, Alexandria Sons.

Indiana Court of Appeals
Bradley Burgess v. The Board of Zoning Appeals for the Town of Utica, Indiana
24A-PL-1819
Civil plenary. Dismisses Bradley Burgess’ appeal of the Clark Superior Court’s order denying his petition for judicial review and affirming the decision of the Board of Zoning Appeals for the town of Utica that denied Burgess a variance of use for his real estate. Finds that Burgess did not timely petition for judicial review of the BZA’s decision and that the trial court erred when it found and concluded that he had timely filed his petition. Attorney for appellant: John Kraft. Attorney for appellee: Rebecca Lockard.

The following opinion was posted after The Indiana Lawyer’s deadline Wednesday:
7^th Circuit Court of Appeals
Jeffrey Lewis v. AbbVie Inc., f/k/a/ Allergan
24-3121
Civil. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Damon Leichty. Affirms the district court’s dismissal of Jeffrey Lewis’ lawsuit against AbbVie, Inc. under the False Claims Act. Finds that because Lewis only complained of regulatory, rather than fraudulent, violations in his internal communications with AbbVie, the company had no reason to think Lewis’s concerns revolved around the False Claims Act. Also finds AbbVie could not have retaliated against Lewis as a fraud whistleblower because he never blew the whistle on fraud. Attorneys for appellant: Ryan Milligan, Peter Hamann. Attorneys for appellee: John Maley, Elizabeth Hess, Brenton Rogers, Philip Cooper.

7^th Circuit Court of Appeals
Karen Moratz v. Reliance Standard Life Insurance Company
24-2825
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard Young. Affirms the district court’s summary judgment order in favor of Reliance Standard Insurance Company against Karen Moratz’s lawsuit under the Employee Retirement Income Security Act of 1974 for her disability coverage claim. Finds Moratz was not eligible for benefits in December 2020, when her first application indicated that she was unable to work. Also finds the additional information that Moratz supplied on appeal constituted information about a separate loss—her inability to work beginning in mid-September 2021—and that is a new claim for benefits, requiring Moratz to complete a separate claim process. Attorney for appellant: Robert Saint. Attorney for appellee: Joshua Bachrach.

Indiana Court of Appeals
Brandon L. Keener v. State of Indiana
24A-CR-1894
Criminal. Affirms Brandon Kenner’s conviction in Allen Superior Court of domestic battery, the revocation of his probation, Keener’s two-and-a-half years sentence for the domestic battery conviction and his suspended sentence being executed for the probation violation. Finds the trial court did not err by ignoring Keener’s meritless personal Criminal Rule 4(B) objections to his Nov. 28 trial date in the battery cause. Also finds Keener’s sentence in the battery cause is not inappropriate under Appellate Rule 7(B), and the trial court did not abuse its discretion by executing Keener’s sentence in the nuisance cause as a sanction for Keener violating his probation. Attorney for appellant: David Joley. Attorneys for appellee: Attorney General Todd Rokita, Andrew Sweet.

Indiana Court of Appeals
City of New Albany v. Ecosystems Connections, LLC, and the Indiana Department of Natural Resources
24A-PL-2969
Civil plenary. Affirms the Floyd Superior Court’s order that affirmed the Natural Resources Commission’s decision to allow Ecosystems Connections Institute to remove the Providence Mill Dam. Finds that based on the record before the administrative law judge and the commission, the commission did not err in finding that no issue of material fact remained that would preclude summary judgment. Attorney for appellant: Matthew McGovern. Attorneys for appellees: Bradley Sugarman, Daniel McInerny ,Jackson Schroeder, Attorney General Todd Rokita, Kathy Bradley.

7^th Circuit Court of Appeals
United States of America v. Earl Miller
23-3324
Criminal. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Jon DeGuilio. Affirms Earl Miller’s sentence in district court to a below-guidelines term of 97 months’ imprisonment after a federal jury convicted Miller, owner of several real-estate investment companies, of wire fraud and securities fraud for stealing millions of dollars from his investors. Finds the district court therefore did not abuse its discretion in its restitution award of $2.3 million. Attorneys for appellant: William Cohen, Jerome Flynn, William Bruce Jr. Attorneys for appellee: David Hollar, Nathaniel Whalen.

Indiana Court of Appeals
In the Matter of the Guardianship of Zachary Graykowski; Members Source Credit Union v. Zachary Graykowski
25A-GU-526
Guardianship. Reverses the Lake Circuit Court’s order finding Members Source Creidt Union in contempt for violating a guardianship order. Finds the trial court abused its discretion by finding that Members Source willfully violated the order. Also finds that given the lack of clarity in the guardianship order and the erroneous letters of guardianship, Members Source did not willfully disobey the court’s order and cannot be held in contempt of court. Attorneys for appellant: Kevin Steele ,Bryan Bott. Attorney for appellee: John Hughes.

Indiana Court of Appeals
In the Matter of P.F., a Child in Need of Services, and K.F. (Mother) and B.B. (Father) v. Indiana Department of Child Services
25A-JC-10
Juvenile CHINS. Reverses the Ripley Circuit Court’s order granting a motion for the Indiana Department of Child Services order that it no longer had to use reasonable efforts to reunify child with parents pursuant to Indiana Code section 31-34-21-5.6(b)(7). Finds there was insufficient evidence to show that all the elements of the Multiple CHINS provision were proven and the trial court erred in finding that reasonable efforts were not required. Remands with instructions to provide parents K.F. and B.B. with reunification services. Additionally, because the change in the child’s permanency plan was partially reliant on the no reasonable efforts finding, remands for further proceedings on the permanency plan consistent with this opinion. Attorneys for appellants: Jennifer Joas, R. Patrick Magrath. Attorneys for appellee: Attorney General Todd Rokita, Evan Comer.

7^th Circuit Court of Appeals
United States of America v. Damon L. Taylor
24-1007
Criminal. Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Chief Judge Holly Brady. Affirms Damon Taylor’s conviction on two counts of threatening to assault a federal law enforcement officer in violation of 18 U.S.C. § 115(a)(1)(B). Finds the district court provided Taylor a fair trial at which his able counsel provided him with a vigorous defense, and Taylor’s counsel was able to marshal the admitted evidence in support of an argument that he did not subjectively appreciate the threatening nature of his statements, that he did not consciously disregard the possibility that the AUSA would take them as genuine threats to her safety, and that he did not intend to impede, intimidate, or interfere with the AUSA in the performance of her official duties. Attorneys for appellant: Michelle Kraus, Chad Pennington. Attorneys for appellee: David Hollar, Maureen Merin.

Indiana Court of Appeals
Martell Jevon Flippins v. State of Indiana
24A-CR-2210
Criminal. Affirms Martell Flippins’ conviction by jury trial in Lake Superior Court of murder and the finding that he used a firearm in the commission of the crime as a sentence enhancement, which resulted in an aggregate sentence of 70 years. Findsthat the search warrants for Fliippins’ iPhone and Facebook account were supported by probable cause and the trial court did not abuse its discretion in admitting the evidence discovered as a result of the search warrants. Attorney for appellant: Sean Mullins. Attorneys for appellee: Attorney General Todd Rokita, Steven Hosler.

Indiana Court of Appeals
Kurt Williams v. Karin Kirch
25A-SC-196
Small claims. Affirms the Marion County Small Claims Court’s judgment in favor of Karin Kirch. Finds the small claims court did not err in concluding that Kurt Williams’s claims were frivolous, unreasonable, and groundless. Also finds the court did not abuse its discretion in ordering Williams to pay $650 in attorney’s fees—a fraction of the $3,611.28 Kirch incurred defending against this action. Pro se appellant: Kurt Williams. Attorney for appellee: Jeremy Fetty.

7^th Circuit Court of Appeals
E.D., a minor, by her parent and next friend, Lisa Duell, et al. v. Noblesville School District, et al.
24-1608
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Sarah Evans Barker. Affirms the district court’s granting of summary judgment to Noblesville School District after E.D., through her parents Michael and Lisa Duell, sued the school district and several officials, claiming the rejection of her flyers and the club’s suspension were driven by hostility to her pro-life views, in violation of the First Amendment and the Equal Access Act, 20 U.S.C. § 4071(a). Finds the district court reasonably concluded that the Equal Access Act claim was confined to the suspension of Noblesville Students For Life’s status and that the flyer-based theory, raised for the first time at summary judgment, was not properly before the court. Attorneys for appellants: John Bursch, Zachary Kester, Tyson Langhofer, Mathew Hoffmann, Laura Buckner. Attorney for appellees: Liberty Roberts.

Indiana Court of Appeals
Dion Kimbrough v. State of Indiana
24A-CR-2348
Criminal. Affirms Dion Kimbrough’s convictions in Marion Superior Court of murder and Level 4 felony unlawful possession of a firearm by a serious violent felon for shooting a passenger on an Indianapolis interstate during a road-rage incident. Finds the trial court erred in admitting evidence that Kimbrough was on home detention and GPS monitoring through community corrections at the time of the shooting, but the error was harmless. Judge L. Mark Bailey concurs with separate opinion. Attorney for appellant: Lisa Johnson. Attorneys for appellee: Attorney General Todd Rokita, Steven Hosler.

Indiana Court of Appeals
Crowder Farms, LLC v. Jeff L. Flick
24A-PL-2176
Civil plenary. Affirms the Orange Circuit Court’s judgment denying Crowder Farms, LLC’s claim of a prescriptive easement over Jeff Flick’s property. Finds Crowder Farms failed to prove its intent to assert an exclusive right to use the road, and therefore, it did not establish all the required elements of a prescriptive easement claim. Attorney for appellant: Isaac Brown. Attorney for appellee: Patrick Smith.

Indiana Court of Appeals
In Re: The Paternity of A.B., N.W., and B.W. (Minor Children); Johnathan Brown (Father) v. Amy Warren (Mother)
24A-JP-1833
Juvenile paternity. Reverses the Hamilton Superior Court order denying Johnathan Brown’s  motion to modify child support and finding him to be in contempt for failing to pay Amy Warren for their children’s past extracurricular activities. Finds the trial court clearly erred when it denied the father’s motion to modify child support and abused its discretion when it found the father to be in contempt. Remands with instructions for the trial court to: (1) hold a hearing for additional evidence to be presented on the relevant factors that the trial court should consider when determining the father’s potential income and to adjust its order as necessary to impute an appropriate level of potential income to the father based on that evidence; and (2) vacate that portion of its order that found the father in contempt for failing to pay the mother $3,647.75 for the past extracurricular activities and ordered the father to reimburse the mother $1,000 for the attorney fees that she incurred in bringing her contempt petition. Attorney for appellant: Brian DeHem. No attorney listed for appellee.

7^th Circuit Court of Appeals
Indiana Protection and Advocacy Services Commission, et al. v. Indiana Family and Social Services Administration, et al.
24-2633, 24-2741, & 24-2770
Civil. Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Tanya Walton Pratt. Affirms the district court’s injunction requiring the Indiana Family and Social Services Administration to pay the plaintiffs E.R. and G.S.’ mothers for providing attendant care services until in-home nurses are procured for each child. Finds the plaintiffs have a high likelihood of succeeding on the merits of their Americans with Disabilities Act claims. Also finds no abuse of discretion in the district court’s balancing of the equities or its assessment that the public interest is best served by preserving plaintiffs’ access to medically necessary care and enforcing federal antidiscrimination law. Remands for further proceedings. Attorneys for appellants: Gavin Rose, Thomas Crishon, Samuel Adams, Stevie Pactor. Attorneys for appellees: Ryan Hurley, Harmony Mappes, Matthew Elliott, Melinda Hudson.