Court opinions

Indiana Court of Appeals
MIB, LLC, Ryan Polokoff, and Sabine Kissee v. City of Noblesville and The Planning and Development Director for the City of Noblesville, Indiana
24A-PL-1893
Civil plenary. Affirms Hamilton Superior Court Judge Michael Casati’s entry of a preliminary injunction ordering that MIB cease its operations at a certain location in Noblesville and enjoining the respondents from reopening the business in any zoning district in Noblesville where sex shops are prohibited unless approved through a use variance or rezoning petition. Finds that the city and planning development director have shown they have at least a reasonable likelihood of success at trial by establishing a prima facie case. Also finds that as the city and director have shown a reasonable likelihood that MIB is in violation of the city’s ordinance, pursuant to the “per se” injunctive standard, they “need not make a showing of irreparable harm or a balance of the hardship” in their favor. Attorneys for appellant: Lonnie Johnson, Justin Schwemmer, Robert Esrock. Attorneys for appellees: Vivek Hadley, Donald Morgan, Beth Copeland.

Indiana Court of Appeals
State Farm Mutual Automobile Insurance Company v. Michelle DiPego and Michael DiPego
24A-PL-1268
Civil plenary. Affirms Delaware Circuit Court Judge Thomas Cannon Jr.’s partial summary judgment order in Michelle DiPego’s favor on her declaratory judgment motion that she was entitled to uninsured motorist coverage under her State Farm automobile insurance policy. Finds find that the electric foot scooter that negligently crashed into DiPego, causing her bodily injury and related damages. was a “land motor vehicle” under the plain and ordinary meaning of that policy term and that State Farm waived any challenge to the scooter’s “uninsured” status. Attorneys for appellant: Crystal Rowe, Jacob Zigenfus. Attorney for appellee: Michael Peek.

Indiana Supreme Court
Kiera Isgrig v. Trustees of Indiana University
24S-CT-158
Civil tort.  Reverses Monroe Circuit Court Judge Geoffrey Bradley’s order granting summary judgment for the Trustees of Indiana University against Kiera Isgrig’s complaint alleging negligence by the university and asserting res ipsa loquitur. Finds that the doctrine of res ipsa loquitur may be applied to premises liability cases involving fixtures where an invitee is injured on a landowner’s premises. Also finds that Isgrig has demonstrated a genuine issue of material fact to overcome summary judgment. Remands for further proceedings. Justice Derek Molter dissents with separate opinion in which Justice Geoffrey Slaughter joins. Attorney for appellant: Timothy Devereux. Attorneys for appellee: Angela Della Rocco, Amy Fisher. Attorneys for Amicus curiae: Lucy Dollens, Robert Palmer.

Indiana Court of Appeals
In the Matter of J.J. and Jer.J. (Minor Children), Children in Need of Services, and M.J. (Mother) v. Indiana Department of Child Services and Kids’ Voice of Indiana
24A-JC-1676
Juvenile CHINS. Affirms Marion Superior Court’s adjudication of M.J.’s two youngest sons as children in need of services. Finds the trial court determined the children are CHINS because the mother “needs assistance managing her living conditions and [Jer.J.’s] health condition and requires the coercive intervention of the court to ensure she gets the services she needs.” Also finds Indiana Department of Child Services presented ample evidence to support that determination, and the judgment is not clearly erroneous. Attorney for appellant: Daniel Foote. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Katherine Cornelius.

Indiana Court of Appeals
Parker DePalma v. State of Indiana
24A-CR-2864
Criminal. Affirms LaPorte Superior Court Judge Jaime Oss’ revocation of Parker DePalma’s probation and order for DePalma to serve his previously suspended one-year sentence in jail for operating a vehicle while intoxicated endangering a person. Finds the trial court did not abuse its discretion by permitting the victim’s family members to give statements at the probation revocation hearing. Also finds the trial court did not abuse its discretion by ordering DePalma to serve his previously suspended sentence in jail. Attorney for appellant: Nicholas Otis. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Rebekah Bennett.

Indiana Court of Appeals
Bruce A. Waldon v. State of Indiana
24A-CR-1824
Criminal. Affirms Bruce Waldon’s convictions in Tippecanoe Superior Court for two counts of burglary and two counts of theft for incidents that occurred over the course of one night. Finds the trial court did not abuse its discretion by finding that the offenses did not constitute a single episode of criminal conduct. Attorney for appellant: Timothy Broden. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Ian McLean, Deputy Attorney General Brandon Smith.

Indiana Court of Appeals
Salvador A. Jones v. State of Indiana
24A-CR-1102
Criminal. Affirms Salvador Jones’ conviction in Floyd Circuit Court for Level 5 felony robbery. Finds there is no Sixth Amendment right to counsel in Indiana prior to the initial hearing before an Indiana judicial officer. Also finds Jones did not properly invoke his right under the Interstate Agreement on Detainers to be brought to trial within 180 days of the state’s detainer request. Finally, finds the trial court did not commit fundamental error when it permitted the state to use self-authenticating affidavits as part of the foundation for the admissibility of surveillance videos and photographs. Attorney for appellant: Andrew Rutz. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Ellen Meilaender.

Indiana Court of Appeals
Brandon Francis Schaefer v. State of Indiana
24A-CR-1387
Criminal. Affirms Brandon Schaefer’s conviction for murder In Vanderburgh Circuit Court following a jury trial, where the jury found Schaefer guilty but mentally ill. Finds the trial court did not abuse its discretion when it, sua sponte and over his objection, instructed the jury on the possible penal consequences of a not responsible by reason of insanity verdict and a guilty but mentally ill verdict. Attorney for appellant: Yvette LaPlante. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Ian McClean.

Indiana Court of Appeals
Melvin Lee Weaver v. State of Indiana
24A-CR-766
Criminal. Affirms Melvin Weaver’s reckless homicide conviction in Delaware Circuit Court. Finds Weaver’s challenge to the sufficiency of the evidence amounts to nothing more than an invitation to reweigh the evidence. Also finds that the trial court did not abuse its discretion in admitting the redacted BMV record into evidence. Attorneys for appellant: Mark Leeman, Tom F. Hirschauer, III. Attorneys for appellee” Attorney General Todd Rokita, Deputy Attorney General Samuel Dayton.

Indiana Court of Appeals
Ryan David Quartier v. State of Indiana
24A-CR-1381
Criminal. Affirms Ryan Quartier’s convictions and his 26-year sentence in Hendricks Superior Court for Level 3 felony criminal confinement while armed with a deadly weapon and Level 5 felony battery with a deadly weapon. Finds there is sufficient evidence that Quartier was armed with and used a deadly weapon. Also finds the trial court did not abuse its discretion in admitting Alicia Conner’s out-of-court statements.  Attorney for appellant: Zachary Stock. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General J.T. Whitehead.

Indiana Court of Appeals
Shawn Laver Perry v. State of Indiana
24A-CR-1624
Criminal. Affirms Shawn Perry’s conviction in Lake Superior Court for criminal confinement. Finds sufficient independent evidence supported Perry’s conviction for criminal confinement. Also finds that because of the trial court’s clear intent to vacate Counts 2 and 5, the case should be remanded with instructions to correct the abstract of judgment. Remands to trial court with instructions the abstract should reflect Perry’s standing convictions for criminal confinement, intimidation and domestic battery. Attorney for appellant: Sean Mullins. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Justin Roebel.

Indiana Court of Appeals
Facundo Ramos-Osario v. State of Indiana
24A-CR-1761
Criminal. Reverses the Marion Superior Court’s conviction of Facundo Ramos-Osario for operating a vehicle with an A.C.E. of .08 or more, a Class C misdemeanor. Finds that the totality of the circumstances does not establish that there was a reasonable, particularized suspicion to stop Ramos-Osario’s truck. Also finds the trial court abused its discretion in admitting evidence of the stop and anything that flowed from it. Attorney for appellant: Alexander Budzenski. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Ian McLean.

Indiana Court of Appeals
Emily F. Tidd v. The Estate of Gary Tidd, Sr., Deceased
24A-ES-1395
Estate. Reverses Hancock Superior Court Judge Donald Davis’ denial Emily Tidd’s claim for a statutory spousal allowance following the death of her husband, Gary Tidd. Finds the probate court applied the wrong burden of proof and the wrong analysis in determining that the Disinheritance Statute barred Emily’s claim for a spousal allowance. Also finds the probate court’s analysis deviated from established precedent defining “abandonment” for purposes of the Disinheritance Statute as requiring a physical separation without mutual consent. Finally, finds Emily’s alleged disparaging remarks about Gary and what the trial court viewed as the couple’s non-traditional marital roles are irrelevant under existing law to determine whether she abandoned Gary for purposes of the Disinheritance Statute. Attorney for appellant: Ann Coriden. Attorney for appellee: Briane House.

Indiana Court of Appeals
Kerry Silvers v. State of Indiana
24A-PC-277
Post-conviction relief.  Affirms the Indiana Court of Appeals’ original opinion in which the court denied Kerry Silvers’ petition for post-conviction relief. Finds that the appellate court misstated Strickland’s prejudice standard. Also finds that the misstatement does not change the court’s conclusions regarding Silvers’s ineffective assistance of counsel claims. Finally, finds Silvers has not shown a reasonable probability existed that but for his trial counsel’s alleged errors, the result of his trial would have been different. Attorney for appellant: Victoria Bailey Casanova. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Daylon Welliver.

7^th Circuit Court of Appeals
Skyler Tackett v. Kristen Dauss
23-2246
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge James Sweeney II. Affirms the district court’s summary judgment order in favor of Kristen Dauss against a deliberate indifference claim filed by Skyler Tackett, the personal representative of Raymond Tackett’s estate. Finds that Skyler Tackett presented insufficient evidence for a reasonable jury to find Dauss liable for Raymond Tackett’s death from hepatitis C in Dauss’ individual capacity as the Indiana Department of Correction’s chief medical officer. Attorney for appellant: Mark Sniderman. Attorneys for appellee: Abigail Recker, Ryan Shouse.

Indiana Court of Appeals
Jasmine Warstler v. State of Indiana
24A-CR-1083
Criminal. Affirms Noble Superior Court Judge Steven Hagen’s order that sanctioned Jasmine Warstler’s attorneys, Helen and Jarvis Newman, for disclosing two rebuttal witnesses on the evening before her jury trial in violation of Indiana Criminal Procedure Rule 2.5. Finds the $883.44 sanction is directly tied to the actual costs incurred and represents a measured response to the discovery violation. Also finds that this sanction is a fair and equitable remedy in this case and thus, the trial court did not abuse its discretion when it sanctioned Warstler’s attorneys. Attorney for appellant: Jessica Merino. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Jennifer Anwarzai.

Indiana Court of Appeals
Brent D. Mullis v. State of Indiana
24A-PC-1025
Post-conviction relief. Affirms Bartholomew Circuit Court Judge Kelly Benjamin’s sentence of Brent Mullis to 12 years in prison for felony burglary, theft and criminal mischief, and his adjudication as an habitual offender. Finds Mullis failed to show that trial counsel rendered ineffective assistance of counsel. Also finds Mullis has failed to show fundamental error, there is sufficient evidence to support Mullis’ conviction and Mullis’ aggregate sentence is not inappropriate. Attorney for appellant: R. Patrick Magrath. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Kathy Bradley.

Indiana Court of Appeals
Lei Gamble v. State of Indiana
24A-CR-1115
Criminal. Affirms Lei Gamble’s convictions in Marion Superior Court for murder and carrying a handgun without a license. Finds the trial court did not abuse its discretion by admitting Gamble’s statement to law enforcement and, even if the trial court abused its discretion, any error was harmless. Also finds that regarding the jury instructions, Gamble invited the error and, invited error notwithstanding, Gamble has failed to demonstrate fundamental error. Attorneys for appellant: Talisha Griffin, Jan Berg. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Courtney Staton.

Indiana Court of Appeals
Autovest LLC v. John Bach
24A-CC-2070
Civil collections. Reverses Lake Superior Court Magistrate Judge Shaun Olsen’s dismissal of Autovest LLC’s complaint against John Bach on the basis that Autovest failed to follow proper procedure for renewing a prior judgment. Finds the trial court thus erred as a matter of law by dismissing the renewal complaint. Remands with instructions to reinstate Autovest’s renewal complaint. Attorney for appellant: Brad Council. No attorney listed for appellee.

Indiana Court of Appeals 

Robin Marsh v. Nathan Marsh

24A-PL-1216

Civil plenary. Dismisses Robin Marsh’s appeal in a farmland dispute without prejudice. Finds the appellate court lacks subject matter jurisdiction. Attorneys for appellant: Lynne Lawyer and Edward Wolenty. Attorney for appellee: Brianna Schroeder.