Court opinions

7th Circuit Court of Appeals
Kayla Smiley v. Katie Jenner
No. 23-2543

Civil. Appeal from the United States District Court for the Southern District of Indiana, Judge James P. Hanlon. Affirms the district court’s denial of Smiley’s motion for a preliminary injunction against Indiana’s law prohibiting instruction on human sexuality for students in pre-kindergarten through third grade. The court concluded Smiley did not demonstrate a likelihood of success on her First or Fourteenth Amendment claims, stating that the law does not significantly infringe on protected speech and is not unconstitutionally vague. Judge Scudder authored the opinion. Judges Jackson-Akiwumi and Pryor concur.

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Court of Appeals of Indiana
Jeffrey Haskins v. Financial Builders Federal Credit Union
No. 25A-PL-1810

Civil. Appeal from the Howard Superior Court, Judge Ryan D. Washburn, Judge Pro Tempore. Affirms the trial court’s grant of Financial Builders Federal Credit Union’s motion to dismiss Haskins’ claim for overdraft fees as time-barred. The court concludes that Haskins’ claim, arising from overdraft fees charged more than two years prior to filing, is subject to the two-year limitations period for actions upon a deposit account as defined under Indiana law. Judge Scheele authored the opinion. Judges Brown and Felix concur. Appellant’s attorneys: Lynn A. Toops, Gabriel A. Hawkins, Lisa M. LaFornara, Cohen & Malad, LLP, Indianapolis, Indiana. Appellee’s attorneys: Finis Tatum IV, Janet L. Thompson, Gordon Rees Scully Mansukhani LLP, Indianapolis, Indiana. Amici curiae attorneys: Libby Y. Goodknight, Brett J. Ashton, Krieg DeVault LLP, Indianapolis, Indiana.

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Indiana Court of Appeals
Exploration Center I, LLC, et al. v. Metropolitan Development Commission of Marion County, Indiana
No. 25A-PL-977

Civil. Appeal from the Marion Superior Court, Judge Timothy Wayne Oakes. Reverses the trial court’s grant of the Commission’s motion to dismiss Republic’s appeal regarding the termination of a tax abatement. The court finds that the statutory requirement for the appeal to be determined within 30 days is directory rather than mandatory, allowing for the appeal to proceed despite the delay. Judge Altice authored the opinion. Judges May and Foley concur. Appellant’s attorneys: Stephen M. Judge, Vienna M. Bottomley, South Bend, Indiana. Appellee’s attorneys: Jess Reagan Gastineau, Michael Brian Coppinger, Indianapolis, Indiana.

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Indiana Court of Appeals
In the Matter of G.V. and A.V., Children in Need of Services, and M.V., (Mother) v. Indiana Department of Child Services, et al.
No. 25A-JC-1223

Juvenile. Appeal from the Marion Superior Court, Judge Geoffrey A. Gaither. Affirms the trial court’s determination that G.V. is a Child in Need of Services (CHINS) and the dispositional decree continuing her removal from Mother’s care. The court found sufficient evidence that G.V. was seriously endangered, given Mother’s conduct, including physical discipline of A.V. and inconsistent explanations for G.V.’s injuries. It also concluded that coercive intervention was necessary to ensure G.V.’s safety as Mother had not shown cooperation with required interventions. Judge DeBoer authored the opinion. Judges Bradford and Weissmann concur. Appellant’s attorneys: Talisha Griffin, Marion County Public Defender Agency, Indianapolis, Indiana; Suzy St. John, Indiana University Robert H. McKinney School of Law Appellate Clinic, Indianapolis, Indiana; Sarah Y. Faulkner, Certified Legal Intern, Indianapolis, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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Court of Appeals of Indiana
Gbenga Afolabi v. State of Indiana
No. 24A-CR-3081

Criminal. Appeal from the Marion Superior Court, Judge Angela Dow Davis. Affirms Afolabi’s convictions of two counts of rape, one count of attempted rape, five counts of sexual misconduct and others, but remands for vacating one intimidation conviction due to substantive double jeopardy with the rape conviction involving one victim. Holds that sufficient evidence exists to support the conviction for the rape of another victim, and procedural and evidentiary decisions by the trial court did not constitute reversible error. Judge Weissmann authored the opinion. Judges Bradford and DeBoer concur. Appellant’s attorney: Stacy R. Uliana, Bargersville, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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The following opinion was issued on April 13 after The Indiana Lawyer’s deadline. 

U.S. Court of Appeals for the 7th Circuit
John Doe v. University of Southern Indiana, et al.
No. 24-2245

Civil. Appeal from the United States District Court for the Southern District of Indiana, Judge Tanya Walton Pratt. Affirms the district court’s denial of John Doe’s request to litigate under a pseudonym. The court found that Doe failed to show a substantial risk of physical harm or retaliation, noting that past threats were old and unsubstantiated by current evidence of danger. The court reiterated the strong presumption against allowing pseudonyms for adult parties and declined to expand that standard to include mental health concerns. Judge Hamilton authored the opinion. Judges Brennan and St. Eve concur.

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Indiana Court of Appeals
Marco Antono Perez, II v. State of Indiana
No. 25A-CR-2377

Criminal. Appeal from the Vermillion Circuit Court, Judge Chris A. Wrede. Reverses and remands. Holds the trial court abused its discretion by ordering Perez to serve the entirety of his previously suspended sentence based on two technical probation violations — failing to attend scheduled appointments — given his otherwise successful compliance, lack of new offenses and mitigating circumstances; the court concludes the sanction was disproportionate and that lesser sanctions should be considered. Chief Judge Tavitas authored the opinion. Judges Weissmann and Foley concur. Appellant’s attorney: Aaron J. Spolarich, Bennett Boehning & Clary LLP, Lafayette, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Civil Commitment of L.F. v. Sandra Eskenazi Mental Health Center
26A-MH-658

Mental health. Appeal from the Marion Superior Court, Judge David J. Certo. Affirms temporary commitment of L.F. for up to 90 days, finding sufficient evidence to support both the commitment and a treatment plan requiring medication over her objection. Police took L.F., who has schizophrenia, to Eskenazi after finding her standing in traffic. While hospitalized, she exhibited delusions, assaulted another patient and resisted medication. On appeal, L.F. argued the commitment was inappropriate because it allowed forced medication without sufficient evidence under In re Mental Commitment of M.P. The Court of Appeals held the record showed that an individualized assessment found that the medication (Abilify) would substantially benefit her condition, that the benefits outweighed risks and her concerns, and that alternative treatments were considered and rejected. The court found clear and convincing evidence supported overriding her refusal of medication and the commitment order. Judge Weissmann authored the opinion. Judges Brown and Foley concurred. Appellant’s attorney: Sarah Medlin, Marion County Public Defender Agency, Indianapolis. Appellee’s attorneys: Bryan H. Babb and Seema R. Shah, Bose McKinney & Evans LLP.

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Indiana Supreme Court 
Keith D. Harper v. S&H Leasing, LLC; K&K Real Estate Holdings, LLC; Thomas Hagen; Brian Brisco; and Jeremy Noetzel
26S-PL-111

Civil. Appeal from the Elkhart Superior Court, Judge Stephen R. Bowers. Affirms the trial court’s judgment awarding treble damages under the Crime Victim’s Relief Act, ruling that money does not need to be considered “special chattel” for a civil claim of criminal conversion. The Supreme Court said the definition of a crime for the purposes of a Crime Victim’s Relief Act award is limited to its statutory elements. And it concluded that Harper knowingly exerted unauthorized control over the disputed funds he transferred to his personal accounts for his benefit. Justice Slaughter authored the opinion. Chief Justice Rush and Justices Massa, Goff and Molter concur. Appellant’s attorney: Adam J. Sedia, Johnson & Bell P.C., Crown Point, Indiana. Appellees’ attorneys: James M. Lewis, Elizabeth A. Klesmith, THK Law LLP, South Bend, Indiana.

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Indiana Supreme Court
Regina Geels v. Lindsay Flottemesch, Mackenzi Hatfield, and Stephanie Malinowski as Guardian for Marley Malinowski
No. 25S-PL-225

Civil. Appeal from the Allen Superior Court, Judge David J. Avery. Affirms the trial court’s imposition of a constructive trust over life-insurance proceeds in favor of the decedent’s daughters. Holds the defendant waived her Employee Retirement Income Security Act (ERISA)-preemption defense by failing to raise it at the trial-court level and could not rely on a co-defendant’s assertion of the defense or the parties’ stipulation that ERISA governed the policies; the court further concludes the trial court did not clearly err in finding a fiduciary relationship and breach of fiduciary duty, supporting imposition of a constructive trust under a clear-and-convincing-evidence standard. Justice Goff authored the opinion. Chief Justice Rush and Justice Massa and Justice Molter concur. Justice Slaughter dissents, stating he would deny transfer and allow the Court of Appeals’ decision to stand. Appellant’s attorney: Robert J. Palmer, May Oberfell Lorber, LLP, Mishawaka, Indiana. Appellees’ attorneys: Nathan S.J. Williams, Shannon K. Connors, Shambaugh Kast Beck & Williams, LLP, Fort Wayne, Indiana.

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Indiana Court of Appeals
Justin Gordon and Kierston Cates v. Terex Corp., Terex USA LLC, Terex South Dakota Inc., Genie Industries Inc., and General Rental & Sales LLC
25A-CT-2275

Civil. Appeal from the Pike Circuit Court, Judge Evan C. Biesterveld. Affirms the trial court’s dismissal of appellants’ suit with prejudice, holding that their failure to timely submit required summonses meant the lawsuit was not properly commenced under Indiana Trial Rule 3. The court determined that appellants’ alleged right to voluntarily dismiss without prejudice was not applicable since they failed to meet the necessary requirements for adjudication. Judge Bradford authored the opinion. Judges Pyle and Kenworthy concur. Appellants’ attorneys: Jason E. Pepe, Patrick Daniel Law, Houston, Texas; Bradley P. Colborn, Colborn Law, Granger, Indiana. Appellee General Rental’s attorney: Robert R. Foos, Jr., Lewis Wagner & Trimble, Indianapolis. Appellees Terex’s attorneys: Kevin C. Schiferl, Maggie L. Smith, Jordan M. Slusher, FBT Gibbons, Indianapolis.

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Indiana Court of Appeals 
V.K. and T.K. (Minor Children), Children in Need of Services, and A.R. (Mother) v. Indiana Department of Child Services
25A-JC-2395

Juvenile. Appeal from the Perry Circuit Court, Judge Lucy Goffinet. Affirms the trial court’s dispositional order requiring mother to submit to random drug screens and abstain from alcohol. Holds that the mother waived her challenge to these requirements by failing to object to the recommendations in the predispositional report during the dispositional hearing. Additionally, the court finds sufficient evidence supports the imposition of these requirements based on the parents’ history of domestic violence and substance abuse. Judge Kenworthy authored the opinion. Judges Bradford and Pyle concur.  Appellant’s attorney: Cara Schaefer Wieneke, Wieneke Law Office LLC, Brooklyn, Indiana. Appellee’s attorneys: Indiana Attorney General’s Office.

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Indiana Court of Appeals
Michael Watters v. Brandi Cole
No. 25A-CT-1703

Civil. Appeal from the Franklin Circuit Court, Judge Alex J. Dudley. Affirms the trial court’s judgment in favor of Cole. Holds the trial court did not clearly err in finding Watters made fraudulent misrepresentations, including falsely claiming extensive experience in the pool industry and failing to disclose material facts about subcontracting, which Cole relied upon in entering the contract; the court further concludes the trial court properly pierced the corporate veil because Allure Pools was undercapitalized, used to promote fraud or injustice and had no assets, making it equitable to hold Watters personally liable. Judge May authored the opinion. Judges Mathias and Felix concur. Appellant’s attorneys: Taylor Ferguson, Andrew Dutkanych III, Indianapolis, Indiana. Appellee’s attorney: Joseph M. Sprafka III, Reardon & Chasar, LPA, Cincinnati, Ohio.

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The following opinion was issued on March 31 after The Indiana Lawyer’s deadline. 

Indiana Tax Court
New Cingular Wireless PCS, LLC v. Indiana Department of State Revenue
No. 24T-TA-00004

Tax. Appeal from the Indiana Department of State Revenue. Grants in part and denies in part the parties’ cross-motions for summary judgment. Holds that under Indiana Code § 6-2.5-5-13, the phrase “radio or microwave transmitting or receiving equipment” includes cell phones based on its plain and ordinary meaning, and rejects the Department’s attempt to limit the exemption to central network infrastructure or equipment under the provider’s custody and control; the court further concludes New Cingular qualifies as the “person acquiring the property” for purposes of the exemption because the relevant acquisition is its purchase of the phones from suppliers, making its use of the phones exempt from use tax, but denies summary judgment on the refund amount due to unresolved factual issues. Judge McAdam authored the opinion. Petitioner’s attorney: Benjamin Blair, Faegre Drinker Biddle & Reath LLP, Indianapolis, Indiana. Respondent’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Travis S. Chandler v. State of Indiana
No. 25A-CR-2553

Criminal. Appeal from the Brown Circuit Court, Judge Mary Wertz. Affirms the denial of Chandler’s petition to file a belated appeal and remands with instructions to permit a belated notice of appeal. Holds the trial court did not abuse its discretion in denying relief under Post-Conviction Rule 2 because belated appeals are not available for probation revocation orders under controlling Indiana Supreme Court precedent; however, concludes extraordinarily compelling reasons justify resurrecting Chandler’s forfeited appeal where he timely communicated his desire to appeal, the failure resulted from counsel not hearing him, and he acted diligently once the issue was discovered. Judge Felix authored the opinion. Judges May and Mathias concur. Appellant’s attorney: Kurt A. Young, Nashville, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Nicole Olbera, et al. v. Tiara Sykes
No. 25A-JP-2005

Juvenile. Appeal from the Marion Superior Court, Magistrate Daun A. Weliever. Reverses and remands with instructions. Holds the trial court erred in dismissing Demaj Baker’s paternity petition and in determining Sykes was the child’s legal parent because, although the marital presumption applied to Sykes as a same-sex spouse, that presumption is rebuttable and Baker presented clear and convincing evidence rebutting it by establishing his biological parentage and the absence of any enforceable sperm donor agreement relinquishing his parental rights; the court further concludes the trial court improperly treated the presumption as a rule of parentage rather than a rebuttable presumption. Judge DeBoer authored the opinion. Judges Brown and Altice concur. Appellants’ attorneys: Thomas Roberts, Roberts Law, Noblesville, Indiana; Georgia Dunkerley, Harshman Ponist Smith & Rayl, Indianapolis, Indiana. Appellee pro se: Tiara Sykes.

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Indiana Court of Appeals
Munster Medical Research Foundation, Inc. v. Melodyann Clark, Individually and as Personal Representative of the Estate of Terry F. Clark Jr., Deceased
No. 25A-CT-1827

Civil. Interlocutory appeal from the Lake Superior Court, Judge Calvin D. Hawkins. Affirms in part, reverses in part and remands. Holds the trial court did not abuse its discretion by ordering the hospital to answer the Estate’s requests for admissions because the requests were not ambiguous, were properly used to narrow issues for trial and were proportional to the needs of the case; also concludes the hospital’s objections — including claims of improper purpose and burden — were not substantially justified. However, concludes the trial court erred in awarding attorney fees and expenses without first providing an opportunity for a hearing as required by Trial Rule 37, and that the error was not harmless because the hospital was denied a meaningful opportunity to challenge the amount and reasonableness of the fees. Judge Felix authored the opinion. Judges Brown and Scheele concur. Appellant’s attorney: Adam J. Sedia, Johnson & Bell, P.C., Crown Point, Indiana. Appellee’s attorney: Daniel B. Vinovich, Hilbrich Cunningham Dobosz Vinovich & Sandoval, LLP, Highland, Indiana.

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Indiana Court of Appeals
Robert Bruce Cole v. State of Indiana
No. 25A-CR-1996

Criminal. Appeal from the Tippecanoe Superior Court, Judge Steven P. Meyer. Affirms Cole’s conviction for Level 4 felony child molesting and habitual offender enhancement. Holds the trial court did not abuse its discretion in admitting the victim’s forensic interview under the Protected Person Statute after finding the victim was unavailable due to serious emotional distress that would prevent him from reasonably communicating if required to testify in Cole’s presence; the court also concludes Cole waived his specific challenge to the unavailability finding by failing to raise it at trial. Chief Judge Tavitas authored the opinion. Judges Weissmann and Foley concur. Appellant’s attorney: Bruce W. Graham, Graham Law Firm P.C., Lafayette, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Michael C. Davis v. State of Indiana
No. 25A-CR-1132

Criminal. Appeal from the Floyd Superior Court, Judge Jason M. Mount. Affirms the trial court’s revocation of Davis’s probation and order that he serve 2,502 days of his previously suspended sentence. Holds the trial court did not err in concluding Davis waived his right to counsel by his conduct, where he repeatedly engaged in dilatory, obstructive behavior, caused multiple attorneys to withdraw, refused to cooperate with evaluations and was repeatedly warned of the consequences of his actions; also concludes the trial court did not abuse its discretion in revoking probation, as the State proved by a preponderance of the evidence that Davis violated conditions prohibiting contact with minors and presence at a park, and the sanction was supported by the nature of his underlying offenses. Judge Mathias authored the opinion. Judges May and Felix concur. Appellant’s attorney: R. Patrick Magrath, West Sixth Law, Madison, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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