Opinions

Court of Appeals of Indiana
BMI Properties, LLC v. Daewoong, LLC; Tabor/Bruce Architecture & Design, Inc.; Building Associates, Inc.; and Edwards Masonry, Inc.
23A-PL-988
Civil plenary. Reverses the Monroe Circuit Court’s order granting summary judgment in favor of Tabor/Bruce Architecture & Design Inc., Building Associates Inc. and Edwards Masonry Inc. Finds that neither the acceptance rule nor the economic loss rule entitles the defendants to summary judgment. Remands to the trial court for further proceedings.

Court of Appeals of Indiana
In the Matter of the Paternity of A.J.L.B., a Minor by his next friend Grisel Bonilla Lemus v. Jaime Lazo Alvarenga
23A-JP-1436
Juvenile paternity. Reverses the denial of mother Grisel Bonilla Lemus’ motions to correct error and to amend the pleadings to conform to the evidence seeking to amend the paternity petition to add a request for the findings required for special immigrant juvenile status. Finds the requested SIJ findings were before the Bartholomew Superior Court, so the court abused its discretion by denying the motion to correct error and the motion to amend the pleadings. Remands with instructions to grant the motions, allow amendment of the petition and amend the judgment to include the requested findings.

Court of Appeals of Indiana
Charles Jennings v. Jessica A. Smiley and Progressive Southeastern Insurance Company
23A-CT-303
Civil tort. Affirms the jury verdict finding Charles Jennings 99% at fault and Jessica Smiley 10% at fault after Smiley struck Jennings with her car while he was crossing the street, and the subsequent judgment in favor of Smiley. Finds the Hamilton Superior Court did not abuse its discretion in denying Jennings’ motion to compel.

Court of Appeals of Indiana
Thomas Owens v. State of Indiana
23A-CR-985
Criminal. Affirms Thomas Owen’s conviction of Level 5 felony battery by means of a deadly weapon. Finds the Marion Superior Court didn’t err in denying Owen’s motion to supplement the record. Also finds the trial court properly instructed the jury on elements of the charge and the state presented sufficient evidence of the victim’s identity and the use of a deadly weapon.

Court of Appeals of Indiana
Mark A. Goodlett v. Town of Clarksville and Town of Clarksville Fire Department (mem. dec.)
23A-CT-460
Civil tort. Affirms the Town of Clarksville Board of Police and Fire Commissioners’ decision to terminate Mark A. Goodlett. Finds the board properly exercised its authority under Indiana Code § 36-8-3-4 and the departments general orders, so its decision to terminate Goodlett for neglect of duty, immoral conduct, conduct unbecoming an officer, violations of department rules and breaches of discipline was not arbitrary and capricious and did not otherwise violate Goodlett’s due process rights.

7th Circuit Court of Appeals
Heather Tutwiler v. Kilolo Kijakazi, Acting Commissioner of Social Security
22-2808
Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. Senior Judge William C. Lee.
Civil. Affirms the district court’s order affirming the denial of benefits for Heather Tutwiler. Finds the administrative law judge’s decision was supported by substantial evidence and was not otherwise contrary to law.

Court of Appeals of Indiana
De’Torio Ty Lurentus Berneard Fleming v. State of Indiana (mem. dec.)
22A-CR-2741
Criminal. Affirms De’Torio Ty Lurentus Berneard Fleming’s convictions of felony murder and Level 3 felony armed robbery and his aggregate 64-year sentence. Finds the Madison Circuit Court did not abuse its discretion when it admitted a photograph of Fleming’s hands taken during the trial into evidence. Also finds the trial court did not abuse its discretion when it sentenced Fleming.

Court of Appeals of Indiana
Joseph Marcel Odom v. State of Indiana (mem. dec.)
23A-CR-293
Criminal. Affirms Joseph Marcel Odom’s convictions for Level 2 felony conspiracy to commit dealing in methamphetamine, Level 6 felony obstruction of justice and Class B misdemeanor false informing and his sentence of 28 years. Finds Odom has failed to establish that his sentence is inappropriate in light of his demonstrably poor character. Also finds no abuse of discretion from the Tippecanoe Circuit Court in instructing the jury on conspiracy charge and that his obstruction conviction was supported by sufficient evidence.

Court of Appeals of Indiana
Charles Andrew Wenner v. Gehrid Hensley, et al.
23A-SC-973
Small claims. Affirms the small claims judgment in Monroe Circuit Court issued against landlord Charles Andrew Wenner and in favor of tenants Hayen Johnson, Gehrid Hensley and Quinn Kaise. Remands for a determination of appellate attorney fees to be awarded to tenants. Finds Wenner’s procedural bad faith in his appeal rises to the level of egregiousness for which appellate attorney fees are warranted.

Court of Appeals of Indiana
Austin J. Hollifield v. State of Indiana (mem. dec.)
23A-CR-1014
Criminal. Affirms Austin Hollifield’s conviction of Level 4 felony possession of a firearm by a serious violent felon, his habitual offender enhancement and his 20-year enhanced sentence. Finds the admission of a video was not error. Also finds Hollifield’s sentence is not inappropriate.

Court of Appeals of Indiana
Ji J. Lian v. Health and Hospital Corporation of Marion County (mem. dec.)
22A-OV-2758
Ordinance violation. Affirms the orders requiring Ji Jing Lian to remedy the various health code violations on the interior and exterior portions of her property by a certain date and, in the event she did not comply, ordering the Health and Hospital Corporation of Marion County and/or its contractors to vacate the premises and clean up the exterior, with a resulting lien for the costs incurred. Finds Lian did not raise her Fourth Amendment argument in the Marion Superior Court, so she cannot pursue it on appeal.

Court of Appeals of Indiana
A.W. v. State of Indiana
23A-JV-1609
Juvenile. Affirms the denial of A.W.’s motion for relief from judgment pursuant to Indiana Trial Rules 60(B)(6) and (8) without an evidentiary hearing. Finds the Elkhart Circuit Court did not abuse its discretion and was not required to conduct an evidentiary hearing.

Court of Appeals of Indiana
Anonymous Provider 2 v. Estate of Ryan K. Askew, by Fornetta Askew, Personal Representative
23A-CT-992
Civil tort. Dismisses Anonymous Provider 2’s appeal of the denial of his motion to dismiss under Indiana Trial Rule 12(B)(1). Finds Anonymous Provider 2 is appealing from an interlocutory order, but he does not assert the right to do so under Appellate Rule 14(A), there is no indication he sought certification from the Lake Superior Court or permission from the Court of Appeals to file a discretionary interlocutory appeal, and he has not stated a statutory right to appeal. Remands for further proceedings.

Court of Appeals of Indiana
Forty Acre Cooperative and Angela Dawson v. Rita Delliquadri; Larry Gambles; Milton Louis; Deborah L. McCullough; Telisa Sims, individually and in her capacity as the personal representative of the estate of Alton Sims, Sr.; and Brenda J. Thomspon (mem. dec.)
23A-PL-1119
Civil plenary. Affirms the denial of the appellants’ motion for relief from judgment, filed after the Lake Superior Court entered default judgment against them. Finds the trial court did not err.

Court of Appeals of Indiana
In the Termination of the Parent-Child Relationship of: A.L. and N.L. (Minor Children), And M.L. (Father) and L.L. (Mother) v. Indiana Department of Child Services
23A-JT-1076
Juvenile termination of parental rights. Affirms the Lawrence Circuit Court’s termination of M.L. and L.L.’s parental rights to minor children N.L. and A.L. Finds the trial court did not abuse its discretion by refusing to admit certain evidence requested by the parents. Also finds the Indiana Department of Child Services presented sufficient evidence to support its petitions to terminate the parent-child relationship.

Court of Appeals of Indiana
In the Matter of B.M., C.M., and S.M. (Minor Children), Children in Need of Services, and N.M. (Father) v. Indiana Department of Child Services
23A-JC-1285
Juvenile CHINS. Affirms the DeKalb Circuit Court’s child-in-need-of-services adjudications for father N.M.’s children, B.M., C.M. and S.M. Finds the trial court did not abuse its discretion by denying counsel’s motion to withdraw at the start of the factfinding hearing. Also finds sufficient evidence supports the CHINS adjudications.

Court of Appeals of Indiana
Steven Slater, Jr. v. State of Indiana
22A-CR-3060
Criminal. Affirms Steven Slater’s convictions in Allen Superior Court of Level 6 felony possession of methamphetamine and Class A misdemeanor resisting law enforcement, his adjudication as a habitual offender, and the revocation of his probation as a result of his new convictions. Finds the state presented sufficient evidence to support Slater’s convictions. Also finds his aggregate eight-year sentence in F6-1027 is not inappropriate given the nature of his offenses and his character. Finally, finds the trial court did not abuse its discretion in ordering Slater to serve the entirety of his previously suspended sentence.

Court of Appeals of Indiana
In Re: The Adoption of P.J.W. James D. DeClerck and Marilyn J. DeClerck v. Ronald J. Walters
23A-AD-1254
Adoption. Affirms the Montgomery Superior Court’s denial of James and Marily DeClerck’s petition to adopt P.J.W. Finds the trial court did not abuse its discretion when it found that adoption is not in the child’s best interests. Judge Terry Crone dissents with separate opinion.

Court of Appeals of Indiana
Steven E. Malloch v. State of Indiana
22A-PC-2053
Post-conviction relief. Affirms the DeKalb Superior Court’s denial of Steven Malloch’s petition for post-conviction relief. Finds Malloch’s trial attorney, John Bohdan, did not perform deficiently by not calling an expert witness about false confessions at Malloch’s trial because he pursued other strategies calculated to sow doubt regarding the veracity of Malloch’s confession. Also finds Bohdan didn’t perform deficiently when he did not call a sleep expert who could not provide an opinion supportive of Malloch or a sleep expert who would have been a reluctant and equivocal witness at best.

Court of Appeals of Indiana
John E. Moriarity, Mae E. Moriarity, and C-A-R-E Auto Auction, Inc. v. State of Indiana, Indiana Natural Resources Commission, and Indiana Department of Natural Resources
22A-PL-2899
Civil plenary. Affirms the Grant Circuit Court’s dismissal of John and Mae Moriaritys’ inverse condemnation action. Finds the complaint did not successfully plead a regulatory taking.