Opinions

Indiana Court of Appeals
Simon Property Group, L.P., a/k/a Simon Property Group, Inc., et. al. v. Kaya P.R. Stewart, et.al.
24A-CT-1700
Civil tort. Affirms Marion Superior Court Judge Christina Klineman’s order denying the motions of Simon Property Group and Universal Protection Service to dismiss the complaint filed by Kaya P.R. Stewart, Eumeka R. Stewart, and Samuel Stewart III in their individual capacities, and Eumeka R. Stewart and Samuel Stewart II, as Parents and Legal Guardians of O.S. in a case involving a mass shooting that occurred at the Greenwood Park Mall in July 2022. Finds the appellate court rejects Universal’s narrow characterization of the plaintiffs’ claims against it. Also finds that, at this stage of the proceedings and without the benefit of completed discovery, the trial court did not err in denying Universal’s motion to dismiss. Attorneys for appellants: Wayne Turner, Michael Limrick, Melissa Murphy-Petros, Justin Hazlett, Joseph Macha. Attorneys for appellees: Gabriel Hawkins, Gregory Laker, Andrea Simmons.

Indiana Court of Appeals
Eliezer Areche v. Indianapolis Department of Public Works, City of Indianapolis, United States Postal Service, et al.
24A-CT-2672
Civil tort. Affirms Marion Superior Court Magistrate Ian Stewart’s granting of the City of Indianapolis’ motion for summary judgment after Eliezer Areche filed a negligence action against several defendants, including the city. Finds that Areche’s ordinance violation did constitute negligence per se, and, because negligence claims against governmental entities are specifically exempted from the Comparative Fault Act, Areche’s claim is barred by the common-law defense of contributory negligence. Judge Stephen Scheele dissents with a separate opinion. Attorneys for appellant: Michael Simmons, Hannah Brady, Georgianna Tutwiler. Attorneys for appellees: Patrick Devine, Jennifer Kalas, Brandon Newhart, Catherine Basque Weiler.

Indiana Court of Appeals
Alfred Williams Comer, Jr. v. State of Indiana
24A-CR-1832
Criminal.  Affirms Lake County Superior Court Magistrate Kathleen Sullivan’s denial of Alfred Comer Jr.’s motion that the trial court should have applied 1,376 days of credit to reduce his fixed term of 60 years imprisonment after his murder conviction. Finds the trial court did not abuse its discretion by finding Comer already received credit for presentence incarceration and good time credit and was not entitled to any reduction in his fixed term of imprisonment. Appellant pro se: Alfred Comer, Jr. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Courtney Staton.

Indiana Supreme Court
EdgeRock Development, LLC, ZPS Westfield, LLC, and First Bank Richmond v. C.H. Garmong & Son, Inc., Signworks, Inc., and Fox Contractors Corp.
24S-PL-184
Civil plenary. Affirms the Indiana Court of Appeals’ ruling that that the Hamilton Superior Court did not err in concluding that factual disputes precluded summary judgment on EdgeRock’s claim that Change Order #3 was invalid because it was not approved in writing. Also finds that the trial court did not err in granting Garmong’s summary judgment motion (and denying EdgeRock’s competing summary judgment motion) on EdgeRock’s claim that it was entitled to a credit for amounts owed under the Garmong contract for work related to the 175th Street Project and the drain relocation. Also affirms the appellate court’s reversal of the Hamilton Superior Court’s award to EdgeRock of the road impact fees and instructs the trial court to distribute the funds consistent with the outcome of related litigation in the Hamilton County Commercial Court. Also finds that First Bank is entitled to recover attorney fees from EdgeRock. Remands for the trial court to amend the judgment consistent with this opinion. Attorneys for appellants: Maggie Smith, Darren Craig, Nathaniel Uhl, Jenny Buchheit, Adam Alexander, Scott Fandre, David Johnson, Bryan Babb, James Carlberg, Nathan Danielson, Ronald Cross. Attorneys for appellees: Peter French, Jeffrey Stemerick, Neil Peluchette, Robert Eherenman.

7^th Circuit Court of Appeals
Steven Lindsey v. Ron Neal
23-2789
Prisoner. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Theresa Springmann. Vacates the district court’s judgment dismissing Steven Lindsey’s post-conviction relief petition and remands for further proceedings. Finds that Indiana’s postconviction remedies proved to be ineffective for Lindsey and thus that he is excused from § 2254’s exhaustion requirement. Attorneys for appellant: Samuel Lioi, David Wreesman. Attorneys for appellee: Jesse Drum, Sierra Murray.

Indiana Court of Appeals
H.R. v. M.R.
25A-PO-17
Protective order.  Reverses Scott Circuit Court Magistrate Alison Frazier’s protective order against H.R. Finds the record contains no evidence that H.R. ever harmed or threatened to harm M.R. or that he represents a present credible threat to her safety. Also finds that H.R. has met his burden to establish prima facie error. Attorneys for appellant: Bryan Ciyou, Anne Lowe. No attorney listed for appellee.

Indiana Court of Appeals
Bernard L. McGuire v. State of Indiana
24A-CR-2491
Criminal. Finds no error in Marion Superior Court Judge Marie Kern attaching a firearm enhancement to Bernard McGuire’s attempted murder conviction. Also finds that McGuire’s attempted murder and aggravated battery convictions constitute double jeopardy. Remands with instructions that the lesser included offense of aggravated battery be vacated. Attorney for appellant: Denise Turner. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Justin Roebel.

Indiana Court of Appeals
Monty Dale Maze v. State of Indiana
24A-CR-2596
Criminal. Reverses Monty Maze’s conviction in Sullivan Superior Court of a Class B misdemeanor for harboring a non-immunized dog. Finds the trial court failed to conduct a proper indigency hearing when denying Maze’s request to appoint him trial counsel. Also finds there was inadequate inquiry into Maze’s necessary expenses, particularly in light of evidence he needed the money to support himself and a dependent. Remands for further proceedings. Attorney for appellant: Ruth Johnson. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Sierra Murray.

Indiana Court of Appeals
Commitment of J.S. v. Neuropsychiatric Hospital of Indianapolis
25A-MH-979
Mental health. Affirms Marion Superior Court Judge Pro Tem Denise Hayden’s order of temporary commitment of J.S. to the Neuropsychiatric Hospital of Indianapolis. Finds the evidence is sufficient to support the trial court’s determination that J.S. is gravely disabled because her untreated mental illness renders her unable to provide for her essential human needs. Attorneys for appellant: Talisha Griffin, Sarah Medlin. Attorneys for appellee: Daniel  Gibson, Austin Sparks.

7^th Circuit Court of Appeals
James Napier v. Orchard School Foundation
23-1659
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Senior Judge Sarah Evans Barker. Affirms the district court’s order granting summary judgment for Orchard School Foundation after James Napier filed an employment discrimination lawsuit against the school. Finds that no reasonable fact finder could find that Napier lost his job based on his sex. Also finds no reasonable fact finder could determine that Napier’s litigation, rather than the events that led to his termination, was the “but-for” cause of Orchard’s decision not to rehire him. Attorney for appellant: Richard Darst. Attorneys for appellee: Alexander Pinegar, Jessica Billingsley.

Indiana Court of Appeals
Todd Rokita, in his official capacity as Indiana Attorney General, et.al. v. Board of School Commissioners for the City of Indianapolis
23A-PL-2729
Civil plenary. Affirms Marion Superior Court Judge Heather Welch’s judgment that Indianapolis Public Schools is exempt from the Dollar Law under the 2023 amendments. Finds that applying the 2024 amendments retroactively would violate Article 1, Section 24 of the Indiana Constitution by substantially impairing the IPS board’s contractual relationship with VOICES as to the Bellamy 102 building. Also finds with the Brandes 65 building, that the Ips board has failed to establish that applying the 2024 amendments retroactively would violate any vested right or constitutional guarantee with respect to that building. Remands with instructions for the board to dispose of the Brandes 65 building in conformance with the Dollar Law. Finally, finds that the trial court did not abuse its discretion in staying its judgment. Attorney for appellant: Attorney General Todd Rokita, Section Chief, Civil Appeal Benjamin Jones. Attorneys for appellees: Bryan Babb, Bradley Dick, Jonathan Mayes, Dakota Slaughter.

Indiana Court of Appeals
Patrick Norton v. State of Indiana
24A-CR-2330
Criminal. Affirms Patrick Norton’s conviction in Hamilton Superior Court of Class B misdemeanor disorderly conduct. Finds Norton waived any alleged error by the trial court when he failed to challenge Juror 18’s service and the state presented sufficient evidence to rebut Norton’s defense of property and self-defense claims. Attorney for appellant: Bryan Cook. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Caroline Templeton.

Indiana Court of Appeals
Dwayne T. Clemons v. State of Indiana
24A-CR-1601
Criminal. Affirms Warren Circuit Court Judge Hunter Reece’s judgment revoking Dwayne Clemons’ probation and ordering him to serve 544 days in the Indiana Department of Correction. Finds that given the number and nature of Clemons’s violations, the trial court’s decision to order execution of 544 days of Clemons’s previously suspended sentence was well within its discretion. Judge Melissa May dissents with a separate opinion. Attorney for appellant: Justin Wall. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General John Oosterhoff.

Indiana Court of Appeals
Russell Bernacchi and Judith Bernacchi v. Yon M. Lindborg and Kenneth L. Rutz
24A-CT-1686
Civil tort. Dismisses without prejudice Russell and Judith Bernacchi’s appeal of LaPorte Circuit Court Judge Thomas Alevizos’ order denying the Bernacchis’ motion for summary judgment against Kenneth Rutz and Yon Lindborg’s complaint. Finds the trial court’s order denying the Bernacchis’ motion for summary judgment is neither a final judgment nor an appealable interlocutory order, and the appellate court lacks appellate jurisdiction over the Bernacchis’ appeal. Attorney for appellants: Martin Lucas. Attorney for appellees: R. Brian Woodward

Indiana Court of Appeals
Jerry D. McBride v. State of Indiana
24A-CR-2213
Criminal. Reverses Jerry McBride’s conviction by an Elkhart Superior Court jury of Class A misdemeanor invasion of privacy for violating a protective order prohibiting him from communicating with a next-door neighbor. Finds that that McBride failed to preserve the claim of evidentiary error, but that the trial court committed reversible error in declining to give a pattern jury instruction on the defense of property. Remands for a new trial. Attorney for appellant: Donald Shuler. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Megan Smith.

Indiana Court of Appeals 

Matthew Eversole v. State of Indiana 

24A-CR-1910

Criminal. Affirms Clay Circuit Court Judge Joseph Trout’s judgment on the drug-interdiction fee, but finds an indigency hearing was required for the fine, costs and fees for which the agreement did not specify amounts. Reverses the trial court’s judgment to all expenses other than the $200 drug-interdiction fee. Remands the trial court to conduct or schedule an indigency hearing in conjunction with its imposition on Eversole of any other fine, costs and fees. Attorney for appellant: Kay Beehler. Attorneys for appellee: Indiana Attorney General Todd Rokita and Deputy Attorney General J.T. Whitehead.

Indiana Court of Appeals
Richard J. Campos v. State of Indiana
24A-PC-2008
Post-conviction relief. Affirms the denial by Franklin Circuit Court Judge Clay Kellerman of Richard Campos’ petition for post-conviction relief. Finds Campos has not demonstrated the trial court’s discussion with the parties – about why it would not accept their plea agreement and what sentence it might possibly accept – rendered his guilty plea involuntary.  Attorneys for appellant: Indiana Public Defender Amy Karozos, James Acklin. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Caroline Templeton.

Indiana Court of Appeals
State of Indiana v. Devin A. Dickens
24A-CR-1912
Criminal. Reverses Dubois Superior Court Special Judge Nathan Verkamp’s dismissal of two counts alleging Devin Dickens possessed, and possessed with intent to deliver, a controlled substance. Finds the dismissal of the charges was improper because the charging information, taken as true, alleges valid criminal offenses and to the extent the probable cause affidavit can be said to contain conflicting facts, it is the function of a trier of fact to ascertain whether the substance was, in fact, contraband. Remands the case for further proceedings. Attorneys for appellant: Attorney General Todd Rokita, Deputy Attorneys General Kathy Jo Bradley, Brandon Smith. Attorney for appellee: Victoria Bailey Casanova.

Indiana Court of Appeals
Norman Thomas, II v. State of Indiana
24A-CR-1731
Criminal. Reverses Hendricks Superior Court Judge Mark Smith’s denial of Norman Thomas II’s motion to suppress drug evidence obtained during a search of his home pursuant to two search warrants. Finds that the first search warrant is invalid because it was unsupported by probable cause and the items listed as sought to be searched were not sufficiently particularized. Also finds the good-faith exception does not apply to the first search. Finally, finds that because the first search was invalid, the second search was necessarily invalid as well, and the evidence obtained from the searches must be suppressed and the trial court erred by denying the motion to suppress. Attorney for appellant: Brian Johnson. Attorneys for appellees: Attorney General Todd Rokita, Deputy Attorney General Alexandria Sons.

Indiana Court of Appeals
Judy Lammons v. EDCO Environmental Services, Inc.
24A-CT-2057
Civil tort. Reverses Lake Superior Court Judge Bruce Parent’s judgment in favor of EDCO Environmental Services, Inc. in its defamation lawsuit against Judy Lammons. Finds that because Lammons’ statements neither state nor imply a provably false fact but merely indicate her honestly held opinion, the trial court’s findings are clearly erroneous. Attorneys for appellant: Gavin Rose, Stevie Pactor. Attorney for appellee: Adam Sworden.