Opinions

Court of Appeals of Indiana

On the Level Fence & Deck Inc. v. Indiana Bell Telephone Company d/b/a AT&T Indiana
22A-CT-3073
Civil tort. Reverses the denial of the motion for default judgment and remands the matter to the Lake Superior Court for further proceedings. Finds that On the Level Fence & Deck’s failure to answer the complaint was the result of excusable neglect. Judge Peter Foley dissents with a separate opinion.

Court of Appeals of Indiana
Tarah L. Weaver v. Samuel B. Weaver (mem. dec.)
22A-DC-2111
Domestic relations with children. Affirms the Kosciusko Superior Court’s order for Tarah Weaver to pay Samuel Weaver $2,250 in attorney fees, finding that Tarah had filed several untimely and defective motions. Finds no abuse of discretion by the trial court.

Tuesday opinions
Court of Appeals of Indiana

James K. McConnell v. Martha A. Doan; Marilyn S. Hall; David Fee; Jerome Henry, Jr.; Thomas B. Walsh; Tim Miller; and Nicolas Ciocca
23A-CT-145
Civil tort. Affirms a settlement agreement and appointment of a commercial court master. Finds the Allen Superior Court did not abuse its discretion in appointing a commercial court master pursuant to Commercial Court Rule 5 or Trial Rule 70. Also finds the settlement agreement does not contain an unenforceable “agreement to agree.”

Monday opinions
Court of Appeals of Indiana

James Andry v. Leo Thorbecke
22A-CT-2942
Civil tort. Reverses the trial court’s order granting Leo Thorbecke leave to file his untimely response and remands for further proceedings on the motion for summary judgment in which the trial court may not consider the late filings. Finds the trial court lacked authority to deviate from the bright-line rule requiring the timely filing of materials opposing summary judgment. Also finds Trial Rule 72(E) offers no relief to Thorbecke under the circumstances presented.

Friday opinions
Court of Appeals of Indiana

Jane C. Irby v. Michael A. Spear (mem. dec.)
22A-PL-2968
Civil plenary. Affirms the Clark Superior Court’s judgment that Jane Irby did not own certain property by adverse possession. Finds Irby did not meet her burden of proving the elements of adverse possession by clear and convincing evidence. Also finds the trial court was able to consider the recorded instruments, photographs and tax statements, as well as the parties’ thorough testimony, and the trial judge visited the site.

Thursday opinions
Court of Appeals of Indiana

K.H. v. Review Board of the Indiana Department of Workforce Development (mem. dec.)
23A-EX-413
Appeal in certain administrative proceedings. Affirms the denial of K.H.’s unemployment benefits Finds K.H. does not qualify for unemployment benefits.

Court of Appeals of Indiana
Pink Allen Robinson v. State of Indiana
22A-PC-1102
Post-conviction. Affirms the denial of Pink Allen Robinson’s change-of-judge motion. Finds the post-conviction court did not clearly err.

Court of Appeals of Indiana
Gareth Sylvester Earl Jones v. State of Indiana
22A-CR-2661
Criminal. Affirms Gareth Jones’ convictions of Level 1 burglary resulting in serious bodily injury and Level 5 robbery, and his 40-year aggregate sentence. Finds the Clark Circuit Court did not abuse its discretion in the admission and exclusion of evidence. Also finds the state presented sufficient evidence to support the convictions. Finally, finds the sentence is not inappropriate.

Court of Appeals of Indiana
The Estate of Joyce Gillette and Kathryn Gillette v. Franciscan Alliance, Inc., Physician On Duty – St. Francis, Chris Hyman, and John Doe Employees of St. Francis (mem. dec.)
22A-CT-1625
Civil tort. Affirms Marion Superior Court’s order granting summary judgment to the defendants. Finds that because the designated evidence shows the defendants did not render life-prolonging care in the face of a valid refusal, they cannot be liable for medical battery.

Court of Appeals of Indiana
Vincent S. Horns v. State of Indiana
22A-CR-2813
Criminal. Affirms Vincent Horns’ convictions of Level 6 leaving the scene of an accident and Level 6 obstruction of justice, and his aggregate sentence of four years. Finds the evidence was sufficient to support Horns’ convictions in the Hendricks Circuit Court. Also finds the sentence is not inappropriate.

Court of Appeals of Indiana
Kenneth R. Kirby, III v. State of Indiana
22A-CR-2917
Criminal. Affirms Kenneth Kirby III’s conviction of Level 4 felony arson. Finds the Vanderburgh Circuit Court did not abuse its discretion in denying Kirby’s motion to dismiss or in admitting testimony regarding the substance of a surveillance camera video recording that was not offered into evidence. Also finds the state presented sufficient evidence to support Kirby’s conviction.

Court of Appeals of Indiana
Kevin Martin v. J. Harvill, et al. (mem. dec.)
23A-CT-416
Civil tort. Affirms the LaPorte Superior Court’s dismissal of Kevin Martin’s complaint. Finds Martin’s arguments are too poorly developed for review.

Tuesday opinions
Court of Appeals of Indiana

Derek Fingers v. Robert Carter, et al. (mem. dec.)
23A-PL-132
Civil plenary. Affirms the LaPorte Superior Court’s summary judgment in favor of Robert Carter and others. Finds there is no genuine issue of material fact that Derek Fingers failed to exhaust his administrative remedies prior to bringing his cause of action pursuant to 42 U.S.C. § 1983. Also finds the trial court properly concluded that his claims are barred.

Monday opinions
Court of Appeals of Indiana
Shane Willingham v. Anderson Center
23A-CT-459
Civil tort. Affirms the dismissal of Shane Willingham’s complaint. Finds the Madison Circuit Court did not err in granting Anderson Center’s motion to dismiss and dismissing without prejudice. Also finds Willingham’s claim is a medical malpractice claim and falls under the Indiana Medical Malpractice Act.

Court of Appeals of Indiana
L.T. Garrett v. Nissan of Lafayette, LLC
22A-CT-2583
Civil tort. Reverses the Bartholomew Circuit Court’s grant of summary judgment in favor of Nissan of Lafayette. Orders the trial court to vacate that judgment. Rejects Nissan of Lafayette’s cross-appeal contending that the trial court erred when it declined to rule that a set of requests for admission should be deemed admitted. Finds the designated evidence is insufficient to allow the trial court to conclude that Garrett’s reliance on the verbal representations of the dealership was unreasonable as a matter of law. Remands the case for further proceedings.

7^Th Circuit Court of Appeals
United States of America v. Paul Erlinger
22-1926
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Judge Jane Magnus-Stinson.
Criminal. Affirms Paul Erlinger’s sentence to 15 years for illegally possessing a firearm. Finds there is no basis to hold that the Indiana burglary statute no longer qualifies for an enhanced sentence mandated by the Armed Career Criminal Act. Also finds that a preponderance of the evidence shows Erlinger’s offenses were committed on separate occasions.

Court of Appeals of Indiana
David W. Helvey v. State of Indiana (mem. dec.)
23A-CR-299
Criminal. Affirms David Helvey’s aggregate 20-month sentence for Level 6 felony intimidation and four counts of Class A misdemeanor intimidation. Finds Helvey’s sentence is not inappropriate in light of the nature of the offenses and his character.

Court of Appeals of Indiana
Kurt Russell v. State of Indiana
22A-CR-2299
Criminal. Affirms Kurt Russell’s conviction of Level 1 felony dealing in a controlled substance resulting in death. Finds the Boone Superior Court did not abuse its discretion when it admitted evidence extracted from a phone other than the one found on the counter near Maxwell Timbrook’s body because the content of both phones were the same given that they were linked to the same iCloud account. Also find the state presented sufficient evidence that Russell delivered fentanyl to Timbrook, and he died ingesting the fentanyl.

7^th Circuit Court of Appeals
Anna Kinney v. St. Mary’s Health, Inc., doing business as St. Vincent Evansville
22-2740
Appeal from the U.S. District Court for the Southern District of Indiana, Evansville Division.
Senior Judge Richard L. Young.
Civil. Affirms the grant of summary judgment to St. Mary’s Health Inc. on Anna Kinney’s Americans with Disabilities Act and Title VII claims. Finds no reasonable juror could find that Kinney could perform certain essential functions of her job without being present in the radiology department that she oversaw, so she was not a qualified individual for the job under the ADA, and even if she had been, the accommodation she requested was not reasonable. Also finds Kinney’s resignation was not a constructive discharge. Finally, regarding promotions Kinney applied for but did not receive, her claims did not show genuine issues of material fact.

Court of Appeals of Indiana
In the Matter of the Civil Commitment of G.H. v. Richard L. Roudebush Veterans Affairs Medical Center
23A-MH-490
Mental health. Affirms the involuntary commitment of G.H but reverses a special condition and remands with instructions to the Marion Superior Court to strike the special condition prohibiting G.H. from consuming alcohol and drugs during his outpatient treatment Finds clear and convincing evidence supports the involuntary commitment, but insufficient evidence supports the special condition. Judge Elizabeth Tavitas concurs and dissents in part with separate opinion.