Opinions

Indiana Court of Appeals
Demarcus Solvontez Davis v. State of Indiana
No. 25A-CR-622

Criminal. Appeal from the Madison Circuit Court, Judge Angela Warner Sims. Affirms Davis’s convictions for murder and Level 3 felony robbery and his 96-year sentence. Holds Davis preserved appellate review of the trial court’s joinder decision by objecting to the State’s motion, but failed to demonstrate either an abuse of discretion or resulting prejudice, and further concludes the trial court did not err in denying his Batson challenge, no fundamental error occurred in the prosecutor’s rebuttal argument, and sufficient evidence supported the convictions, including text messages planning a robbery, surveillance video and physical evidence; the court also concludes Davis’s sentence is not inappropriate in light of the nature of the offenses and his character. Judge Mathias authored the opinion. Judges Vaidik and Pyle concur. Appellant’s attorney: Joshua Cumming, SDHMR Law Group, Noblesville, Indiana. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
John Merchant v. Katz, Sapper & Miller, LLP
No. 25A-PL-1713

Civil. Interlocutory appeal from the Marion Superior Court, Judge James A. Joven. Affirms the trial court’s dismissal of Merchant’s claims for negligence and breach of fiduciary duty against Katz, Sapper & Miller, LLP. Holds the trial court properly granted the motion to dismiss because KSM owed no duty to Merchant, as there was no privity between them and Indiana law limits professional liability to clients or third parties known to rely on the professional’s work; the court also denies KSM’s request for appellate attorney’s fees, concluding Merchant’s appeal, while unsuccessful, was not frivolous or brought in bad faith. Judge Bradford authored the opinion. Judges Weissmann and DeBoer concur. Appellant’s attorney: Paul L. Jefferson, SLS Group, LLC, Carmel, Indiana. Appellee’s attorneys: Jayna M. Cacioppo, Vivek R. Hadley, Taft Stettinius & Hollister LLP, Indianapolis, Indiana.

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Indiana Court of Appeals
Norfolk Southern Railway Company v. Scott Sporner
No. 25A-CT-1138

Civil. Appeal from the Elkhart Superior Court, Judge Christopher J. Spataro. Affirms the denial of Norfolk Southern’s motion to correct error following a jury verdict finding the railroad liable under the Federal Employers’ Liability Act, or FELA, for injuries sustained by employee Scott Sporner in a train collision at a railyard and awarding $8.2 million in damages, with the railroad responsible for $4.92 million after fault was apportioned 60% to the railroad and 40% to Sporner. Holds the Federal Railroad Safety Act does not preclude a FELA negligence claim based on a railroad’s use of a one-person remote-control locomotive crew even if federal regulations permit such crews, concluding the statutes are complementary and do not bar the claim; also concludes the railroad was not entitled to judgment on the evidence regarding future lost wages because testimony from a vocational rehabilitation expert, an economist and medical evidence of permanent neurological symptoms provided sufficient evidentiary support for the jury’s award. Judge Foley authored the opinion. Judges May and Altice concur. Appellant’s attorneys: Barry L. Loftus, James F. Olds, Stuart & Branigin LLP, Lafayette, Indiana; Tobias S. Loss-Eaton, Charles W. Jetty, Sidley Austin LLP, Washington, D.C. Appellee’s attorneys: Gabriel A. Hawkins, Cohen & Malad, LLP, Indianapolis, Indiana; George Brugess, Cogan & Power, PC, Chicago, Illinois; Mark A. Psimos, Nathan M. Psimos, Psimos Law, Merrillville, Indiana.

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Indiana Court of Appeals
Bruce Mendenhall v. State of Indiana
No. 25A-CR-775

Criminal. Appeal from the Marion Superior Court, Judge Angela Dow Davis. Affirms Mendenhall’s murder conviction and 65-year sentence. Holds the evidence was sufficient to establish Indiana had territorial jurisdiction because a reasonable inference from the evidence was that the victim was killed at an Indianapolis truck stop before Mendenhall drove south on Interstate 65, rather than being kept alive until reaching Kentucky where her remains were later found; also concludes the trial court did not err in admitting evidence obtained during a Tennessee search of Mendenhall’s semi-truck because the Indiana constitutional protections described in Pirtle v. State did not apply where the Tennessee officer obtained consent to search while investigating a Tennessee matter and had no knowledge an Indiana crime was involved. Judge Vaidik authored the opinion. Judges Bradford and Altice concur. Appellant’s attorney: Casey Farrington, Marion County Public Defender Agency. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Brandon Lamont French v. State of Indiana
No. 25A-CR-1906

Criminal. Appeal from the Marion Superior Court, Judge Jennifer Prinz Harrison. Reverses French’s five convictions of Class A misdemeanor invasion of privacy and vacates the convictions. Holds the State presented insufficient evidence that French violated the no-contact order because the order prohibited contact with the victim only “while released from custody pending trial,” and all alleged contacts occurred while French was incarcerated in the Marion County Jail. Concludes that although French communicated with the victim through electronic messages, phone calls and intermediaries while jailed, those actions did not violate the express terms of the order. Judge May authored the opinion. Judges Felix and Weissmann concur. Appellant’s attorney: Peter Laramore. Appellee’s attorneys: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Zachary Matthew Loveless v. State of Indiana
No. 25A-CR-1794

Criminal. Appeal from the Hancock Superior Court, Judge Dan E. Marshall. Judge May writes that the court affirms the trial court’s denial of Loveless’s motion to correct error seeking additional credit time after his probation was revoked. Holds Loveless was not entitled to credit toward his Hancock County sentence for time he spent incarcerated in the Marion County and Hamilton County jails because those periods of confinement were connected to separate criminal matters in those counties rather than the Hancock County case. Further holds that under the applicable test for credit time, confinement must result from the charge for which the sentence was imposed, and Loveless’s out-of-county confinement was attributable to other cases. Notes that although the credit time does not apply to the Hancock County sentence, Loveless may seek appropriate credit in the other jurisdictions where the confinement occurred. Judges Altice and Foley concur. Appellant’s attorney: Katherine D. Jack. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Folabi Oshinubi, Denzel Lewis and Clarence White v. Reiling Teder & Schrier, LLC
No. 25A-CT-940

Civil. Appeal from the Tippecanoe Circuit Court, Judge Sean M. Persin. Judge Mathias writes that the court affirms the trial court’s entry of summary judgment for Reiling Teder & Schrier, LLC on the tenants’ claims under the federal Fair Debt Collection Practices Act, or FDCPA. Holds the law firm established a prima facie entitlement to summary judgment by designating evidence that it acted in good-faith reliance on the landlord’s representations that he had sent the tenants the required statutory 45-day notice itemizing damages before attempting to collect repair costs. Further holds that once the firm made that showing, the burden shifted to the tenants to designate evidence or legal authority demonstrating a genuine issue of material fact, which they failed to do after not responding to the summary-judgment motion and failing to address the firm’s good-faith theory on appeal. Concludes the tenants did not demonstrate that the firm’s actions violated the FDCPA and therefore the trial court properly entered summary judgment for the firm. May and Felix concur. Appellants’ attorney: Duran L. Keller. Appellee’s attorneys: Crystal G. Rowe; Jacob W. Zigenfus; Nicholas W. Levi.

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The following opinion was issued on March 3 after The Indiana Lawyer’s deadline. 

United States Court of Appeals for the Seventh Circuit
Elizabeth Chitwood v. Ascension Health Alliance, d/b/a Ascension
No. 25-1933

Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, Judge Richard L. Young. Circuit Judge Taibleson writes that the court affirms the district court’s grant of summary judgment for Ascension Health Alliance on the employee’s claims of interference with and retaliation for the exercise of rights under the Family and Medical Leave Act. Holds the employee could not establish FMLA interference because she attempted to retroactively report intermittent FMLA leave only after her employment had already been terminated and failed to comply with notice requirements requiring same-day reporting of intermittent leave and notification to her supervisor as soon as practicable. Further holds the retaliation claim fails because the record shows the employer terminated her for failing to return to work after her approved continuous FMLA leave expired, not because of her use of FMLA leave. Concludes that evidence of internal emails discussing concerns about possible FMLA abuse did not demonstrate pretext or discriminatory intent, as the employer consistently relied on the employee’s failure to return to work as the basis for termination.

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This opinion was issued on March 2 after The Indiana Lawyer’s deadline. 

U.S. Court of Appeals for the Seventh Circuit
Crothersville Lighthouse Tabernacle Church, Incorporated v. Church Mutual Insurance Company, S.I.
No. 22-1082

Civil. Appeal from the United States District Court for the Southern District of Indiana, New Albany Division, Judge Tanya Walton Pratt. Circuit Judge Sykes writes that the court affirms the district court’s entry of summary judgment for Church Mutual Insurance Company in this insurance dispute over replacement-cost benefits following a fire at the Lighthouse Tabernacle Church. Holds that Lighthouse Tabernacle waived its argument that it was relieved of its contractual obligation to repair or replace the damaged property as a condition to receiving additional replacement-cost payments by failing to raise that argument in response to the summary-judgment motion, and that forfeited arguments in civil cases rarely warrant plain-error review absent extraordinary circumstances. Concludes that because the church chose which arguments to present and did not raise its new legal theory on appeal in a timely manner — which was based on state appellate precedent — it cannot now obtain relief under civil plain-error doctrine, and that the judgment for Church Mutual must be affirmed. Brennan, C.J., and Hamilton, J., concur. Appellant’s attorney: Jason M. Smith. Appellee’s attorneys: Todd D. Small, John B. Drummy.

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Indiana Court of Appeals
Renaissance Associates I L.P., Jonathan Petersen, and Austin Bertrand, Inc. v. City of Hammond, Indiana
No. 24A-PL-2312

Civil. Appeal from the Lake Superior Court, Judge Calvin D. Hawkins. Affirms the trial court’s denial of the landlords’ motion for summary judgment and grant of the City of Hammond’s cross-motion for summary judgment in an action seeking refunds of 2015 rental registration fees paid before legislative amendments disqualified Hammond from a statutory fee exemption. Senior Judge Robb writes that although the legislature amended Indiana Code section 36-1-20-1.2 in 2015 — with a retroactive effective date of Jan. 1, 2015 — to redefine “rental registration or inspection program” in a manner that removed Hammond from the fee exemption, the amendment did not create a refund obligation for fees lawfully collected before enactment. Holds the definitional amendment was not remedial and does not operate retroactively to require repayment, emphasizing the statute contains no express refund mechanism and that fees were required to be maintained in a dedicated fund for program costs. Further holds that under Armour v. City of Indianapolis, there is a rational basis for treating landlords who paid without protest differently from those who withheld payment or protested, noting administrative burdens and funding concerns associated with issuing refunds. Concludes Hammond did not commit a tort by collecting the fees under then-existing law and that absent explicit statutory language mandating refunds, the city is entitled to judgment as a matter of law. May, J., and Brown, J., concur. Appellants’ attorneys: David W. Stone IV; Jonathan D. Petersen. Appellee’s attorneys: Bryan H. Babb; Bradley M. Dick.

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Indiana Court of Appeals
Krista B. Gue v. Triple E Property Management, LLC, and M.C. Berber, LLC
No. 25A-CT-832

Civil. Appeal from the Marion Superior Court, Judge James A. Joven. Affirms in part, reverses in part and remands. Holds the trial court properly denied Triple E Property Management’s motion for summary judgment on the tenant’s claim of negligent hiring, retention and supervision, concluding genuine issues of material fact exist regarding the adequacy of the company’s background screening and whether it had reason to know of the need to control its employee. Further holds the trial court erred in granting summary judgment to Triple E on the tenant’s respondeat superior claims for invasion of privacy and intentional or reckless infliction of emotional distress, determining reasonable jurors could find the employee’s conduct — rummaging through the tenant’s bedroom and sniffing her underwear while present to perform plumbing repairs — arose from activities closely associated with his authorized work and therefore fell within the scope of employment. Concludes, however, that landlord M.C. Berber, LLC is not vicariously liable under the non-delegable duty doctrine, because the employee’s conduct did not breach the landlord’s statutory duty to maintain plumbing in safe working order and did not violate the lease’s covenant of quiet enjoyment, where there was no unlawful entry or interference with the tenant’s possessory interest. Appellant’s attorney: Neal F. Eggeson Jr. Appellees’ attorneys: Jynell D. Berkshire; Tammy J. Meyer; Kenneth A. Ewing.

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Indiana Court of Appeals
Isaiah Jerone Stokes v. State of Indiana
No. 25A-CR-531

Criminal. Appeal from the Marion Superior Court, Judges Marie Kern and James K. Snyder. Affirms Stokes’ conviction of Level 4 felony unlawful possession of a firearm by a serious violent felon. Holds the trial court did not abuse its discretion in admitting the handgun discovered during an inventory search of Stokes’ vehicle following his arrest on outstanding warrants at a gas station. Concludes the decision to impound the vehicle was authorized under Indianapolis-Marion County ordinances because Stokes could not move the vehicle due to his arrest and was also reasonable under the police’s community caretaking function, where the vehicle was parked at a busy gas pump during rush hour and the clerk wanted it removed. Further holds the inventory search was not pretextual, finding officers largely complied with IMPD’s tow policy and that minor deviations — including ultimately releasing the vehicle at the scene rather than completing the tow — did not render the search unreasonable under the Fourth Amendment or Article 1, Section 11 of the Indiana Constitution. Notes Judge Pyle dissented, concluding the inventory exception did not apply because the vehicle was never actually impounded. Appellant’s attorneys: Talisha Griffin; Jan B. Berg. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Supreme Court
Indiana Land Trust #3082 and Omar and Haitham Abuzir, as Trustees v. Hammond Redevelopment Commission et al.
No. 25S-PL-141

Civil. Appeal from the Lake Superior Court, Judge Bruce D. Parent, on petition to transfer from the Indiana Court of Appeals. Affirms the trial court’s grant of the defendants’ Trial Rule 12(B)(6) motion to dismiss the landowners’ abuse-of-process complaint arising from a pending condemnation action. Holds that the mayor and individual members of the Hammond Redevelopment Commission are immune under Indiana Code section 34-13-3-5 because their alleged conduct — voting for and approving the condemnation resolution and related actions — was of the same general nature as that authorized by statute and undertaken in furtherance of their official duties. Further holds that all defendants — including the commission and the city — are immune under Indiana Code section 34-13-3-3(a)(6) because the landowners’ claimed loss directly resulted from the initiation of a judicial proceeding, namely the condemnation action, and subsection (6) immunity applies to both the initiation and prosecution of such proceedings. Declines to address whether a parallel abuse-of-process claim may proceed alongside a condemnation action in light of the dispositive immunity ruling. Appellants’ attorneys: Greg A. Bouwer; Jeffrey R. Carroll; Karol A. Schwartz. Appellees’ attorneys: Robert J. Feldt; Erika N. Helding; David C. Jensen; Kevin C. Smith; David W. Westland.

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Indiana Court of Appeals
In the Matter of A.M., G.G., and A.G. (Children in Need of Services), and A.C. (Mother) v. Indiana Department of Child Services
No. 25A-JC-2407

Civil. Appeal from the Vanderburgh Superior Court, Judge Gary Schutte, Magistrate Renee A. Ferguson and Referee Beverly Corn. Affirms the adjudication of A.M., G.G. and A.G. as children in need of services. Holds that although the trial court erred in adopting verbatim portions of the CHINS petitions as findings and in including findings unsupported by evidence — specifically regarding Mother’s alleged daily marijuana use and use of suboxone — those superfluous findings did not warrant reversal. Concludes sufficient evidence supported findings that A.M. witnessed and was involved in a domestic violence incident between Mother and Father, that the children had been exposed to domestic violence, and that Mother lacked stable housing, establishing serious endangerment to the children’s physical and/or mental condition. Further holds the evidence supported the need for coercive court intervention where Mother refused to participate in services, denied that services were necessary and testified she did not cooperate with a case manager because she had not been court-ordered to do so. Appellant’s attorney: Katherine N. Worman. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Carla Miller v. Indiana Gas Company, Inc.
No. 25A-CT-866

Civil. Appeal from the Clark Circuit Court, Magistrate William A. Dawkins. Affirms the trial court’s grant of summary judgment in favor of Indiana Gas Company on Miller’s product liability claim arising from a 2019 natural gas explosion that destroyed a neighboring home and injured Miller. Holds the trial court did not abuse its discretion in considering the Indiana Utility Regulatory Commission’s Final Incident Report and accompanying affidavits, concluding the report was not hearsay because it contained the findings of its authors, who personally observed the investigation, and was properly authenticated. Further holds there was no genuine issue of material fact that the natural gas was properly odorized under 49 C.F.R. § 192.625, where undisputed odorator readings taken near the residence were well within the federal 1% detection threshold and Miller’s designated evidence that occupants did not smell gas did not establish a regulatory violation or defect under the Indiana Product Liability Act. Concludes Miller failed to designate evidence that odor fade was implicated or that Indiana Gas had a duty to warn of it — particularly where the service lines had been in use for years and no regulation required such a warning — and therefore Indiana Gas was entitled to judgment as a matter of law. Appellant’s attorneys: Ashton Rose Smith; Emily A. DeVuono. Appellee’s attorneys: Thomas J. Costakis; Libby Yin Goodknight; Hilary K. Leighty; Blake P. Holler.

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Indiana Court of Appeals
Reid J. Cowan v. State of Indiana
No. 25A-CR-1744

Criminal. Interlocutory appeal from the Grant Superior Court, Judge Nathan D. Meeks. Affirms the denial of Cowan’s motion challenging venue on a Level 4 felony child solicitation charge. Holds that Grant County is a proper venue under Indiana Code section 35-32-2-1(d) because Cowan’s alleged travel to Grant County to meet a person he believed to be a child constituted an act committed in furtherance of the charged offense. Rejects Cowan’s argument that the offense was complete at the time of the online communications and that travel was merely a sentencing enhancement, distinguishing prior case law decided before the legislature amended the statute to make travel an element of Level 4 felony child solicitation. Concludes that because travel is an element of the charged Level 4 offense, venue in Grant County is proper. Appellant’s attorneys: Michael C. Cunningham; Kelly N. Pyle. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Court of Appeals
James Irwin Richter v. Neha Bhatnagar Richter
No. 25A-DC-1593

Civil. Appeal from the Hamilton Superior Court, Special Judge Stephenie K. Gookins. Affirms the trial court’s order awarding Mother sole legal custody of the parties’ child, modifying Father’s child support obligation and authorizing the issuance of a passport for the child. Holds the trial court did not abuse its discretion in modifying legal custody from joint to sole where the record showed ongoing conflict, unilateral decision-making by Father and an inability to effectively co-parent, constituting a substantial and continuing change in circumstances rendering joint legal custody no longer in the child’s best interests. Further holds the trial court did not err in calculating Father’s weekly gross income for child support purposes based on his tax returns reflecting total annual income. Concludes the trial court did not abuse its discretion in ordering that the child obtain a passport in light of his advancement to high school and opportunities for international immersion trips, finding a substantial change in circumstances and implementing safeguards through the parenting coordinator to address Father’s concerns. Appellant’s attorneys: Bryan L. Ciyou; Anne M. Lowe. Appellee’s attorney: Dyllan M. Kemp.

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Indiana Court of Appeals
In the Matter of: A.B. and B.B. (Minor Children), E.B. (Mother) v. Indiana Department of Child Services
No. 25A-JC-1315

Civil. Appeal from the Brown Circuit Court, Judge Mary Wertz. Affirms the adjudication of A.B. and B.B. as children in need of services. Holds that even if the trial court erred in denying Mother’s emergency motion to continue the fact-finding hearing based on one of her attorneys’ hospitalizations, Mother failed to establish prejudice warranting reversal, particularly where she was represented by two attorneys and did not show how the denial affected her ability to secure expert testimony or prepare her defense. Further holds the trial court did not abuse its discretion in excluding the results of Stepfather’s unstipulated polygraph examination, reiterating that polygraph evidence is generally inadmissible absent a valid stipulation and rejecting Mother’s argument for a civil-case exception. Concludes that Mother did not demonstrate reversible error in either the denial of the continuance or the exclusion of the polygraph evidence. Appellant’s attorneys: Bryan L. Ciyou; Anne M. Lowe. Appellee’s attorney: Office of the Indiana Attorney General.

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Indiana Court of Appeals
Eric D. Wilson v. State of Indiana
No. 25A-CR-1542
Criminal. Appeal from the Morgan Superior Court, Judge Brian H. Williams. Reverses Wilson’s conviction of Class C misdemeanor operating a vehicle while intoxicated. Holds that Deputy Caleb Merriman lacked reasonable suspicion to initiate the investigatory traffic stop where Wilson was observed making “jerky” and fidgeting body movements but committed no traffic violations and exhibited no erratic or unusual driving behavior. Concludes that, under the totality of the circumstances, the deputy’s observations amounted to a hunch rather than specific, articulable facts of criminal activity and therefore violated the Fourth Amendment. Further holds the stop was unreasonable under Article 1, Section 11 of the Indiana Constitution after balancing the Litchfield factors, noting the moderate intrusion of field sobriety tests, transport to a hospital and a blood draw, and the absence of law enforcement need supported by traffic violations or abnormal driving. Determines the trial court abused its discretion in admitting evidence obtained as a result of the stop. Attorney for appellant: Glen E. Koch II. Attorney for the appellee: Office of the Indiana Attorney General.

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