Opinions

Court of Appeals of Indiana
Tabetha Smith v. Shawn Smith
21A-DC-2820
Domestic relations with children. Affirms and reverses in part the division of property in the dissolution of the marriage of Tabetha Smith and Shawn Smith. Finds the Marion Superior Court’s valuation, method of distribution and consideration of the tax consequences were well within its discretion. Also finds the trial court erred by failing to award either survivor’s benefits or protection of Tabetha’s portion of Shawn’s Indiana Public Retirement System pension benefits through other means, such as life insurance. Remands for further proceedings. 

Court of Appeals of Indiana
Jordan M. Zirkle v. State of Indiana (mem. dec.)
21A-CR-1743
Criminal. Affirms Jordan M. Zirkle’s conviction of murder. Finds any error in the denial of Zirkle’s motion for a directed verdict is waived. Also finds Zirkle’s conviction is supported by ample evidence.

7^th Circuit Court of Appeals
Blake Stewardson v. Cameron Biggs
21-3118
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Damon R. Leichty.
Civil. Dismisses for lack of jurisdiction Deputy Cameron Biggs’ appeal of the denial of qualified immunity. Finds the 7^th Circuit may review district court orders denying qualified immunity on interlocutory appeal only when the appellant brings “a purely legal argument that does not depend on disputed facts.” Also finds the instant appeal does not meet that criteria, as Biggs’ argument is “inseparable from the question of fact identified by the district court” and presents no purely legal issue.

Court of Appeals of Indiana
Duke Energy Indiana, LLC v. Bellwether Properties, LLC, individually and on behalf of all others similarly situated
21A-CT-1848
Civil tort. Reverses the denial of Duke Energy Indiana LLC’s motion for summary judgment in a dispute with Bellwether Properties LLC. Finds Duke didn’t violate the takings clause of the Fifth Amendment or Article 1, Section 21 of the Indiana Constitution through its enforcement of the National Electric Safety Code horizontal clearance regulation. Also finds Duke is entitled to summary judgment as a matter of law.

Court of Appeals of Indiana
Jefferson R. Griffin v. State of Indiana (mem. dec.)
19A-CR-1444
Criminal. Reverses Jefferson R. Griffin’s 46-year sentence for a variety of child molesting offenses. Finds the Rush Circuit Court erred in applying multiple enhancements to Griffin’s sentence and ordering those enhancements to run consecutively. Remands to the trial court with instructions to either vacate one of the enhancements or attach one of the enhancements to another conviction and run the sentences concurrently.

Court of Appeals of Indiana
Dharminder Sethi and Fine Enterprises, Inc. v. Petroleum Traders Corporation (mem. dec.)
22A-CC-223
Civil collection. Affirms the Allen Superior Court’s granting of summary judgment to Petroleum Traders Corporation in a dispute with Dharminder Sethi and Fine Enterprises Inc. regarding a contract dispute over fuel futures. Finds that PTC emailing FEI the margin call demand constituted a breach of the agreement, but that breach was immaterial and therefore PTC was not precluded from bringing an action against FEI. Also finds the trial court did not err.

Court of Appeals of Indiana
Sri Shirdi Saibaba Sansthan of Tri State, Inc. and Sumalatha Satoor v. Farmers State Bank of Alto Pass, Ill.
21A-PL-2572
Civil plenary. Affirms the findings of facts and conclusion thereon in favor of Farmers State Bank of Alto Pass, Illinois, on a claim for breach of contract filed by Sri Shirdi Saibaba Sansthan of Trist State Inc. and Sumalatha Satoor. Finds the trial court did not abuse its discretion by concluding that Farmers did not fraudulently induce Satoor to enter into a purchase agreement for real estate.

Court of Appeals of Indiana
Khaldoun E. Haddad and Issa E. Haddad v. Properplates, Inc., Manjeet Singh Bhattal, and Jaipal Atwal
21A-PL-2560
Civil plenary. Reverses the Lake Superior Court’s order for arbitration regarding the complaint made by Khaldoun and Issa Haddad against construction contractors Properplates Inc. and the dismissal of the case. Affirms arbitration for Properplates’ counterclaims. Finds the contract between the parties does not compel the Haddads’ claims to arbitration. Remands for the trial court to consider whether to delay arbitration pending the resolution of the Haddads’ claims.

Court of Appeals of Indiana
William F. Braun Milk Hauling, Inc., and Joseph Daugherty v. Peggy Malanoski
22A-CT-333
Civil tort. Affirms the denial of William F. Braun Milk Hauling Inc. and Joseph Daugherty’s motion to dismiss a complaint filed by Peggy Malanoski following a car accident involving Malanoski and a semi-tractor and trailer driven by Daugherty. Finds Malanoski timely filed her complaint in light of the Indiana Supreme Court’s March 13 and 23, 2020, orders that tolled the statutes of limitations in response to the COVID-19 pandemic.

7^th Circuit Court of Appeals
Lelah Jerger, et al. v. Shannon Blaize, et al.
21-3011
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Richard L. Young.
Civil. Vacates the entry of summary judgment in favor of caseworkers for the Indiana Department of Child Services, who were sued for alleged violations of Fourth and 14^th Amendment rights based on their actions in a case involving Lelah and Jade Jerger and their child, J.J. Finds the Jergers have done enough to create a jury question on whether the DCS defendants violated their and J.J.’s constitutional rights. Also finds neither summary judgment nor qualified immunity is available where the parties dispute facts material to the consent question. Remands.

Court of Appeals of Indiana
John William Rosenbaum, III v. State of Indiana
21A-CR-1409
Criminal. Affirms John William Rosenbaum III’s conviction of Level 3 felony child molesting and Level 4 felony child molesting. Concludes that the Hendricks Superior Court abused its discretion when it admitted V.V.’s consistent recorded pretrial statement, but Rosenbaum failed to establish that his substantial rights were affected as a result. Finds that the trial court did not abuse its discretion when it rejected Rosenbaum’s request to depose his child victim pursuant to a valid statute limiting Rosenbaum’s right to do so.

Indiana Supreme Court
City of Gary v. Jeff Nicholson, et al.
22S-MI-252
Miscellaneous. Grants transfer and dismisses. Finds the plaintiffs lack standing to challenge the city of Gary’s “welcoming ordinance” because they allege no injury. Also finds they do not have public standing. Finally, finds the state’s intervention does not alter the standing analysis. Remands to the Lake Superior Court with instructions to dismiss the action for lack of standing.

Court of Appeals of Indiana
Justin M. James v. State of Indiana (mem. dec.)
21A-CR-2679
Criminal. Affirms the revocation of Justin M. James’ probation. Finds the Bartholomew Circuit Court did not abuse its discretion when it ordered James to serve all remaining suspended time after he violated the terms of his probation. Also finds the trial court did not violate James’ plea agreement when it applied time served to his sentence under F6-287.

Joshua L. Barton v. State of Indiana
21A-CR-2165
Criminal. Affirms Joshua Barton’s convictions of two counts of Level 6 felony nonsupport of a dependent child. Finds the Brown Circuit Court did not abuse its discretion in admitting Barton’s diversion agreement as Exhibit 12, and if it had, any resulting error was harmless.

Court of Appeals of Indiana
Franciscan Alliance Inc., d/b/a Franciscan Physician Network v. Louis S. Metzman, M.D.
21A-PL-2171
Civil plenary. Affirms the Montgomery Circuit Court’s ruling that Franciscan Alliance breached its contract with Dr. Louis S. Metzman when it deducted money from his base compensation for taking unpaid time off and that Metzman is not entitled to performance-based compensation or liquidated damages, as well as the trial court’s rejection of Franciscan’s claim-by-claim approach to the distribution of attorney fees. Finds the term “prevailing party” here refers to a single party — the one in whose favor judgment is rendered, even if not to the extent of the original claim. Concludes while it may not always be appropriate to award full fees to the prevailing party, doing so in this case was not an error.

Court of Appeals of Indiana
Donald Kearschner v. American Family Mutual Insurance Company, S.I.
21A-CT -1888
Civil Tort. Reverses summary judgment granted to American Family Mutual Insurance Co. and remands for further proceedings in Owen Circuit Court. Finds American Family’s policy provision reducing Donald Kearschner’s underinsured motorist policy limit to zero based on the payment he received from worker’s compensation provided less coverage than the state’s underinsured motorist statute, Indiana Code § 27-7-5-2, required and is inconsistent with the view that the UIM Statute is a full-recovery, remedial statute. Concludes Kearschner is entitled to the difference between his underinsured policy limit of $100,000 and the $50,000 he received from the tortfeasor’s insurer.