Opinions

Indiana Supreme Court
Russell G. Berg v. Stacey L. Berg
21S-DC-320
Domestic relations with children. Affirms the award of half of Russell Berg’s stock to his ex-wife Stacey Berg. Finds that documents produced in anticipation of mediation fall under the confidentiality requirement of settlement negotiations. Also finds that the Allen Circuit Court erroneously admitted a marital balance sheet prepared for mediation to allow Stacey to avoid the parties’ settlement agreement. Finally, finds the trial court incorrectly determined that fraud, constructive fraud, mutual mistake or representation had occurred, but did not abuse its discretion in finding that Russell breached the warranty clause of the agreement.

Indiana Court of Appeals

Krause-Franzen Farms, Inc., David P. Krause, Jane E. Krause, and Philip C. Krause v. Tippecanoe School Corporation
21A-PL-115
Civil plenary. Affirms the Tippecanoe Superior Court’s order in favor of Tippecanoe School Corporation on its condemnation action and overruling Krause-Franzen Farms Inc., David P. Krause, Jane E. Krause and Philip C. Krause’s objection. Finds TSC is not appropriating property because it might wish to use the property in the future. Also finds the evidence does not point solely to a conclusion that TSC has exceeded its authority.

Michael R. Jent v. Bureau Of Motor Vehicles (mem. dec.)
20A-CT-02096
Civil tort. Affirms the dismissal of Michael Jent’s complaint against the Indiana Bureau of Motor Vehicles. Finds any error committed by the Marion Superior Court in granting the BMV’s motion to dismiss Jent’s complaint with prejudice was harmless.

Indiana Court of Appeals
Kennic T. Brown v. State of Indiana
20A-CR-2261
Criminal. Affirms the denial of Kennic Brown’s motion to dismiss his charge of Level 6 felony battery against a public safety officer. Finds the disciplinary action taken by the Indiana Department of Correction against Brown for his conduct violation does not preclude the state’s criminal prosecution of him for the same act. Also finds Brown’s motion to dismiss the criminal charge against him on double jeopardy grounds was correctly denied.

Indiana Court of Appeals
Thomas D. Hunter v. State of Indiana (mem. dec.)
20A-PC-1293
Post-conviction. Affirms the denial of Thomas Hunter’s petition for post-conviction relief following his guilty plea to felony murder. Finds Hunter failed to prove he was denied due process based on an alleged Brady violation or that he received ineffective assistance of trial counsel.

Indiana Supreme Court
State of Indiana v. Justin Jones
21S-CR-50
Criminal. Reverses an order requiring a confidential informant in Justin Jones’ case to have a face-to-face interview with opposing counsel. Finds that an informant’s identity is inherently revealed through their physical appearance at a face-to-face interview. Also finds that when a defendant requests such an interview, the state has met its threshold burden to show the informer’s privilege applies. Finally, finds the Marion Superior Court did not apply the established balancing test before ordering disclosure. Remands.

Indiana Court of Appeals
David K. and Jane A. Burton, et al. v. Board of Zoning Appeals of Madison County, and Lone Oak Solar, LLC
20A-MI-2186
Miscellaneous. Affirms the denial of neighbors David and Jane Burton, Bob and Jean Mills, Curtis and Rebecca Harrison, Kara and Richard Brown, Ross and Katrina Hunter, Joshua Hiday, John Doe and Jane Doe’s petition for judicial review in favor of the Board of Zoning Appeals of Madison County and Lone Oak Solar Energy LLC. Finds the votes of BZA members Mary Jane Baker and Beth VanSickle in favor of Lone Oak were valid and that there was substantial evidence to support Lone Oak’s special use applications and setback variances.

Opinions June 18, 2021 Indiana Court of Appeals A.C. James, Jr. v. State of Indiana (mem. dec.) 19A-PC-2311 Post-conviction. Affirms the denial of A.C. James Jr.’s petition for post-conviction relief. Finds the errors he alleged do not amount to ineffective assistance of counsel. Marq Hall v. State of Indiana (mem. dec.) 19A-PC-2919 Post-conviction. Affirms the […]

Indiana Supreme Court
City of Marion v. London Witte Group, LLC, Chad Seybold, Estate of Michael Y. An, Global Investment Consulting, Inc., and World Enterprise Group, Inc.
20S-MI-00567
Miscellaneous. Affirms and reverses in part the grant of summary judgment to London Witte Group in a dispute with the city of Marion. After applying the adverse domination doctrine, finds summary judgment was inappropriate for all of the city of Marion’s claims because there are genuine issues of material fact as to whether former Mayor Wayne Seybold adversely dominated the city, and whether London Witte Group helped him do so. Remands for further proceedings.

7^th Circuit Court of Appeals
Design Basics, LLC, et al. v. Kerstiens Homes & Designs, Inc, et al.
18-3202, 19-3118 & 20-1515
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Chief Judge Tanya Walton Pratt.
Civil. Affirms the Indiana Southern District Court’s award of $518,457.80 in attorney fees to Kerstiens Homes & Designs Inc. and the dismissal of Design Basics LLC’s copyright infringement suit against Kerstiens. Finds the allegedly infringing floor plans consist largely of standard features found in homes across America.

Indiana Court of Appeals
Michael Bousum v. Amber Bousum
20A-DR-1834
Domestic relations. Affirms the Clinton Superior Court’s order awarding appellate attorney fees to Amber Bousum from the father of her child, Michael Bousum. Finds Amber’s request for appellate attorney fees is not barred by res judicata or by the law of the case doctrine.

Indiana Court of Appeals
Pradeep Kumar Toppo v. State of Indiana
20A-CR-2099
Criminal. Affirms Pradeep Toppo’s conviction for Level 6 felony operating a vehicle while intoxicated and Class C infraction driving left of center. Holds that the traffic stop was lawful based on Toppo’s traffic violation and that the trial court did not err when it admitted evidence that law enforcement had obtained following a traffic stop.

7^th Circuit Court of Appeals
United States of America v. Jeffrey Esposito
20-1124
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Jane E. Magnus-Stinson.
Criminal. Affirms Jeffrey Esposito’s sentence to 200 years in prison, a de facto life sentence, for his convictions of multiple counts of sexually exploiting a child as well as possession of child pornography. Finds the district court did not err when sentencing Esposito.

Indiana Supreme Court
State of Indiana v. Tyson Timbs
20S-MI-289
Miscellaneous. Affirms the order for the return of Tyson Timbs’ Land Rover, seized in 2013 after Timbs pleaded guilty to dealing and theft charges. Finds that under the proportionality framework set forth in State v. Timbs, 134 N.E.3d 12, (Ind. 2019), Timbs met his high burden to show that the harshness of his Land Rover’s forfeiture was grossly disproportionate to the gravity of the underlying dealing offense and his culpability for the vehicle’s misuse. Justice Geoffrey Slaughter concurs in the judgment with separate opinion. Justice Mark Massa dissents with separate opinion.

Indiana Court of Appeals Hicks & Sons, LLC v. Carewell International, LLC 20A-PL-1874 Civil plenary. Affirms the determination that Carewell International Inc. could continue displaying a Holiday Inn hotel sign within a driveway easement over Hicks and Sons LLC’s real estate. Finds the evidence presented at trial supports the Putnam Superior Court’s determination that the […]

Indiana Court of Appeals
Indiana Board of Pharmacy v. Paul J. Elmer
20A-PL-2200
Civil plenary. Affirms the Marion Superior Court’s order reversing the decision of the Indiana Board of Pharmacy to revoke Paul J. Elmer’s pharmacist’s license. Finds the board does not have statutory authority to revoke an expired license. Remands for further proceedings.

Indiana Court of Appeals Jesse E. Atwood v. State of Indiana 20A-CR-02391 Criminal. Affirms Jesse Atwood’s conviction for Level 5 felony corrupt business influence and his aggregate 11-year sentence with one year suspended. Finds sufficient evidence to support the conviction. Judge Nancy Vaidik dissents, arguing the Indiana RICO statute “should not be construed to include […]

The following 7th Circuit opinions were posted after IL deadline on Thursday. Justin Castelino v. Rose-Hulman Institute of Technology 19-1905 Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. Senior Judge William T. Lawrence. Civil. Affirms the Indiana Southern District Court’s entry of summary judgment for Rose-Hulman Institute […]

Indiana Supreme Court

James Combs v. State of Indiana
20S-CR-616
Criminal. Affirms the trial court’s judgment that denied James Combs’ motion to suppress after concluding that that police officers had probable cause to believe his van was connected to criminal activity and therefore could be seized without a warrant. Finds that the seizure and search of Combs’ van fell under recognized exceptions to the Fourth Amendment’s warrant requirement. Justice Rush and Justice David concur. Justice Slaughter concurs in result. Justice Goff dissents.

Indiana Court of Appeals
Edward Koziski v. State of Indiana
20A-CR-1889
Criminal. Affirms and reverses in part Edward Koziski’s convictions of two counts of Level 1 felony child molesting and one count each of Level 5 felony criminal confinement and Level 5 felony kidnapping. Finds the test in Wadle v. State, 151 N.E.3d 227 (Ind. 2020) applies. Also finds that under Wadle, Koziski’s Level 1 felony convictions do not violate double jeopardy. Finally, finds Koziski’s Level 5 felony convictions do violate double jeopardy under Wadle, because confinement is an included offense of kidnapping. Remands with instructions to vacate Koziski’s conviction and sentence for Level 5 felony criminal confinement.