Opinions

Indiana Court of Appeals
National Collegiate Athletic Association v. Jennifer Finnerty, Individually and as Personal Representative of the Estate of Cullen Finnerty, and Carol Anderson, Individually, and as Personal Representative of the Estate of Neal Anderson, and Maura Solonoski, Individually, and as Attorney-In-Fact for Andrew Solonoski Jr.
20A-CT-1069
Civil tort. Dismisses the NCAA’s appeal of the denial of its protective order to quash the depositions of Mark Emmert, Donald Remy and Dr. Brian Hainline. Finds the NCAA’s repetitive motion for a protective order/motion to reconsider did not extend the time for an interlocutory appeal of the Marion Superior Court’s denial, so the appeal is untimely. Also finds there are no extraordinarily compelling reasons to consider the merits of the appeal. Judge Elizabeth Tavitas dissents with separate opinion.

Indiana Court of Appeals
Service Steel Warehouse Co., L.P. v. United States Steel Corp.
20A-CC-1643
Civil collection. Reverses the entry of partial summary judgment in favor of United States Steel Corp. on Service Steel Warehouse Co.’s mechanic’s lien foreclosure claim. Finds Indiana’s mechanic’s lien statute does not require on-site labor for subcontractor status, and the essential feature making one a subcontractor, rather than a material supplier, is the performance of a definite and substantial portion of the project’s prime contract. Also finds Service Steel’s mechanic’s lien is not barred by the supplier-to-supplier prohibition. Finally, finds the Lake Superior Court erred in granting summary judgment on favor of U.S. Steel. Remands for further proceedings.

7^th Circuit Court of Appeals

USA v. David Gibson and Jerry Harris
20-1236 & 20-2234
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Jon E. DeGuilio.

Criminal. Affirms the Northern District Court’s denial of Jerry Harris and David Gibson’s motion to suppress evidence collected from cellphone tracking that revealed a heroin drug-trafficking scheme, as well as their respective sentences for conviction of conspiring to distribute one kilogram or more of heroin.

Indiana Court of Appeals

Nancy S. Allsup v. Josie Swalls-Thompson
20A-MI-2333
Miscellaneous. Affirms the denial of a post-election contest petition filed by Nancy S. Allsup, the incumbent candidate for the office of Vigo County treasurer, against the winning candidate, Jose Swalls-Thompson. Finds the Vigo Circuit Court’s findings support its conclusion that “the evidence is undisputed that Swalls-Thompson moved back to Vigo County after her marriage in August 2017 and has resided here ever since with her husband in his house.” Also finds the trial court’s denial of Allsup’s post-election contest petition was not clearly erroneous.

Indiana Court of Appeals

Rebecca Minser and Tina Zion v. DeKalb County Plan Commission
20A-PL-2408
Civil plenary. Affirms the grant of summary judgment to the DeKalb County Plan Commission on its complaint alleging Rebecca Minser and Tina Zion constructed a pond in violation of the DeKalb County Unified Development Ordinance, as well as the finding that Minser and Zion can be ordered to fill in the pond. Reverses the award of attorney fees to the commission. Finds the DeKalb Superior Court did not err when it awarded summary judgment to the commission and ordered a fine of $1,000. Also finds the trial court did err in awarding attorney fees to the commission. Remands with instructions to vacate the attorney fee award.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline on Monday:

USA v. Rex Hammond
19-2357
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Judge Robert L. Miller, Jr.
Criminal. Affirms Rex Hammond’s 47-year sentence for conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and two counts of brandishing a weapon during a crime of violence in violation of 18 U.S.C. § 924(c). Finds that none of the evidence stemming from Hammond’s Oct.31, 2017 arrest must be suppressed, finding that the collection of his real-time CSLI was not a search; the resulting traffic stop was valid under Whren v. United States, 517 U.S. 806 (1996); officers read Hammond his Miranda rights prior to his verbal statements; and the physical evidence recovered from the car was discovered pursuant to a valid search warrant. Also finds that the district court did not err in instructing the jury regarding the felon-in-possession charge under Rehaif v. United States, 139 S. Ct. 2191 (2019). Lastly, finds his sentence should not be vacated under the guidelines.

Indiana Court of Appeals

Aaron James Kearney v. State of Indiana (mem. dec.)
20A-CR-02117
Criminal. Affirms Aaron James Kearney’s aggregate two-year sentence in community corrections for conviction of Level 6 felony pointing a firearm and Class A misdemeanor intimidation. Finds sufficient evidence to support Kearney’s conviction for intimidation. Also finds the Lake Superior Court did not abuse its discretion by failing to instruct the jury on the defense of property.

The following opinions were posted after IL deadline Thursday:
7^th Circuit Court of Appeals
Rexing Quality Eggs v. Rembrandt Enterprises, Inc. v. Joseph L. Rexing, et al.
20-1726, -1727
Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. Judge Jane Magnus-Stinson.
Civil. Affirms the award of $1,522,302.61 in damages for Rembrandt Enterprises Inc. in its contract repudiation dispute with Rexing Quality Eggs, but reverses the district court’s denial of Rembrandt’s request for interest and fees. Finds the district court properly concluded that the resale remedy under Iowa’s version of the Uniform Commercial Code was the appropriate mechanism for calculating Rembrandt’s damages. Also finds Rexing waived its arguments challenging the jury’s damages award by not presenting them to the district court in a postverdict motion. Finally, finds the parties’ agreement fell within the Business Credit Exception to Iowa’s usury statute. Remands for further proceedings.

Indiana Court of Appeals
Sarah Swingley v. City of Muncie, Ball State University, and Board of Trustees of Ball State University (mem. dec.)
20A-PL-1797
Civil plenary. Affirms the grant of summary judgment to Ball State University, its board of trustees and the city of Muncie on Sarah Swingley’s complaint filed after she was struck and run over by a pickup truck near the BSU campus. Finds the designated evidence does not reveal a genuine issue of material fact as to whether a duty was owed to Swingley by either BSU or by the city under applicable Indiana law. Also finds neither owed Swingley any duty recognized in Indiana. Finally, finds BSU and the city are entitled to judgment as a matter of law, and the Delaware Circuit Court did not err in granting summary judgment.

Indiana Court of Appeals
In the Matter of the Guardianship of Donnell Lee Roberts, an Adult (now deceased), James Wesley Frady v. Patrick Hart
20A-GU-1837
Guardianship. Affirms the Hancock Superior Court’s denial of James Frady’s petition to exercise estate planning over the Estate of Donnell Roberts but reverses the trial court’s decision to sustain the state’s objection to Frady depositing a check as instructed after Roberts’ death. Finds that after termination of guardianship, Indiana Code § 29-3-12-1(e) permitted Frady to deposit a check as instructed. Also finds the trial court was not required to hold a hearing regarding estate planning before dismissing the petitions.

Indiana Court of Appeals
Blind Hunting Club, LLC and Brian Lane v. David Martini and Theresa Farrell
20A-PL-1868
Civil plenary. Affirms the grant of summary judgment to David Martini and Theresa Farrell on their complaint for declaratory judgment against Blind Hunting Club LLC and Brian Lane regarding the scope of an easement. Finds the agreement as a whole and the parties’ course of conduct demonstrate that BHC can use the easement either to access the property for a farm purpose and/or to access no more than two residences. Also finds BHC’s fee-based hunting operation is not a “farm” and is therefore not permitted by the agreement. Finally, finds the Dearborn Circuit Court did not err when it concluded that a fee-based hunting operation is not a business contemplated by the easement.

Indiana Court of Appeals
Paul Poppe and Susan Poppe v. Angell Enterprises, Inc.
20A-CT-2211
Civil tort. Affirms the grant of summary judgment to Angell Enterprises Inc. on Paul and Susan Poppe’s negligence complaint. Finds Angell had no duty to protect the Poppes from being struck by an intoxicated driver. Also finds the Sullivan Superior Court did not err when it entered summary judgment for Angell.

Indiana Court of Appeals
Michael D. Wayne Fleming, III v. State of Indiana (mem. dec.)
20A-CR-935
Criminal. Affirms Michael Fleming III’s aggregate 85-year sentence for felony murder and Level 1 felony attempted murder. Finds the Madison Circuit Court did not abuse its sentencing discretion. Also finds Fleming’s sentence is not inappropriate in light of the nature of his offenses and his character.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Wednesday:
Deborah M. v. Andrew M. Saul, Commissioner of Social Security
20-2570
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Magistrate Judge Tim A. Baker.
Civil. Affirms the denial of Deborah M.’s request for a remand of an administrative law judge’s determination that she has the capacity to perform light work and thus is not entitled to Social Security disability benefits. Finds the ALJ did not ignore a line of evidence contradicting her decision, her assessment of plaintiff’s symptoms was not patently wrong and she did not fail to note any supported manipulative limitations. Also finds the ALJ’s decision was supported by substantial evidence.

The following 7^th Circuit Court of Appeals opinion was posted after IL deadline Tuesday:
Roderick V. Lewis v. Dushan Zatecky
20-1642
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard L. Young.
Civil. Reverses the denial of Roderick Lewis’ petition for writ of habeas corpus. Finds the decision of the last responsible state court was contrary to U.S. Supreme Court precedent, insofar as it held that Strickland, not Cronic, furnished the applicable rule, and it was an unreasonable application of Cronic, insofar as it focused on that case. Remands for the issuance of the writ, limited to resentencing. Judge Michael Brennan dissents with separate opinion.

Indiana Court of Appeals
Randy C. Axelrod, M.D. v. Anthem, Inc. and all of its affiliates, WellPoint, Inc., and Amgen, Inc.
19A-PL-1171
Civil plenary. Affirms the denial of Randy C. Axelrod’s motions for a mistrial or a new trial after a jury returned a verdict in favor of Anthem Inc. and all of its affiliates, WellPoint Inc. and Amgen Inc. Finds the Marion Superior Court did not misapply Indiana Trial Rule 60(B)(3). 

Indiana Court of Appeals
Jeffrey Archer v. State of Indiana
20A-CR-1677
Criminal. Reverses the grant of the state’s motion to quash Jeffrey Archer’s notice of deposition. Finds the state did not meet its showing of a paramount interest in non-disclosure under the Dillard test, so the Marion Superior Court abused its discretion by quashing the subpoena for L.B.’s deposition. Remands for proceedings.

Indiana Court of Appeals
Tanika Stewart v. State of Indiana
20A-CR-1809
Criminal. Affirms Tanika Stewart’s felony murder conviction. Finds Stewart’s challenge to the admission of State’s Exhibit 34, video surveillance footage, is waived, and the Vanderburgh Circuit Court did not abuse its discretion in admitting State’s Exhibits 43 through 45, also video footage, due to their quality. Also finds any error in the exclusion of witness Antonio Bushrod’s statements was harmless. Finally, finds the state presented sufficient evidence to rebut Stewart’s self-defense claim.

The following Indiana Supreme Court opinion was posted after IL deadline Wednesday:
David Branscomb and Tammy Branscomb v. Wal-Mart Stores East, L.P. and James Clark
20S-CQ-515
Certified question. Answers a certified question from the U.S. District Court for the Northern District of Indiana and holds that when there are no allegations that a store manager controlled the premises where alleged harm occurred, he or she cannot be held liable under Indiana law. Finds plaintiffs David and Tammy Branscomb cannot recover from store manager James Clark based on their failure to properly hire, train and supervise claim, their failure to have and/or implement proper safety policies and procedures claim, or their failure to inspect and maintain the property claim. 

Indiana Court of Appeals
Herco, LLC v. Auto-Owners Insurance Company
20A-PL-1682
Civil plenary. Affirms the grant of summary judgment in favor of Auto-Owners Insurance Company in a dispute with Homeowners’ Equity & Realty Corporation LLC. Finds HERCO’s second suit is barred by res judicata. Also finds HERCO could have raised its breach of contract and bad faith claims in the first suit in Lake Superior Court but chose not to do so.