Opinions

Indiana Court of Appeals
Joseph C. Dickerson Jr. v. Genya Toney and State of Indiana
24A-RS-1492
Reciprocal support. Affirms Marion Circuit Court Magistrate Susan Boatwright’s order that found Joseph Dickerson Jr.’s  child support obligation for A.D.T. did not terminate in 2014 as he thought. Finds the trial court did not abuse its discretion in granting the state’s motion to correct error or denying Dickerson’s Trial Rule 60(B) motion for relief from the Indiana support order. Appellant pro se: Joseph C. Dickerson Jr. Attorneys for intervenor: Attorney General Todd Rokita, Marjorie Lawyer-Smith.

Indiana Court of Appeals

Stephen Turner v. KLS Services LLC

24A-PL-1512

Civil plenary. Affirms Hancock Circuit Court Judge R. Scott Sirk’s judgment in favor of KLS Services in the amount of $66,388.76. Finds Stephen Turner’s failure to pay KLS for the actual costs of constructing the house was a breach of that contract. Also finds any error the trial court might have made in the admission of testimony can only be considered harmless.

Indiana Court of Appeals 

Deshaun Lamont Tharpe v. State of Indiana 

24A-CR-2303

Criminal. Affirms Marion Superior Court Judge Marc Rothenberg’s order to destroy the two handguns seized at the time of Deshaun Tharpe’s arrest. Finds the record is sufficient to prove Tharpe was misusing the handguns. Attorney for appellant: Timothy Burns. Attorneys for appellant: Indiana Attorney General Todd Rokita and Deputy Attorney General J.T. Whitehead.

Indiana Court of Appeals

Georgia Ann Miller v. Trinh Tran M.D., and AllCare Rheumatology LLC

24A-CT-1187

Civil tort. Affirms Hamilton Superior Court Judge David Najjar’s denial of Georgia Miller’s motion in limine and his jury instruction. Finds Miller’s challenge to the motion in limine is waived. While the appellate court does find the former instruction erroneous, it concludes the trial court’s instructions do not constitute reversible error under the circumstances of the case. Attorneys for appellant: Brandon Tate, Ann Marie Waldron and Katherine Piscione. Attorneys for appellees: Kirk Bagrowski and Allison Pulliam.

Indiana Court of Appeals

Marcus A. Minor v. State of Indiana

24A-CR-895

Criminal. Affirms Marcus Minor’s convictions of murder and attempted murder. Finds the imperfections of his trial did not rise to the level of reversible error based on precedent.

Indiana Court of Appeals
Clinton David Collins v. State of Indiana
24A-CR-1233
Criminal. Reverses Clinton Collins’ conviction of Level 2 felony burglary. Affirms Collins’ convictions for Level 5 felony robbery and Class A misdemeanor theft. Finds that Jefferson Circuit Court Judge Donald Mote’s decision was based on its misapprehension of the law and substantial evidence supported giving a proposed jury instruction on residential entry, which is a lesser-included offense of burglary. Remands for retrial on the burglary charge. Also instructs the trial court to reconsider any double jeopardy concerns based on the ultimate resolution of the burglary count and to resolve record inconsistency as to the sentence for theft. Attorney for appellant: Jennifer Joas. Attorneys for appellee: Attorney General Todd Rokita and Supervising Deputy Attorney General Tyler Banks.

Indiana Supreme Court
Willow Haven on 106th Street, LLC v. Hari Nagireddy and Saranya Nagireddy
24S-PL-287
Civil plenary. Reverses Hamilton Superior Court Special Judge Matthew Kincaid’s granting of a preliminary injunction against further construction of a home being developed by Willow Haven on 106th Street, LLC to house up to ten residents with Alzheimer’s disease and dementia. Finds Hari and Saranya Nagireddy did not prove they are likely to win their public-nuisance claim, which alleges that Willow Haven’s proposed land use is illegal because it would violate Carmel’s unified development ordinance. Also finds the ordinance does not list Willow Haven’s type of home as an authorized use. Finally, finds because the trial court did not address the issue whether unspecified provisions of state or federal law nevertheless require the city to allow Willow Haven’s use, its entry of the preliminary injunction was premature and an abuse of discretion. Vacates the preliminary injunction, and remands for further proceedings consistent with the supreme court’s opinion. Attorneys for appellant: Thomas Bedsole, Maggie Smith, Todd Small. Attorneys for appellees: John Higgins, Michael Blinn.

Indiana Court of Appeals
Jacob McGee v. State of Indiana
24A-CR-1312
Criminal. Affirms Jacob McGee’s conviction in Marion Superior Court of Level 5 felony possession of a machine gun for possessing a Glock 22 handgun with a machine-gun conversion device attached to it. Finds that under step one of New York State Rifle & Pistol Ass’n v. Bruen, the Second Amendment does not protect machine guns because they are dangerous and unusual. Also finds that the evidence is sufficient to prove that McGee knew the conversion device made his gun a machine gun. Attorney for appellant: Jan Berg. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Justin Roebel.

Indiana Court of Appeals 

City of Bloomington v. Catherine Smith and State of Indiana

24A-PL-1775

Civil plenary. Affirms Special Judge Nathan Nikirk’s judgment granting partial summary judgment in favor of the state in this annexation dispute. Finds Bloomington’s constitutional arguments are not barred by claim preclusion and that Bloomington lacks enforceable rights against the state under the Contract Clauses of the U.S. and Indiana Constitutions. Also finds the 2019 Act does not substantially impair Bloomington’s contracts. Attorneys for appellant: Margie Rice, Andrew McNeil, Stephen Unger, and Jacob Antrim. Attorneys for intervenor: Indiana Attorney General Todd Rokita, Solicitor General James Barta and Deputy Attorney General Katelyn Doering.

7th Circuit Court of Appeals 

United States of America v. Martin Devalois 

24-1787

Criminal. Appeals from the U.S. District Court for the Northern District of Indiana, South Bend Division, Judge Damon Leichty. Affirms the district court’s decision denying Martin Davalois’s motion to suppress the gun found during a traffic stop. Finds the traffic stop was not prolonged to conduct a dog sniff.

Indiana Court of Appeals
Kevin Fitzgerald v. Sarah O’Brien
24A-DN-200
Domestic relations without children. Reverses Johnson Superior Court Judge Peter Nugent’s division of marital property following the dissolution of Kevin Fitzgerald’s marriage to Sarah O’Brien. Finds the trial court abused its discretion because it awarded O’Brien more than the net value of the marital estate in contravention of Smith v. Smith, 938 N.E.2d 857 (Ind. Ct. App. 2010). Remands this case to the trial court for a just and reasonable division of the marital estate not exceeding the net value of the marital estate. Attorney for appellant: Daniel Canon. Attorney for appellee: Heather Myers.

Indiana Court of Appeals
N.B v. L.B.
24A-PO-1856
Protection order. Affirms Daviess Circuit Court Judge Gregory Smith’s grant of a two-year order of protection to L.B. under the Indiana Civil Protection Order Act, based on a finding that N.B. stalked and harassed L.B. Finds the trial court did not violate N.B.’s due process rights because it held a hearing on its ex parte order of protection within thirty days of N.B.’s request for a hearing pursuant to Indiana Code section 34-26-5-10(a). Also finds there existed sufficient evidence to support the trial court’s grant of L.B.’s request for a protective order against N.B. Attorney for appellant: Tiffany McCoy. No attorney listed for appellee.

Indiana Court of Appeals
Akeem Eichelburger v. State of Indiana
24A-CR-906
Criminal. Reverses Akeem Eichelburger’s conviction in Marion Superior Court for carrying a handgun without a license. Finds the trial court abused its discretion in granting the state’s request for a mistrial when no manifest necessity warranted a mistrial. Also finds Eichelburger’s second trial violated his rights under the Fifth Amendment to the United States Constitution and Indiana Code Section 35-41-4-3(a)(2)(iv) to be free from procedural double jeopardy. Attorneys for appellant: Talisha Griffin, Joshua Vincent. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Steven Hosler.

Indiana Court of Appeals
Vernon L. Eversole v. State of Indiana
24A-CR-864
Criminal. Affirms a Vigo Superior Court jury’s conviction of Vernon Eversole for murder and reverses his conviction for Level 2 felony attempted robbery. Finds Eversole has established that the trial court violated his substantive double jeopardy rights when the court entered its judgment of conviction for both murder and Level 2 felony attempted robbery. Also finds that the proper remedy is to vacate the conviction for attempted robbery. Finally, finds Eversole’s aggregate sentence remains unchanged. Judge Elaine Brown dissents with a separate opinion. Attorney for appellant: Cara Wieneke. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General George Sherman.

Indiana Court of Appeals
Leesa A. Gatton v. Robert D. Gatton
24A-DN-716
Domestic relations without children. Grants in part and denies in part Leesa Garton’s petition for rehearing of the state appellate court’s opinion in Gatton v. Gatton. The court grants the wife’s petition in part and revise the order in part to read as follows: “The trial court gave the parties until November 27 to submit proposed findings. Both parties did so.” And revises to read as follows: “But neither Husband’s nor Wife’s proposed findings mentioned the IRA.” These revisions do not affect the original outcome, the court noted. Also, denies wife’s petition in part that the appellate court should remand so that the trial court can revamp its findings regarding the husband’s pension and award her a greater share of the marital estate. Attorney for appellant: Daniel Borgmann. No attorney listed for appellee.

Indiana Court of Appeals
Linda F. Slavick Trust v. Christmas Lake Properties Association, Inc.
24A-PL-1746
Civil plenary. Affirms Spencer Circuit Court Judge Jon Dartt’s summary judgment order in favor of Christmas Lake Properties Association, Inc. on claims and counterclaims related to whether the landowner was entitled to exclusive waterfront rights under covenants and restrictions adopted in 2005. Finds the trial court did not err in denying the landowner’s first motion for summary judgment. As to the HOA’s counterclaim concerning architectural review requirements, the appellate court reverses and remands for entry of summary judgment in favor of the landowner. Attorney for appellant: Kevin Patmore. Attorneys for appellee: Garrett Lewis, Karl Popowics.

7^th Circuit Court of Appeals
International Brotherhood of Teamsters, et. al. v. Republic Airways Inc., et al.
24-1530
Civil. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. Judge Richard Young. Affirms the district court’s decision deeming the  dispute between the International Brotherhood of Teamsters and Repulic Airways minor because its resolution centered on interpretation of the parties’ collective bargaining agreements and dismissing the unions’ complaint for lack of subject-matter jurisdiction. Finds the unions can present their arguments to an adjustment board. Also finds the parties’ dispute minor and therefore subject to arbitration. Attorneys for appellants: Jeffrey Macey, William Wilder. Attorneys for appellees: Robert Siegel, David Carr, Paul Sweeney, Apama Joshi, Ellie Hylton.

Indiana Court of Appeals
Kerry Silvers v. State of Indiana
24A-PC-277
Post-conviction relief. Affirms Lawrence Superior Court Judge Robert Cline’s denial of Kerry Silvers’ petition for post-conviction relief, which alleged he received ineffective assistance of trial counsel. Finds Silvers failed to meet his burden of showing he is entitled to post-conviction relief on any of his claims. Also finds the PCR court erred in determining that Silvers’ claims are barred by laches, but it did not err in denying Silvers’ PCR petition because Silvers’ did not meet his burden of showing he received ineffective assistance of trial counsel. Attorney for appellant: Victoria Casanova. Attorneys for appellee: Attorney General Todd Rokita, Deputy Attorney General Daylon Welliver.

Indiana Court of Appeals
Tamara Kay v. The Irish Rover Inc.
24A-CT-335
Civil tort. Affirms St. Joseph Superior Court Senior Judge Stephen David’s order granting The Irish Rover, Inc.’s motion to dismiss Tamara Kay’s defamation claim. Finds the designated evidence established as a matter of law that The Irish Rover acted in good faith and in reasonable basis in law and fact. Also finds that the trial court properly dismissed Kay’s complaint under Indiana’s anti-SLAPP statute. Attorneys for appellant: Kimberly Jeselskis, William Brinkerhoff, Hannah Joseph. Attorneys for appellee: James Bopp, Jr., Taylor Shetina.

Indiana Court of Appeals
Aron Phillip Smith v. State of Indiana
24A-CR-548
Criminal. Affirms Madison Circuit Court Judge Mark Dudley’s denial of Aron Smith’s request for new court-appointed counsel. Finds the trial court did not abuse its discretion or violate Smith’s right to counsel under the United States or Indiana Constitutions when it allowed Smith to dismiss trial counsel from his case and denied his request for a new court-appointed attorney. Also finds the trial court did not abuse its discretion when it declined Smith’s request for additional testimony on the matter. Attorney for appellant: Mark Leeman. Attorneys for appellee: Attorney General Todd Rokita, Supervising Deputy Attorney General Ian McLean.