2021 Appellate Case Notes

More Money Than Good Sense

The case on review is Akin v. Simons, as decided December 30, 2021 in the COA with the affirmance of the trial court’s partial summary judgment in favor of Katherine Simons, the ex-wife of plaintiff Michael Akin who had transferred nearly $230,000.00 to Katherine.

Michael sued Katherine claiming that most of the transferred money was a loan and the rest was to be held in trust for the parties’ mutual granddaughter, as to whom Michael and Katherine were co-guardians. Katherine defended against Michael’s Complaint on the theory that any (alleged) agreement was unenforcible under the Statute of Frauds. Michael alleged among other things that there was an agreement for Katherine to obtain a mortgage (on the home she bought with Michael’s money) in order to repay most of the transferred money. That was enough for the trial court to conclude that the oral agreement (if any) was for the “sale of land” for purposes of IC 32-31-1-1(b)(4) and its requirement of a writing.

To the CLB it looks as through the trial court and COA employed a presumption that a man’s transfer of nearly $230,000.00 to his ex-wife was a gift. Such a presumption offends logic. The COA erred as well in approving the trial court conclusion that the multi-faceted agreement asserted by Michael was wholly for the “sale of land” for frauds purposes. The CLB would have sympathy for Michael if he were not such a moron as to hand over nearly $230,000.00 to an ex-wife without so much as a receipt to show for it . . . Case Note by Dave Allen

Independent Contractor OR Employee?

The answer to the titular question may depend on “who wants to know?” and “why?” The case on review is Palmer v. Ake, as decided December 22, 2021 by the COA with a reversal of the trial court’s conclusion that Richard Palmer was an employee when, working as a carpenter on the roof of a pole barn under construction, he fell as a portion of the building collapsed.

Palmer sued the property owner, the owner’s business, and another worker on the pole barn construction project. The defendants moved to dismiss per TR 12(B)(1) on the theory that Palmer’s exclusive remedy was an administrative work comp claim. Each side presented evidence on the issue. Palmer insisted that he was an independent contractor while the defense argued that he was an employee. Had his injury been mostly his own fault, Palmer might have preferred the “no-fault” work comp remedy. But here he preferred the tort remedy without the monetary constraints of work comp recoveries.

The trial court held a hearing, heard argument, and requested proposed orders. The result was a grant of dismissal on the defense theory that Palmer was an employee whose exclusive remedy was a work comp claim.

The most helpful part of the Opinion is the listing of the “ten factors” for distinguishing employees from independent contractors. The major defect of the Opinion is the blatant reweighing of evidence upon those ten factors after the trial court heard the same evidence and held that Palmer was an employee. If anyone is paying attention there should be a Transfer Petition pointing out that forbidden reweighing of evidence by the COA panel . . . Case Note by Dave Allen

Anti-Anti-SLAPP

The case on review is Burris v. Bottoms Up Scuba-Indy, LLC, as decided December 21, 2021 in the COA. Paul C. Burris, III was sued by the “Bottoms Up” scuba diving school and its proprietors on claims including defamation, tortious interference with a business relationship, and tortious interference with a contract. Burris had gone to Bottoms Up for scuba diving instruction, which he received. He also received a certification (as both a diver and instructor) from the “PADI” (Professional Association of Diving Instructors). That certification came pursuant to a Bottoms Up proprietor sending documents to the PADI on behalf of Burris.

Then Burris heard an allegation that Bottoms Up had been sending forged paperwork to the PADI. Burris contacted PADI to obtain a copy of his own certification paperwork and found therein a health clearance (for instructing) from a physician that he had never seen. Burris believed that the doctor’s purported signature had been forged by the Bottoms Up proprietor.

Burris contacted the PADI to allege that the Bottoms Up proprietor had forged a physician’s signature on a health clearance form that had been submitted by the proprietor. As a consequence, Bottoms Up and its proprietors were expelled from the PADI. They sued Burris. Burris filed an anti-SLAPP¹ motion to dismiss and, as required, filed evidentiary material such that the motion would qualify as one for summary judgment.

“SLAPP” is heard frequently but not so frequently defined. It is an acronym for “strategic lawsuit against public participation.” The codification of anti-SLAPP protections is located at IC 34-7-7-5. There is stated “a defense in a civil action” if the defendant therein is sued for an “act or omission” in furtherance of his constitutional right of free speech upon a public issue and said act or omission was in good faith with a reasonable basis in law and fact.

The anti-SLAPP motion to dismiss was denied in the trial court. Burris took an interlocutory appeal to the COA, which affirmed the trial court, even though there was no Appellees’ Brief. The COA agreed with the trial court that the allegation of forged text in the PADI documents was not constitutionally protected free speech upon a public issue . . . Case Note by Dave Allen

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¹ The anti-SLAPP statute should not be confused with the “whistleblower” protection at IC 5-11-5.5, though both laws appear to offer a person relief from civil liability for protected activity in the public interest.

Accounting Under a POA

The case on review is DeHart v. DeHart, as decided December 17, 2021 in the COA, notably by way of a “Shepard, Senior Judge” Opinion. A subsequently widowed mother of two adult children gave daughter a Power of Attorney.

When the son of the POA principal asked his sister for a copy of the POA and for an accounting, she was less than fully cooperative. Son filed suit for an accounting of transactions under the POA.

Mother intervened and sided with daughter against any accounting. The trial court found it would not be in mother’s best interest to order an accounting. Son appeals and loses in the COA.

Son’s suit was pursuant to a statutory entitlement at IC 30-5-6-4 which provided (before 2019) that an attorney-in-fact was obliged to give an accounting if ordered by a court of if requested by a child of the principal. Then came a statutory amendment in 2019 reaffirming the duty to account unless a court finds that such is not in the best interests of principal.

Though the trial court may have erroneously placed the “best interests” burden on son rather than on mother, the result is affirmed. The slightly unsettling result is that son has no remedy to investigate his suspicion that his sister is utilizing the POA to steal from their mother . . . Case Note by Dave Allen

ITCA for FELA?

The case on review is Lowe v. Northern Indiana Commuter Transportation District, as decided by the unanimous SCOTSI on December 16, 2021. To the CLB the holding is counterintuitive: that an FELA case brought in state court by an injured railway worker is subject to the ITCA requirement of notice of tort claim in 180 days (to a “political subdivision”) or 270 days (to a “state agency”). “FELA” is the Federal Employer’s Liability Act, sometimes described as the equivalent of worker’s compensation for railway workers. But unlike Indiana work comp law, FELA requires some negligence on the part of the employer. That seems to be the portal for the successful argument that Clarence Lowe’s FELA action (in state court) was doomed for the lack of a timely and adequate notice of tort claim. In hindsight, Lowe’s attorneys should have filed their case in U.S. District Court to avoid the ITCA defense . . . Case Note by Dave Allen

Identifying the Indefinite

The case on review is a lesson on how not to draft a trust, here a testamentary trust. The case name is Estate of Wilson v. Wilson. On December 15, 2021, the COA handed down its 3-0 (for publication) decision affirming the trial court’s holding that a decedent’s testamentary trust was invalid for its failure to identify the beneficiaries “with reasonable certainty.”

Decedent’s brother/personal representative/trustee appealed on the assertion that the trust had sufficiently identified beneficiaries from the following trust text:

“ . . . to my family and others as per my instructions to him [the trustee].”

All lawyers know or should know that a trust requires: a settlor; a corpus; a trustee; and terms, including beneficiaries and (perhaps) remaindermen. Trust law does not require that beneficiaries be expressly named. However, the identity of an intended beneficiary must be subject to being ascertained. A trustee may select a beneficiary “from an indefinite class,” provided that the settlor has directed the trustee’s discretion by “identifying an indefinite class.”

According to the quoted beneficiary designation, there would be instructions to the trustee in the matter of beneficiary selection. It is unclear from the COA Opinion whether the trustee claimed receipt of such instructions. He did, however, make the unsuccessful assertion that beneficiaries were sufficiently identified for the trust to be valid.

I had to look through the online docket for the appellant’s Appendix where I easily found the decedent’s will/trust with the name of its author, a Danville lawyer who ought to have known better than to do what he did.

If the client says he wants the trustee to select beneficiaries, the CLB advice to lawyers is “Just say no,” even if it should cost you a client. Here the author of that “my family and others” beneficiary description may have been following directions of the client but deserves both exposure and humiliation, but not by the CLB. The client who requested (and likely paid for) a trust did not get a valid trust. Although there was a “will” of sorts, it left all the estate to the invalid trust. Consequently, the client’s estate will pass by way of intestate succession without the intervention of a trust . . . Case Note by Dave Allen

Addendum: A lawyer in possession of a vague or ambiguous trust may petition for judicial aid in construing the trust. But the trust must first be valid . . . DPA

Yes, Two of a Kind

The COA Opinions of Ladra v. State and Straat v. Indiana Department of Transportation were reviewed in the late January Portion of the CLB’s 2021 Appellate Case Notes. The CLB guaranteed Transfer on both cases, and the SCOTSI obliged. On December 9, 2021 the SCOTSI handed down its Transfer Opinions.

Both cases were plaintiff’s appeals from adverse summary judgment. Both cases involved personal injury crashes on flooded interstate highways. And both cases involved that ITCA provision excusing governmental entitles from liability for “temporary conditions caused by weather.” See IC 34-13-3-3(3).

In Staat the trial court had granted summary judgment for the defense. The COA reversed, mostly on the theory that the state agency may have been in violation of a duty to respond to a temporary weather-related condition within a reasonable time. The SCOTSI affirmed the trial court’s summary judgment against the plaintiff, directing some blame on the plaintiff’s designation of evidence.

In Ladra v. State, the COA reviewed the trial court’s award of summary judgment to the defense. The COA panel affirmed (2/1), with Judge Tavitas dissenting. Her point was that immunity for “temporary weather-related conditions” should not excuse a government entity for defective inspection, design, or maintenance of roadways. In Ladra, the subject stretch of I-94 in Western Porter County was known for frequent flooding worsened by clogged drains.

In Ladra on Transfer a 3/2 SCOTSI majority modified its own precedent in line with the Tavitas dissent at the COA level. Notably, the SCOTSI majority holds in favor of the allowance of evidence of prior governmental negligence in the design or maintenance of a roadway. Moreover, there is (no longer) immunity simply because an accident occurs during bad weather. The majority SCOTSI Opinion makes note how the designated evidence shows that INDOT had long known of the clogged drain issue, to the effect that summary judgment for INDOT was not appropriate.

Staat and Ladra results differ mostly due to the respective TR 56 Designations at the trial court level. The Ladra Designation was the more effective . . . Case Note by Dave Allen

Drug Identification by Appearance

The case on review (from Vigo County) is Washington v. State, as decided December 9, 2021 in the COA. Dwayne Keith Washington, Jr. was tried and convicted of multiple offenses. He appealed one such conviction: Class A misdemeanor possession of a schedule II controlled substance, which happened to be the opioid hydrocodone.

Washington gained reversal of that misdemeanor conviction on grounds that the trial court erred in the admission (over objection) of testimony that pills recovered from him were hydrocodone because they “matched the physical characteristics” of hydrocodone pills as described in the website drugs.com. The state conducted no chemical tests on the pills to identify them.

The trial court allowed the ID testimony. The jury convicted. The COA rightly reversed, rejecting the state’s excuse that pictures from a website were admissible as evidence under the “Market Reports” hearsay exception at ER 803(17).

The COA Opinion considered the SCOTSI holding in Reemer v. State, 835 N.E.2d 1005 (Ind. 2005) that labels of “commercially marketed drugs” are admissible under ER 803(17) to prove composition of the drug. Here there were loose pills without packaging. The AG will surely request Transfer. Here’s hoping that Transfer is denied . . . Case Note by Dave Allen

Service by Certified Mail as a Pandemic Casualty

This is a rare review of an NFP/Memorandum Decision of the COA. The case is Bearcat Xpress, Inc. v. Coffman. The COA decision date is December 7, 2021.

Bearcat was one of several defendants in a suit sparked by the collision between a semi-truck and a tractor pulling a sprayer along U.S. 41 far downstate.

Plaintiff Coffman attempted to serve Bearcat by certified mail to its resident agent. A green card was returned but without a recipient signature or initials. Still, a default was entered against Bearcat. Bearcat later appeared and moved to set aside the default. The trial court declined to set aside the default. Bearcat appealed. The COA reversed.

Bearcat had challenged personal jurisdiction per TR 12(B)(2). Acquisition of personal jurisdiction generally requires good service. Here there was an effort to serve by certified mail.

The Opinion lays bare the pandemic-era practice of the USPS to relieve carriers of the duty to obtain a personal signature on delivery of certified mail. Green cards would often come back with “COVID-19″ scrawled where a signature belonged. Is this good service? The COA seems to hold that it is not, although the reversal seems to involve affidavits that the resident agent had no actual receipt of notice. A curious detail of the COA Opinion is the absence of any reference therein to TR 4.15(f), which had been cited by the Appellee and which provides for the forgiveness of technical defects in service deemed “reasonably calculated” to inform the subject that suit has been filed against him.

The CLB position is that Bearcat waived the defect in service by entering an appearance and then participating in the selection of a mediator prior to filing its motion to dismiss . . . Case Note by David Allen

Addendum: Wouldn’t it be nice for our rule-making SCOTSI to clarify whether green cards signed only by the letter carrier are evidence of good service?

A Flaw in Criminal Procedure

The case on review is State v. Smith, as decided December 7, 2021 in the COA. The case illustrated a deficit in Indiana criminal procedure that demands a legislative or judicial (rule) remedy.

According to the State, Tobias Smith entered his girlfriend’s residence without permission. He kidnapped and transported her from Vigo County to LaPorte County where police caught up to rescue the girlfriend. As time passed the victim was no longer cooperative. She changed her account.

There was an initial hearing on the charges of burglary, kidnapping, and confinement. The victim testified in a fashion favorable to the defense. The defense filed a motion to dismiss. The victim testified again that no crime had been committed. The trial court ordered a dismissal with prejudice. How a dismissal could be with prejudice when jeopardy had not yet attached was not explained.

The State initiated a rare appeal of the dismissal under IC 35-38-4-2(1), arguing that statutory grounds for dismissal do not include an alleged insufficiency of evidence. The COA agreed with the State and reversed the dismissal.

The CLB agrees with the State on the circumstances of the case and upon existing Indiana law. The deficit in Indiana law is the absence of entitlement to an adversary probable cause hearing when demanded by the defense. While the CLB blames the girlfriend victim for changing her story (to thereby enable her abuser) there are plenty of other cases in which the evidence is too weak to deserve a trial. But a defendant has no opportunity to challenge weak evidence in advance of trial. Due Process requires probable cause. Yet (in Indiana) probable cause for a criminal charge is almost always determined ex parte, even when a prospective defendant is already in state custody.

To the CLB, the determination of probable cause is a critical stage of a prosecution such that a defendant has the right to be present and to be represented by counsel. If a defendant charged by Information misses the ex parte PC determination, he should have the right to demand a pretrial adversary probable cause hearing . . . Case Note by Dave Allen

Forcing Hammond to Refund

The case on review is 6232 Harrison Ave., LLC v. City of Hammond, which was decided December 6, 2021 in the COA involving an issue previously covered in the CLB. See the Featured Article posted March 18, 2019 and titled “Hammond’s Victory No Longer.” The Article concerned a legislative error in the General Assembly followed by greed and hypocrisy on the part of the City of Hammond in an afford to extract unwarranted fees for landlord rental registration. The Article ended with CLB speculation that Hammond collected “tens of thousands of dollars in overcharges” and the recommendation that such be refunded “with a smile and an apology.” Of course there was no refund, at least not in the case of 6232 Harrison Ave., LLC.

Well before the SCOTSI held so in March of 2019, the mentioned LLC (or its lawyer) reasoned that Hammond was unlawfully overcharging for rental registration. The LLC served a Notice of Tort Claim within 180 days of paying the rental registration overcharges. The City of Hammond defended the subsequent lawsuit with the claim that the Notice was due within 180 days of an earlier date when the LLC should have known of the assessment of the unlawful fees. Remarkably, the City prevailed in the Lake Superior Court Room Two which dismissed the suit to recover overpayments.

The COA reversed, reinstating the dismissed suit for refund of the overcharges. To the CLB it is not intuitive that suit for refund of an overpayment to a governmental unit is a tort suit covered by the ITCA. The COA holds the ITCA applicable. For those who have not committed the ITCA to memory, the notice of tort claim is due 180 days “after the loss.” Here the COA holds that the “loss” is when the overcharge is paid rather than some earlier date of assessment.

It is good that Hammond will (most likely) be obliged to refund the registration fee overcharges. It is bad that Hammond taxpayers will be footing the bill for out-of-town attorneys (Bose McKinney & Evans) who should have given our city the same advice as the CLB: to simply refund the overcharges with an apology and a smile. The COA decision is correct. Still, the CLB sees the likelihood of a Transfer Petition by the City and a denial of the same . . . Case Note by Dave Allen

Small Claims and Small Res Judicata

The case on review is Walker v. Herman & Kittle Properties, ¹ as decided November 30, 2021 in the COA. Pro Se Appellant Takila Walker just might be the tenant from Hell dedicated to punishing any landlord careless enough to rent to her.

Takila began with a hand-written notice of claim against her landlord. She requested the jurisdictional limit of $8,000.00 alleging negligence, harassment, wrongful use of power, “inhabitable” ² living conditions, etc. The COA remarkably did its own Odyssey system search to confirm the details of the case.

While the small claims case was pending Takila filed a Superior Court Complaint against the same landlord requesting $2.5 million in damages, again alleging “inhabitable” living conditions, general unexplained causes of action in the same didactic language set out above, and “voluntary acts against my health.”

The landlords responded with a TR 12(B)(8) motion in the Superior Court case citing the very similar case pending in the small claims court. The superior Court later granted dismissal³ but only after the small claims court heard that dispute and entered judgment against Takila.

Takila appealed what she called an incorrect TR 12(B)(8) dismissal in Superior Court. But the question became whether dismissal was warranted on res judicata grounds. The Small Claims Courts have their very own res judicata rule at Small Claim Rule 11(F):

(F) Effect of judgment. A judgment shall be res judicata only as to the amount involved in the particular action and shall not be considered an adjudication of any fact at issue in any other action or court.

Takila argued unsuccessfully below that her Superior Court claim differed from the Small Claims case in that the former added a claim of damage to her health that had been omitted from the Small Claims case on purported “jurisdictional” grounds.

Remarkably, the divided (2/1) COA panel held that Takila’s Superior Court Complaint merited remand for litigation of issues or claims not barred by res judicata from the Small Claims ruling. The COA majority reasoned that only Takila’s claim of “inhabitability” was barred from res judicata.

The COA majority is wrong, having taken too narrow a view of the res judicata and having been too tolerant by far of nonsense from a pro se litigant . . . Case Note by Dave Allen

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¹ This landlord has previously litigated with competence and in good faith. It ultimately defeated Hammond’s effort to increase rental unit registration fees from $3.00 to $80.00 per year. See Featured Articles of February 22, 2018 and March 18, 2019.

² Takila appears not to know the difference (linguistically) between the terms “inhabitable” (which a residence should be) and “uninhabitable,” the opposite of “inhabitable.”

³ Takila called it an erroneous TR 12(B)(8) dismissal while the landlord called it a res judicata dismissal.

“In Custody” for Pirtle and Miranda

The case on review is the interlocutory criminal appeal of Luis Posso, Jr. of adverse trial court rulings on his efforts to suppress evidence on familiar Miranda grounds and on less familiar Pirtle grounds. The COA panel unanimously affirmed in part, reversed in part, and remanded.

Let’s begin with a quick review of Pirtle v. State, 323 N.E.2d 634 (Ind. 1975). Robert Pirtle was arrested by police for possession of a stolen car. A gun was found in the car. While “in custody” at the police station, Pirtle signed a waiver allowing a search of his motel room. The room search turned up the wallet of a recent homicide victim and two juveniles who admitted to their part in the homicide and who implicated Pirtle, whose appeal was of his conviction of murder following the trial court’s adverse suppression rulings. While Miranda (since 1966) mandated a “right to counsel” warning (among others) prior to a custodial interrogation, Pirtle in 1975 created (for Hoosiers only) the entitlement to a “right to counsel” warning at the time of a solicitation of consent to search. While 5th Amendment privilege against self-incrimination is the foundation of Miranda, the right to counsel per the 6th Amendment and Art. 1 Sec. 13 of the Indiana Constitution is the foundation of Pirtle. Both case holdings apply only to the “in custody” suspect. An interesting detail in Pirtle is whether verbal statements from persons encountered at the site of a search undertaken on involuntary consent are excludable like a wallet, contraband, or a murder weapon. According to the concurrence (in result) of Justice Hunter, the answer is “yes.”

Now back to Posso v. State. Notably, the Opinion (by COA Judge Crone) rambles on through the 14th slip opinion page (of 24) without mention of Pirtle. The Opinion notes the erosion of Pirtle on two fronts: the “weightiness” of the search; and an imaginary distinction between detention and custody. ¹ Despite the dangerous dicta, the COA applied Pirtle to the Posso case and directed the trial court to exclude evidence from the “consent searches” of the suspect’s can, cell phone, and motel room.

While the CLB supports the result in Posso, the Opinion is seen as “Transfer bait.” The AG is bound to request Transfer, and the SCOTSI hates to see a dangerous criminal (as Mr. Posso seems to be) escape conviction on a technicality. The CLB will be watching . . . Case note by Dave Allen

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¹ The anti-SLAPP statute should not be confused with the “whistleblower” protection at IC 5-11-5.5, though both laws appear to offer a person relief from civil liability for protected activity in the public interest. To the CLB “in custody” is the same inquiry for both Miranda and Pirtle. If you are not free to leave police presence you are “in custody.” If a reasonable person would perceive the absence of freedom to leave police presence, then you are “in custody.”

Check Those Contracts!

If you have purchased a car (new or used) lately from an Indiana auto dealer, check your paperwork for a “document fee.” Unless the “doc” fee was advertised, negotiated with the buyer, and limited to actual dealer costs, it may violate the Deceptive Consumer Sales Act at IC 24-5 and the Motor Vehicle Dealer Services Act at IC 9-32-13. The former Act affords a private cause of action while the latter does not.

The case on review is Butler Motors v. Benosky, the consolidation of 14 Marion County class action suits. On November 24, 2021 the COA affirmed (on interlocutory appeal) the trial court’s denial of the TR 12(B)(6) motions of auto dealers defending claims for the unlawful charging of document fees. The COA affirmed.

While the CLB expects a grant of Transfer in this matter the COA Opinion (by Judge Pyle) is correct . . . Case Note by Dave Allen

The Archdiocese and its Gay Schoolteachers

The CLB declares this case to be a worthy Certiorari candidate. Its name is Payne-Elliot v. Roman Catholic Archdiocese of Indianapolis Inc., as decided in the COA on November 23, 2021.

Two male teachers at Indianapolis Catholic Schools married each other and were targeted for dismissal by the Archdiocese. Brebeuf was the employer that declined to discharge its newlywed gay teacher. As a result, Brebeuf was basically stripped of its “Catholic” credentials. The other school, Cathedral high school, fired its newlywed gay teacher. That discharge sparked the ligation on review.

Can a Catholic school discharge a janitor for his sexual orientation? . . . Probably not. Can a Catholic school discharge a teacher for his sexual orientation? . . . The difference between the janitor and the teacher is that the latter’s job description will refer to a “ministerial” role, even if the teacher’s subject area is far from the theological. First Amendment; Free Exercise; Church Autonomy; Ecclesiastical Abstention . . . This sequence of authority and doctrine leads to the judicial reluctance to hear disputes over matters of faith, doctrine, and internal church governance. A good Indiana case (I think) is Brazauskas v. Fort Wayne-South Bend Diocese, 796 N.E.2d 286 (Ind. 2003). Beverly Brazauska applied for work at Notre dame while (awkwardly) suing the local Diocese, a priest, and the parish from which she had been previously discharged. Beverly complained of blacklisting and of interference with a business relationship. The COA had affirmed the trial court dismissal of Beverly’s suit. The SCOTSI affirmed on a different theory. According to the SCOTSI holding, the trial court had jurisdiction to adjudicate Beverly’s claims, but the defendants were entitled to judgment on the merits.

In the case on review the unanimous Opinion (by COA Judge Tavitas) falls into line in finding jurisdiction to adjudicate the dispute while declining to follow the Barzauskas holding in favoring the defendants on the merits. The COA’s remand comes nowhere near resolving the litigation.

A Transfer Petition is a certainty. Acceptance of Transfer is a probability. Certiorari to the SCOTUS is a distinct possibility . . . Case Note by Dave Allen

A Failure to Warn the Family

The case on review is Coplan v. Miller, as decided November 12, 2021 in the COA. Young Zachary Miller exhibited mental health trouble. After multiple incidents of bad behavior and ER visits for treatment, Zachary murdered his grandfather. The COA affirmed the trial court’s denial of SJ to various healthcare providers after the widow and his estate sued.

The providers attempted to prevail with IC 34-30-16-1 which affords conditional immunity to a “mental health service provider” whose patient goes on to harm others. The service provider is “immune from civil liability” for failure to predict or warn of a patient’s propensity for violence unless the patient voices violent intent or there is conduct evidence of violent propensity. Here there was evidence of violent propensity but not evidence that the mental health providers gave warning or otherwise qualified for immunity under IC 34-30-16-2.

Noted: Zachary’s violent propensity must have been known to the family.

The CLB observes much similarity between the case on review and Cutchin v. Board, as decided June 30, 2021 in the SCOTSI and then reviewed in the CLB’s 2021 appellate Case Notes. In Cutchin Sylvia Watson caused a horrible deadly auto crash while under the influence of her prescribed opioid medication. A survivor of one of Sylvia’s victims sued in U.S. District Court and filed a Proposed Complaint with the Indiana Dept. of Insurance. From the Seventh Circuit there came the certified question of whether the Medical Malpractice Act applies to the claim of a third party harmed by a provider’s negligence in the treatment of someone else. The SCOTSI answered “yes”: You may be a “patient” for MMA purposes when you are not an actual patient. Under this holding Mrs. Miller should have filed a Proposed Complaint with the Dept. of Insurance. Opinion footnote 5 mentions Cutchin while observing that no appellant had argued for such procedure.

The CLB doubts that the SCOTSI can resist granting Transfer . . . Case Note by Dave Allen

UM Limitations

The case on review is Napier v. American Family Mutual Ins. Co., as decided November 15, 2021 in the COA. Following a pair of car accidents with uninsured vehicles Paula Napier filed suit on her Uninsured Motorist (UM) coverage around 5 years later. The insurer was awarded a limitations-based SJ in the trial court. Although the UM coverage was contractual, the trial court and COA rejected a contract limitations period. Indeed, the policy referred to the “tort” limitations period. From another perspective, Napier’s delay in filing suit against her UM insurer made it impossible to satisfy the policy requirement of suing the owner or operator the uninsured vehicle . . . Case Note by Dave Allen

Overnight Ice at the Apartments

The case on review is Aberdeen Apartments II v. Miller, as decided November 15, 2021 in the COA. Jessica Miller exited her boyfriend’s Mooresville apartment around7:00 a.m. on the 24th of January. On the walk to her car she noticed icy pavement but proceeded anyway. She fell, of course, and fractured an arm. A jury found 80%/20%, comparative fault liability and gross damages of $100,000.00. Aberdeen appealed and lost.

Aberdeen complained that it did not know of the overnight ice until after Jessica had fallen. A broadcast weather prediction from early the prior evening did not forecast widespread freezing rain. That forecast changed very late in the evening. The COA declined to concur that Aberdeen was exercising reasonable care for tenants and guests in the absence of a showing that Aberdeen availed itself of “technology” to keep it alerted of weather developments . . . Case Note by Dave Allen

Adult Guardianship Denied

The case on review is Duncan v. Yocum, as decided November 10, 2021 in the COA. John Yocum was 95 years of age and living alone in a single family residence in Vincennes. John fell at home and sustained injury. After a few days in the hospital John was discharged to live again at home, but under the care of “family friend” Lydia Duncan. Lydia insisted upon—and received—a Power of Attorney. John later made a new will and new POA which kept Lydia as attorney-in-fact.

Discord arose between John and Lydia, who may have mis-managed John’s financial affairs to her benefit. John revoked the POA naming Lydia as attorney-in-fact and made a new POA and new will. Soon after Lydia and Donald Frederick petitioned for appointment of themselves as guardians for John. Petition Exhibit “A” was a letter from John’s doctor opining that John needed 24-hour care. Notably, the letter was more than one year old and dated back to the time of John’s post-fall recovery at home. Lydia’s petition included a Count II request for declaratory relief determining that John’s most recent POA was void due to John’s purported lack of capacity. During the pre-trial proceedings Lydia obtained an Order that John submit to a TR 35 examination.

Lydia’s chosen doctor examined John and concluded that he was “incapacitated” while retaining testamentary capacity. According to the definition at IC 29-3-1, an “incapacitated person” is unable to manage (in whole or in part) his property and/or to provide self-care.

The trial court judge made extensive findings in support of his denial of the petition to establish a guardianship. The trial court ordered Lydia and Donald Frederick to pay John’s attorney fees exceeding $71,000.00, citing IC 31-52-1-1 (instead of IC 34-52-1-1). The COA affirmed except for reversing the attorney fee award . . . Case Note by Dave Allen

Hoosier Daddy?

The case on review is Davis-Roper v. Estate of Schroeder as decided November 9, 2021 in the COA. The topics are intestate succession and the out-of-wedlock child. The most important statute (to the controversy) is IC 29-1-2-7. Notably, that section once included “Illegitimate Children” in its title. That politically incorrect term is now “children born out of wedlock.”

Who inherits when the family patriarch dies without a will, without a wife, surviving siblings or parents? The answer is that such inheritance is “to the issue of the intestate.” See IC 29-1-2-1(d). At that statute there is no distinction between “issue” born in wedlock and those lacking that status. However, the statutory definition of “issue” at IC 29-1-1-3(19) refers to “lawful” lineal descendants. At common law a bastard could not inherit. Then came statutes easing the disinheritance of bastards whose paternity had been established according to those statutes. For current Indiana law see IC 29-1-2-7 pertaining to intestate inheritance by “out of wedlock” children.

IC 29-1-2-7 provides for conventional intestate inheritance to and from the “out of wedlock” child if one of five conditions is met. Those five conditions include: father’s execution of a paternity affidavit; father’s adjudication as such by paternity decree in an action filed no later than five months after father’s death; and father’s marriage to mother plus acknowledgment of the child as father’s own.

In the case on review Izetta Dawn Davis-Roper claimed intestate heirship in the estate of Glenward August Schroeder, her purported grandfather. Izetta’s purported father, a son of Glenward August Schroeder, predeceased his father, such that his surviving “issue” would inherit in his stead. It seemed that Izetta had been accepted as a member of the family. When her (purported) father died, Izetta qualified as his personal representative.

The purported father and Izetta’s mother never married. When her heirship was challenged in probate proceedings, Izetta did not prove or seek to prove satisfaction of any of the five “conditions” of IC 29-1-2-7. Rather she produced and tendered a certified copy of an Alabama Court’s URESA determination that the purported father owed a duty of support for Izetta. There is no indication that the purported father ever visited Alabama or consented to personal jurisdiction in Alabama. There was no paternity decree in Indiana. An issue in the COA was whether the Alabama “duty of support” determination was a paternity decree for purposes of IC 29-1-2-7. The Indiana trial court in the probate case rejected the offered evidentiary exhibit and concluded that Izetta failed to prove heirship under her purported grandfather.

While the trial court was correct in concluding that Izetta did not meet any of the five “conditions” of IC 29-1-2-7 the COA reversed, holding that the Alabama “duty of support” determination could amount to a paternity decree in a case filed during the lifetime of the purported father.

The CLB predicts Transfer in this case of a morally just decision made on erroneous legal grounds . . . Case Note by Dave Allen

The Civil Litigation 5th Amendment Privilege

On rare occasions I have advised a client of the 5th Amendment privilege against self-incrimination within the context of civil litigation. Such an invocation comes at the cost of virtually confessing involvement in misconduct. A judge who hears the client “take the 5th” is unlikely to assign that client any presumption of credibility, particularly upon contested issues.

The classic invocation of 5th Amendment privilege is from a man on the witness stand in court or before a grand jury. The man may “take the 5th” when asked to testify about his bank deposits or other financial details. But what about a civil subpoena or a civil production request for bank statements and the like? The case at bar, Duncan v. Barton’s Discounts, was decided November 3, 2021 in the COA and has to do with the civil case discovery context for the application of 5th Amendment privilege.

Barton’s Discounts suspected that its former executive Christopher Duncan had been diverting loads of merchandise to “ISL” or others without the benefit of invoices or other records. The theory was that outright theft (or civil conversion) had been committed. Barton sued its former executive, ISL, and others to recover its losses. When asked to produce text messages to and from the Barton’s executive (before his departure), ISL “took the 5th.”

Upon an overly narrow construction of 5th Amendment privilege and the rationale that an act of producing documents is “nontestimonial” the COA upheld the trial court’s interlocutory (but appealable) discovery order compelling production of unredacted text messages between supposed co-conspirators.

The CLB is not comfortable with the judicially compelled production of communications that are bound to be incriminatory. There should be a request for Transfer, though the SCOTSI may well be unsympathetic to the claim of ISL to a broad privilege available in resistance to civil discovery . . . Case Note by Dave Allen

A Nuance of Sentencing

This Lake County case on review is Glover v. State, as decided October 29, 2021 in the COA. Billy Glover unsuccessfully appealed a disallowance of pre-trial confinement time when it came to his plea-bargained sentencing for child molesting. ¹ On two different occasions in 2019 Billy Glover was charged with the sexual or physical abuse of two different great-nieces. Between the two charges in 2019 Glover served 168 days in jail as a pre-trial detainee before bonding out and being arrested on new charges, after which he was back in jail.

In early 2021 there was a plea bargain entailing a dismissal of the older charges and a guilty plea to the newer charges. At sentencing Glover was granted 481 days of credit time for time served after the latter arrest in 2019. But Glover wanted credit for the 168 days in custody following the earlier 2019 arrest on charges that were dismissed. The trial court declined to give that credit. The COA affirmed. The COA’s rational theory is that the 168 days of confinement were served prior to arrest on the charges to which Glover pled guilty. Those days in 2019 were not served as a result of the criminal charges on which sentence was imposed.

Caveat: Defense lawyers must anticipate such a disallowance of credit for pre-trial detention and seek to resolve the entitlement in any plea agreement . . . Case Note by Dave Allen

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¹ I readily confess that Glover’s crime renders me less sympathetic to his cause though no less adamant that sentencing law must be followed.

A Bottomless Box?

The case on review is Griffin v. Mernard, Inc., as decided October 19, 2021 in the SCOTSI. A married couple (Walter and Candus Griffin) went sink shopping at a Menard store. Upon spotting a sink of interest, Walter “grabbed the box from the shelf” whereupon the bottom of the box opened and gave way. The sink fell from the box and onto Walter, injuring him.

The Griffins sued Menard on a premises liability theory. Menard joined the sink manufacturer as a third party. Menard moved for summary judgment while denying any actual or constructive knowledge of “issues with the box” and while contesting the Griffins’ res ipsa theory. The trial court awarded summary judgment to Menard. The COA affirmed in part and reversed in part with remand.

The SCOTSI affirmed the trial court’s award of summary judgment by a 4/1 tally (Goff, J., dissenting).

Perhaps constructive knowledge (or the lack of it) is the most interesting issue. A retailer has some affirmative duty to detect latent dangers on the premises and afford its customers protection or warning. Should Menard have discovered the defective box through exercise of reasonable care? I see that as more of a jury issue than one for summary judgment. For instance, Menard could not say when the defective box was stacked or inspected, if at all.

The SCOTSI majority opinion (by Justice David) is remarkable for assuming that a retailer’s own inspections for latent dangers need be no more rigorous than what we would expect of a shopper. Walter Griffin did not notice a defect in the box before the sink fell out through the bottom . . . Case Note by Dave Allen

In Restraint of Marriage (From the Grave)

The SCOTSI commanded a few minutes of fleeting fame with its October 8, 2021 decision in Rotert v. Stiles, brother and sister whose late mother left her estate in trust. Roger Rotert was married at his mother’s death. A provision in the mother’s trust was that Roger’s interest would be distributed to him directly if unmarried upon her death and otherwise would remain in trust. The question is whether such trust provision is an unlawful restraint against marriage.

The trial court held against Roger. The COA reversed. The SCOTSI agreed with the trial court. At the core of the controversy there lies IC 29-1-6-3 and its provision that “A devise to a spouse with a condition in restraint of marriage shall stand, but the condition shall be void.” Case law from this statutory provision seems unduly tolerant of the restraint of marriage (or of re-marriage) in will provisions deemed “limitations” rather than “conditions.”

In the case on review the SCOTSI narrowly construed the statute to apply only to devises by way of a will, to the exclusion of interests created by way of trust declaration.

The CLB discourages estate planning which seeks to manage (or micro-manage) a decedent’s assets “from the grave.” Such plans resist adjustment in light of changing circumstances and are prone to unintended consequences. Here is a small victory for the mother who wished her son to be single and who wished to rule his inheritance from the grave . . . Case Note by Dave Allen

Roadside Greenery and Obscured Visibility

The case on review is Reece v. Tyson as decided in the SCOTSI on September 21, 2021 by way of a 3-0-2 split. Justices Goff and David concurred (in result) while objecting to the new rule of roadside visual obstruction declared in the majority opinion by CJ Rush.

An intersection collision between elderly auto driver Harold Moistner and motorcyclist Walter Reece ended badly for the latter. A deputy observed tall grass at a corner of the intersection where it could obscure the driver’s view of the approaching motorcycle. Walter’s Guardian sued the property owner of the tall grass, among others. Conceded: that owners or occupants of land owe a duty to adjacent traffic to create no danger that intrudes upon the roadway. New Rule: When a visual obstruction is “wholly contained” on landowner’s property, there is no duty to traffic on adjacent road.

The CLB predicts confusion in future cases where (in an urban setting) a parkway tree obscures a stop sign, the parkway being both the property of the adjacent lot owner and municipal right of way.

The new (majority) rule invites (or dares) legislative bodies to create some landowner duty by legislative act. The CLB agrees with Justices Geoff and David that the “new rule” is an invitation to chaos . . . Case Note by David Allen

The Teachers’ CBA: Forbidden Agreement

The case on review is Culver Community Teachers Assn v. Ind. Education Employment Relations Board, as decided September 16, 2021 in the SCOTSI. For decades it seemed that the “right to strike” was the central issue for teachers’ unions. Now it is the “right to bargain” that is in jeopardy thanks to legislation at IC 20-29-6, which permits bargaining only for salary, wages, and related benefits.

In the case on appeal there had been a CBA provision daring to define what is an “ancillary duty,” such as supervising detention, for which compensation would be paid. Noted: In 2011 the General Assembly eliminated “permissive” bargaining subjects. One day the teachers may become sufficiently organized and politically influential to restore their former right to collectively bargain all aspects of their jobs.

The “rule” seems to be on the cusp of the nonsensical: that schools and teachers may bargain over wages for ancillary duties but may not agree what constitutes an ancillary duty. One hypothetical remedy to the problem would be for a public school to contract individually with a teacher for ancillary duties, but that would be an assault against the unions and what remains of collective bargaining for teachers. The CLB expects a political solution but not any time soon . . . Case Note by Dave Allen

Dave’s Note: An excess of legal briefing due in September and October has diminished the time and attention required of me for Appellate Case Notes. I will endeavor to catch up, beginning with the older decisions from the period of my neglect . . . Dave Allen

A Limitation on Limitations

The case on review is Swopshire v. State, as decided September 27, 2021 in the COA. Between March of 2009 and March of 2011, according to the Information, Jason Swopshire frequently molested a girl between 14 and 16 years of age. During that time the limitations period for Jason’s crime was 5 years. In 2013, within that period of 5 years the General Assembly extended the limitations period to 10 years. Effective July 1, 2019 the General Assembly extended the limitations period again to the 31st birthday of the victim of child molestation. Then Swopshire was finally charged on November 25, 2019. There were a total of 5 counts, 4 of which were alleged to have been committed during a period of about 2 years.

Swopshire appealed the trial court’s denial of his motion to dismiss based upon his “ex post facto” and “privileges and immunities” arguments against the ever-increasing limitations period. The COA afforded very narrow limitations relief. For offenses occurring in 2009 prior to July 1st, there was an expiration of sorts not subject to “revival” by a subsequently enacted extension of the limitations period.

So here is the simple(?) rule. While criminal charges are not yet barred by limitations the applicable period may be extended by legislation. But once criminal charges are barred by limitations, a subsequent legislative extension of the limitations period does not “revive” the case so as to allow the filing of charges.

A final observation is that the simple(?) rule of non-revival (by legislation) of a lapsed limitations period in civil cases is recognized without reliance upon the ex post facto justification for the rule on the criminal side . . . Case Note by Dave Allen

UPDATE: The predicted Transfer and affirmance of the trial court came to pass in the SCOTSI on June 16, 2022. Score another accurate prediction for the CLB.

Tavern Liability Insurance and the Liquor Exclusion

The case on review is Ebert v. Illinois Casualty Co., as decided August 30, 2021 in the COA. At first glance the case looks like a “dram shop” liability case though the actual litigation is the insurer’s declaratory judgment action to limit its coverage for a motor vehicle collision caused by a drunken bar patron.

Bar patron William Spence was drunk and disorderly. He was kicked out by a bouncer who very strongly encouraged him to drive away. William did so and caused a collision down the street.

The accident victims sued along dram shop lines though they tweaked the theory of liability with subsequent amendments. The bar insurer then sued for declaratory judgment to take full advantage of the liquor exclusion in its general liability policy, even though there was coverage for liquor liability under a separate policy.

The bar insurer won summary judgment in the trial court. On appeal a unanimous COA panel reversed by way of a Judge Tavitas Opinion.

In the general liability policy for the bar there was a familiar liability exclusion for claims arising from the insured’s act of causing or contributing to intoxication or other such dram shop activity.

The COA Opinion reasoned that the Complaint (as amended) in the underlying action expressed theories of liability independent of the furnishing of alcohol. Accordingly, the insurer was not entitled to summary judgment as to its duty to defend and to indemnify on the general liability policy.

The CLB perceives that COA Judge Tavitas may have taken a step too far while devising a judicial solution to a problem that belongs to the General Assembly. The CLB predicts a grant of Transfer followed in the SCOTSI by an affirmance of the trial court . . . Case Note by Dave Allen

Unintended Consequences and No Good Deed Unpunished

The case on review is State v. Barnett, as decided in the COA on August 25, 2021. Little Natalia (small but not necessarily young) had been adopted in 2008 from a Ukranian orphanage. Her reported year of birth was 2003. Natalia was born with a form of dwarfism known as diastrophic dysplasia. Those who have the disorder are known to have very short arms and legs and other musculoskeletal abnormalities. It was expected that Natalia would require a few corrective surgeries as she grew older.

That 2008 adoption by a New Hampshire couple ended in “placement for re-adoption.” Enter Kristine and Michael Barnett who petitioned in the Hamilton County Superior Court for Natalia’s adoption. In late 2010 the adoption became final. The decree listed 2003 as Natalia’s year of birth.

The Barnetts soon began to suspect that Natalia was older than her official age based on the 2003 birth year. They also noticed “threatening behaviors.” Between 2010 and 2012 Natalia was medically and psychologically evaluated at several Marion County facilities.

The Hamilton County Dept. Of Child services began investigating “a report” regarding the Barnetts and Natalia when the Barnetts petitioned the Marion County Probate Court for a change of Natalia’s birth year. Eleven days later the Probate Court changed Natalia’s birth year from 2003 to 1989, based on age estimates from a primary care physician and a social worker. Since it was then the year 2012, Natalia became an instant adult, in contrast to the child of nine years that she had been before the “age-change order” of the Probate Court.

The Barnetts moved Natalia into her own apartment in Hamilton County and assisted her in obtaining federal disability benefits and support services. The Hamilton County Dept. of Child Services unsuccessfully sought authority to file a CHINS petition on the theory that Natalia was an abandoned child.

The Barnetts then moved Natalia into a Tippecanoe County apartment before they left for Canada with their biological children. There was some temporary involvement of Tippecanoe County Adult Protective Services, Tippecanoe County Sheriff, and Prosecuting Attorney.

Then in April of 2015 (when Natalia would be either 12 or 26 years old) a Marion County Deputy Prosecutor appeared in the “age-change” case in Marion County on behalf of Marion County Adult Protective Services. The Deputy Prosecutor filed an unsuccessful petition to appoint a GAL on behalf of Natalia. Though that petition was denied, the Deputy’s appearance remained of record.

In March of 2016 some Tippecanoe County friends of Natalia petitioned there for guardianship of Natalia. Michael Barnett derailed the guardianship case by appearing, objecting, and asserting the Marion County Probate Court’s age-change order.

Then the unsuccessful Tippecanoe County guardianship petitioners went to the Marion County Probate Court requesting relief from the age-change order. In March of 2017 there was a hearing, the result of which was an order affirming the age-change order from 2012.

Finally in September of 2019 the Tippecanoe County Prosecutor charged the Barnetts with Multiple counts of neglect of a dependent and conspiracy to commit that offense. Kristine Barnett moved to dismiss on grounds including limitations as to several counts and Natalia’s adjudicated age. The trial court allowed several counts to proceed under the theory that Natalia was a dependent due to physical disability regardless of her age.

There was a trial on the neglect charges, after which the trial court certified for interlocutory¹ appeal its orders in the prosecution of the Barnetts, including the orders granting dismissal of some counts based on the trial court’s grant of “preclusive effect” to the Marion County Probate Court’s “age-change” order.

The matter of interest to the CLB is that of “issue preclusion” or collateral estoppel (on the age issue) between the Tippecanoe County criminal prosecution and the Marion County Probate Court’s “age-change” order. The COA first held that the Marion county Order was not void ab initio. Collateral estoppel will apply from one case to another over a shared fact or question. Here are three pre-requisites to the application of collateral estoppel:

“(1) a final judgment on the merits in a court of competent jurisdiction;
(2) identity of the issues; and
(3) the party to be estopped was a party or the privity of a party in the prior action.”

It is ironic that the Marion County age-change order may not have been “on the merits” until the guardianship petitioners from Tippecanoe Court intervened and forced a hearing on the merits resulting in affirmation of the 2012 “age-change” order. The third listed requirement of parties in the second action being the same or in privity with parties in the second action being the same or in priority with parties of the initial action is of the greatest interest to the CLB.

The Tippecanoe County Prosecutor denied having been a party to the “age-change” proceedings. “The State is the State,” whether acting through a deputy prosecutor or a State agency. In the case of the Barnetts there was that history of a Marion County deputy prosecutor appearing in the “age-change” case, unsuccessfully requesting a GAL for Natalia, and then neither withdrawing nor participating in future hearings. Held by the COA” that the Tippecanoe County Prosecutor was “in privity with” the Marion County Adult Protective Services as represented by the Marion County deputy prosecutor whose appearance lay dormant for years in the “age-change” court.

In affirming the trial court’s dismissal of some charges for a limitations violation the COA panel held: “An information alleging a time outside the statute of limitations which does not allege facts sufficient to constitute an exception to the statute is subject to a motion to dismiss.”

If not a child Natalia was (at all relevant times) an “endangered adult” (as defined at IC 12-10-3-2) whose neglect may be prosecuted criminally. It was up to the State to have a Plan “B” prosecution strategy independent of Natalia’s adjudicated age. The COA Opinion leaves the CLB wondering whether the State met that burden.

The circumstances here demand sympathy for Natalia and sympathy, or at least understanding, for the Barnetts. The lesson to prospective adoptive parents is to be extremely careful before you adopt. The lesson to lawyers is to beware the unintended consequences of all those dormant appearances . . . Case Note by Dave Allen

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¹ A post-trial interlocutory appeal is an uncommon procedure.

Two From Small Claims

Late August has provided a couple of appeals in cases that began in small claims court. On occasion there is a small claims appeal featuring unusual factual circumstances or legal theories. Spainhower v. Smart & Kessler, as decided in the COA on August 24, 2021, is such a case.

It seems that Trina Spainhower was looking for “legal representation for a domestic matter.” She called the defendant law firm and was told she could have an initial consultation with a lawyer for a fee of $100.00.

Trina paid the fee and received a receipt “for Matt Boehning consultation.” It turned out that Mr. Boehning was not admitted to the practice of law.¹ Still, he falsely represented himself as a licensed attorney and drew up a legal services contract which resulted in paid fees of more than $6,000.00 before Trina dismissed the firm.

Around two years after dismissing the firm Trina demanded a refund of all monies paid. The firm (by a partner) declared conditions (to a refund) that were unacceptable to Trina. She filed disciplinary grievances that were soon dismissed.

After three more years Trina finally got around to suing the firm for recovery of her $100.00 consultation fee plus court costs, and a demand for treble damages for a total claim of $465.00.²

As for the firm’s use of a nonlawyer in the role of a lawyer, Trina called it fraud, along with the 6-year limitations period for fraud. The law firm called it a claim for legal malpractice, along with the 2-year limitations period for malpractice.

The small claims court found that the claim sounded in malpractice for purposes of the malpractice limitations period that had expired before suit was filed; moreover, the court found that Trina had failed to meet her burden of proof for fraud.

Trina appealed from her negative judgment and lost again in the COA. Notably, the COA cited authority for the point that fraud which is “substantively part of” a legal malpractice claim is governed by the 2-year statute. The COA dodged the most intriguing question of whether (for purposes of a legal malpractice claim arising from an attorney-client relationship) a potential client can establish an attorney-client relationship with an individual engaged in the unauthorized practice of law. That question should not have been asked in that Trina’s contract for legal services was with the law firm. Exceeding the understanding of the CLB is the COA dicta that no attorney-client relationship is established in the course of a paid initial consultation.

In a technical victory for Trina the COA held that her claim was subject to a 6-year limitations period and was timely filed. Still, the COA declined to reverse the trial court finding that Trina failed to prove fraud. Here are the elements she needed to prove:

“(1) a material misrepresentation of past or existing facts; (2) made with knowledge or reckless ignorance of falsity,; (3) causing the claimant to rely upon the misrepresentation to the claimants detriment.”

How is it not reckless ignorance for a law firm to unwittingly hire a nonlawyer to do legal work for firm clients? Anyone can check the online roll of attorneys. Anyone can ask to see the lawyer’s certificate of admission. The COA suggestion that a law firm need not confirm the licensed status of a new-hire associate is very, very bad law.

The COA gently criticized pro se Trina for failure to argue (below and on appeal) the theory of constructive fraud to prosecute a claim for breach of duty without regard to the “moral guilt of the fraud feasor.” By appearances, Trina’s Brief of Appellant was well-drafted, particularly for a nonlawyer.

To the CLB it is morally and ethically unacceptable for the law firm to charge and retain legal fees for the unauthorized practice of law. If requested, Transfer should be granted.

The second and last case for this small claims review is Prater v. Harris & Sons Landscaping, LLC, as decided August 25, 2021 in the COA. James M. Prater, III, sued in small claims and lost there (to the extent of viewing his award of damages to be inadequate) and on appeal. James had been hired as a laborer for Harris & Sons Landscaping. He signed a receipt for a copy of the company handbook which, in relevant part, allowed payroll deductions to cover damages to company equipment or customer property caused by the employee. After a customer reported that Prater had damaged her gate, Harris & Sons deducted $356.25 from two of Prater’s paychecks. Knowing the highly regulated environment of payroll deductions, you should be wondering whether Harris & Sons acted within the law.

Prater found a lawyer and sued in a small claims court. Harris alleged violation of the Indiana Wage Deduction Act and sought liquidated (treble) damages and attorney fees under IC 22-2-5-2. The recovery of liquidated damages plus attorney fees is dependent upon the employer failing to act in good faith. For an unlawful wage deduction of $356.25, Prater’s lawyer wanted an award of attorney fees of nearly $8000.00.

The trial court awarded Prater the unlawfully withheld sum of $356.25 (which the employer had already paid) plus $300.00 in attorney fees. However, no sum of attorney fees should have been awarded unless there was an absence of employer good faith that would have authorized liquidated (treble) damages as well.

Left unanswered by the COA panel in its Opinion authored by Judge Najam is one of burden of proof: whether the element of employer good faith (or lack thereof) is for the employer to prove as an affirmative defense or an element of an employee’s claim for liquidated (treble) damages and attorney fees to be proven by the employee.

If requested (by Prater) Transfer should be declined . . . Case Notes by Dave Allen

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¹ It may be the case that Boehning had passed the bar but that he had not finished his law school graduation requirements.

² Trina did not sue for the bulk of attorney fees apparently paid by her mother.

DEATH, the Bounty Hunter

The case on review is Helman v. Barnett’s Bail Bonds, Inc., as decided August 9, 2021 in the COA. The late Gary Helman was bonded out on several criminal charges. After failing to appear on his charges, Gary acquired new warrants for his arrest on those pending charges. The Kosciusko Superior Court ordered the Bail Bond Company to apprehend Gary and to surrender him to the court. The Bail Bond Company engaged agents to find and apprehend Gary.

Surveillance on the home of Gary’s parents, Atta and Larry Helman, was productive. With knowledge that Gary was inside, one agent went to knock on the front door while two others lay in wait near the back door where, it was expected, Gary would launch an escape effort.

The back door scene quickly devolved into physical altercation and gunfire from at least three sources. After being shot five times, agent Tadd Martin shot and killed an armed Gary. Gary’s parents brought the suit which ended with a jury verdict for the defense followed by the appeal on review. The COA affirmed.

The nearly interesting aspect of the appeal was a disagreement upon over competing jury instructions (one given and one not) as to the powers of a bail agent over a bonded fugitive and the limits of that power at the door of a “third party.” The potential interest dissolved when the COA held that the appellant Helmans failed to satisfy their burden of showing that the trial court’s given instruction was not a correct statement of law. Therefore, the instruction dispute was waived.

The CLB would have preferred a bit more legal analysis of a bail agent’s use of deadly force. The CLB would have preferred any legal analysis of the impact of the Superior Court Order (to apprehend and surrender Gary) upon the powers of bail agents over the bonded fugitive Gary Helmans. While the CLB agrees with the affirmance of the trial court, it is possible (but not likely) that Transfer could provide greater illumination of the legal issues . . . Case Note by Dave Allen

The Permissive “Shall”

Much like the case note below, this review deals with a COA decision on whether to construe a statute which exhibits no inherent ambiguity, vagueness, or other uncertain meaning. Instead of the “and/or” dichotomy from the case note below, the case on review in this note deals with a “shall” (normally mandatory) which is treated as “directive” or discretionary.

The case on review is Wilson v. Wilkening, decided July 28, 2021 in the COA. Gregory Wilson was the plaintiff/appellant in his capacity as Executive Director of the Indiana Civil Rights Commission. Betty Jo Wilkening is a Lake County landlord accused of unlawful discrimination against a prospective renter whose “familial status” included children who would reside with him on weekends. See Indiana’s Fair Housing laws at IC 22-9.5. See IC 22-9.5-5-1(b) for the prohibition of housing discrimination against a person by reason of “familial status” and other factors including race, religion, and sex. The “shall” in controversy appears at IC 22-9.5-6-8, to-wit:

IC 22-9.5-6-8 Reasonable cause; determination; time limitation; delay notification; issuance of finding
 Sec. 8. (a) The commission shall determine based on the facts whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur.
         (b) The commission shall make the determination under subsection (a) not later than one hundred (100) days after the date a complaint is filed unless:
             (1) it is impracticable to make the determination; or
             (2) the commission has approved a conciliation agreement relating to the complaint.
         (c) If it is impracticable to make the determination within the time period provided by subsection (b), the commission shall notify the complainant and respondent in writing of the reasons for the delay.
         (d) If the commission determines that reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, the commission shall immediately issue a finding of reasonable cause on behalf of the aggrieved person.

Rule 7.  Review of Sentences

 B.  Scope of Review.  The Court may revise a sentence authorized by statute if after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the Offender.  

Notably, the Rule appears to require appellate consideration of both the nature of the offense and the character of the offender before a sentence may be revised. But does “and” really mean “and” in this context? The alternate construction would be to treat “and” (normally conjunctive) as equivalent to “or” (normally disjunctive).

We should not “construe” a statute, regulation or rule of court unless there is some uncertainty (usually vagueness or ambiguity) as to its meaning. The CLB finds no such uncertainty in the text of Rule 7(B).

According to the clear text of Rule 7(B) a convict who is harshly sentenced for some minor, victimless offense, would have to show both that the punishment is not warranted by the offense and that his character should exempt him from such harshness. Conversely, a convict who by all accounts is a living saint could not appeal a harsh sentence on that basis alone. The living saint would have to show that the nature of his offense did not warrant the sentence imposed.

The case on review is the appeal/sentence review request of Stephen M. Davis following his conviction (by guilty plea) to “overpass mischief” for having tossed a bicycle from an overpass bridge onto Interstate 69. While affirming in its Opinion of July 15, 2021 the COA majority of two held that Mr. Davis was obliged to argue and prove both “prongs” (crime and character) of Rule 7(B). Concluding that Davis failed to address his own character in relation to his sentence, the majority affirmed.

Then there is the separate opinion of Judge Tavitas (formerly of the Lake Superior Court, Room Three) concurring in result while expressing a different view of the meaning of “and” in Rule 7(B). Analyzing the constitutional right to a fair sentence, the “purpose” of Rule 7(B), and SCOTSI Opinions seeming to ignore the “two-prong” nature of the Rule, Judge Tavitas makes a fair argument for a disjunctive “and.”

The view of the CLB is that Judge Tavitas’ is right as to how Rule 7(B) should read but wrong as to the suggested construction. The unspoken criticism from the Tavitas concurrence is that the SCOTSI was careless (at best) in the promulgation or drafting of such an important Rule, using “and” (normally conjunctive) where its intent would be better expressed (arguably) by the disjunctive “or.” No person or entity in the State of Indiana should be more competent or more careful in the writing of laws (here procedural rules carrying the force of law) than our Supreme Court.

Perhaps the Tavitas concurrence is an open letter to the SCOTSI which may prompt an amendment to Rule 7(B) to put the “and/or” controversy to rest . . . Case Note by Dave Allen

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¹ According to COA Judge Tavitas, Rule 7(B) is invoked in nearly 20% of criminal appeals.

“Patients” Without Privity

In one of its (most likely) final Opinions before a summer recess the SCOTSI answered a certified question from the Seventh Circuit. The decision in Cutchin v. Beard was handed down on June 30, 2021.

On the last day of her life at 72 years of age, Sylvia Watson popped a couple of pills and began driving while her adult granddaughter occupied a passenger seat. As she approached a red light Sylvia was heard to exclaim “I can’t stop.” She ran the red light and crashed into another vehicle, resulting in the deaths of Sylvia and the other driver, and a passenger in the other vehicle. Sylvia should not have been driving with opiates (from her prescription bottle) in her blood.

A survivor of Sylvia’s victims filed a proposed complaint with the Indiana Department of Insurance against Sylvia’s doctor and the clinic where the prescription originated. Theories of breach of duty included the (alleged) failure to warn Sylvia not to drive while taking her pills. The survivor also filed a U.S. District Court malpractice suit alleging diversity jurisdiction.

The certified question answered by SCOTSI is “Whether the [Medical Malpractice] Act applies to a third party who did not receive medical care from a qualified health-care provider but who was injured by the provider’s negligence in treating someone else.”

The SCOTSI’s affirmative answer to the question turned on the statutory point of who is a “patient” for purposes of the Medical Malpractice Act. Remarkably, IC 34-18-2-22 allows a stranger to treatment be a “patient” for purposes of standing to sue.

The larger question remaining is whether this vicarious liability for injury to strangers (rather than to actual patients) will be extended beyond the realm of motorist patients on mind-numbing medications . . . Case Note by Dave Allen

The “Con” in Constitutional Law

A prison inmate allegedly fought with and scratched an on-duty prison guard. A DOC disciplinary hearing followed resulting in “administrative discipline” including 360 days of substantial isolation, a loss of privileges, and a loss of 180 days of credit time. The State also elected to charge Kennic T. Brown with the level 6 felony of assault on a public safety officer. Inmate Brown raised a double jeopardy defense by way of a motion to dismiss. The trial court denied the motion to dismiss but certified it for interlocutory appeal which the COA accepted. An affirmance of the trial court ruling was handed down June 24, 2021 in Brown v. State. To the CLB the “discipline” imposed upon Mr. Brown was clearly punitive with respect to the duration of confinement and conditions of confinement.

Brown’s motion to dismiss was examined in the appellate record. It cited the Fifth Amendment Double Jeopardy clause plus Indiana’s “statutory double jeopardy” defense at IC 35-41-4-3, and Article 1 Section 14 of the Indiana Constitution. The motion claimed immunity from the prosecution itself and not just immunity from successive punishment for a single offense.

Here is the Fifth Amendment prohibition: “. . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

Here is the double jeopardy prohibition from Article 1 Section 14 of the Indiana Constitution: “No person shall be put in jeopardy twice for the same offense.”

Here is the first part of the statutory double jeopardy prohibition of IC 35-41-4-3(a): “A prosecution is barred if there was a former prosecution of the defendant based on the same facts and for the commission of the same offense and if :”¹

The observation of the CLB is that double jeopardy applies to both a successive prosecution and successive punishment. Though unlikely, it is a hypothetical possibility that there could be an allowed successive prosecution accompanied by a prohibition of punishment upon conviction.

Here the COA panel (per Judge Robb) unanimously affirmed the trial court’s denial of Brown’s motion to dismiss. The prosecution against him will proceed. It seems that the COA is willing to overlook the punitive (penal) character of some “administrative discipline” of prison inmates. Transfer would be appropriate . . . Case Note by Dave Allen

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¹ The remainder of the statute describes when jeopardy attaches in the initial prosecution.

Willful & Wanton 911

The topic is governmental immunity for a loss arising from emergency services (including police and fire departments) and an exception to the rule. The case on review is Howard County v. Duke¹, an interlocutory appeal of the trial court’s denial of the defendant County’s motion for summary judgment. The result in the COA was that the trial court was affirmed.

In the wee morning hours a lady called 911 on her cell phone to report an acute illness. She identified her location in an apartment building. The County’s 911 Center personnel were careless (apparently) and dispatched an ambulance to the wrong location. By the time the 911 Center error was corrected, the caller was too near death to be saved.

The deceased caller’s estate sued the County Sheriff’s Department and “911 Communications.” The defendants (“the County”) moved for summary judgment claiming 911 immunity per IC 34-13-3-3(a)(19). The statute declares immunity for losses resulting from the operation, maintenance, or use of a 911 (“enhanced emergency communication”) system.

The plaintiff estate responded with an assertion of IC 36-8-16.7-43 which sets forth a “willful or wanton misconduct” exception to 911 immunity. Moreover, willful and wanton misconduct had been alleged in the Complaint.

The trial court did not decide whether the 911 Center’s sloppiness amounted to willful and wanton misconduct. Rather, the trial court found a “genuine issue of material fact” precluding summary judgment. The COA panel unanimously affirmed . . . Case Note by Dave Allen

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¹ The plaintiffs were two brothers Derrick and Dustin Duke as Co-Personal Representatives of the Estate of decedent Tammy Lynn Ford. If you wish you may think of them as the “Dukes of Howard.”

Some SCOTSI Spring Cleaning¹

After handing down about seventeen Opinions in the first five months of the year, our SCOTSI shifted into high gear with seven Opinions between June 3 and June 22, 2021 in apparent preparation for a summer recess. Some of the recent Opinions have failed to spark the fickle interest of the CLB.

Two of the earlier cases (State v. Diego and Combs v. State) became items in the CLB’s compilation of 2021 Appellate Case Notes. The case of State v. Timbs (the Land Rover forfeiture) was written about in a Featured Article posted June 10, 2021.

Now for a brief review of the two most recent Opinions beginning with Temme v. State, as decided June 21, 2021 with a unanimous reversal in favor of a convict who was released early from his prison sentence as a result of DOC error. The primary question on appeal was whether Jordan Allen Temme should receive “credit (against his sentence) for time erroneously at liberty.” The (vacated) COA decision from last October was the subject of a CLB case review titled “Early Release Blues.” The CLB review was rightly critical of the unanimous decision (by Judge Altice) denying Mr. Temme credit for time at liberty following the early, erroneous release from custody. The case note ended with the (prophetic) comment that “a grant of Transfer is appropriate here.”

The CLB congratulates Opinion author David and his SCOTSI colleagues for perceiving and correcting the erroneous trial court and COA rulings against Temme. There was no question of the State’s right to reincarcerate a convict who was erroneously released before completion of his sentence. Rather, the question was whether those intervening days of erroneous liberty should count as part of the sentence.

After considering Federal precedent, the SCOTSI declared one simple rule: “As long as the defendant bears no active responsibility in his early release, he or she is entitled to credit while erroneously at liberty as if still incarcerated.” Of some interest is the circumstance that the SCOTSI grounded its rule out of “fairness” without any discernible foundation in due process, 8th Amendment, or other constitutional protections.

On June 22, 2021 the SCOTSI handed down its (unanimous) CJ Rush Opinion in State v. Jones, the subject of which was the “confidential informant’s privilege” versus a criminal defendant’s right to obtain discovery.

It seems that the CI in question was not a crime witness and would not be called to testify at trial as a State’s witness. Rather, the CI’s input seems to have steered the police investigation. He was probably an acquaintance of a codefendant of Justin Jones and had participated in or overheard conversations or hearsay accounts of a burglary involving Jones. When the defense attempted to gain disclosure of the CI’s identity, the State asserted privilege. After repeated attempts to remotely interview the CI while protecting the secret of his identity, the trial court ordered a face-to-face interview of the CI by Jones’ lawyer. The order barred questions “that may disclose” the CI’s identity.²

The State appealed. The COA affirmed. The State petitioned for Transfer. The SCOTSI granted Transfer, thereby vacating the COA ruling, and then issued the unanimous Opinion reversing the trial court order for a face-to-face³ interview.

In resisting discovery from or about a CI, the State needs to demonstrate that compliance with the discovery request would reveal the CI’s identity. Here the SCOTSI concluded that a face-to-face interview is inherently likely to result in disclosure of identity and, accordingly, that the State met its threshold burden to resist a face-to-face interview, shifting to the defense the (unmet) burden to show a legitimate need for identity disclosure. When both burdens are met, the trial court must weigh competing interests. The SCOTSI remanded for the defense to show an exception (if any) to nondisclosure and for any necessary balancing inquiry . . . Case Note by Dave Allen

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¹ The CLB is aware that the Spring season technically ended June 20, 2021 and that the SCOTSI Opinions of June 21 and June 22, 2021 are post solstice.

² To the CLB it looks like disclosure of identity of the CI would expose him to the danger of retaliation.

³ The appealed Order provided for a face-to-face interview between the CI and defense counsel (but not the defendant).

At the Station House but not “in Custody”

The topic here is whether Miranda warnings are required prior to the police station interview of a person who is not formally under arrest. The answer depends on whether the person is “in custody,” considering the circumstances of the interrogation. The case on review is State v. Diego as decided 4/1 by the SCOTSI on June 8, 2021 with a reversal of the trial court’s order suppressing Axel Diego’s statement from a custodial interrogation conducted without Miranda warnings. The COA affirmed. The SCOTSI reversed. The majority Opinion of Justice David cited a view of the interrogation as a friendly conversation falling short, as a matter of law, of custodial status.

The CLB favors the Justice Goff dissent citing Diego’s very limited English proficiency, the police station location, the summoning by a uniformed officer, and the lengthy and accusatory interrogation by an armed detective.

While the majority Opinion here correctly recited that “whether a defendant is in custody is a mixed question of fact and law” there was no discernible deference to the trial court’s general finding in favor of Diego . . . Case Note by Dave Allen

Lebanon’s Pretextual Inventory Search Revisited

After a month of silence since its last Opinion, the SCOTSI on June 3, 2021 handed down a divided decision (3-1-1) featuring three separate opinions. The name of the case is Combs v. State. The issue on appeal was whether illicit pills found in James Combs’ van (while parked in his driveway) during an “inventory search” were admissible over his Fourth Amendment Objection. The COA (Opinion by Judge Tavitas) found the inventory search “pretextual” and held its fruits to be inadmissible. The SCOTSI held the opposite.

It is unclear to the CLB whether the SCOTSI found the absence of pretext or whether it found pretext and simply tolerated it as in the familiar case of the “sham” traffic stop of the suspected drug courier.¹ The CLB sides with COA Judge Tavitas and commends her for giving more weight to the Exclusionary Rule than Justices of the SCOTSI . . . Case Note by Dave Allen

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¹ See Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001) for the holding that a pretextual traffic stop is not constitutionally prohibited.

An Offending Pole Barn

The case on review is King v. Dejanovic, as decided May 28th, 2021 in the COA. The unanimous COA panel affirmed the trial court ruling enforcing a subdivision’s restrictive covenants by way of an order for the removal or revision of a pole barn which drew an objection from neighbors. There was no question below or on appeal about the pole barn being violative of restrictive covenants. Rather, the pole barn owners urged the affirmative defense of waiver or acquiescence in that the neighbor/plaintiffs had not objected to other covenant violations within the 33-lot subdivision. Clearly, the right to enforce a restrictive covenant may be lost by waiver or acquiescence . Here the appeal asserted error in the trial court’s finding against the pole barn owners on their affirmative defense.

The pole barn owners based their failed defense on the plaintiffs’ lack of objection to other nonconforming out-buildings in the subdivision. The trial court declined to impose waiver in that the other nonconforming structures were relatively distant from the plaintiffs’ home and relatively smaller in size than the one next door. Noted: the subdivision had no HOA. No discussion here of the defense of waiver/acquiescence against an HOA.

The duly recorded restrictive covenants included, notably, an attorney fee provision. The trial court awarded attorney fees to plaintiffs of nearly $13,000.00 . . . Case Note by Dave Allen

A PO Against the Troll for Virtual Stalking

The case on review is P.D. v. D.V. as decided May 26, 2021 in the COA. It seems that D.V. (I’ll call her “Deb”) obtained a Protective Order against P.D. (I’ll call her “Pam”). Pam appealed to the COA and lost. The odd foundational circumstance to this PO case is that Deb and Pam were not family or intimate partners. They weren’t even true acquaintances.

Deb was a political activist and organizer of political events. Pam bought a ticket to a “political gala” sponsored by Deb. The event was postponed time and again and ultimately cancelled. Pam asked for a refund, which was slow in coming.

Pam was very displeased with Deb and launched a social medial smear campaign against Deb. Pam accused Deb (to others) of having fabricated a military service record. Pam was in touch with Deb’s family members, former employers, and potential speakers for Deb’s political events. Pam used the social media to call Deb a “scam artist” and to call her “pathological.” Pam made public Deb’s address and phone number. Deb claimed to feel “frightened” due to Pam’s persistent social media campaign (Facebook and Twitter).

Deb was awarded a Protective Order after an evidentiary hearing. Pam’s appeal to the COA was unsuccessful.

The Indiana Civil Protection Order Act is supposed to be utilized against “family violence.” Pam and Deb were nowhere near “family.” So how could Deb obtain a PO against Pam? The statutory loophole is in the inclusion of “stalking” in the definition of family violence and the absence of any requirement that a “stalking” be committed by a household or family member of the victim.

It was enough in the trial court and in the COA that Deb made a credible case for harassment-induced emotional distress and fear from Pam’s repeated or continuing “impermissible contact.” Notably, the “impermissible contact” element of “harassment” includes social media posts directed to the victim or referring to the victim. IC 35-45-10-3(a)(3).

Pam chose a losing strategy on appeal by arguing only the supposed insufficiency of evidence. The CLB has no sympathy for Pam but holds the opinion that her appeal had some merit. Pam began with a righteous grievance against Deb. It seems from the COA Opinion that there was little consideration of Pam’s First Amendment/Free Speech rights. And Pam: never inflicted physical harm or property damage; never threatened physical harm or property damage; and never directly encouraged any other person to inflict physical harm or property damage. Considering the protected status of Pam’s speech, is it good judicial policy to hold that it is intended to induce fear in a reasonable person?

I would not file a Transfer Petition for Pam, but someone should . . . Case Note by Dave Allen

Trial Rule Versus Statute

Too often litigation will bring to light a conflict between provisions of a procedural rule and a legislative act. When the conflict is real and irreconcilable the question becomes which source of law should prevail. Such is the background of the case on review, Sawyer v. State as decided May 19, 2021 in the COA. Donnie Louis Sawyer was charged with two counts of child molesting against two children who were from seven to nine years of age at the time of “the charged events.” Donnie was represented by a public defender who filed a Petition for Authorization to Depose Child Accusers. The State opposed the Petition. The trial court denied the Petition but certified its Order for interlocutory appeal.

The conflict here was between Indiana Trial Rules pertaining to the taking of witness depositions and a statutory provision limiting the depositions of child complaining witnesses in sex offense prosecutions as codified at IC 31-40-5-11.5. The State argued that the statute embraced a matter of substance (rather than procedure).

Donnie asserted on appeal that the trial court committed an abuse of discretion while the COA viewed the issue as one of statutory interpretation for which there would be de novo review with no deference to trial court discretion. The COA reversed the trial court ruling while noting SCOTSI precedent that Indiana trial rules are generally applicable to criminal proceedings when not in conflict with any “specific rule” for the conduct of criminal proceedings.

The CLB expects future appeals of child molesting convictions which followed the prohibition of pre-trial deposition of the complaining witness. There may also be some PCR Petitions asserting retroactivity of the COA’s “first impression” holding, both in cases where a deposition was expressly barred and those others in which the notion of such a deposition was deterred by the mentioned statute . . . Case Note by Dave Allen

A Hole in the Ground by any Other Name

The case on review is Minser v. DeKalb County Plan Commission, as decided in the COA on April 28, 2021. What to call a hole in the ground is the subject of the case on review and the unanimous COA Opinion by Judge Tavitas (formerly of the Lake Superior Court Civil Division Room Four). Owners of rural real estate in DeKalb County contracted for the excavation of soil and clay from a spacious backyard for the purported purpose of raising the level of their driveway. The hole filled with water, but was it a pond?

The property owners lived near enough to a county airport to be within a zoning district designed to prohibit “incompatible uses,” such as ponds.¹ The body of water in issue was described as having a surface area of .43 acres and a depth of 12 feet.

After the pond came into being the property owners petitioned unsuccessfully for a “developmental standards variance” to legitimize the body of water. Following the BZA denial of their variance request the owners brought an action for judicial review that was dismissed.²

The appeal in question came after the county sued the property owners to force the filling in of the pond. The trial court awarded summary judgment to the county, and the property owners appealed. The COA affirmed the grant of injunctive relief (for “removal” of the pond) but reversed the trial court award of attorney fees to the county as being unauthorized . . . Case Note by Dave Allen

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¹ There is no explanation in the Opinion of how a backyard pond is incompatible with a nearby airport.

² No res judicata argument was mentioned in the COA Opinion.

A Bit of Criminal Discovery

The case on review is Archer v. State, as decided April 12, 2021 in the COA. Jeffery Archer was convicted and imprisoned for child molesting. Around seven years later he was granted a new trial (by the COA on post-conviction relief having to do with effectiveness of counsel in the unsuccessful direct appeal of his conviction). The COA Opinion of April 12, 2021 decided Archer’s interlocutory appeal of the trial court order granting the State’s Motion to quash Archer’s notice of deposition for the child molesting victim who was then nearly of majority age. The victim had been deposed years earlier by a previous defense lawyer. The State claimed a motive of sparing the victim further, unnecessary emotional trauma.

Writing for the unanimous panel, Senior Judge Darden gave a scholarly review of criminal discovery law in Indiana with one major omission. As a starting point (and as Sr. Judge Darden noticed) there is “no general constitutional right to discovery in a criminal case.” One exception to the general absence of constitutional entitlement is in the case of a prosecutor’s duty to disclose exculpatory information. See Brady v. Maryland, 373 U.S. 83 (1963).

The CLB is unaware of any Indiana legislative act conferring discovery rights on a criminal defendant. On the other hand, the Indiana General Assembly did enact IC 35-36-4 requiring the detailed advance disclosure of an alibi defense. Among the Criminal Procedure Rules from the Indiana Supreme court (26 rules to date) the word “discovery” is mentioned once and only in passing. Then what is the source of our law of criminal discovery? The short answer is that the source is nearly all case law. An exception to case law origin is found in CR 21 and its declaration of the general applicability of Trial Rules to criminal proceedings. The Trial Rules (or Rules of Civil Procedure) include liberal discovery rules. From case law there are decisions including Dillard v. State, 274 N.E.2d 387 (Ind. 1971).

The Dillard decision includes a three-step protocol for the judicial consideration of whether the disputed discovery request of a criminal defendant should be granted. Part one is whether there is a sufficient designation (particularity) of the items sought to be discovered. Part two is whether the items sought are material (or relevant) to the defense. If Parts one and two are met the discovery request must be granted unless the State makes a Part three sufficient showing of its “paramount interest” in non-disclosure. Here the COA held for the defense in the review of the Dillard test.

Sr. Judge Darden’s omission (perhaps intended) from his review of criminal discovery case law is Ex Rel. Keller (a/k/a Kelly) v. Criminal Court of Marion County, 317 N.E.2d 433 (Ind. 1974). The SCOTSI affirmed the sua sponte reciprocal discovery order of Marion County Judge John (Jack) Wilson. I continue to cite Keller whenever I need to file an actual discovery motion on the criminal side.¹ Most of those who see the citation are unfamiliar with its importance.

Consider Article 1 Sec. 12² of the Indiana Constitution and its “due course of law” (a/k/a “due process”) provision. Regardless of what the SCOTUS does or does not declare respecting criminal discovery and Fifth and Fourteenth Amendment due process, the Indiana Supreme Court may (and should) decide that reasonable criminal discovery in Indiana is a constitutional right. In the alternative (or in addition), the Indiana Supreme Court (a/k/a “SCOTSI”) should make actual rules of criminal discovery separate from civil rules of discovery³ . . . Case Note by Dave Allen

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¹ Misdemeanors and the occasional low grade felony constitute my limited criminal practice.

² Although Sec. 12 reads like it is intended for civil litigation, it has been held applicable in criminal prosecutions.

³ There is potential chaos in CR 21’s general incorporation of civil discovery rules. How about TR 36 Requests for Admission to a prosecutor? How about a notice of deemed admissions when the prosecutor ignores the Requests? Don’t even ask about summary judgment for a criminal defendant.

Diversity (of Citizenship) and Duty

David Branscomb visited his local (Huntington) Wal-Mart store on April 25, 2019. While in the Garden Center he tripped over a wood pallet and fell, allegedly sustaining unspecified but serious and permanent physical injuries. This is according to the Complaint filed on behalf of David and his wife Tammy by a Fort Wayne law firm. The case reached the attention of the CLB on or about April 7, 2021 when the SCOTSI answered a Federal District Court certified question in the case of David Branscomb, et al. v. Wal-Mart Stores East, LP, et al. The Complaint had been filed against Wal-Mart Stores East, LP and James Clark. The initial venue for the case was the Huntington Circuit court. While the Wal-Mart Stores East, LP entity is not a “citizen” of Indiana, James Clark is a hoosier. The alleged reason to sue Mr. Clark was to defeat Federal diversity jurisdiction by naming one citizen of Indiana as a defendant.

The Wal-Mart defendants objected to the allegedly “fraudulent joinder” of Mr. Clark and sought to remove the case to U.S. District Court given the diversity between the Branscombs and Wal-Mart Stores East, LP.

To be a legitimate personal injury defendant Mr. Clark had to owe a duty to David Branscomb, a duty that was breached with resulting injury. Noted here is that Mr. Clark had no direct involvement in the incident. The Complaint alleged his negligence (breach of duty) in such matters as the hiring, training, and supervision of employees. Such theories of negligence may be applicable against the employer (not a mere store manager) when a tort-feasor employee is acting outside the scope of employment. There was no claim in the case at bar that the anonymous employee who left a wood pallet on the Garden Center floor was acting outside the scope of employment. It was further held by the SCOTSI that any managerial duty owed by Mr. Clark was owed to Wal-Mart and not to individual shoppers . . . Case Note by Dave Allen

The Law of the Name of the Child

The position of the CLB is that Indiana could get by with fewer statutes. Part of the problem is the General Assembly’s inattention to the repeal of statutes that are circumstantially obsolete, and part of the problem is the General Assembly’s willingness to enact more and more statutory law with no apparent restraint. This case note will betray the anti-statute bias of the CLB by pointing out where the General Assembly has left unrelegated an important aspect of family relations.

The CLB has explained over and again how the judicial authority to divorce is limited to the statutory delegation of that authority. Accordingly, the CLB has criticized divorce court judges who fail to appreciate the absence of authority beyond the statutory grant. This case will betray the anti-authority bias of the CLB in supporting the fashioning of a judicial remedy in this case despite the absence of statutory authority for doing so.

The case on review is Faulk v. (Bissell) Faulk as decided in a split COA decision of March 29, 2021. Among several issues on appeal, the topic of this case note is the divorced parties’ dispute over the surname of their child conceived and born during the marriage. Wife Callie (Bissell) Faulk married Brent Faulk and took his surname. She became pregnant and moved from the marital home to her parents’ residence before giving birth. Callie also filed for divorce about seven weeks prior to giving birth.

It is unclear from the Majority Opinion of Judge Crone and the partial dissent of Judge Riley whether Brent attended the childbirth. Judge Crone mentioned a protective order against Brent. Judge Riley wrote that Brent was “present at the hospital” (not necessarily the delivery room) when the child was born. Not long thereafter Callie (acting alone) “signed the birth certificate” and named the child J.L. Bissell (her maiden surname) instead of C.J. Faulk as she and Brent had previously agreed. Remarkably, Callie gave the child the surname Bissell while both parents were Faulks.

Can she do that? Isn’t there an Indiana statute providing for the surname of a child born in wedlock? There is no such statute for a child born in wedlock. The closest statute that Brent could cite was IC 16-37-2-15 to the effect that an out-of-wedlock child, whose parents then marry, should “legally take the last name of the father.” Remarkably, there is no parallel statute for the child born to parents already married. Of course, no statute was needed until Callie Faulk gave birth with all the fury of a woman scorned and drove a thick wedge between her son and the child’s father.

In the course of the divorce that was already pending at the child’s birth, Brent asked the court to change the son’s surname to Faulk. Callie objected to any change of surname while suggesting Bissell-Faulk as a choice over Faulk. The divorce court judge ordered a surname change from Bissell to Bissell-Faulk. Brent appealed. Despite the absence of a cross-appeal from Callie, the Judge Crone Majority Opinion held that there was a lack of statutory authority for the name change and that the child’s initial surname of Bissell must be restored. Judge Crone’s mention of the (child) name change statute at IC 34-28-2-2 does not describe any actual remedy available to Brent so long as Callie withholds consent. According to the logic of the Judge Crone Majority Opinion Callie was free to name her son “Satan’s Little Bastard” without fear of a judicial reversal of that choice in the pending divorce case.

In partial dissent Judge Riley noted that the parties submitted the surname dispute to the divorce court without any claim that the court lacked authority to render a decision. Callie’s Appellee’s Brief conceded that the decision (below) on the surname dispute “rested within the discretion of the trial court.” The only objection to the trial court authority to rule came from the Judge Crone Majority Opinion.

The CLB would like very much to see a grant of Transfer in this case. The CLB would like very much to see an act of the General Assembly requiring the surname of a child of married parents to be that of the father . . . Case Note by Dave Allen

Billboards 101

Lady Bird Johnson was catching hell for it, perhaps undeservedly. It was the Highway Beautification Act of 1965. Its Title I was nicknamed “Lady Bird’s Bill.” The part that stuck in the craw of 1960’s property rights advocates was the limitation on billboard signage along interstates and some other highways.

The case on review that dredged up these old memories is Indiana Dept. of Transportation v. FMG Indianapolis LLC, as decided in the COA on March 26, 2021. The COA reversed a trial court conclusion (on judicial review of agency action) that IDOT could not revoke a billboard permit issued more than 20 years earlier. The trial court theory was “fundamental fairness.” In the COA former CJ Shepard sat in as a senior judge to write the (unanimous) Opinion reminding us that fairness is irrelevant to the State and its agencies. In other words, the COA greenlighted the revocation of a billboard permit on rather technical grounds that had been overlooked at the time of licensing and for more than 20 years afterward.

To the CLB the best part of the Opinion is Judge Shepard waxing professorial and providing a study of relevant federal and state statutes and regulations starting in 1965. What you may need to know about billboard licensing is likely here . . . Case Note by Dave Allen

Medical Expense Admissibility: Which Version?

This case note pertains to the admission into evidence of medical expenses in the course of a personal injury trial. The case on review (from the Lake Superior Court and Judge Bruce Parent) is Gladstone v. West Bend Mutual Ins. Co. as decided March 24, 2021 in the COA. Sometimes the admissibility issue hinges on evidence of proximate cause or, in other words, proof that the medical expenses arise from injuries incurred at the fault of the defendant. In the case on review the admissibility issue hinges on which version of medical expenses should be shown to the jury.

Plaintiff/appellant Daniel Gladstone suffered injury in a motor vehicle collision and incurred medical expenses of about $14,000.00 gross which were reduced to less than $2,000.00 by insurance payments and discounts. Which version will the jury see? Perhaps both.

In Patchett v. Lee, 60 N.E.3d 1025 (Ind. 2016) the SCOTSI held for the admissibility of the reduced expenses in a personal injury trial. That left the question of admissibility of the initial (generally inflated) charges before the trimming of the fat. The trial court in Gladstone allowed the jury to see both versions, and the unanimous COA panel affirmed.

A procedural peculiarity in Gladstone was that the plaintiff was suing his own insurance company under his UIM coverage after collecting $50,000.00 from the insurer of the other driver. Daniel thought that $50,000.00 was insufficient and wanted more. The jury, after receiving evidence including net medical expense under $2,000.00 and his recovery of $50,000.00, awarded him nothing.

On the 23rd slip opinion page the COA held that the State had presented insufficient evidence of a “nexus” between the seized cash and drug dealing. However, the COA agreed with the State’s cross-appeal asserting error in the trial court’s exclusion of data collected from Brown’s cell phone seized at the time of his arrest. Notably, there was a search warrant for the cell phone data. The CLB sees no need of Transfer in this case but would not be surprised by a request and grant of Transfer . . . Case Note by Dave Allen

The TKE House Transfer

The CLB’s first appellate case note of 2020 was titled “2020 Transfer Bait.” I explained how the COA’s majority opinion was erroneous and why correction of that error by way of Transfer was warranted. I predicted a grant of Transfer. The case then on review was City of Bloomington BZA v. UJ-Eighty Corporation, 141 N.E.3d 869 (Ind. Ct. App. 2020). After having fulfilled the CLB prediction of a grant of Transfer the SCOTSI on February 23, 2021 unanimously held (just as the CLB had argued) that the municipal zoning ordnance at issue was not unconstitutional for its (alleged) delegation of the legislative power to Indiana University.

There was a TKE frat house near the IU campus in Bloomington’s “Institutional” zoning district which allowed frat houses for residential purposes only if the fraternity was recognized by IU. When the local TKE chapter lost its IU recognition, there were two residents who refused to move out. So Bloomington cited the landlord for the zoning violation. The BZA affirmed the citation. On judicial review the Monroe Circuit Court held the ordinance unconstitutional for the asserted delegation of the city council’s legislative authority to IU. A split COA panel affirmed. And now the SCOTSI has reversed even while acknowledging that IU’s act of terminating recognition of the fraternity had a “collateral effect” on land use. If there is decisive nuance here it is that the Bloomington ordinance defined “fraternity” based upon a frat’s relationship with IU . . . Case Note by Dave Allen

Error Invited by Needless Complexity

The case on review is Nuell, Inc. v. Marsillett and Property-Owners Insurance as decided in the COA February 16, 2021. Consider a land trust (over commercial property) established by husband-and-wife owners. Husband is designated as both trustee and beneficiary. So long as “Trustee Husband” makes no objection, doesn’t “Beneficial Owner Husband” have a right of possession transferrable by lease? The answer is “yes,” unless you ask the unanimous COA panel in Nuell.

The context of the litigated dispute began with establishment of the land trust and the quitclaim of ownership of the subject commercial real estate by husband-and-wife owners to the trust. Then trust settlors husband-and-wife entered into a lease of the real estate from themselves as lessors to lessee Nuell, Inc. A corporation of which the same husband-and-wife are the only shareholders. This is very much like the left hand renting from the right hand when no lease is actually needed. To the CLB, the husband-and-wife team had created (probably) unnecessary layers of complexity beyond their ability to administer. This is not to say that a land trust has no utility in the transfer of property on death of the settlor or that incorporation has no value in shielding an incorporator from personal liability from a high risk business enterprise.

Then the tenant corporation (an alter ego for the husband-and-wife duo) insured the commercial real estate with “Property-Owners” Ins. Co. Husband-and-wife could have acquired the insurance in the name of the title-holding land trust. But they did not. As tenant shareholders they could have acquired insurance in the name of the tenant corporation while designating the land trust as a co-insured. But they did not. Instead, the tenant obtained a policy better suited to a landlord, a policy that required its policy holders to have a “financial interest” in the insured real estate and which limited coverage to that financial interest.¹

The spark for the dispute below was provided by motorist Timothy Marsillett who crashed through a concrete “barrier” (not quite) wall—which was part of the real estate—and into the commercial building. The tenant corporation filed a claim with its insurer. That claim was ultimately rejected on grounds that the insured tenant corporation lacked a valid written lease (a/k/a financial interest) with the property owner trust. The trial court agreed with the insurer, and the COA affirmed.

Imagine having your office in a building titled to a land trust while your lease names another entity as landlord. Do you have a valid lease? Likely so. Here are some possibilities. The lessor entity may have actual or apparent authority (as an agent of the land trust) to lease office space. Or the land trust may have ratified the lease that was made without authority. Or the lessor entity may have a mere right of possession which it bargained away when it gave possession to you. Or (as in Nuell) the land trust and lessee entity may be alter egos of the beneficial owners of the real estate.

Transfer² is warranted. Reversal of the Summary Judgment below for the insurer is warranted . . . Case Note by Dave Allen

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¹ While a leasehold interest in real estate is an insurable interest, its value will generally be less than the overall value of the real estate. If a building is lost to fire, the landlord’s loss would likely exceed that of the tenant.

² The CLB regards a request for rehearing as a waste of time and effort in nearly all cases. A profoundly erroneous COA holding will not be remedied by way of rehearing.

The Cash, not the Car

The case on review is Brown v. Eaton¹ as handed down by the COA on February 10, 2021. The case is a civil forfeiture appeal reminiscent of Timbs v. State, 134 N.E.3d 12 (Ind. 2019) preceded by its SCOTUS reversal at 139 S.Ct. 682 (2019). Timbs and Brown are both cases of civil forfeiture of the property of an alleged or convicted drug dealer. See IC 34-24-1-1 for the civil forfeiture statute applicable to vehicles and other property (including cash) used in the commission of, or obtained as fruits of, drug offenses. Tyson Timbs’ 2012 Land Rover was seized and forfeited until the mentioned SCOTUS reversal/remand for consideration of whether the forfeiture was excessive for 8th Amendment purposes.² The Brown litigation has not yet reached the point of 8th Amendment consideration.³ Rather, the appeal challenged the admission and exclusion of evidence and the sufficiency of the evidence below to warrant the forfeiture of $32,284.00 in cash taken from Emery Brown after he was the subject of a traffic stop. The officer could smell marijuana smoke from the “blunt” that Brown had been smoking, and about 2 grams of marijuana were recovered from between Brown’s buttocks.⁴ To the CLB it seems too minor an offense for a “proportionate” forfeiture of more than $32,000.00 though evidence of more serious criminal conduct may appear on remand. While Brown was convicted below of drug offenses in the criminal prosecution parallel to the forfeiture case, he was not convicted of dealing.

One helpful aspect of the Opinion of Judge May is the reminder of how the Exclusionary Rule for criminal cases will also be applied to “punitive” civil forfeitures. It makes no difference whether the target of a motion to suppress is from a seizure or from self-incrimination.

In affirming the trial court, the COA Opinion by Judge Bradford cited out-of-state case authority for the admissibility of “disallowed” medical expenses as evidence of the extent and severity of an injury. Transfer in this case, if granted, should be to the effect of affirming the trial court and declaring a state-wide rule of the presumptive admissibility in injury trials of both the gross and net medical expenses . . . Case Note by Dave Allen

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¹ Brent Eaton is the Hancock County Prosecutor who commenced the forfeiture case against Emery Brown.

² The SCOTUS first held (contrary to the SCOTSI holding) that the 8th Amendment protection against excessive fines was applicable to the States through the 14th Amendment.

³ The CLB wonders whether Emery Brown has waived the excessive fines issue that could be raised under the 8th Amendment or Article 1 § 16 of the Indiana Constitution.

⁴ Both the modest quantity and storage location suggest a private stash as opposed to weed for sale.

Divorce Case Valuation of Shares in Spouse’s Family Corporation

The case on review is not a divorce case but should have citation value in those divorce cases wherein one spouse owns a minority interest in a family business corporation. See Hartman v. Big Inch Fabrications as decided January 28, 2021 in the SCOTSI. This case involved the valuation of the shares of a terminated corporate officer and director under a contractual buyback clause calling for the purchase of his minority portion of company stock at the “appraised market value.” The Big Inch corp. is closely held and not publicly traded. The Opinion by CJ Rush sums it all up in the opening paragraph:

“The value of corporate shares may not correspond proportionally to the company’s overall value. Shares are usually valued less if they represent a noncontrolling interest or if they are not publicly traded. When valuing such shares, an appraiser will often account for this reality by applying ‘minority’ and ‘marketability’ discounts.”

Notably, the COA held at 148 N.E.3d 1017, 1024 (Ind. Ct. App. 2020) that the mentioned “discounts” should not apply to Hartman’s contractual “closed-market” sale of his shares. The SCOTSI unanimously reversed while acknowledging that the “discounts” may not be applicable to other closed-market sales of minority shares in a context lacking Hartman’s contractual agreement to sell for the (discounted) fair market value . . . Case Note by Dave Allen

UPDATE: The CLB guaranteed Transfer on Staat and Ladro (below). On December 9, 2021 the SCOTSI handed down Transfer Opinions holding for governmental entity immunity over “temporary” road conditions “due to weather” but not necessarily over defective road maintenance. The Tavitas dissent in Ladro wins the day. But no such good fortune for Staat.

Two of a Kind?

The case on review is Staat v. Indiana DOT as decided January 28, 2021 in the COA. Not only is Staat related on the facts and on the law to the Ladra case below, it shares with Ladra the panel of Judges Bailey, Robb and Tavitas. Remarkably, the result of Staat is the opposite of that reached in Ladra. Chad Albert Staat was driving on I-74 when he came upon pooled water on the pavement. He lost control of his vehicle and crashed. He and his wife sued the DOT alleging liability by reason of design defect and a failure to maintain. The DOT asserted immunity for any design defect and otherwise claimed a lack of notice of the pooling of water. The trial court granted the DOT’s motion for summary judgment. The plaintiffs had conceded to the trial court the DOT’s immunity for design defects, thereby precluding consideration of that argument on appeal.

The legal issue common to Ladra and Staat is that of governmental immunity for consequences of the “temporary” weather-related condition of a public thoroughfare. Though Judge Tavitas (after dissenting in Ladra) concurred separately in Staat, the Staat panel was unanimous in reversing the summary judgment in favor of the DOT. The COA panel reasoned that upon the designated evidence there was a reasonable inference that the road condition triggering Chad Staat’s crash had persisted beyond the “temporary” duration of immunity.

The CLB will go out on a limb and GUARANTEE grants of Transfer in both Ladra and Staat . . . Case Note by Dave Allen

A Flooded Highway and Judge Tavitas in Dissent

The case on review is Ladra v. State as decided January 27, 2021 by a divided COA panel. The scene was I-94 in western Porter County in January of 2017. Tracy Ladra was driving eastbound toward home when she “came upon a flooded section of the interstate.” Tracy drove through standing water,¹ lost control of her vehicle, and suffered injury. Contributing factors to the flooded road included: (1) rain (of course); and (2) the clogged state of the drainage system in the area of the crash.

Tracy Ladra sued the State and the Dept. Of Transportation for some breach of duty. The State and the DOT filed for summary judgment invoking the weather-based immunity provision of the Tort Claims Act (ITCA) at IC 34-13-3-3(3). That provision grants immunity to the State (and its subdivisions and agencies) from losses resulting from: “(3) The temporary condition of a public thoroughfare . . . that results from weather.”

The trial court awarded summary judgment to the State and DOT, and the COA panel majority affirmed. Judge Tavitas dissented with Opinion. The CLB sides with the Tavitas dissent and its citation to law that weather-based “temporary” immunity does not excuse a governmental defendant from a roadway condition owing to “poor inspection, design,² or maintenance.” Judge Tavitas made the case (upon the record) for such causation at a location known by the State for its frequently clogged drains. The CLB declares this case Transfer-worthy . . . Case Note by Dave Allen

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¹ The first officer on the scene reported a water depth above his ankle.

² The law relating to design immunity may be unsettled.

Pro Se Motions of the Represented

2021 has started very slowly in terms of appellate opinions deemed interesting to the CLB. The first opinion meeting that threshold (barely) is an unlikely candidate, a SCOTSI Per Curiam decision of January 26, 2020: Anderson v. State. A notable but uninteresting detail of the case was that Judge Bradley B. Jacobs¹ of the Clark Circuit Court issued a sentencing order of one year of incarceration for a Class B misdemeanor. And the CLB thought that everyone knew how the maximum Class B sentence was 180 days. But the reason for the SCOTSI Transfer was to confirm the underappreciated rule that a represented party “speaks” (or files) only through counsel. When counsel (a public defender) has been appointed while not having appeared, the defendant is muted such that any motion he files (say for a speedy trial) is held to be a nullity.

If there is an obvious weakness in the SCOTSI rule in Anderson it is the potential unfairness of a muted defendant during delays between the appointment and appearance of a public defender. Moreover, a represented party (particularly an impoverished criminal defendant with court-appointed counsel) should have the opportunity: to object to counsel’s action or inaction; to move to disqualify his counsel; or to object to the withdrawal of counsel contrary to the wishes of the client . . . Case Note by Dave Allen

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¹ Judge Jacobs previously earned CLB attention in 2019 when he was reversed twice in a single day by way of “for publication” COA Opinions.