2023 Appellate Case Notes | The Calumet Law Blog

Wi-Fi and Search Warrant Affidavit

The case on review is Sloan v. State, as decided December 29, 2023 in the COA with the affirmance of William Sloan’s child molesting conviction. Sloan unsuccessfully asserted an insufficiency in the probable cause affidavit that led to the search of his home and the admission of evidence, over objection, at trial.

Police monitoring downloads of child porn noted a download to the IP address of William Sloan. Separately, there was an allegation of sexual misconduct from Sloan’s step-daughter.

The PC Affidavit explained the monitoring of the “Bit Torrent network” leading to the IP address of a child porn video being shared on the network. AT&T verified the IP address was assigned to Sloan. In his unsuccessful motion to suppress Sloan argued that the Affidavit should have informed the court that the video sharing could have been from someone else utilizing Sloan’s Wi-Fi internet connections. Noted: a PC Affidavit must include “all material facts,” including those that cast doubt on probable cause. However, an omission of material fact will not automatically invalidate a finding of probable cause . . . Case Note by Dave Allen

No Arbitration Waiver

The case on review is Professional Construction, Inc. v. Historic Walnut Square, LLC, an interlocutory appeal as decided December 28, 2023 in the COA. The appellant was general contractor to appellee’s construction project. The contract contained an arbitration clause.

There was disagreement, a work stoppage, and then litigation. The first suit was filed by Contractor in Wisconsin and requested enforcement of the arbitration clause. Then Owner filed suit in Marion County, the suit from which the appeal on review was taken. In the Marion County case Contractor moved to compel arbitration.

Held: filing suit to enforce an arbitration clause is not a waiver of arbitration. The Indiana trial court’s denial of the motion to compel arbitration is reversed.

Noted: there are two forms of (potential) waiver. The first is waiver by litigation conduct. The second is waiver in the contractual sense.

Noted: according to federal precedent a court, not an arbitrator, may decide whether a party has waived arbitration by litigation conduct.

Dicta: the COA “holds” against federal precedent under FAA holding that waiver of arbitration by litigation conduct requires a showing of harm. The case on review seems to approve the absurdity of sending a dispute to arbitration (in many cases) so the arbitrator can determine whether there has been a waiver of arbitration.

This is the type of case in which the SCOTSI likes to have the final word. Watch for Transfer . . . Case Note by Dave Allen

Res Ipsa v. SJ

The case on review is Isgrig v. Trustees of Indiana University, as decided in the COA on December 27, 2023. The fact that this injury claim is against a government entity is of no relevance to the central holding of the applicability of the res ipsa loquitur doctrine as evidence of sorts to rebut a claim for Summary Judgment.

Kiera Isgrig was a student studying for finals in a university building when a window and its frame fell upon her. IU employed a policy of “reactive” maintenance on windows as opposed to preventative maintenance.¹ IU denied actual or constructive knowledge of any defect in the window. Its best argument against res ipsa was that it was not in exclusive control of the window.

Held: Res ispa doctrine may be applicable to premises liability. Watch for the Transfer petition . . . Case Note by Dave Allen

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¹ The CLB is mildly surprised at the lack of a claim that the maintenance policy reflected a policy choice as to which IU would have tort immunity.

Provider Indemnification and the MMA

The case on review is the second round appeal of a dispute between Franciscan Alliance and Lake Imaging, LLC. Lake Imaging provided imaging services for Franciscan. Both parties were qualified healthcare providers for purposes of the MMA. Lake Imaging took CT scans of a Franciscan patient and failed to see evidence therein of a subdural hematoma. The patient died soon after. The decedent’s sons brought a malpractice case by filing a proposed complaint against Franciscan just before the two-year limitations period. The learned of the Lake Imaging failure when (arguably) it was too late to sue them.

The arrangement between Franciscan and Lake Imaging included an indemnification proviso. Lake Imaging agreed to indemnify and hold Franciscan harmless from liability claimed as a result from Lake Imaging negligence.

Franciscan settled the malpractice claim and sued Lake Imaging for indemnification. Lake Imaging won a dismissal (without prejudice) arguing that a claim alleging medical malpractice had to go through the MMA procedure and the DOI. The COA agreed. The SCOTSI disagreed at 182 N.E.3d 203 (Ind. 2022). The SCOTSI held the MMA inapplicable to the claim, along with the MMA’s two-year limitations period.

The appeal on review holds for Franciscan’s SJ from below and rejects that the two-year limitations period for personal services applies. A Transfer petition is a certainty, and its denial is a probability . . . Case Note by Dave Allen

“Act of Rape” Defined

The case on review is D.H. v. A.C., as decided in the COA on December 21, 2023 with the reversal (for now) and remand of the trial court grant of a young mother’s petition to terminate the parental rights of the father of her child. Mother was 14 years of age when her mother’s adult boyfriend molested her. She conceived and gave birth. Father went to prison.

The first unusual aspect of the case is that it is a termination case brought by a mother and not by a county welfare department following a CHINS finding. See IC 31-35-3.5-3 provision authorizing a termination of rights of the perpetrator of an “act of rape” leading to conception. The trial court interpreted “act of rape” to include any child molestation intercourse that was otherwise consensual. The trial court (but not the COA) seems to have been unaware of IC 31-9-2-0.9 defining “act of rape” as including less than all acts of child molestation. The result of reversal and remand was made necessary by the trial court’s failure to follow the correct statutory framework. Here the COA urges General Assembly action to expand “act of rape” termination to more (or all) cases of child molestation . . . Case Note by Dave Allen

Vibrational Damages on Ridge Road

The case on review is Radziwiecki v. Gough, Inc., as decided December 20, 2023 by a divided (2/1) COA panel. A check of the online Slip Opinions will reveal a memorandum decision of November 29, 2023 in Radziwiecki’s suit against another construction contractor for the Highland Police Station.

Radziwiecki claimed damage to his nearby home by reason of Gough’s operation of heavy equipment and the consequent vibrations. Radziwiecki claimed a discovery date that could have extended his limitations period by 6 or 7 months. The trial court declined use of the discovery rule to extend the limitations. Since Gough finished its work more than 6 years before suit was filed, the trial court granted SJ to Gough. Affirmed by the COA majority. The decision is NFP. The CLB expects a Petition for Transfer that will be denied. Case is a good research source for the discovery rule . . . Case Note by Dave Allen

Arrest on an Expired Body Attachment

Now and then I read or hear of someone, most often a motorist, arrested on some old body attachment after a routine encounter with police. The case on review is Murphy v. Cook, as decided by the COA on December 20, 2023 with a reversal of the trial court’s denial of Lacey Ann Murphy’s Motion to Set Aside Body Attachment.

Lacey was a judgment debtor from a small claims case. After some failures to appear (for proceedings supplemental) Lacey became the subject of a body attachment on May 6, 2021. It was January 6, 2023 when a routine traffic stop led to Lacey’s arrest on the body attachment. The CLB presumes that the body attachment was recalled after Lacey’s arrest and appearance in court. Still, she filed a Motion to Set Aside Body Attachment which the trial court denied.¹

For the applicable law on body attachments, see TR 64(A). Effective September 1, 2020 a body attachment expires 180 days after issuance. For body attachments already existing on September 1, 2020 there is an expiration date of March 1, 2021.

The Sheriff is supposed to return the writ to the clerk when the writ expires. The CLB is unaware of any compliance with that requirement in Lake County. How many ancient body attachments are there that may show up on a warrant check by police? How often are folks arrested and jailed on old, expired body attachments? What docket reviews do our courts employ to recall expired body attachments? The answers, in order, to the last 3 questions are: too many; too many; and none.

As a matter of judicial ethics a court should schedule the post-expiration recall of any body attachment it issues. The Sheriff needs to be sued a few times to motivate him to begin to follow the law of returning expired body attachments . . . Case Note by Dave Allen

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¹ The Motion to Set Aside may have been a tactic in support of a plan to sue for false arrest.

CR 4(C) Speedy Trial

The CLB has long been a fan of CR 4(C). Unfortunately, the typical response from trial courts is hostility.¹ It is nice to see a COA panel taking seriously a CR 4(C) assignment of error. The case on review is Hoback v. State, as decided by a divided (2/1) COA panel on December 20, 2023 with a reversal if Hoback’s convictions (by jury trial) due to the CR 4(C) delay below.

COA judge Felix dissents with a separate Opinion. The CLB has previously noted the inclination of judge Felix to rule against criminal appellants. Apart from a cloudy record from below there is the claim that the 4(C) error was waived on appeal by deficiencies in Hoback’s appellate brief. There will be a Transfer request . . . Case Note by Dave Allen

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¹ Your blogger knows of at least one Region judge who falsifies the record by attributing delays to the imaginary requests of defendants for a continuance.

Slack for the Pro Se Wife

The case on review is Murietta v. Romero, as decided December 19, 2023 by a divided (2/1) COA panel. Maria del Carmen Casimoro Murietta had a divorce lawyer who withdrew. She proceeded to final hearing pro se. She spoke of a prenuptial agreement but did not offer it into evidence during her case-in-chief. She did offer it into evidence “at the end of the hearing.” The trial court denied the effort to enter the Prenuptial Agreement into evidence. The trial court denied an equally incompetent motion to correct errors. The COA reversed for abuse of discretion.

Without saying so, the COA majority applied a less rigorous standard for review of Wife’s trial conduct. Look for Transfer . . . Case Note by Dave Allen

Today’s Disbarment

Today’s disbarment features a former Indianapolis immigration practitioner named Marco Antonio Genesis Moreno. The Opinion is per curiam, an apparent trend only recently noted by the CLB.

Proceedings below included an 11-count disciplinary complaint and a judgment on the complaint following Moreno’s failure to file a timely answer. Moreno seems to have had a pattern of collecting large retainers and then doing little or no work for the client. He ultimately abandoned his practice. Nothing in the Opinion suggests any innocent reason for that abandonment. Moreno represented himself. He received no showing of mercy. From the circumstances recited in the Opinion, he deserved no mercy. By unanimous vote the SCOTSI disbarred Moreno. The bar will be better for that disbarment though it is presently wounded by Moreno’s misconduct . . . Case Note by Dave Allen

Seller’s Contractors Beware

A mixed use building in Bloomington featured retail on the ground floor and apartments above. The purchase agreement between Seller and Buyer gave the Buyer meaningful inspection opportunities which were exercised without results. Soon after closing multiple defects were discovered. Buyer sued Seller (a defunct LLC), a general contractor, an architect, and masonry contractor that had done work for the Seller prior to the sale. Notably, the Buyer had no contractual privity with the contractors who had served the Seller. The Buyer sued for negligence. The name of the case is BMI Properties, LLC v. Building Associates, Inc. On December 14, 2023 the COA handed down its unanimous Opinion reversing the trial court’s award of summary judgment to the Seller’s contractors.¹

The trial court had (erroneously) granted SJ in part pursuant to the now-revoked “acceptance rule” that previously would have precluded recovery against contractors after Seller accepted the project. According to the COA Opinion, the “acceptance rule” was abolished by the SCOTSI in the case of U.S. Automatic Sprinkler Corp. v. Erie Insurance, 204 N.E.3d 215 (Ind. 2023), decided after the trial court ruling in the case on review.

The trial court also relied (erroneously) on the “economic loss” doctrine. It is the rule that a defendant is not liable in tort when a plaintiff alleges only economic loss as opposed to personal injury or property damage. Noting the absence of a contract to allocate risks, the COA holds that the economic loss doctrine will not be applied here.

Look for a Transfer Petition on the economic loss issue. . . Case Note by Dave Allen

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¹ The Seller never appeared in the case and was not a participant in the appeal.

Discipline Per Curiam

It isn’t that unusual for a family law practitioner to represent a client in divorce proceedings and also in a related protective order case and a criminal domestic battery prosecution. That was the case for Indianapolis lawyer Angela Sallee Field Trapp, the subject of a December 11, 2023 disciplinary decision from the SCOTSI. As one might guess, Angela represented the husband in a contentious proceeding for dissolution of marriage. Angela also represented husband in the related criminal proceeding. The Wife was represented by her own lawyer in the dissolution case.

Within that context there begins the criticism of Angela from page 2 of the Slip Opinion:

“Without notifying Wife’s Counsel [in the divorce case] Respondent Subpoenaed Wife in the Criminal case and took a taped statement . . .”

A deputy prosecutor (lawyer for “the People” in the criminal case) attended and objected to Angela’s questions about divorce topics. When confronted later by Wife’s dissolution lawyer, Angela falsely denied having asked Wife any question about the dissolution case. The dissolution case judge ordered Angela to send opposing counsel the tape of the recorded Statement of the Wife.

Angela’s opposing counsel moved for her disqualification from the divorce case due to Angela’s questioning of Wife without her counsel present. Angela withdrew.

The central disciplinary matter that followed charged a violation of PC Rule 4.2: Improperly communicating with a person the lawyer knows to be represented by another lawyer in the matter.

In the matter? Wife’s lawyer was for the divorce and not for the criminal prosecution, where she was represented by the deputy prosecutor who was present.

The CLB maintains that Angela had no duty to tell opposing counsel in the divorce case that she would be deposing Wife in the criminal prosecution. To have done so would have been the courteous procedure. But too often in dissolution proceedings courtesy is nowhere to be found. The SCOTSI’s imposition of discipline against Angela is excused by her curious concession that she violated Rule 4.2 and the matter of additional related charges, including lying to a tribunal.

Angela will be suspended from the practice of law for 30 days with automatic reinstatement. There may be a trend here for disciplinary Opinions being of the per curiam variety so to obscure the actual authorship . . . Case Note by Dave Allen

Civil Inspection of Cell Phone

The case on review is Jennings v. Smiley, as decided December 12, 2023 in the COA with the unanimous affirmance of a jury’s defense verdict. Pedestrian Charles Jennings crossed a busy city street at rush hour. He was not at an intersection or crosswalk. His entry into the street was visually blocked by a passing box truck. Motorist Jessica Smiley hit Jennings with her car, claiming she could not see him (prior to impact) due to the mentioned truck. The jury sided with Jessica. Jennings appealed alleging error in the trial court’s denial of his discovery request to examine Jessica’s cellphone. He wanted to determine whether a navigation app was running at the moment of impact. His theory was that Jessica was distracted by something.

Citing the trial court’s discretion to limit discovery per TR 26(B) the COA affirmed.

The COA Opinion noted that Jennings had no real evidence to support his navigation app theory and so to warrant an “intrusive” search of the cellphone. Noted: Verizon had already produced records of “talk activity.” . . . Case Note by Dave Allen

Fallin’ off the Barstool

The case on review is Brummett v. Bailey, as decided November 29, 2023 in the COA. Brian Bailey was in the company of friends Lauren and Nelson Segura at a Muncie tavern when he “grabbed Lauren between the thighs.” Nelson took offense and grabbed Brian Bailey by the shirt and pushed him to the floor. Brian’s response was to sue for his supposed personal injury. He had to sue Nelson but added bar ownership as well.

The bar management/ownership defendants filed motions for summary judgment that were denied. Much ink is spent here on the duty of a landowner to protect his invitee from “foreseeable criminal attacks” from others. On the designated facts: Held. There was insufficient notice of trouble to ownership (bartenders on duty) to create a duty of intervention to protect Bailey from the consequences of sexual battery. Denial of SJ to owners is reversed. I would love to be on the jury when Bailey’s case against Nelson goes to trial . . . Case Note by Dave Allen

Caveat Notary

The case on review is QRP Krisbi, LLC v. Buggs, as decided November 29, 2023 in the COA with the unanimous panel (3-0) reversal of the trial court’s grant of TR 60(B) relief post tax sale to Gary resident Elita Buggs. Elita was represented below by State Sen. Lonnie Randolph. The TR 60(B) relief came from Lake Circuit Court Magistrate Lisa Berdine, whose decision was pretty much torn apart by the NFP decision. QRP Krisbi made the good choice to be represented on appeal by attorney Michael Kvachkoff of Crown Point. Below it had been represented by Richard Dawson of Munster, a member of the LLC and a newly minted lawyer.

To his credit, attorney Randolph knew of IC 33-42-13-3(a)(10)¹ which forbids a notary to perform a notarial act which “directly” benefits the notary. Oddly, Sec. 14 of the same chapter allows a notary to collect a modest fee for each notarial act.

Somehow it was discovered below that a woman named “Lia” held positions of a sort in the businesses of both the initial tax sale purchaser and in its assignee, QRP Krisbi. She also happened to be the notary for the assignment of the tax sale certificate. In addition to her job with tax sale purchaser Orgen Labowski, LLC, Lia managed some properties owned by assignee QRP Krisbi. Notarizing the assignment could result in future indirect benefit to Lia. Notably, the statutory ban on some “direct benefit” notarial acts does not expressly invalidate notarizations deemed later to be in violation.

QRP Krisbi requested and received a tax deed. Former owner Buggs filed a TR 60(B) motion asserting fraud on the court arising from Lia’s potential misconduct in notarizing the assignment, which notarization was part of an attachment to the filed request for a tax deed.

The trial court found fraud on the court from QRP Krisbi’s failure to disclose Lia’s potential violation of the “direct benefit” prohibition. The COA agreed with the appellant that there was no evidence of fraudulent concealment.

Noted: The filing of the challenged notarization was not required by law. Given the absence of an appellee’s brief, QRP Krisbi had only to show prima facie error and met that burden.

To the CLB it appears that Sen. Randolph was given the special treatment sometimes heaped upon an influential advocate or party in the trial court. To Magistrate Berdine the message is that you bring discredit on yourself and on your court by such erroneous and unequal application of the law . . . Case Note by Dave Allen

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¹ Sen. Randolph knows a little about notarization. He was a co-sponsor a couple of years back of the legislation that required documents tendered for recording to have a notarization of the grantor’s signature plus that of a witness whose signature needed separate notarization. Randolph disrupted deed preparation statewide for most of a year. While I don’t blame Randolph for drafting the legislation I blame him for sponsoring something he did not read, which happened to be the stupidest legislative action in memory. Resignation from office is the only nearly honorable path in the wake of such incompetence.

When a “Final and Appealable” Judgment Isn’t

The case on review is Anonymous Provider 2 v. Estate of Askew, as decided November 28, 2023 in the COA with an involuntary dismissal of the appeal.

The Anonymous Provider 2 here is obviously an employee of Munster’s Community Hospital where security guard Ryan Askew was gunned down by a mentally ill patient. Askew died. His estate sued for malpractice in the treatment of that deranged patient.¹ “AP2″ moved to dismiss because the Estate had already received relief under the Worker’s Compensation Act.² Lake Superior Court Judge Sedia denied the dismissal but declared that the denial was “final and appealable.” The Estate disagreed with that declaration and moved to dismiss the appeal. Held: appeal dismissed. A Petition to Transfer is very likely . . . Case Note by Dave Allen

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¹ Here is still another case for medical malpractice involving no treatment of the plaintiff.

² It is alleged that AP2 was a fellow employee of Askew.

Uncompensable Damage of Eminent Domain

The case on review is State v. Franciscan Alliance, as decided November 28, 2023 in the COA with a reversal in favor of the State. Context for the dispute begins with the conversion south of Indianapolis of a portion of State Road 37 into the new stretch of Interstate 69 to southwest Indiana.

As part of the construction project the State “seized” less than an acre of Franciscan Alliance land in Greenwood, leaving a larger portion of undeveloped Franciscan land. The limited access feature of interstate highways cut off what had been easy access to the Franciscan land and a CVS store from SR 37.

Held: “Just compensation” payable for the public taking of private property is the same under Article 1 Sec. 21 of the Indiana Constitution and Fifth Amendment due process. Held: a party may not obtain eminent domain damages for ingress and egress made “more circuitous and difficult.” Reversed for recalculation of damages . . . Case Note by Dave Allen

Joint Means Equal

The case on review is Russell v. Russell, as decided November 22, 2023 in the COA with a reversal of the trial court’s allocation of parenting time following a partial mediated settlement agreement calling for “joint” physical custody. Mother appealed her grant of less than equal parenting time. Reversed. Remanded.

The reversal is based on the implicit holding that the trial court was bound by the partial mediated settlement, even after hearing evidence on the unsettled issues . . . Case Note by Dave Allen

A Specific Unanimity Instruction

Imagine a defendant charged with battery for the use of a knife and a hammer against his victim. The defendant disputes having used a knife or hammer. For the “deadly weapon” enhancement to battery¹, does the jury have to agree unanimously that a knife was used? What if some believe a knife was used, some others believe a hammer was used, and some believe both were used? How to instruct the jury is a topic of the case on review, Baker v. State, as decided in the COA on November 22, 2023 with the affirmance of convictions for domestic battery and strangulation.

The trial court had instructed the jury to “not sign any Verdict Form for which there is not unanimous agreement.” Baker did not object or offer an alternate instruction but claimed on appeal that the lack of a “more specific” unanimity instruction amounted to fundamental error. Held: no showing of fundamental error . . . Case Note by Dave Allen

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¹ See IC 35-42-2-1(g)(2).

Forget About the Law

It was in early October of 2022 that the CLB looked at the COA version of Mellowitz v. Ball State and declared the “good chance” that there would be a grant of Transfer. As so often is the case, the CLB prediction of Transfer came to pass with the November 21, 2023 SCOTSI decision in favor of Ball State and adverse to the effort to sue by way of class action for Ball State’s COVID-related suspension of in-person classes (in the spring of 2020) without an adjustment of tuition. Citing legislation enacted only after the filing of suit, the trial court held that such class actions were banned. The COA scoffed at the General Assembly’s gall in legislating judicial procedure and reversed. Now the SCOTSI has affirmed the trial court. Mellowitz could sue, but only as an individual.

Trial Rule 23 governs when a class action may be brought. In contradiction of TR 23, the General Assembly enacted IC 34-12-5-7 banning class actions against “covered entities” for COVID-related losses. Declaring trial court procedure is supposed to be the domain of the judiciary in accord with our constitutional separation of powers. According to the SCOTSI’s unanimous Opinion, legislative usurpation of the right to promulgate procedural rules is okay when done to “further public policy objectives.” To the CLB this holding means that a procedural statute¹ found to be reasonable by the SCOTSI will be declared constitutional. A supposed limit to the General Assembly’s power over judicial procedure is that it may not “micromanage” judicial procedure . . . Case Note by Dave Allen

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¹ Arguably, there should never be a judicial procedure statute.

Too Late for Self-Representation

According to the Opinion in Matter of B.M., father N.M. was a bad parent. In this case on review the children were adjudicated to be CHINS. Father’s unsuccessful appeal asserted error in the trial court’s denial of father’s lawyer’s motion to withdraw (at father’s request) and the consequent deprivation of father’s right to represent himself.

On the day of the CHINS factfinding hearing the appointed lawyer for father moved to withdraw. The court declined to allow withdrawal. Noted: father was incarcerated at the time. Held: the day of trial is too late to demand self-representation . . . Case Note by Dave Allen

Too Old to Adopt

The case on review is J.D. v. R.W., as decided November 17, 2023 in the COA with a split panel (2/1) affirmance of the denial of the adoption petition of the 70-something great grandparents of a child aged 7 years.

The subject child is the son of a career criminal/junkie dad and a dead mother. Great grandparents cared for him for most of his life. Trial court found that adoption is “not in child’s best interests.” No appearance here by Appellee dad who objected to the adoption below.

In lone dissent COA Judge Crone disputes the trial court’s conclusion of law that it is “inherently in a child’s best interest” to be raised by a biological parent. Judge Crone recited abundant evidence of good parenting by the petitioners and railed at the notion they were too old to adopt. The CLB supports Transfer but doubts it will happen . . . Case Note by Dave Allen

The Middle School Protective Order

The case on review is L.R. v. M.H., a rare reversal of a protective order from the COA on November 16, 2023. Two 7th graders (one being fond of “trans” pronouns) had their puppy love fling followed by a breakup. They attended the same middle school. After L.R. made 4 unwanted post-breakup contacts over a period of 4 months, M.H. sought a protective order alleging stalking.

The grant of a protective order is reversed for the insufficiency of evidence of stalking. The COA applies CPOA law to children of 13 years. There is no juvenile court jurisdiction over such cases. The COA solicits legislative action on the “disparity” between CPOA law and the juvenile justice system. The view of the CLB is that the case below should never have been filed. Once filed, the case should have been dispensed with by the trial court in a faction unlikely to lead to appeal . . . Case Note by Dave Allen

Probation Negligence and Death

The case on review is Marion County Superior Court Probation Dept. v. Trapazzano, as decided November 14, 2023 in the COA. A violent, lawless juvenile was on probation when he burglarized a gun shop and then killed Nathan Trapazzano during an apparent robbery at a time when a petition to revoke probation was pending. Nathan’s estate sued. Held: Probation Dept. has “quasi-judicial immunity” and is entitled to Summary Judgment. No surprise . . . Case Note by Dave Allen

Yes, Legal Marijuana

Who knew that some marijuana was legal in Indiana? The answer is that readers of the CLB knew. One description of legal marijuana is “hemp.” It is just like illegal marijuana except for hemp’s THC concentration of “not more than three-tenths of one percent (0.3%) on a dry weight basis.”

The circumstance of Indiana’s legal hemp was introduced to the CLB audience in a case note from April of 2022. The case name was Fedij v. State, 186 N.E.3d 696 (Ind. Ct. App. 2022). Today’s case on review is Fritz v. State, as decided November 13, 2023 in the COA.

Herman Fritz was found lying unconscious in a parking lot. Searches of his person produced methamphetamine, meth pipes, and suspected marijuana. Two rolled joints bore the smell of marijuana and tested positive for THC in a qualitative field test. Held: Absent quantitative testing of THC concentration, the evidence that Fritz possessed illegal marijuana was insufficient. Reversed as to the marijuana conviction.

Not appreciated here is the circumstance that there was the apparent admission at trial of the positive result of a qualitative field rest for THC. Doctrine of the CLB is that a field test conducted by a police officer should never be admitted a trial . . . Case Note by Dave Allen

When the Fellow Employee is Your Doctor

The case on review is Gardner v. Anonymous Physician, as decided November 9, 2023 in the COA with another reversal of Lake Superior Court Judge Calvin Hawkins. Laurie Gardener was a hospital nurse who contracted scabies on the job. She filed (and later settled) a work comp claim for her scabies infection.

Laurie had been treated by Anonymous Physician who was also a hospital employee where Laurie worked. Finding fault with the failure to diagnose and treatment she filed a proposed malpractice complaint with the Department of Insurance. Anonymous Physician sought a “preliminary determination of law” in the trial court requesting dismissal based on work comp exclusivity.

Judge Hawkins granted a TR 12(B)(1) dismissal for want of subject matter jurisdiction. REVERSED and held that work comp exclusivity does not prohibit a medical malpractice case against a fellow employee doctor . . . Case Note by Dave Allen

A Jury for Civil Forfeiture

Uncle Ned asked one day “Why is there air?” I replied “Ask Bill Cosby.” Then Ned asked “Why do we have an Indiana Supreme Court?” I replied “That’s an easy one . . . We have an Indiana Supreme Court because somebody hasta slap around the Court of Appeals when it gets stupid.”

It was last year in a Case Note titled “Violating the Inviolate” that I reviewed the case of State v. Kizer wherein the COA panel reversed the trial court’s grant of the jury demand of Alucious Kizer in a civil forfeiture case against him and the $2,435.00 found on him or in his car during a drug arrest. It is the same case on review, as decided on Transfer to the SCOTSI. The decision date is October 31, 2023. The right to jury trial can be found readily at Trial Rule 38. Beyond that there is Article 1 Section 20 of the Indiana Constitution declaring an “inviolate” right to jury trial in civil cases. SCOTSI precedent holds that the Section 20 right applies as it did in 1851 when the current Indiana Constitution was adopted. For “equitable” cases there was no right to a jury. The COA likened civil forfeiture to an equitable proceeding and held that Kizer was not entitled to a jury. One point is that modern civil forfeiture did not exist in 1851 or 1852. To the CLB the better observation is that there was no bar in 1851 or 1852 to a jury in a civil forfeiture case.

The SCOTSI Opinion holds that for a cause of action not existing in 1851 we must determine whether it is analogous to one “at law” or “in equity” as those terms were then understood. It is notable that Kizer had (on Transfer) the benefit of representation from the “Institute of Justice” in Arlington, Virginia . . . Case Note by Dave Allen

Support and Social Security

The subject area is the correlation between a duty to pay child support and a disabled child’s Social Security Disability income. The name of the case on review is Wilson v. Wilson, as decided October 31, 2023 in the COA. See the Child Support Rules Commentary to Guideline 3F for discussion of how to treat Social Security income.

In the case below the trial court determined noncustodial father’s support obligation without consideration of child’s SSD income of more than $800.00 per month. Criticism: the earned income of an incapacitated adult child may be considered for support purposes per Commentary to Guideline 3F. Held: trial court refusal to consider SSD income is affirmed . . . Case Note by Dave Allen

Lake County Buyer’s Remorse

The case on review is Zitka v. Brogdon, as decided October 31, 2023 in the COA. Zach and Lauren Zitka bought a house from the Brogdons. They claimed to not notice until after closing that there was a sloped floor in an add-on room struck by foundational sinking. An engineer testified that the corner sinking was obvious to visual inspection. While the Brogdons denied “structural” problems in their disclosure form, the Zitkas had a duty to use reasonable care to guard against fraud, at least according to the fraud instruction given by Judge Parent.

Held: the instruction is approved. Held: Other cases create the rebuttable presumption of the buyer’s reasonable reliance on the sales disclosure form. The Zitkas lose the case, and Zach is stuck with an obligation to pay attorney fees (to the Brogdons) of more than $80,000.00. Zach was liable under an attorney fee clause in the Purchase Agreement . . . Case Note by Dave Allen

Negligent Highway Design

The case on review is State v. Lucas, as decided October 31, 2023 in the COA with the interlocutory affirmance of the trial court’s denial of SJ to the State which asserted the defense of “discretionary function immunity” in its 2012 redesign of a portion of I-69. The redesign was too new for 20-year design immunity of IC 34-13-3-3(18). Held: as for highway design IC 34-13-3-3(18) prevails over discretionary function immunity. The design flaw in issue here was the narrowing of the left shoulder to a mere 5 feet, such that vehicles forced to park on the shoulder would probably block a portion of the innermost lane. Jennifer Lucas parked there and was struck by a motorist in that innermost lane. Watch for Transfer . . . Case Note by Dave Allen

The Matriarch’s Deed

The case on review is McIntosh v. McIntosh, a family fight, as decided October 30, 2023 in the COA. The context is sad and familiar. Matriarch Roberta McIntosh was in her 90’s and demented on occasion. Her eldest son and his wife moved into the old family home to care for Roberta. There were other adult children of Roberta. The eldest son wanted the house. He took Roberta to his lawyer to sign a deed.

See the “Senior Consumer Protection Act” at IC 24-4.6-6. The statute facially protects seniors from “financial exploitation.” Held: the burden shift from common law undue influence cases is inapplicable to SCPA cases. Although the trial court wrongly declared a burden shift by “clear and convincing evidence,” the evidence supports his ruling against the son and his wife. The deed to them in invalid . . . Case Note by Dave Allen

Police Uniform Statute

What about the hat? Can a hatless traffic cop don his hat after exiting the vehicle? See the Police Uniform Statute at IC 9-30-2-2. The case at bar is Cassity v. State, as decided October 30, 2023 in the COA with a reversal of the drug & paraphernalia convictions of James Cassity. A traffic stop was made by a cop wearing a mix of informal and police wardrobe. He searched the driver and found meth and paraphernalia. The trial court denied the motion to suppress. Held: the evidence should not have been admitted. Held: a vest with “police” written on it did not trasform casual clothing into a “distinctive” uniform required for a traffic stop when the police vehicle is unmarked . . . Case Note by Dave Allen

K9 Bite Immunity

Coincidence put Jerry Bewley in the path of a police chase of stolen car occupants. Seeing the chase unfold, Jerry crouched down next to a car, as if a feeble effort to hide. The police K9 found Jerry and bit him in the leg. While Jerry’s own negligence contributed to the bite, it was bite immunity that won the case for the Town of Speedway in the case of Bewley v. Town of Speedway, as decided October 30, 2023 in the COA.

The statute relied upon by the Town is IC 34-13-3-3(a)(8). The statute grants immunity for law enforcement. Bewley argued to no avail that the officer’s duty to restrain the dog and the breach of that duty trumped statutory immunity. See IC 15-20-1-4 for dog bite statute and IC 15-20-1-6 for the law enforcement exemption . . . Case Note by Dave Allen

Conflicting Rules of Condemnation Damages

The case on review is City of Carmel v. Barham Investments, as decided October 30, 2023 in the COA. Recognized but not resolved in the COA Opinion is the contradiction between condemnation law’s “ingress-egress rule” and its “traffic-flow rule.” Application of the former rule may benefit the property owner while the latter rule does not.

The City of Carmel used road re-design to cut off the main (not sole) access of a car dealership. Award of big condemnation damages to dealership is reversed on appeal . . . Case Note by Dave Allen

Double Jeopardy/Separate Sovereigns

The (Lake County) case on review is Kalozi v. State, as decided in the COA on October 27, 2023. The issue is whether Indiana’s statutory double jeopardy bars criminal charges against Louis Kalozi after he plead guilty in federal court to “similar” charges. The answer is no.

Child molester Louis Kalozi pled guilty to two federal counts and served federal time. Then he was sent to Indiana to face pending state charges. His motion to dismiss on double jeopardy grounds was denied. Affirmed on interlocutory appeal. Held: Constitutional (State and federal) double jeopardy does not apply to separate sovereigns. A higher level of protection may be afforded by Indiana’s double jeopardy statute at IC 35-41-4-5. The statute clearly applies where there is a conviction or acquittal in another jurisdiction for the same conduct. With a narrow view of “same conduct” the COA holds against Kalozi . . . Case Note by Dave Allen

Still Another CLB Prediction

The case on review does not offer a prediction of Transfer. The case on review is the Transfer decision predicted at the end of 2022 when the COA handed down simultaneously two seemingly contradictory decisions in what the CLB called “The College Credit Union Cases.” Today’s case on review is Land v. IU Credit Union, as decided October 24, 2023 by a slightly divided (4/1) SCOTSI with a reversal of the trial court’s ruling that account holder Tonia Land was bound by terms of an Account Agreement Addendum that was mailed and emailed to her but to which she did not respond. The Credit Union’s theory was that “silence is acceptance.”

Held: the Credit Union gave reasonable notice of its “offer” to amend the Account Agreement. But her silence and inaction did not amount to an acceptance. An odd circumstance here is that there is no Transfer decision in the companion case of Neal v. Purdue Federal Credit Union as decided in the COA with Land . . . Case Note by Dave Allen

Process Server Testimony

When there is service by “a person not otherwise authorized by these rules” TR 4.12(A) requires that “proof of such service” be established by witness testimony or by deposition. The case on review is Termination of C.C. and De.C., a termination case decided October 24, 2023 in the COA with the rare reversal of a termination of parental rights.

Mother gave birth to two “drug-exposed” children and lacked safe housing. The case went through CHINS proceedings and then termination. The Marion County Welfare Dept. was inept in getting good service on Mother of each scheduled hearing. Finally, she was (apparently) served while a hospital patient and refused to sign to confirm service by the welfare dept. employee special process server, who did not testify or give a deposition. The default of Mother is reversed for the lack of proof of good service. A secondary issue is whether Mother knowingly and voluntarily waived her right to counsel . . . Case Note by Dave Allen

The Firefighter’s Rule

The case at bar is Dolsen v. VeoRide, Inc, as decided October 23, 2023 in the COA with the reversal of a summary judgment below against an injured fireman. Notably, the COA Opinion concedes the prior designation of the topic as the “fireman’s rule.”

Fireman Richard Dolsen, Jr. was dispatched to a building fire in Fort Wayne. A battery intended for use in an electric bicycle ignited and started the fire. On scene Dolsen fell down a stairwell that he could not see due to smoke and the lack of light.

The fireman’s rule dates back to 1893 and “allows no claim by a professional emergency responder for the negligence that creates the emergency . . .” In the case at bar the prime negligence was the mishandling of scooter batteries. The rule allows suit for injury from negligence independent of that prime negligence. In the case at bar there was the assertion of negligence from a gap in the wall which abetted the stairwell fall. Reversed . . . Case Note by Dave Allen

Text Message as Evidence

The case on review is Jackson v. State, as decided October 23, 2023 in the COA with the affirmance of the murder conviction of Tyreontay T. Jackson. The interesting part of the case was the assertion of error in the admission (over a hearsay objection) of text messages containing a supposed threat to Jackson’s daughter. The rivalry of two gangs was behind the fatal shooting of one member and the attempted shooting of another. Text messages, Instagram, Facebook, cell phone video, and purported “rap” music¹ lyrics abound in the Opinion.

The essential holding against Jackson is that a threat is not necessarily hearsay when it does not amount to the assertion of a fact susceptible of being true or false . . . Case Note by Dave Allen

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¹ The CLB agrees with Uncle Ned that the phenomenon known as “rap” is not a variety of music. “Rap” is simply noise, annoying noise.

Don’t Tell the Lawyer!

The case on review is Brook v. State, as decided October 20, 2023 in the COA by a sharply divided panel that ultimately affirmed Kimberly Brook’s convictions and sentence even though there were two of the three panel judges “dissenting in part.”

Kimberly Brook was the subject of a traffic stop when she was driving while suspended and in possession of the drug Lorazepam without benefit of a prescription. She resisted arrest. She was disorderly. She later submitted (through her lawyer) a forged prescription for lorazepam, leading to the additional charge of obstruction of justice. She was sentenced to a reasonable term. The lawyer confirmed the forgery through Brook’s admission and then withdrew. Remarkably, he testified against his former client over her objection of attorney-client privilege. Brook’s personal physician also testified against her.

The first holding of the “majority” Opinion is that the trial court did not err in denying Brook’s interesting request to bifurcate trial on the (enhanced) dws charge. She did not want the jury swayed (on other charges) by evidence of her history of civil suspension. Held: no abuse of discretion to deny bifurcation where the history was for civil infractions. The history of civil infraction elevated the offense charged against Brook. The panel vote on this point was 2/1.

The next issue pertains to the trial court’s treatment of Lorazepam as a “legend drug” as a matter of law not requiring evidentiary proof. See the Legend Drug Act at IC 16-42-19. See IC 16-18-2-199 for a description of “legend drug” that doesn’t tell you what is a legend drug. There are also some specifically designated legend drugs. Held (2/1): Lorazepam is a legend drug.

The third issue may be the most important to the CLB: whether the prior attorney was required to testify to what Brook did and said about the forged prescription. The lawyer’s testimony was not just allowed. It was judicially compelled. On such matters as a lawyer’s duty to protect the confidentiality of client secrets, the General Assembly and SCOTSI have no moral authority over me. A trial court judge may jail me for contempt but cannot force me to disclose what my client told me in confidence. See RPC 1.6(b)(2) for the SCOTSI’s exception to attorney-client privilege to “prevent the client from committing a crime.” Here the SCOTSI had no moral authority over the lawyer, and the crime had already been committed when the lawyer was “compelled” to testify. The COA panel vote on this issue was 3-0.

Transfer here would allow the SCOTSI to decide for itself whether its exception to attorney-client privilege was properly applied . . . Case Note by Dave Allen

A Warrantless Accident Investigation Search

The case on review is Thomas v. State, as decided October 16, 2023 by way of unanimous NFP decision of the COA. Alonzo Fention Thomas, III was a “serious violent felon” driving his girlfriend’s Dodge Charger when he had a collision. There was fire department presence and an engine compartment fire. A fireman checking the passenger compartment for any spread of the fire spotted a handgun on the floor below the front passenger seat. He told a cop about the gun. The cop opened the passenger side door and saw the gun “in plain view.”

Alonzo claimed the gun belonged to his girlfriend but his DNA was on a swab of the magazine. Alonzo was convicted of svf possession of the handgun and appealed alleging unreasonableness of the warrantless search. Affirmed . . . Case Note by Dave Allen

Intent to Deliver Residue

The case on review is Pigott v. State, as decided October 11, 2023 in the COA with a split panel (2/1) reversal on the “intent to deliver” aspect of Richard Lynell Pigott’s conviction of possession with intent to deliver meth.

One question often asked is what (large) quantity of a drug constitutes proof of intent to deliver (as opposed to possession for personal use). In the case below Richard Pigott was found to be in possession of a backpack which contained a digital scale bearing meth residue of too small a weight to be sold. While the digital scale may suggest intent to deliver, the quantity of the residue did not. On appeal Pigott argued that the evidence was insufficient for the “intent to deliver” element of his conviction. The CLB view is that Pigott had intent to sell meth (and probably had) but not the residue from his scale. Having no evidence of other quantities of meth or of meth sales, the State argued intent to sell residue. Reversed. In lone dissent COA Judge Foley asserted sufficiency of the evidence to prove intent to deliver residue of a quantity too small to measure (as to weight) and to small to sell. It seems to the CLB that Judge Foley has a penchant for dissenting from criminal case reversals . . . Case Note by Dave Allen

Crimes of “a Single Episode”

The case on review is Jones v. State, as decided October 10, 2023 in the COA with a reversal of Wiley Jones’ sentence of 24 years for possession of child porn. Wiley had a large stash of child porn. He was charged with a mere 6 counts of possession on a single date. As level 5 felonies the child porn counts were punishable by sentences of one to 6 years. Consecutive sentencing amounted to a total of 24 years. See IC 35-50-1-2 for a 7-year “ceiling” for consecutive sentencing of level 5 felonies of “a single episode.”

Due to case law liberally construing the definition of “single episode,” the COA Opinion holds Wiley’s sentence to be excessive. Reversed. Watch for Transfer . . . Case Note by Dave Allen

Confrontation and Taped Testimony

The case on review is Cook v. State, as decided October 10, 2023 in the COA with an affirmance of the drug dealing convictions of Anthony Cook. Anthony sold meth to a confidential informant snitch who wore a wire. The recorded testimony from the drug deals was played at Anthony’s trial. The confidential informant did not appear for cross-exam.

The inconvenient point of law is that absence of a right to confront a confidential informant whose statements are not testimonial. At trial the informant’s statements were not testimonial and not hearsay. The statements were offered to show guilt but not to establish truth of the matter stated. Farewell, Anthony . . . Case Note by Dave Allen

Hooray for Schizophrenia!

The CLB seldom writes about mental commitment cases. When it does write about such a case, it is far more likely than not to have been a “for publication” Opinion. The case on review is Commitment of M.B., as decided October 6, 2023 by a split (2/1) COA panel. The case is an exception to my general rule. The man M.B. was a Marine a decade ago until he was discharged for schizophrenia. His involuntary commitment required clear and convincing evidence that he was “gravely disabled.”

M.B. admitted mental illness (though not schizophrenia) while disputing the seriousness of it and while expressing his dislike of the anti-psychotic meds forced upon him.

Evidence included M.B.’s claims that he was a cooperative outpatient of a V.A. clinic, that he could take care of his daily needs, and that he would take his meds in the absence of a commitment. COA Judge Foley dissented to the majority’s reversal of the commitment. Look for Transfer . . . Case Note by Dave Allen

Lake Juvenile Court Reversal

The case on review is T.D. v. State, as decided October 6, 2023 in the SCOTSI. At the age of 15 years T.D. stole a vehicle and money. In a Juvenile Court delinquency case he admitted the vehicle theft. Placement was then with the DOC (Boys’ School, I would guess). Well over a year later he filed (by counsel?) A motion for relief under TR 60(B)(6) and 60 (B)(8).

A split COA¹ had reversed the trial court’s denial of relief. The motion alleged the absence of an advisement of rights in the record of the plea proceedings. The State asserted that an advisement of rights was the annoying video that they force people to watch before appearing in court.

To the CLB there was nonsensical discussion in the SCOTSI opinion about whether the absence of advisement on the record violated TR 60(B)(6) (for a “void” judgment) or 60(B)(8) (for “any reason”). The point is that the Juvenile Court violated the juvenile waiver statute to the effect that there was no valid waiver. See IC 31-32-5-1. Noted: the statute requires more than the constitutionally required advisement. For what it’s worth, the SCOTSI holds that relief is available under TR 60(B)(8) but not under 60(B)(6).

How the Lake Juvenile Court now handles its advisements to juvenile is not yet known to the CLB . . . Case Note by Dave Allen

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¹ For the (vacated) COA case see the CLB Case Note from October 31, 2022.

Forcible Resistance

Denney v. State is the case on review. The COA decision of October 5, 2023 was the reversal of Denney’s conviction of forcible resistance and the affirmance of his convictions for felony intimidation, and misdemeanor public intoxication and disorderly conduct. Here the evidence that the drunk, pugnacious Denney “pulled away” from the near-grasp¹ of an IGC agent² attempting an arrest was insufficient to sustain the conviction. See listing of actions (like walking away) that do not constitute forcible resistance . . . Case Note by Dave Allen

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¹ It seems to the CLB that there is a major difference between pulling away from the officer’s reach before there is contact as opposed to pulling away after contact is made.

² The scene was an Ohio River Casino, explaining the presence of Gaming cops.

The Malpractice of an Abuse Report

The unusual case on review is McNeil v. Anonymous Hospital, as decided October 5, 2023 in the COA. An interesting circumstance is the familiar name of the Judge Pro Tempore of the St. Joseph Superior Court. The name is Mary Beth Bonaventura. She was reversed. Plaintiff McNeil filed a proposed complaint with the Department of Insurance to prosecute a medical malpractice claim. McNeil asserted that incorrect test results from the hospital lab caused an erroneous report of child abuse with resulting emotional distress to her and to her children. The CLB notes the view that malpractice damages are normally available only for death or bodily injury.

Judge Bonaventura presided over the hospital’s request for initial determination of law and erroneously awarded summary judgment to the hospital based upon the statutory grant of immunity to child abuse reporters as founded at IC 31-33-6-1(a). The problem is that IC 31-33-6-1(b) provides that section (a) does not apply to a qualified health care provider defending an action for medical malpractice . Held: Section (b) is unambiguous and means what it says. The simple reading of a statute and the simple comprehension of that unambiguous statute by the trial court would have prevented the erroneous award of summary judgment to the hospital. Reversed . . . Case Note by David Allen

That Waiver of Appeal

The case on review is Davis v. State, as decided in the SCOTSI on October 3, 2023. The SCOTSI split 3/2 on the effectiveness of a written waiver of appeal (of the sentence) in a plea agreement. The problem was that the trial court judge carelessly gave stock advisements about the right to appeal during the change of plea. Davis claimed to have been misled. Noted: there was some deference in the plea agreement to judicial discretion in the sentencing.

Davis appealed his sentence anyway and attempted to nullify his waiver. The SCOTSI majority of three held for the dismissal of the appeal in favor of the PCR procedure. The minority of two (Goff and Rush) favored availability of the direct appeal where the waiver was challenged as involuntary . . . Case Note by Dave Allen

Addendum: The initial (identical) SCOTSI decision in this case was reviewed in a Case Note from early May.

A New Form of Prohibited Contact

The case on review is Hernandez v. State as decided September 29, 2023 in the COA with an affirmance of the trial court’s refusal to dismiss a charging information for invasion of privacy. According to IC 35-34-1-4(a)(5),¹ a charging information will be dismissed (upon motion) when the “facts stated” do not constitute an offense. Below there was a pre-trial release “no contact” order that Hernandez was said to have violated by “viewing public content” that the Protected Person posted on social media (Instagram). Platform protocols informed the poster who was viewing. Hernandez denied that the facts alleged amounted to “contact.” The CLB agrees with Hernandez, contrary to the holding of the unanimous COA panel. Hope for Transfer . . . Case Note by Dave Allen

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¹ To the CLB this type of motion to dismiss is underused by the criminal defense bar and underappreciated by the trial court judiciary.

Strict Liability and Explosives

The case on review is Cave Quarries v. Warex, as decided September 29, 2023 in the COA with an affirmance of the trial court’s rejection of a strict liability standard against defendant Warex, which caused unintended damage through the use of explosives on Cave Quarries property. See here the “abnormally dangerous” activity standard for strict liability and case law applying strict liability to explosive blasting. Application of strict liability avoids the need to prove negligence.

Here the strict liability application was found improper where the blasting took place on Cave Quarries property at the request of Cave Quarries. Cave Quarries knew the risk of the explosive blast and participated in the planning. The COA affirms the trial court refusal to impose strict liability and remands for negligence/comparative fault proceedings . . . Case Note by Dave Allen

Adoption Venue

Without doing the research, it is intuitive to the CLB that a step-parent adoption should be filed in the county where the child, custodial parent, and step-parent live. The case on review is Adoption of E.S.J., an interlocutory appeal of a trial court venue ruling. The county of residence was Johnson. The county of filing was Marion. The trial court sustained the biological father’s objection to Marion County venue. The dispute arose from the filing a couple of years earlier of an adoption case in Johnson County, resulting in a ruling that biological father’s consent was required. In the case on appeal the petition alleged the biological father’s consent was not required due to abandonment and nonsupport.

Remarkably, the COA Opinion (by Judge Crone) shows us IC 31-19-2-2 allowing adoption venue where “the attorney maintains an office.” That’s a new one to the CLB. Given the Marion County office of the petitioner’s lawyer, the order of transfer to Johnson County is reversed . . . Case Note by Dave Allen

The Nontestimonial 911 Call

The case on review is Cruz v. State, as decided September 28, 2023 in the COA with the affirmance of the conviction of felony possession of a firearm by a serious violent felon (SVF). An Indianapolis resident called 911 to report a man in front of her house (later identified as Elijah Colon Cruz) brandishing a firearm and threatening to shoot at her house. Elijah drove away but was stopped by police. One odd pill was found in the vehicle plus a handgun.

The 911 caller missed court dates. Her testimony was excluded. The State moved to admit the “nontestimonial” 911 call. The trial court allowed the call into evidence over defense objection. Cruz had no opportunity at trial court to confront the 911 caller. Cited: SCOTUS authority on when a 911 call is testimonial.

The implicit lesson of the Cruz case is that the defense may someday classify prosecution evidence as “nontestimonial” to challenge the sufficiency of evidence to convict.

The COA affirmed the sufficiency of evidence of guilt and the trial court’s admission of the 911 call. To the CLB there was error in admission of the 911 call mitigated by the fact that Cruz was not on trial for having threatened the 911 caller . . . Case Note by Dave Allen

Sum it Up, Please

The case on review is Tricor Automotive v. Dealer VSC, as decided September 28, 2023 in the COA by way of a Senior Judge Shepard unanimous Opinion. The CLB sees no reason for the decision’s “for publication” status. The most remarkable aspect of the Opinion is its unnecessary length of 31 pages. We lawyers are bound by appellate rules to limit the pages of a Brief. The COA (and its Senior Judges) should restrain themselves. In the Tricor Opinion the actual decision doesn’t begin until the 19th page of 31.¹

Where the contextual circumstances behind a trial court’s summary judgment ruling are complex, the author of a COA Opinion has an obligation to sum it up and skip the meaningless details. Get to the point, please. By comparison, a Dickens novel looks concise.

Here the short story is that there was an issue of disputed relevant fact such that the trial court award of summary judgment to the defendants is reversed.

An absolute oddity of the Opinion is the closing commentary that the award of summary judgment below was “premature.” Does that mean a subsequent SJ award will be affirmed? The CLB notes the absence of any rule limiting summary judgment to the latter stages of litigation . . . Case Note by Dave Allen

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¹ In fairness to Senior Judge Shepard, the Appellants’ Brief and Appellees’ Brief together covered nearly 130 pages.

Exhibit Review During Deliberations

The case on review is Torrence v. State, as decided September 27, 2023 in the COA. Harry Torrence unsuccessfully appealed his robbery conviction. He asserted fundamental error from the allowance of a jury view (during deliberations) in open court of several specifically requested exhibits. As one would expect, a claim of fundamental error was required from the lack of a defense objection below when the trial court responded to a jury request by bringing the jurors into the courtroom and allowing them to examine the requested exhibits in that supervised setting. Noted: there is no statute governing the subject of mid-deliberation exhibit review. Case law on the subject extends judicial discretion. Case law on exhibits in the jury room is reviewed but inapplicable here. There being no error, there was no fundamental error . . . Case Note by Dave Allen

Expungement and the Juvenile Sex “Crime”

The case on review is B.T. v. State, an expungement case appeal decided September 27, 2023 in the COA. According to the Opinion, B.T., from age 10 to 14, sexually molested two younger sisters. B.T. later graduated from college and secured work as a high school teacher. He was fired when a background check revealed the history of sexual molestation.

B.T. sought to expunge his record residing in juvenile adjudications and DCS “substantiation” records. There were objections from the prosecutor and from DCS. The trial court expunged the juvenile adjudication but not the DCS “substantiation.” B.T. appealed. The COA affirmed.

See IC 31-33-27-5 governing the expungement of DCS substantiation records. The court below had the authority to expunge DCS substantiation records but no obligation to do so.

On his long road to hell, B.T. will not be teaching at a public school. Good riddance . . . Case Note by Dave Allen

Assets and Medicaid Eligibility

The case on review is Harves v. Rusyniak, as decided September 26, 2023 in the COA with a reversal of the FSSA assets-based denial of Medicaid nursing-home benefits to the very elderly Natalie Harves. Within the 5-year Medicaid “look-back” period, Natalie made an irrevocable trust. The apparent intent was to preserve her estate for her adult children. The FSSA found that trust assets were “available” to Natalie, rendering her ineligible for Medicaid.

The COA panel holds that assets of the irrevocable trust were not disqualifying assets. Look for Transfer . . . Case Note by Dave Allen

They’re Back

The SCOTSI kicked off its long summer recess with its June 30, 2023 anti-choice ruling in Medical Licensing Board v. Planned Parenthood. If you have forgotten already, the holding there was that Article 1, Section 1 of the Indiana Constitution does not give women a right of choice to terminate a pregnancy. Then there followed one decision each in July and August. Nearly seven weeks after the August decision, SCOTSI decisions returned on September 25, 2023 with three decisions on that date.

The first of the September 25th decisions is in Indiana Right to Life Victory Fund and Sarkes Tarzian, Inc. v. Diego Morales, et al. The decision came in response to a certified question from the 7th Circuit Court of Appeals. The question was whether the Indiana code—in particular IC 3-9-2-3 to 6— prohibit or otherwise limit corporate contributions to certain PAC’s. The SCOTSI majority of four answered “yes” even though the Indiana statutes run afoul of the SCOTUS holding in Citizens United v. Federal Election Commission, 585 U.S. 310 (2010).

The Justice Molter SCOTSI Opinion embraces the principled but impractical position that the SCOTSI will not construe an unambiguous statute in order to skirt a constitutional defect.

The second SCOTSI case of September 25th came in the Transfer matter of Noblesville Indiana BZA v. FMG Indianapolis, LLC. You can see in the CLB’s 2022 Case Notes a critical review of the COA’s reversal of the trial court’s decision against Noblesville’s stop work order to prevent the restoration of a grandfathered nonconforming use billboard by the “relocation” of its support poles by no more than 36 inches. The SCOTSI’s grant of Transfer vacated the COA reversal. Its unanimous decision affirmed the trial court.

The third SCOTSI case of September 25th is another Transfer matter. The case name is Z.D. v. Community Health Network. The topic is invasion of privacy/public disclosure of private information. The COA decision of October 6, 2022 was reviewed by the CLB. Z.D. had some medical testing, results of which were mailed by a hospital employee to a classmate of Z.D.’s daughter. The classmate posted the results on Facebook. Z.D. went for the deep pocket by suing the hospital.

The SCOTSI majority held that the “modified impact rule” precludes recovery for the negligent infliction of emotional distress in the absence of “direct physical impact.” Still, “pecuniary damages” (like loss of work) may be recovered. Moreover, public disclosure damages are available . . . Case Notes by Dave Allen

In Particular

The search warrant authorized police to take “paperwork” relating to motor vehicle titles. When they took a computer belonging to Robert J. Plato Jr., he made threats against the police. He was charged and convicted of felony intimidation for threatening police over the “lawful” act. The name of the case is Plato v. State, as decided September 25, 2023 in the COA with a split panel (2/1) affirmance of the denial of Plato’s request for Post-conviction relief.

The issue is whether Plato’s appellate counsel for the intimidation conviction was ineffective for not asserting unlawfulness of the computer seizure. Analysis centers on whether the computer seizure was in violation of the Fourth Amendment “particularity” clause. No mention here of Art. 1 Section 11 of the Indiana Constitution (which lacks a particularity clause). Is a computer “paperwork”? The CLB thinks not . . . Case Note by Dave Allen

Dog Sniff Blues

The context of the case on review is a traffic stop prolonged to allow a dog sniff. The name of the case on review is Canonge v. State, as decided September 25, 2023 in the COA with a split panel (2/1) affirmance of the trial court’s denial of Canonge’s pretrial motion to suppress. The appeal was interlocutory. Officer Kevin Roach of the Avon PD made a traffic stop, observed vehicle occupants behaving oddly and nervously, and stalled while awaiting arrival of a K-9 officer and his dog.

The mere suspicion that motivates the traffic cop to call for a dog sniff is elevated by the COA majority into “reasonable suspicion” for the dog sniff. The Judge Foley Opinion discusses “reasonable cause” as a concept immune to description.

Look for Transfer . . . Case Note by Dave Allen

Spendthrift Trust OR Marital Asset

Juliet and John Roberts were married about 60 years¹ when Juliet filed for dissolution. Her interlocutory appeal in Roberts v. Roberts was decided September 20, 2023 with an affirmance of the trial court’s denial of Juliet’s effort to exclude from the pot of marital assets her interest in what she called a spendthrift trust from her family and created during the marriage.

To the CLB the trust interest in farm land and oil wells (yes, Hoosier oil wells!) is a marital asset subject to the trial court’s obligation to consider its source as a family gift. Noted: that Juliet had a limited right to request distribution of trust assets. The CLB sees the Trust interest as a martial asset whether or not it is a spendthrift trust. Held: a right to receive future payments (even if uncertain in amount) may be considered (marital) property. “Vested” interest means an asset. Affirmed: trial court’s denial of Juliet’s summary judgment to exclude her trust interest from the marital pot . . . Case Note by Dave Allen

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¹ Your blogger can think of only one divorce of his own of parties married longer than Juliet and John Roberts.

The Fraud of Nondisclosure

The case on review is the NFP decision of the COA in Behling v. Behling, as decided September 18, 2023. Thomas Behling, Sr. unsuccessfully appealed the trial court’s denial of his motion for relief from his own property settlement agreement. His theory was that Wife had lied in Answers to Interrogatories about the existence of retirement accounts. The trial court was satisfied that 5 pages of a “document dump” of 720 pages indicated the presence of retirement accounts denied by Wife in her Answers to Interrogatories. The interesting part is COA Judge Crone’s written dissent. To him the false Answers to Interrogatories amounted to fraud and merited relief. He saw the affirmance as a reward for Wife’s fraud. Watch for Transfer . . . Case Note by Dave Allen

Mootness of the Temporary Commitment

The case on review is Commitment of C.P. v. St. Vincent Hospital, as decided in the COA on September 14, 2023. C.P. was involuntarily committed for 90 days, a period already expired. The first decision before the COA was whether to dismiss for mootness. A parallel is drawn to criminal appeals where the sentence is served prior to an appellate decision. The result (on this record) is recognition of “negative collateral consequences,” including a ban on firearm possession by reason of a mental commitment. Another approach to undo a mootness assertion would be to emphasize legal issues in the case which should be ruled upon for the benefit of other (future) cases. Reaching the merits, the COA panel holds that evidence that C.P. was “gravely disabled” was sufficient . . . Case Note by Dave Allen

Waiving Insufficiency of Process

The case on review is Commitment of B.A. v. State, as decided September 12, 2023 with the unanimous COA affirmance of B.A.’s Commitment. B.A. is a female defendant in misdemeanors and felonies arising from domestic turmoil. She was deemed incompetent to stand trial and committed to the Logansport State Hospital for “competency restoration services.” The effort failed. The Hospital petitioned for regular involuntary commitment.

The crazy and dangerous aspects of the evidence are uninteresting compared to the issue of sufficiency of service. Late in the commitment hearing B.A. complained, through counsel, of insufficient service. Held: too late for B.A. to complain about insufficiency of service; she failed to show the requisite prejudice; and crazy people can waive an available objection based on service . . . Case Note by Dave Allen

Discovery, Dispute, and Sanctions

The case on review is Yount v. Carpenter Co., as decided September 7, 2023 in the COA. Unhappy real estate buyers sue Brown County Realtors for misrepresentation and worse. Plaintiffs objected to some discovery requests. Trial court granted defense motion to compel and ordered plaintiffs to pay an attorney fee sanction. Reversed as to order to compel and as to sanctions. Attorney fee documents were discoverable where plaintiffs sought an award of attorney fees in their Complaint.

Attorney fee documents were discoverable where plaintiffs sought an award of attorney fees in their Complaint.
Legal theory Requests for Admission were okay. TR 36 allows admission request as to legal conclusion related to facts of the case.
Factual Requests for Admission were not okay where asking about the knowledge or reliance of others.
Where nearly 50% of the objections are sustained, there will be no sanction . . . Case Note by Dave Allen

Solar Standing

The case on review is actually a pair of cases decided September 7, 2023 by the same COA panel. The cases are Erlich v. Moss Creek Solar and Erlich v. Starke Solar. Both are appeals following judicial review in Pulaski County of BZA decisions favoring the conversion of agricultural fields to solar farms. In each case Connie Erlich and her cohorts were remonstrators alleging “aggrieved” status from the potential decrease in value of their land adjacent to the planned solar farms. In the context of a statutory grant of standing (for judicial review) to aggrieved remonstrations, the COA agreed that the appellants had standing while otherwise failing in their appeal. Per the Opinions, standing may be conferred by statute or by common law. That is not always true in that even statutory standing requires injury.¹ To the CLB it is improper for a court to dismiss a claim for lack of standing when standing is conferred by statute.

The expectation of the CLB is that our trial courts and appellate courts will be favoring solar power development regardless of law . . . Case Note by Dave Allen

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¹ See, for example, the case of City of Gary v. Nicholson, 190 N.E.3d 349 (Ind. 2022) wherein the SCOTSI held that the statutory grant of “domicile standing” to challenge certain defective local ordinances is meaningless absent some special or individual injury.

When Jeopardy Attaches

The case on review is Englehardt v. State, as decided September 6, 2023 with a reversal from a split (1-1-1) COA panel. The result was the reversal of Matthew Englehardt’s convictions for sexual misconduct with his teenaged daughter. Prior to his first trial on the charges, there was an order in limine barring any attack on the credibility of the complaining witness. To the CLB such an Order was error, and the State’s motion in limine was an abuse for which condign punishment followed.

During the third day of the first trial Englehardt called a former housemate who had DCS work experience. Her testimony (in the view of the State) violated the order in limine. The State obtained a mistrial over objection of the defense. Englehardt was tried and convicted at a second trial. Held: given a lack of “manifest necessity” for a mistrial, its grant was error such that the second trial was barred by “procedural” double jeopardy. In the view of the COA majority the striking of testimony and a limiting instruction would have sufficed to afford a fair trial to the State. The majority reversal seen here is in a category detested by the SCOTSI. Watch for Transfer . . . Case Note by Dave Allen

Addendum: In a jury trial jeopardy attaches when the jury is selected and sworn. In a bench trial jeopardy attaches when the first witness is sworn. There is no parallel to the double jeopardy ban in the Indiana Constitution. For a statutory version see IC35-41-4-3.

Contractual Forum Selection

Perdue Farms, Inc. v. L&B Transport, et. al. is the case on review, as decided September 5, 2023 with a COA reversal of the trial court’s order of dismissal pursuant to a contractual forum clause. The irony is that it is Perdue asking for relief from the forum selection clause while the clause is question resides in Perdue’s form contract for the benefit of Perdue. See Opinion for discussion of forum selection law. At the COA the 2/1 majority holds for reversal on the basis that removal of the claim of Perdue versus a contractual partner still leaves other claims and the potential for chaotic results. Judge Crone dissents. He may be right. Watch for Transfer . . . Case Note by Dave Allen

Relief from Default for Excusable Neglect

Your blogger has never had much luck holding onto a wholly legal default after the adversary files a TR 60(B) motion to set aside. Accordingly, I study the issue when I can in the hope of achieving a better understanding. Instead I witness aimless chaos in the decisions of trial courts and the COA. The case on review is On the Level Fence & Deck v. Indiana Bell. The phone company sued “On the Level” for damaging a buried cable during a fencing project.

“On the Level” did not appear after being served. After the entry of default “On the Level” explained they thought their insurer knew of the suit and would take care of it. Their (erroneous) thinking was supported by the fact that the insurer had communicated with the plaintiff before suit was filed.

During the first post-default month “On the Level” moved for TR 60(B)(1) relief citing excusable neglect. Judge Sedia of the Lake Superior Court denied the motion. A fractured COA panel reversed. The trial seems to have accepted “On the Level’s” lame meritorious defense but concluded against the claim of excusable neglect.

Notably, a trial court’s ruling on a motion to set aside a default is entitled to “substantial deference.” Reversal will come only for abuse of discretion. An exception to the rule comes when the trial court ruling comes from a paper record and arguments of counsel (without an evidentiary hearing). In such cases review is de novo. However, the COA Opinion declares an abuse of discretion even though the lower standard should apply. Noted: no general rule as to what constitutes excusable neglect. Held: “On the Level’s” failure to notify its insurer of service of process was excusable neglect.

Keep watch for Transfer . . . Case Note by Dave Allen

Keeping the Firm Together

There is sarcasm in the Case Note title above since the case on review pertains to the elimination of that Merrillville collection firm once widely known as “Borns & Quinn.” The case name for the COA’s NFP decision of August 31, 2023 is Vician v. Bingham, Green, Baum & Doll. The nearly final version of the firm was Bowman, Heintz, Boscia, and Vician. When the first three of the named “shareholders” were at or near retirement age, a decision was made to consider merger with another, larger collection firm. The CLB views such a “merger” as a buyout that may be more attractive to shareholders near retirement. The firm (Bowman et al.) hired an Indy law firm for help with the transition. An “asset purchase agreement” was made. Attorney Glenn Vician did not take the deal. He elected to demand payment in accordance with Indiana’s Dissenters’ Rights Statute found at IC 23-1-44. Vician subsequently filed suit (in Marion County) against the Indy law firm hired by his (former) firm. Vician lost by way of summary judgment. He had alleged legal malpractice and breach of fiduciary duty among other theories. The COA affirmed on multiple grounds including limitations . . . Case Note by Dave Allen

A Hard Deadline

The case on review is Andry v. Thorbecke, as decided in the COA on August 28, 2023. The case was one of medical malpractice against Dr. James Andry, who filed for summary judgment citing the favorable Medical Review Panel decision and the absence of contrary evidence. Plaintiff’s counsel asked for enlargement of his 30-day response deadline. The trial court denied the request but no notice was served on Plaintiff’s counsel. The lawyer finally discovered the denial by accident and filed his contrary evidence 2 days after his 30-day deadline. The trial court accepted the tardy response. The COA reversed . . . David Allen

Narrowing TR 60(B)

The case on review is the August 25, 2023 NFP reversal of the grant of TR 60(B) relief by Judge McDermott of the Lake Circuit Court. The case name is Calumet Lift Truck Service v. Deardorff. It is alleged that Mark Gries, an independent contractor for Calumet Lift Truck Service rudely used a desk at the Deardorff business as a personal spittoon.

The incident happened in Illinois. The only connection to Indiana was the Deardorffs’ residence and their choice to sue here. From here it looks like a perfect case for a TR 12(B)(2) challenge to personal jurisdiction. The defendants filed their motion. The Deardorffs failed to respond.

The defendants asked for and received a summary ruling. The result was dismissal with prejudice. The Deardorffs moved to vacate the dismissal citing TR 60(B) but no specific subsection. The trial court granted relief. Reversed for the absence of any “mistake” . . . Case Note by Dave Allen.

For Lawyers Only

The case on review is Brown v. Schafer, as decided August 17, 2023 in the COA by way of unanimous NFP decision. The law firm of Greg Brown and the firm of Tim Schafer had a fee-sharing agreement on what turned out to be a ridiculously profitable personal injury case against trucking company J.B. Hunt. Both firms worked the case and agreed to 50/50 for the first $4,000,000.00 in attorney fees then 60/40 in favor of Schafer for anything in excess of that amount.

The litigation took years. The verdict was $19.5 million. The plaintiff asked for pre-judgment interest, allowance of which required the finding of “good cause” for the lack of a qualifying offer under IC 34-51-4-6 within a year of the claim filing. The Schafer firm did the work. The Brown firm wanted a 40% cut.

The trial court award of partial SJ to the Schafer firm is Reversed . . . Case Note by Dave Allen

Addendum: The lesson of the case is that we need to be very careful and very complete in making fee-sharing agreements. Sometimes the fee can be much, much higher than we ever anticipated. See Professional Conduct Rule 1.5(e) requirement that a fee division between lawyers of different firms must be proportionate to the services performed. To determine such in advance requires clairvoyance.

The “Transient” Trespasser

One variety of criminal trespass is refusing to leave private property (in which you have no contractual interest) by the owner or agent of the owner. I recall hearing the lame agent claim from members of the Hammond PD. The case on review is Young v. State, as decided August 14, 2023 in the COA. The (refused) demand to leave the property of the RCS store came from Vincennes Police, who claimed to be agents of the owner. That claim was good enough in the trial court but not in the COA.

While Vincennes police may have been agents of the RCS in a general sense, the case on review was governed by the narrow definition of agent at IC 35-31.5-2-12. The police were not agents of the owner within that statutory definition. The COA reversed by way of a Judge Tavitas unanimous Opinion.

In the title to this Note “transient” is in quotes from a reference in the COA Opinion. The COA observes that homeless men are not necessarily in transit . . . Case Note by Dave Allen

Used Car Litigation and Requests for Admission

The case on review is Garrett v. Nissan of Lafayette, as decided in the COA on August 11, 2023. My clients in the business of selling used cars almost always do so with an “As is/No Warranty” purchase agreement. This gives them a good level of protection when they are sued despite the disclaimer of any warranty.

L.T. Garrett bought a used Ford F-250 pickup truck from Nissan of Lafayette. Dealership employees allegedly lied to him about the replacement engine in the vehicle having a 2-year warranty from the manufacturer. After the engine failed Garrett discovered there was no warranty. Garret sued the seller alleging fraud and violation of the IDCSA. Notably, the purchase agreement disclaimed all warranties.

The trial court awarded summary judgment to the seller. Garrett appealed the summary judgment while the seller cross-appealed the trial court’s refusal to deem the admission (by Garrett) of unanswered Requests for Admission after 30 days.

Held: Garrett’s affidavit on summary judgment precludes the SJ award to the seller. In other words, a disclaimer of warranty in the purchase agreement does not immunize the telling of lies by the seller. As for the RFA, the trial court took a lame email from Garrett’s lawyer as a timely objection to the RFA. The cross-appeal was denied. Here’s hoping that Garrett succeeds on remand with punishing the seller’s lies about an engine warranty . . . Case Note by Dave Allen

The Fentanyl Dealer

The case on review is Russell v. State, as decided by the COA on August 8, 2023 with the affirmance of the dealing resulting in death conviction of Kurt Russell (not the famous actor, I think). Soon-to-be-dead Max Timbrook texted his friend Russell for some help in buying heroin. Russell obliged by contacting his dealer to arrange the transaction which he did not witness or take part in.

Max bought what was supposed to be heroin. It was fentanyl instead. Max died. Russell and Timbrook texted each other multiple times about the drug deal. There were two telephones found and linked to Max. One was eventually turned over by a family member. The text messages (situated in the “cloud”) were admitted over a “chain of custody” objection. It did not matter where the phone was while the text messages were virtually present “in the cloud.”

As to sufficiency of the evidence to prove the “delivery” element, the prosecution theory was that Russell was an “essential” link” in the transaction. He “dealt” a drug he did not possess, even constructively. The CLB disapproves. The real point here is that fentanyl kills . . . Case Note by Dave Allen

“Evidentiary Harpoon” Mistrial

The case on review is Turner v. State, as decided August 8, 2023 in the COA with the unanimous reversal/remand of Chase Turner’s conviction (by jury) of criminal recklessness after he drove a car from which passengers fired bullets at a crashed car that Chase had been following. The theory against Chase was accomplice liability.

The “evidentiary harpoon” came when an ISP Sergeant testified that one of the shooters (an unavailable witness) “gave a complete confession.” Chase’s request for a mistrial was overruled at the trial court level.

The COA found “grave peril” even though there was an attempt below to cure the prejudice. To the CLB there was error in the remand for a new trial after the COA clearly viewed the harpoon as intentional on the part of the prosecution. Watch for transfer of this reversal of the sort that is unpopular in the SCOTSI . . . Case Note by Dave Allen

Read the Rule, Please

The case on review is Rosa v. County of Lake, as decided July 28, 2023 by way of NFP dismissal of Paul Rosa’s appeal of his firing as a Lake County Sheriff’s deputy. Paul Rosa came into disfavor at the Sheriff’s Department for his excessive absenteeism. The Merit Board discharged him. The trial court agreed on its judicial review. The COA unanimously declared a dismissal of the appeal by reason of “numerous violations” of Appellate Rules and the lack of “cogent reasoning.” Rosa was represented by counsel. Those violations seem to have been mostly a sloppy brief. Reserved for special criticism was the absence from Rosa’s Appendix of some documents deemed necessary for consideration of the appeal.

It seems to the CLB that Opinion author Pyle and colleagues Bradford and Kentworthy neglected to read Ind. Appellate Rule 49(B), to-wit:

(B) Failure to Include Item. Any party's failure to include any item in an Appendix shall not waive any issue or argument.

Contrary to the cited Rule, the COA declared waiver. The CLB would like to see Transfer, not to reinstate Rose, but to lessen the fault of his lawyer for the failure of the appeal . . . Case Note by Dave Allen

Amish Drama

The case on review is Hochstettler v. State as decided July 27, 2023 in the COA with the affirmance of the intimidation convictions of three Old Order Amish Church Officials from the Elkhart County area. “E.W.” (the intimidation victim) was a married mother with husband trouble and DCS trouble. The DCS had reservations about “inappropriate physical discipline” imposed on the children by the husband. After “informal adjustment” failed, E.W. went to court and obtained a protective order against her husband. This was a very un-Amish thing to do. But without the protective order, E.W. risked losing her children to DCS. In an apparent effort to escape Amish backlash over this secular involvement, E.W. moved to another county. Meanwhile, three bishops of the OOAC church met with E.W. urging reconciliation with husband and an end to the protective order. She declined. The “or else” factor was the “Bann,” a substantial shunning of E.W. from religious and social activities within the Amish community. She must have complained to DCS or others. The bishops were charged with intimidation and convicted by way of bench trial.

Held: State did not have to prove “actual malice” by the bishops even though the State on appeal tried to concede that it had that unmet burden.

My “English” criticism is that there was insufficient preservation of the inherent “Church Autonomy Doctrine” and the Indiana RFRA. I hope for Transfer . . . Case Note by Dave Allen

Cohabitation Blues

The case on review is a continuation of case law analyzed in the CLB Featured Article “Common Law Divorce, Lesson Two” on June 3, 2016. On July 26, 2023 the COA handed down its unanimous decision in Stout v. Knotts. The result was a reversal in favor of Mallory Stout who had shacked up for years with property owner Tanner Knotts who kicked her out of the house (titled to him) and then sold it at a big profit. Mallory wanted a compensatory share of the proceeds. The trial court gave Tanner a TR 12(B)(6) dismissal. Mallory’s Complaint alleged the familiar “implied contract” and unjust enrichment.

The COA agreed with Mallory that Indiana recognized such a cause of action between unwed cohabitants. The trial court was hostile toward cohabitant rights. He was required to recuse on remand. Held: the Complaint states a claim . . . Case Note by Dave Allen

Addendum: It was noted in 2016 that the SCOTSI had not weighed in on the topic. Now would be a proper time.

A Summer Recess Decision From the SCOTSI

The case on review is Hoosier Contractors v. Gardener, as decided July 19, 2023 in the SCOTSI by way of a Justice Slaughter Opinion with two (Massa and Molter) joining and two (Goff and Rush) concurring with separate Opinion. The prior CLB case note in this case followed the COA’s June 9, 2022 decision in favor of Sean Gardener and his counterclaim against the shady roofing contractors who had sued him for breach of contract to allow them to make roof repairs from insurance money.

A “shady” feature of Hoosier Contractors was their insistence that Gardener sign a repair contract before they inspected his roof. Even though he was sued over the home improvement contract. The Slaughter Opinion found a deficit in Sean’s proof of standing. Statutory damages are not enough, it seems, to confer standing. It seems to the CLB that Justice Slaughter views HICA as just another right without a remedy . . . Case Note by Dave Allen

Fourth Amendment in the Backyard

The case on review is Hinton v. State, as decided July 21, 2023 in the COA. Patrick Hinton successfully appealed his convictions for possession of meth and paraphernalia seized from the backyard of his residence without a warrant. The context was a 3:00 a.m. well-being check in Logansport. On arrival, one officer moved toward the front door while the second officer took an alley route to view the backyard. Patrick Hinton was sitting in the backyard smoking meth when the officer’s flashlight lit him up. He quickly stood up and dropped something while the officer identified himself. The two conversed before proceeding to the front door. The officer could not see what Patrick had dropped but did notice that it was “reflective” in the light of his flashlight.

At the front door contact was made with homeowner Carol Zook, whose well-being had been an issue. While the other officer talked to Patrick in the front, the other returned to the back where he found a meth pipe, meth, and a lighter where Patrick had been. The officer’s lame excuse for the warrantless search was that he was looking for a weapon. Then there was the “plain view” excuse.

It seems to the CLB that the search site was outside of the house but within the curtilage of the residence. Still, the unanimous Opinion of COA judge Mathias does not mention curtilage. The COA result is reversal for the lack of a warrant. Watch out for Transfer . . . Case Note by Dave Allen

The Last Pistol/No Permit Case

For good or ill the Indiana General Assembly decided that all Hoosiers of 18 years or older not disqualified by law from possessing a firearm may now carry a handgun without a license. The effective date of the new pro-gun law was July 1, 2022. The case on review is Lawrence v. State, as decided July 19, 2023 in the COA. Emmett Lawrence had been charged in 2021 with the old pistol/no permit class A misdemeanor under IC 35-47-2-1. While his case was pending, the General Assembly changed the law to eliminate the need of a permit for most Hoosiers. Emmett argued without success that the law change was remedial and thus retroactive to his pending case. Both the trial court and COA disagreed. The COA described the law as a “change in Indiana’s policy” but not remedial . . . Case Note by Dave Allen

Parolee’s Vicarious Consent

Imagine that ne’er-do-well relative or old friend (call him “Lance”) calls you and begs you to let him stay awhile at your house. By the charitable act of giving Lance temporary refuge, you could be giving law enforcement an excuse to search your residence. That’s because Lance, as a parolee, (a status not known to you) gave contractual consent to such a search by parole authorities.

The case on review is Viverett v. State, as decided July 19, 2023 in the COA with an affirmance. Joe Viverett was convicted of firearm possession by an SVF, a level 4 felony. The evidence of Viverett’s crime came from a parole compliance search of Viverett’s house upon the contractual consent of a parolee Lance Lewis, who may have resided there.

Viverett filed a motion to suppress which was denied. He followed up with a “simple objection” at trial. Somehow the Judge Crone Opinion concludes that Viverett failed to properly preserve the suppression issues.

The issue of a parolee’s consent to search the home of another will not go away. The CLB favors Transfer for SCOTSI consideration . . . Case Note by Dave Allen

A Reginald Carter Update

The case on review is Carter v. State, as decided June 30, 2023 by way of NFP decision of the COA. This is an update to the “Not Quite a Juror” featured article of August 24, 2022. My earlier prediction of a sentence equivalent to a life term for Reginald Carter came true. He was convicted of 3 counts of murder plus 1 count of arson. His sentence was 205 years thanks to consecutive sentences from Judge Vasquez.

Carter’s one-note appeal asserted fundamental error in the exclusion at trial of evidence of an 2016 arson against one of the murder victims. The fundamental aspect of the alleged error arose from the failure of trial attorney John Cantrell to make an offer of proof during trial after the evidence was excluded in a pretrial order. That failure to offer the evidence at trial amounted to a waiver on the part of attorney Cantrell.

In considering the fundamental error issue that may remain after the waiver of ordinary error, the NFP COA Opinion by Judge Tavitas noted the absence of fundamental error argument in the brief from appellate counsel Sean Mullins.¹ It is likely that Carter’s next move (after a fruitless Transfer request) will be a PCR Petition alleging incompetent representation at trial and on appeal. That Petition will be denied. The denial will be appealed and so on. The prediction here is that Reginald Carter will die in prison . . . Case Note by Dave Allen

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¹ The CLB finds it interesting how Judge Tavitas declares the waiver of a claim of fundamental error. To the CLB, fundamental error is the unwaivable residue after the waiver of ordinary error.

Promissory Estoppel Damages

The case on review is AgReliant Genetics, LLC v. Gary Hamstra Farms, as decided July 12, 2023 in the COA. The Judge Tavitas (unanimous) Opinion affirms in part and reverses in part the trial court’s judgment.

AgReliant contracted with a few Jasper County farmers to grow seed corn under very controlled conditions. Such was the case “for several years.” In 2018 AgReliant called off the seed growing for that year, but only after the farmers were induced to make preparations for the program.

The “contract” in this case was an annual matter as AgReliant would decide on what acreage was required for its seed corn. Prior to the formality of a written annual contract, the farmers had pledged considerable acreage to the seed corn project. Then AgReliant changed its mind, causing the farmers to scramble to purchase other seed after missing out on early discounts.

The farmers sued on a theory of promissory estoppel, demanding “loss of bargain” damages. The COA affirmed AgReliant’s promissory estoppel liability while reducing damages to those actually incurred from the detrimental reliance . . . Case Note by Dave Allen

The Groping Doctor?

The case on review is Kansal v. Krieter, as decided June 10, 2023 in the COA. Taylor Krieter sued Dr. Jatinder Kansal for allegedly feeling her up during medical appointments. He purportedly treated her for seasonal allergies and eczema. Taylor did not file a proposed complaint with the Department of Insurance. Dr. Kansal moved to dismiss. Judge Scheele of the Lake Superior Court Room Five denied dismissal. Dr. Kansal appealed. The COA affirmed. According to Opinion author Judge Vaidik, the issue is not whether the alleged conduct took place during the provision of medical care but rather whether the conduct was part of the provision of medical care . . . Case Note by Dave Allen

The Rejected Low Bid

Spurned bidder for construction of a hiking trail sues Board to no avail. The case is Simpson v. Brown County Board of Commissioners, as decided July 7, 2023 in the COA. The COA affirms the trial court’s TR 12(B)(6) dismissal. Held: Simpson could sue only under the Antitrust Act or Public Lawsuit Act. He agreed to dismiss his Antitrust claim. He denied having filed a “Public Lawsuit for Testing Public Improvements” under IC 34-13-5. Held: Simpson’s claim sounding in tort is barred as a matter of law . . . Case Note by Dave Allen

Standing and the Unlisted Claim

Update: Affirmed on Transfer on May 21, 2023. See SCOTSI Opinion in 2024 Case Notes.

The case on review is Red Lobster v. Fricke as decided July 6, 2023 in the COA. Abigail Fricke had fallen at a Red Lobster due to uneven flooring.

Abigail Fricke was a couple of years into a Chapter 13 payment plan when she fell. She failed to disclose the injury claim to the Chapter 13 Court. She lied about the bankruptcy in an Interrogatory response in the injury suit. Belatedly she filed an amended schedule of assets in the bankruptcy disclosing her injury claim. Then the Chapter 13 was dismissed for want of payment. When Red Lobster filed for summary judgment, Abigail gave an Affidavit alleging her own good faith. Red Lobster raised standing and judicial estoppel. The COA affirmed the denial of summary judgment holding that Abigail had standing and that there was a “genuine issue of material fact” about concealment in the bankruptcy . . . Case Note by Dave Allen

Life of the Woman

Today, the 30th of June, the SCOTSI handed down its abortion law decision in the case of Medical Licensing Board v. Planned Parenthood. As the CLB had predicted, the nonspecific liberty interest from Article 1 Section 1 of the Indiana Constitution was a prominent factor. At issue here was the status of last year’s SB1 which restricts a woman’s right to seek an abortion subject to exceptions for abortions to save the life of the mother or to prevent a serious health risk. The SCOTSI has ordered vacation of the preliminary injunction against enforcement of SB1.

One intriguing argument of the State is that Article 1 Section 1 of the Indiana Constitution is “not judicially enforceable.” The SCOTSI was exceedingly too polite in holding to the contrary.

As for the meaning of Article 1 Section 1 the SCOTSI held there is a liberty interest in abortion but only as to those necessary to protect the woman’s life or to protect her from a serious health risk. Those legal liberties match the statutory exceptions to the ban of SB1.

The majority Opinion authored by Justice Molter teems with legal history that could be helpful in other cases. The declaration of the Section 1 limitations on the right to an abortion is seen by the CLB as the product of judicial fiat originating from old-fashioned politics. As Uncle Ned told us, we “can take the judges out of politics but can’t take the politics out of judges.” Notably, the majority Opinion stops short of declaring the precise contours of the Section 1 abortion right.

In a grumpy concurrence in result Justice Slaughter agrees with the vacating of the preliminary injunction while disagreeing as to the meaning of Article 1 Section 1 and whether Planned Parenthood had standing.

Finally, there is Justice Goff concurring in part and dissenting in part. He concurs generally except for vacating the preliminary injunction. He would hold for a broader right to abortion than the “narrow exception” recognized by the majority. Justice Goff proposes to the General Assembly that there be a plebiscite to determine the reach of Section 1. How to amend the Indiana Constitution may be researched in the CLB archives . . . Case Note by Dave Allen

Adieu, St. Margaret

What we Hammond residents were expecting has come about in the COA. After granting an emergency motion to stay an order to keep St. Margaret Hospital open, the COA issued an Opinion on June 30, 2023 reversing the trial court’s preliminary injunction against the closure. The name of the case is Franciscan Alliance, Inc. v. City of Hammond.

There was a time when Hammond had multiple branch libraries that no longer exist. There was a time when Hammond had its own Health Department as opposed to that distant County Health Department in Crown Point. There was a time when Hammond had its own City Court. There was a time when Hammond had multiple regional high schools that are now closed.¹

There was a time, a century or so, when Hammond had a full-service hospital known as St. Margaret. That hospital is now closed. The physical decay there is obvious to anyone passing by. The chances of a takeover by another entity are nil.

But on the ashes or ruins of one enterprise another may rise. See, for example, the ongoing construction of the Westlake Extension of the South Shore line across railroad right-of-way abandoned decades ago. Such rebirth of St. Margaret is unlikely. It is gone.²

It looks as though the Franciscan Alliance has abandoned Hammond to concentrate on doing business in more affluent communities. Your blogger chooses to reward Franciscan Alliance with the pledge to never voluntarily set food in any of its facilities for the purpose of care.

The theory of the COA Opinion is that the City of Hammond lacked standing to bring its claim for injunctive relief. An Opinion quote of interest is “the City may not assert claims on behalf of its citizens.” The CLB would extend representative standing to municipalities and other governmental units and probably to organizations like the Sierra Club or NAACP.

A problem in the case on review is that the City proceeded on a theory of Franciscan’s promise to stay open (as a downsized facility). The promise was made to the mayor and not to some random citizen who could be added as a plaintiff to satisfy the deficit of “personal loss” standing . . . Case Note by Dave Allen

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¹ Today Hammond residents enjoy much less in the way of government services while paying more for the privilege.

² One problem with St. Margaret is that it was overbuilt for the health market. Another is that hospital costs are too high by far.

Zachary Miller Round Three

It looks from here as though the SCOTSI is cleaning house in preparation for a summer recess. The case on review is Miller v. Patel, as decided in the SCOTSI on June 29, 2023. The context is Zachary Miller’s mental health care prior to his murder of his grandfather. Can he sue for medical malpractice after pleading guilty but mentally ill to a charge of voluntary manslaughter? His theory was that the defendant providers should somehow have prevented the crime.

Notably, a Medical Review Board of the IDOI held unanimously that the providers had failed to comply with the appropriate standard of care.

Held on first impression: a guilty plea conviction carries the same collateral estoppel consequences as a conviction by the court or jury. Zachary could not accept responsibility for the killing and in the next breath sue others for being at fault. To the CLB there is enough distinction between criminal responsibility and civil responsibility to allow a civil remedy after the criminal guilty plea.

Here the slightly divided SCOTSI slaps down the COA and affirms the trial court’s award of summary judgment to the care providers . . . Case Note by Dave Allen

ER 608(a) Character Opinion

Let’s say I once observed “Doug” cheating a young child out of his lunch money and then denying it. When “Doug” is charged later with some other crime I would likely not be allowed to testify to what I witnessed. But I might be allowed to testify to “Doug’s” reputation for truthfulness or to my lay opinion of his character.

The case on review is Hayko v. State, the unsuccessful criminal appeal of Matthew Hayko following his conviction of sex crimes against his own daughter.

The “issue of first impression” was defined here as what foundation is required for lay opinion of character. Hayko offered (at trial) the testimony of three relatives. Noted in the CJ Rush Opinion is the distinction between reputation testimony (and its foundation) and opinion testimony. The SCOTSI concluded it was error for the trial court to exclude the opinion testimony. Still, the error was held to be harmless. In declaring the rejected impeachment evidence to be harmless, the SCOTSI wallowed in the forbidden practice of weighing the evidence. Hypocrisy abounds . . . Case Note by Dave Allen

Issue Preclusion

In case you forgot (or never knew) the Indiana Comparative Fault Act does not apply to tort claims against government defendants. That is the opening declaration of Davidson v. State, a tort claim, as decided in the SCOTSI on June 21, 2023.

This legal point, and perhaps other circumstances, caused Kathryn Davidson to “split” her cause of action and to file suit first in Lake County and later in Monroe County. The Lake County case was against her boyfriend who fell asleep at the wheel of a truck just before a crash that rendered her a quadriplegic.

The Lake County case ended with a finding that the boyfriend was 100% at fault. A problem was that the damages far exceeded the boyfriend’s liability insurance coverage. Then she filed suit against the State, DOT, and others for the negligent execution of the I-69 construction project. The result was involuntary dismissal. After a COA reversal, the SCOTSI restored the dismissal on issue preclusion. The point is that the second round of defendants cannot be liable if 100% of the fault was already assigned to the boyfriend.

It seems that Kathryn would have been better served by a Lake County judgment declaring the boyfriend to be 50% at fault . . . Case Note by Dave Allen

The Unsigned Lease and Unilateral Surrender

The case on review is Wang v. Sun, a college town (Lafayette) landlord-tenant dispute. On the cross-appeals the COA enriched what had been landlord’s very narrow victory and relieved landlord of the financial consequences of failing to make a timely return or accounting of the Security deposit.

Landlord texted an 11-month lease agreement to the student/tenant who could not manage a (digital) signature over her phone but promised to sign later. She never signed, but she did make a security deposit, pay rent, and move in after a delay. Landlord’s signature plus tenant’s actions amount to a written, “signed” lease for 11 months.

Held: Landlord was obligated to deliver the house in habitable condition. However Landlord is entitled to notice and opportunity to remedy problems. IC 32-31-8-5 and 6.

Held: The 45 day period for the return or accounting of a security deposit does not begin with tenant’s departure. There must also be a “termination” of the rental agreement accepted by the landlord. Held: the termination here came months after tenant’s departure when the house was relet. An earlier change of locks does not amount to landlord’s acceptance of termination . . . Case Note by Dave Allen

Taking Against the Will

The case on review is Estate of Bricker as decided June 23, 2023 in the COA. Decedent Gene Bricker and wife Ann had three children. Gene made a will that was not, in Ann’s view, sufficiently generous to her. Gene also used a POD designation to transfer bank funds and a TOD deed to transfer real estate to a favored son.

There was no question about Ann’s right to take against the will. The question was about what property was in the estate. Ann tried to pull back into the estate the POD/TOD transfers to the son. She alleged those transfers were “testamentary.” She cited law that assets in a testamentary trust may be drawn into the estate. But by statute a TOD transfer is “not testamentary.”

The COA panel affirmed the trial court holding that the subject bank deposit and land were not part of the estate. The lesson here is that it is certainly possible to gut the widow’s inheritance with a TOD transfer. The assumption here is that the land from the case on review had been titled solely in the husband’s name and that it was very likely inherited family property.

A criticism of the Opinion is that it lacks discernible authority why a POD transfer that looks to be testamentary is not . . . Case Note by Dave Allen

Causation

Duty; 2. Breach of duty; and 3. injury caused by the breach. These are the simple elements of a negligence claim, including the motor vehicle collision in the case on review, Lindke v. Combs, as decided June 19, 2023 in the COA. The holding will send chills down the spine of thoughtful injury lawyers statewide.

After a rear-ender collision with stipulated liability, Jeffrey Lindke sued for injuries including migraine headaches, and aggravation of pain from pre-existing conditions in his lower back, legs, neck, and hands. Also there was a labral tear to the right shoulder. Lindke had a history of migraines plus the mentioned pre-existing conditions. Of all his post-collision complaints, only the labral tear was new.

There was unqualified medical testimony at trial that the labral tear was caused by the collision. As to the other complaints, evidence of causation was non-existent or minimal. In the view of the CLB there was sufficient evidence at trial from admitted medical records for the non-shoulder injuries to go to the jury. Not so with the St. Joe County Superior Court judge who granted TR 50(A) judgment on the evidence. Only the shoulder injury went to the jury. Lindke appealed and lost in the COA.

The CLB would like to see Transfer on the grounds of the (barely) sufficient evidence of causation of the non-shoulder injuries . . . Case Note by Dave Allen

Federal Preemption and the Converting Representative Payee

UPDATE: Remand on rehearing on September 6, 2023 on issues not involving social security benefits.

The case on review is Randall v. Woodson, as decided June 19, 2023 in the COA. Julian Roache died. Ronda Randall was his PR. Ronda sued Anita Woodson, who had been Julian’s representative payee for Julian’s social security benefits while he lived. Ronda alleged that Woodson had converted social security benefits. The trial court dismissed, mostly due to federal preemption. The unanimous COA panel affirmed. Held: the trial court lacked subject matter jurisdiction due to federal preemption that seems more implied than express . . . Case Note by Dave Allen

Dog Bites Mailman; Landlord Sued

There is something comforting from this case, starting with the too-familiar circumstance of the dog and the mail carrier.¹ The postman sued the tenant who kept the offending mutt and also sued the landlords in search of that elusive deep pocket. The landlords won summary judgment in the trial court. The COA affirmed.

The name of the case on review is Buehler v. Bocanegra, as decided in the COA on June 16, 2023 with the mentioned affirmance in favor of the landlords. While most of us who are injured by the neighbor’s dog are limited to a common law negligence claim, mail carriers and a few others have their very own statute at IC 15-20-1-3. Notably, the statute deprives the dog owner of the “first bite” defense of no knowledge of the vicious propensity of the dog. Here Buehler cited both the statute and commonlaw breach of duty against the landlords.

The landlords argued successfully that the dog bite statute was inapplicable to them and that they had no actual knowledge of the presence of the dog or any vicious propensity of the dog. See in the Opinion some mention of vicarious liability of a landlord for the dog of a tenant. Here it was not enough that the landlords signed a lease allowing tenant to keep a dog . . . Case Note by Dave Allen

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¹ Mature dogs tend to be territorial. Door-to-door letter carriers are in the business of incursion upon the territory of many dogs. Or maybe it’s the uniform.

Aggrieved by Variance

The case on review is Shinall v. BZA of Ogden Dunes, as decided June 16, 2023 by a divided (2/1) COA panel. The majority Opinion reverses the trial court dismissal (for lack of standing) of the Complaint for the judicial review of the BZA grant of a height variance to an Ogden Dunes lakeside property owner. The plaintiffs alleged living just to the South of the variance seekers, such that their enjoyable lake view would be compromised by the addition of height to the structure in front of them.

The Shinalls opposed the height variance at the administrative level and lost. Then the trial court dismissed their action for judicial review for the supposed lack of standing. Then the divided COA panel reversed that dismissal.

IC 36-7-4-1603(2) describes the standing requirements to sue for judicial review, particularly the element of being “aggrieved.” Is the obscuring of a lake view enough? The 2/1 COA panel majority says that it is. Watch for the Transfer Petition. The dissent by Judge Riley asserts the argument that the view of the lake is not a “legally protected right” as required for standing . . . Case Note by Dave Allen

Sheriff v. County

It was in late November of 2022 that I wrote a CLB Appellate Case Note in the case of Lake County Board of Commissioners v. Lake County Sheriff, 199 N.E.3d 366 (Ind. Ct. App. 2022).¹ Within that Case Note there was mention of similar litigation between the Board of Commissioners and the County Council. Money and the power to contract with vendors or professionals are always at stake.

On this 14th day of June, 2023 the case on review is Clinton County Sheriff v. Board of Commissioners. The COA panel unanimously affirmed the trial court rulings. I can guarantee a request for transfer.

When Richard Kelly began a term as Sheriff in 2019 he appointed his wife to be jail matron and to manage the jail commissary. He also appointed a “legal deputy.”

Then in 2021 the State Board of Accounts and the Indiana State Police investigated the use of the commissary fund. The County Board then sued the Sheriff requesting a preliminary injunction prohibiting the Sheriff from expending money from the commissary fund. The injunction request was denied. Then the Sheriff counter-sued for relief including a declaration that Sheriffs (and other elected officials) were authorized to execute their own contracts “within their budgets.”

The case on review was the Sheriff’s appeal of the denial of declaratory relief.

Criticism: The problem here of deciding the contractual authority of a Sheriff or Clerk or Treasurer is one best resolved by the General Assembly. It is time for interested parties to submit draft legislation . . . Case Note by Dave Allen

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¹ The status of this case is that Transfer was denied.

Law of the (Vacated) Case

The case on review is the June 7, 2023 NFP decision of the COA in Jung Hee Kim v. Han Chong. The COA affirmed this summary judgment for the defense in a conversion case. The interesting aspect that makes this NFP decision worthy of a Case Note resides in the reason for the trial court decision and the different reason for the affirmance.

The case had a previous appeal in which the COA listed “undisputed facts” relevant to summary judgment. The trial court adopted those “undisputed facts” as law of the case. However a grant of Transfer meant the vacating of the COA decision. Held: it was error for the trial court to utilize “law of the case” material from a vacated decision.

But that error was not enough for the appellant to win a reversal. What we see here is the COA affirming summary judgment on “any grounds” supported by the designated materials. Looking at the designated materials the COA concluded that the summary judgment should stand, though on wholly different grounds than those selected by the trial court. The CLB would have preferred to see a remand to the trial court for a fresh consideration of summary judgment. Here the COA essentially became a trial court. Defense of the COA action comes from the circumstance that the trial court and COA employ the same standard of consideration of a summary judgment motion . . . Case Note by Dave Allen

A Grandfather’s Standing

Fertile ground for legal dispute is that joinder of adoption and grandparent visitation. The latest case is H.P. and S.P. v. G.F., as decided June 6, 2023 with a COA reversal of the trial court’s grant of grandparent visitation to biological grandfather after the child’s adoption by the appellant adoptive parents.

Nearly three years after the adoption was granted grandfather moved to intervene and to set it aside for lack of notice to him. By statute, a petition for grandparent visitation must be filed before an adoption decree is entered. This can be a problem when no notice (of adoption) is given. See IC 31-17-5-3(b). Note that child’s biological parents were alive at the time of adoption but their parental rights had been terminated. Held: grandfather then was not the grandfather. He had no post-termination standing. In effect, a grandfather’s rights are destroyed as collateral damage to the termination of the parental rights of his adult child. There is much to dislike here.

Look for Transfer . . . Case Note by Dave Allen

Involuntary Violation of Probation Condition

Manuel Trejo is headed back to prison (after probation revocation) for failing (while on probation) to do what was impossible for him to do. The case on review is Trejo v. State, as decided in the COA on June 2, 2023 with the affirmance of the trial court finding that he had violated a probation condition by not visiting his probation officer while in federal ICE custody awaiting removal from the United States.

Held: “Lack of violation” is not a defense to an alleged probation violation. The trial court is affirmed. This would be a good case for Transfer . . . Case Note by Dave Allen

Plain Smell Challenge

The case on review is Moore v. State, an interlocutory appeal (denial of motion to suppress) affirmed by the COA on May 26, 2023. Motorist Cody Moore was stopped by police for driving on an expired plate that was registered to a different vehicle. Officer Deinhart of the Indy Police Dept. testified that a strong odor of marijuana emanated from the stopped vehicle and that Mr. Moore was very nervous. He searched the car and trunk to find thousands in cash and 3+ pounds of marijuana. In his interlocutory appeal Cody Moore asserted the identical scents of illegal marijuana and legal hemp, to the point that “plain smell” is no longer grounds for an auto search.

The Opinion is by Senior Judge Shepard. Here there was no challenge to the initial stop. The challenge was to what followed. Moore claimed he was detained longer than necessary. Officer Dienhart claimed good cause for the detention. The trial court denied suppression on 4th amendment grounds. The COA affirmed.

Reviewed here is the rule that a car may be searched without a warrant upon “probable cause,” including SCOTSI precedent that the smell of burnt marijuana wafting out a car window amounts to probable cause to search. Also mentioned is the 2019 amendment to IC 15-15-13-6 defining “hemp” as “any part” of the cannabis plant with extremely low THC. Conceded in the Opinion is that marijuana and hemp smell alike. The COA concluded that Officer Deinhart’s suspicion was reasonable.

The CLB would be delighted to see a reversal on Transfer . . . Case Note by Dave Allen

The Rare 3rd Party Spoliation

Update: See affirmance on Transfer on April 3, 2024.

The case on review is Safeco v. Blue Sky, as decided May 25th in the COA with a reversal of a TR 12(B)(6) dismissal. Ramona Smith had a costly fire in her home. Safeco, her insurer, paid out over $500,000.00 and concluded that the point of origin was a “Digital Dehydrator” bought from Cabela’s. Ramona or Safeco engaged Michaelis to do restoration work. Despite oral direction to preserve the appliance and counter area where it sat, Michaelis destroyed everything.

Safeco sued others, including Michaelis, for “3rd party spoliation” and other torts. Its action against Cabela’s depended somewhat on destroyed evidence. Michaelis filed a TR 12(B)(6) Motion to Dismiss. The trial court granted the Motion. The COA panel reversed. The Complaint had alleged: a duty owed by Michaelis to refrain from destruction of certain evidence; a breach of that duty; and damages . . . Case Note by Dave Allen

Invasion of Privacy by Invitation

UPDATE: Transfer decision of May 2, 2024 restores the excessive sentence.

3,000 days of incarceration: that was Dustin Lane’s sentence upon his guilty plea to 10 counts of invasion of privacy. The case on review is Lane v. State, as decided May 25th in the COA with a rare (2/1) reversal of sentence.

Dustin Lane of downstate Lawrence County was serving time for the domestic battery of his (former) wife A.N. A no-contact order was in effect. Nonetheless, he wrote letters to A.N. mostly about their children. She wrote back multiple times. She did not report or complain of the letters until near Dustin’s scheduled release date. The CLB notes that the aggrieved recipient of a letter need not open it and that A.N.’s replies encouraged or invited further letters from Dustin. In a better world A.N. would have been charged as an accessory a minute after Dustin was charged per her complaint.

Dustin was sentenced to ten consecutive terms of 300 days each for his misdemeanor offenses. The COA majority of (author) Judges Crone and Robb held that the multiple sentences should be concurrent rather than consecutive. AG Rokita is likely to request Transfer. If so, the SCOTSI should decline . . . Case Note by Dave Allen

The COA on SCOTSI’s Wadle

The case on review is Mills v. State, as decided in the COA on May 18, 2023. We see there the (unanimous) Opinion of Judge Vaidik explaining the approach to double jeopardy analysis in the era of Wadle and Powell. What is clear is that those 2020 SCOTSI decisions changed the double jeopardy approach with no discernible simplification.

As explained by Judge Vaidik, Wadle addresses cases in which a defendant’s single act or transaction “implicates” multiple criminal statutes. For such cases Wadle requires courts to first determine whether the statutes allow multiple punishments for the charged offenses.¹ If so there is no double jeopardy. If, on the other hand, the court discerns to the contrary, the next step is to determine whether one charge is “included”— either inherently or as charged. Only when this second inquiry concludes there is an included offense does the court first consider the evidence at trial to determine whether there is a single act or multiple, separate acts.

In the case on review Elijah Mills had been convicted of neglect of a dependent (resulting in death) and felony battery following the death of his young son in his custody. He argued too soon in the approach that he was tried for a single act of battery . . . Case Note by Dave Allen

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¹ Determining legislative intent is a problem when nearly all current criminal statutes were passed in the pre-Wadle era in which such interest did not need to be considered. Moreover, the CLB finds it abhorrent to end inquiry into a constitutional controversy with the statutes giving rise to the controversy.

No Special Findings for Jury’s LWOP Recommendation

The case on review is Oberhansley v. State, as decided May 17, 2023 in the SCOTSI with an affirmance of Joseph Oberhansley’s LWOP sentence imposed in accordance with a jury recommendation. Joseph had been convicted of burglary and murder in Indiana. He had an old murder conviction from Utah.

It looks from the Opinion that Joseph was a sick, violent bastard. He withdrew an insanity plea when the State agreed to drop its death penalty request in favor of LWOP.

The jury was instructed that prior to any LWOP recommendation it must find that aggravating circumstances outweighed mitigating circumstances. There was evidence of both. The jury recommended LWOP without any special finding. This was Oberhansley’s best argument. The SCOTSI held that the outweighing of mitigators by aggravators was implicit in the LWOP recommendation . . . Case Note by Dave Allen

PC Affidavit Recantation

The case on review is Wainscott v. State, as decided May 16, 2023 in the COA with an affirmance of the trial court’s denial of a motion to suppress evidence. Police had obtained a search warrant for the defendant’s phone based on accusations of molestation from his young niece. The warrant was issued. The phone was seized. Then there came a partial recantation from the girl. There was no notice to the issuing magistrate. Wainscott moved to suppress. Held: (By Judge Weissmann) It was unnecessary to inform the issuing magistrate of the partial recantation when the warrant “had already been executed by the seizure of the phone.” The holding is disingenuous in that examination of the phone remained to be done. The CLB is officially disappointed in Judge Weissmann . . . Case Note by Dave Allen

Slip and Fall Specials x 100

The case on review is Menard Inc. v. Terew, as decided May 15, 2023 in the COA with a partial reversal and remand for redetermination of “excessive” damages that warranted reversal. In this parking lot slip & fall case alleging ice and snow there were stipulated specials of just over $40,000.00. The jury awarded damages of $4 million. Given the absence of evidence of permanent injury the COA agreed that the damage award was excessive.

The CLB would like to see the COA reversing and remanding personal injury appeals for inadequate damages. That will never happen . . . Case Note by Dave Allen

Limitations by Agreement

The case on review is Coulson-Smith v. Coulson and a host of others. Appellant Nancy Coulson-Smith sued the trustee of a family trust and others over a trust amendment which was to her detriment. The trial court dismissed the suit as untimely. The COA reversed and remanded, giving Nancy the opportunity to prove below that the trust settlor lacked the mental capacity to amend the trust in 2016.

While people may “toll” a limitations period by agreement, the agreement below was entered into only by Nancy and the trustee. When she finally sued, Nancy named multiple defendants who were not party to the tolling agreement. To the CLB that was a major flaw. See IC 30-4-6-14 for a 3-year limitations period for contesting the validity of a trust. Nancy sued after 3 years had passed.

If I am sued after a limitations deadline I would not expect to be bound by a tolling agreement entered into by other people. Look for Transfer . . . David Allen

CR 4(C) Discharge After Motions to Continue

The case on review is Wellman v. State, as decided May 10, 2023 in the COA with a reversal of the trial court’s refusal to grant a CR 4(C) discharge to Christopher Wellman, who had “repeatedly asked the trial court to continue his case.” The factual wrinkle was that Wellman’s continuance requests were due to the late/absent discovery (blood draw results) from the State. Wellman was charged with drunk driving.

It seems that motions to continue are forgiven a defendant who has a good case for blaming the State. There should be no grant of Transfer . . . Case Note by David Allen

Waived is Waived

UPDATE: See above for the identical re-hearing result on October 3, 2023.

A rare 3/2 split in the SCOTSI is presented in its May 3, 2023 decision in Davis v. State. Appellant Matthew Davis sought to appeal his sentence even after he and his lawyer both signed a plea agreement including waiver of the right to appeal the sentence. As grounds for appeal he cited statements from the trial judge suggesting (prior to the plea change) that Davis had a right to appeal the sentence.

The majority of Justices Molter, Massa, and Slaughter held that the appeal would be dismissed. On the other hand they seem to recognize the availability of a PCR remedy. CJ Rush joined the Goff dissent favoring the allowance of an appeal whether it is waived or not, given the conceded error of the trial court in “misadvising” Davis of his right to appeal. Davis claimed that his waiver was not “knowing” . . . Case Note by Dave Allen

Another Bad Fence

Adverse Possession cases seem to be reported rarely and randomly. The most recent one is MLS Enterprises, LLC v. Norman, as decided May 4, 2023 in the COA with an affirmance of the trial court judgment in favor of a farming family against its neighbor. Notably, the victors had argued “acquiescence” as an alternate theory to adverse possession. Despite uncertainty in the record from below, the COA treated the case as one of adverse possession while noting that proof of one theory would exclude the other.

It looks like the neighbors had a wire fence left by the common owner of both parcels. It also seems that the fence line did not fully match the “deed line” border. Someone did the research to find that the Personal Representative’s Deed (to the losing party) did not match an earlier Deed.

In the unanimous Judge Bailey Opinion the reader will see an educational review of the law of adverse possession. Transfer is unlikely . . . Case Note by Dave Allen

In or On

This COA appellate decision of April 28, 2023 affirms the infraction judgment against Bryan Falletti for a violation of IC 36-8-12-11(c). The statute prohibits all of us who are not members of a volunteer fire department from the display of an illuminated blue light on a vehicle. His unsuccessful one-note defense is that his two (2) blue lights were in his vehicle (near the rear window) and pointing outward through the glass.

To the CLB the phrase “on the vehicle” does not contain an inside/outside component. What is in the vehicle is also on it. Since I very much like strict construction of penal statutes, I almost dislike the trial court and COA conclusion that on includes in. Still my gut feeling is that the one-note defense is lame. I expect no grant of Transfer . . . Case Note by Dave Allen

Cuffed and Confined = Arrested

At issue was the voluntariness of consent to the “search” of a blood draw following a truck/motorcycle collision that resulted in serious bodily injury. Kriss Eugene Bauman II was the truck driver and the unsuccessful appellant in Bauman v. State, as decided April 19, 2023 in the COA.

Noted in the unanimous Judge Foley Opinion is the trio of available challenges to voluntariness of a consent to a search: (1) an unconstitutional ultimatum; (2) a violation of right to counsel; and (3) an illegal detention. The CLB would add the absence of Pirtle warnings in some cases.

The compelling feature of the COA Opinion is its handling of police testimony from below that Bauman was handcuffed and in the back of a police car yet “not under arrest.” The COA Opinion seems to accept the claim that Bauman was “not under arrest.” Such a claim is absurd and an obvious lie. Acceptance on appeal discredits the COA. Look for Transfer . . . Case Note by Dave Allen

Substantive Double Jeopardy

Let’s say that I (1) point a gun at you (2) pull the trigger, and (3) put a bullet in your chest. Have I committed three crimes or just the one? Does it make a difference if all three happen within a couple of seconds? If so, then what intervals between offenses are necessary to allow prosecution for multiple offences? Convicted child molester Ray Sorgdrager appealed his two convictions and enhanced sentence of 41 years in Sordrager v. State, as decided in the COA on April 13, 2023. The COA panel held unanimously for the applicability of the Wadle v. State, 151 N.E.3d 227 (Ind. 2020) standard of “analytical framework” for addressing claims of substantive double jeopardy when a “single criminal act” violates multiple statutes with common elements. A choice was made to apply the Wadle rule retroactively. Held: where multiple acts to a single molestation victim during “the same encounter” occur there is no (Indiana) double jeopardy bar against multiple convictions. Here there was a short interval between the touching of a breast and the digital penetration of the victim’s vagina . . . Case Note by Dave Allen

Immunity both Quasi and Absolute; Revoking the Expired License

Paul J. Elmer was, for a time, a practicing, licensed pharmacist. The Feds prosecuted him for the distribution and production of adulterated drugs. That wasn’t enough for the Indiana Board of Pharmacy. The case on review is Indiana Board of Pharmacy v. Elmer, as decided March 30, 2023 in the COA with a reversal in favor of the Board. Its action for revocation of an expired license could not support the appealed award of attorney fees to Elmer, despite the absence of any statutory basis for revocation of an expired license. Moreover, the unanimous COA panel held that the Board members were entitled to a quasi judicial immunity that was just as absolute as regular judicial immunity. The narrow exceptions to judicial immunity are noted.

Analysis. I do not like the decision. Still, there will be no Transfer . . . Case Note by Dave Allen

Stepfather’s Custody

Hoosier T.M. married a divorced woman with physical custody of two children. Mother had a child (with T.M.) then died. Stepfather T.M. filed for adoption. The case on review is Adoption of W.K., as decided March 29, 2023 in the COA. On evidence including children’s expression of a preference to live with stepfather, custody was awarded to him as the adoption petition was dismissed for lack of father’s necessary consent. Noted here is the strong presumption in favor of the natural parent in such a custody fight . . . Case Note by David Allen

The Fine Print Online

The case on review is Decker v. Star Financial as decided in the SCOTSI on March 21, 2023. There was an earlier Case Note of the COA decision of April 20, 2022 and a prediction of Transfer.

The Deckers filed a class action suit against their bank for the wrongful assessment of overdraft fees. The bank defended with claims that an arbitration mandate and a prohibition of class action had been added to the “terms and conditions” of the deposit agreement.

The bank had modified the deposit agreement by adding fine print to the end of a long emailed monthly statement. According to the fine print, the changes would go into effect in 10 days unless the Deckers closed the account. The Tavitas-led COA majority had held that the notice was less than reasonable.

The SCOTSI opinion came down as 4-0-1 with Justice Goff concurring in result while writing separately. The big difference between Justice Goff and the majority Opinion was Goff’s conclusion that the arbitration provision was inapplicable due to insufficient opportunity to reject. The majority did not reach the “reasonable notice” issue while holding against arbitration on nuanced contractual grounds . . . Case Note by Dave Allen

General and Special Jurisdiction

The case on review is Spokane Kart Racing v. Kart Track Promoters, as decided March 20, 2023 in the COA. Here the out-of-state entity had purchased a policy of insurance in Indiana. That insurance involved variable premiums depending upon “participant totals.” The Hoosier insurer sued. The out-of-staters pled lack of personal jurisdiction under TR 12(B)(2). Oddly, there is no mention of the insurance contract having a venue clause.

The majority of 2 COA judges held that the out-of-staters “purposely availed” themselves of the privilege of doing business in Indiana and thereby were subject to specific jurisdiction. No mention here of TR 4.4(A)(6).

COA judge Tavitas wrote a spirited dissent. Given the content of TR 4.4(A)(6) about jurisdiction from an insurance contract, the SCOTSI is extremely unlikely to adopt the Tavitas dissent . . . Case Note by Dave Allen

INPRS Division in Dissolution

The case on review is Meyer v. Meyer, as decided March 17, 2023 in the COA by way of unanimous panel decision mostly affirming the trial court. The Opinion is by Judge Tavitas. She explained, among other points, how such assets as inheritance and gift must be included in the one pot marital estate. The Opinion confirms the inconvenient reality that an INPRS pension cannot (ordinarily) be divided by QDRO. Finally, it was error for the trial court to exclude a marital debt . . . Case Note by Dave Allen

Best Interests of the Dog

You are not truly a matrimonial lawyer until you have litigated dog custody. Of course, we do not call it dog custody since pet dogs are deemed no more than personal property. Still, I have argued “best interest of the dog.” The case on review is Ivankovic v. Ivankovic, as decided March 15, 2023 in the COA.

Jacquelyn Ivankovic had been awarded Roxy, a Boston terrier, as part of the property split between her and husband Milan. She appealed that part of the decree granting the minor children the right to take Roxy with them for visitation at Milan’s. The CLB sees the Order (from Judge Hallet of the Lake Superior Court Room Three) as the equivalent of dog visitation to the noncustodial dad. The unanimous COA panel reversed Judge Hallet’s order that the children could take Roxy with them for parenting time with Milan.

If Roxy were a toy or article of clothing the COA would not have reversed . . . Case Note by Dave Allen

Commonlaw Dram Shop

The case on review is WEOC, Inc. v. Neibauer, as decided in the COA on March 15, 2023. The estate of Nathan Blount sued a couple of bars for dram shop liability and negligent service of alcohol.

The defense argued that a count alleging the negligent service of alcohol failed to state a claim upon which relief could be granted. The trial court disagreed. The defense makes an interlocutory appeal and loses. See the statutory civil dram shop law at IC 7.1-5-10-15.5.

Held: the count of the complaint alleging negligent service survives a TR 12(B)(6) motion. Look for Transfer . . . Case Note by Dave Allen

Criticism: to the CLB the civil dram shop statute now fills the field and excludes any parallel negligence claim.

Father, Not the Father

The case on review is Estate of Peters, as decided March 15, 2023 in the COA. Edward Peters died intestate. There was an old divorce decree stating that he was the father of one female child born of the marriage but not the father of another (male) child born out of wedlock.

The daughter opened an unsupervised estate alleging she was the sole heir. The son intervened, claiming heirship. The trial court agreed with son. Daughter appeals and loses.

Held: old (1971) divorce decree was not re judicata as to paternity of boy. The erroneous conclusion of the COA was that paternity was “not litigated” in the divorce . . . Case Note by Dave Allen

Jail NOT a County Building

The case on review is Commissioners of Clay County v. Clinton County Sheriff’s Office, as decided March 9, 2023 in the COA. The contest was between the Sheriff and County Commissioners over control of the jail. The particular subject was whether the Sheriff could sell e-cigarettes to inmates when the smoking of e-cigs was generally banned (by the commissioners) in “County buildings.” The trial court sided with the Sheriff. The COA affirmed . . . Case Note by Dave Allen

Dog Sniff Delay?

The case on review is Chauncy v. State, as decided February 22, 2023 in the COA with the Judge Tavitas Opinion affirming the trial court’s denial of April Chauncy’s motion to suppress evidence from an automobile search. The appeal was interlocutory.

Driver Nichole Deaton employed her left turn signal only after stopping at the intersection where she would turn. Given the date, her failure to signal 200 feet before the intersection was a traffic violation. The statute requiring a signal for 200 feet has been repealed effective January 1, 2023.

Shelbyville PD Officer Alric Staggers executed a vehicle stop. He collected ID’s from driver Nicole and passenger April.¹ He “ran” the names to check for warrants and saw that both had been previously charged with drug crimes.

Then Officer Staggers decided to radio for a canine officer and drug-sniffing dog. He did so while purportedly printing a warning ticket. According to Officer Staggers’ suppression hearing testimony, his in-squad computer was running slow and “spinning.” So there was delay while the dog was en route. Remarkably, the written warning was fully printed a few minutes after the dog’s arrival and mere seconds after the dog “alerted” to the odor of illicit drugs in the car.

To review, a vehicle drug sniff is “not a search” (in Indiana); still, a routine traffic stop should not be delayed while a dog is en route. Such delay could amount to an unlawful detention as grounds for exclusionary rule suppression of evidence. Police Officer testimony attributing traffic stop delay to a slow in-squad computer is inherently dubious.² That made no difference to the Hon. R. Kent Apsley of the Shelby Superior Court.

Here the time lapse from the traffic stop to the dog alert was some seventeen minutes and forty-five seconds. Expect the Chauncy Opinion to be cited in support of traffic stop dog sniff detentions of that duration or less . . . Case Note by Dave Allen

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¹ In the view of the CLB a vehicle passenger needs no ID or license to be a passenger. Any duty of a passenger to identify herself may be satisfied orally.

² If only there were videotape from God (the CLB’s notion of irrefutable evidence) to settle the matter, I would bet more than I could afford to lose on Officer Staggers being a liar about the dog sniff delay.

Fourth Amendment at the Motel

The case on review is Williams v. State, as decided February 7, 2023 in the COA. James Williams unsuccessfully appealed his (bench trial) conviction for “promoting child sexual trafficking.” He had been pimping out an underage girlfriend until he was busted in Lafayette.

The working girl was spotted by an alert Lafayette cop who was trained in human trafficking. She eventually implicated Williams as her pimp.

Two Lafayette cops went to Williams’ motel room. They knocked. He answered. They lied (claiming a “medical emergency” for his working girl) in order to gain Williams’ consent to their entry. They saw and seized two cell phones. They put the cell phones in “airplane mode” to prevent a remote wiping and then held onto them until they got their search warrant for the phones.

Williams’ best argument on appeal was that his consent to police entry into his motel room was involuntary in light of the lies utilized in soliciting his consent. The COA was unpersuaded that the lies were blatant enough to invalidate Williams’ consent to the entry which led to seizure of the cell phones and recovery of evidence that Williams was the pimp of an underage prostitute.

The CLB dislikes the holding that cops are entitled to lie to you (at least to a degree) while soliciting your voluntary consent to a search . . . Case Note by Dave Allen

Addendum: Somewhere in this case or in other similar appeals there is legal fodder for a criminal defense jury instruction that lies from police officers are both expected and accepted by our courts . . . DPA

The Time of the Crime During Criminal Code Revisions

The case on review is Keister¹ v. State, as decided February 8, 2023 in the COA with the reversal of one of Chad Keister’s two convictions of child molesting. As seen so often the victim here was the daughter of Keister’s live-in girlfriend. The victim is referred to by the COA as “A.W.” I’ll call her Abby.

Relevant to the COA decision is the extensive criminal code revision effective July 1, 2014. Given that circumstance and Abby’s August birthday, the dates of her being fondled by Keister were more important than in the average case. Like most child victims, Abby was very nonspecific about offense dates. Count II of the Information was drafted with time references placing the crime between the July 1, 2014 effective date of the criminal code revision and Abby’s birthday in August of 2015.²

Over a defense objection the trial court instructed the jury that the prosecution need not prove the date of the offense. The COA found reversible error requiring reversal of the Count II conviction. There would be no retrial on Count II given the insufficiency of evidence for the jury to find that the Count II offense happened while the relevant criminal statute was in effect.

The SCOTSI will not like this partial reversal. Look for Transfer with a restoration of the Count II conviction . . . Case Note by Dave Allen

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¹ Keister is aptly named as a horse’s ass.

² Count I alleged an offense taking place at some unspecified date within an earlier period of nearly two years. The REAL deprivation of rights in this case is the burdening of the defense with this excessive temporal uncertainty.

Reversal of a Voir Dire Dictator

The case on review is Doroszko v. State, as decided February 1, 2023 with the unanimous SCOTSI reversal of the involuntary manslaughter conviction of Kyle Doroszko for the trial court’s refusal to allow voir dire of prospective jurors under TR 47(D).

Judge Jeffrey Sanford of the St. Joseph Superior Court presided over the murder trial of Kyle Doroszko who had been attacked by a customer to whom he meant to sell two ounces of marijuana. He asserted self-defense, a theory complicated by the crime in the background. Judge Sanford announced that he would conduct the voir dire of prospective jurors but that he would consider using questions submitted by the parties. Defense counsel objected more than once and cited TR 47(D), to-wit:

“47(D) Examination of Jurors.  The Court shall permit the parties or their attorneys to conduct the examination of prospective jurors and may conduct examination itself . . . If the court conducts the examination, it shall permit the parties to supplement the examination by further inquiry.”

Seems simple enough, except to Judge Sanford who refused the defense’s requested voir dire participation.

Had I been appellate counsel for Kyle I would have worried about the prospect of an abuse-of-discretion standard of review. Here the SCOTSI Opinion of Justice Molter properly held for de novo review and adherence to TR 47(D). Moreover, the Opinion rejected any notion that the error had been harmless.¹ Notably, the Opinion deferred consideration of whether the voir dire error violated the right to a fair and impartial jury as expressed at Article 1, Section 13 of the Indiana Constitution.

From here it looks as though the jury he wound up with had some sympathy for Kyle in reducing the charge of murder to involuntary manslaughter . . . Case Note by Dave Allen.

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¹ The Court of Appeals had found voir dire error but declared it harmless. See 185 N.E.3d 879, 884 (Ind. Ct. App. 2022).

No IED Claim for Property Loss

The case on review is Hunter v. J&M Displays, as decided in the COA on January 31, 2023 with the affirmance of the trial court’s partial summary judgment in favor of the fireworks display company whose off-course “mortar” penetrated Faye Hunter’s roof and set fire to her home.

Faye Hunter was in bed around 10:00 p.m. on July 5, 2019 when a wayward fireworks mortar (from professionals) shook her house, penetrated her roof, and then set the place on fire. She and her husband sued for the property damage plus for the negligent infliction of emotional distress on poor Faye who experienced the disturbing events.

On a defense motion for summary judgment on the IED claim the trial court agreed that Faye could not claim negligent infliction of emotional distress over mere property damage. Faye was fortunate to have suffered no physical injury. The unanimous COA panel affirmed the trial court.

The CLB finds fault with the trial court conclusion that Faye “was not physically impacted.” The COA Opinion recites evidence that the mortar impact shook Faye’s bed. To the CLB, that is impact enough. If the case law on IED would deny Faye a reasonable recovery, that case law should be changed.

The CLB would vote for a grant of Transfer if the CLB had a vote . . . Case Note by Dave Allen

Confronting the Mask II

The first Case Note called “Confronting the Mask” came in November of 2022. Today’s entry is similar but not identical. Keesha Johnson fired a handgun over the head of Shanetra Bonds, an “ex” of Keesha’s boyfriend Jeffrey. The over-the-head bullets happened to strike and penetrate residential walls but without harm to any person.

The referenced earlier face mask decision in Mills v. State, 198 N.E.3d 720 (Ind. Ct. App. 2022) is mentioned in a footnote on the 17th page of the Slip Opinion, distinguished on the facts, and excluded as binding precedent. For all her recklessness in the use of a firearm, Keesha took care at trial to make proper objections on the face mask issue. Unlike the Mills appeal, Keesha did not have to argue fundamental error.

Keesha was agreeable to the use (by witnesses) of transparent face shields. Complying with local (Marion County) “court policy” the trial court judge required witnesses to wear (opaque) face masks rather than shields. Notably, SCOTSI pandemic Orders allowed shields in lieu of masks.

In addition to the more familiar Sixth Amendment right of a defendant to “confront” adverse witnesses there is Article 1 Section 13 of the Indiana Constitution declaring a right to “face-to-face” confrontation. The COA Opinion (authored by Judge Mathias) eventually holds that it was error for the trial court to require over objection that witnesses wear opaque face masks. But where Keesha admitted (in her own testimony) to twice firing the handgun, the error as to confrontation rights is held to be harmless. It seems that Keesha failed to identify any contested witness testimony that could have been resolved in favor of acquittal had there been full face-to-face confrontation . . . Case Note by Dave Allen

The Fallen Invitee and ‘Sno Duty

Remember duty, breach (of duty), and damages as the sequential parts of a tort case. Among the universe of tort cases there is the case on review, Stanley v. Burns, as decided January 13, 2023 in the COA with the affirmance of Judge Stephen Scheele’s award of SJ to the defendant home owners in an icy sidewalk slip & fall case brought by invitee Erin Stanley.

Erin was invited to a gathering at the Burns residence on a December evening. She parked on the street and proceeded on foot to the icy “roadside sidewalk” in front of the residence where she fell. Erin sued for damages. Andrea and her husband were the defendants. They persuaded the trial court that the roadside sidewalk was beyond their property line, such that it abutted their property without being their property.¹ On the defense motion for SJ held: owners owed no duty to their invitee to clear the public sidewalk in front of their home. Held: St. John town ordinance requiring daily snow removal created no duty to the fallen invitee . . . Case Note by Dave Allen

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¹ The opposing view would be that the owner of a residential lot (improved or not) owns to the middle of the adjacent street, subject to public rights of way. At the very least the lot owner owns a right of reversion to the middle of the street should the right of way be abandoned.

No Murder Defense for PTSD¹

I guess that we all know or know of a war veteran whose mental health was damaged and who was prone to violent outbursts in stressful situations. Add Dustin Passarelli to the list of such men. The case on review is Passarelli v. State, as decided January 9, 2023 in the COA with a split (2/1) panel affirming the trial court’s decision that Dustin cannot call a psychologist as a trial witness to testify about his PTSD diagnosis. Dustin’s unsuccessful theory was that his service-based PTSD was somehow relevant to a determination of his perception of threats for purposes of his defense of self-defense.

There was a road rage incident on Indy’s I-465. Motorist Mustafa Ayoubi may have rammed the rear of a vehicle driven by Dustin Passarelli. When Mustafa left the interstate, Dustin followed him into an apartment complex parking area where they two parked and engaged in mutually insulting and threatening discourse.

It appears that Dustin stayed in his car while Mustafa was on foot near Dustin’s vehicle. Any threat posed by Mustafa was enhanced with the appearance of three of his friends. Mustafa approached the driver’s door of Dustin’s car and made a fist, as though to punch the driver’s window glass. Dustin drew his Glock and shot Mustafa multiple times. Mustafa died of his wounds. Dustin was charged with murder. The appeal was interlocutory.

Dustin was in the army for a bit over three years when discharged for fighting with a fellow soldier. He was exposed to much violence and death. He had tours of duty in Iraq and Afghanistan. The VA rated him as 70% disabled, mostly from PTSD.

The psychologist was ready to testify that PTSD leaves men like Dustin ready to respond to a threat more reflexively and more lethally than others. In pretrial proceedings the trial court held that such testimony would be inadmissible. The COA panel majority affirmed and remanded for trial.

See IC 35-41-3-2(c) for the self-defense requirement of “reasonable” belief that lethal force is necessary to prevent serious bodily injury. The CLB wonders whether the applicable “reasonable person” standard somehow excludes unstable veterans like Dustin.

In lone dissent COA Judge Brown made the point that “BSS” or battered-spouse-syndrome cases allow for an experience-based evaluation of the reasonableness of the perception of imminent threat.

There will surely be a Transfer request. The SCOTSI should grant Transfer and settle the issue . . . Case Note by Dave Allen

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¹ PTSD is the familiar acronym for post-traumatic-stress-disorder. The CLB suspects that the condition, while real, is over-diagnosed.

Religion, Child Custody, and Free Speech

The case on review is Easterday v. Everhart, as decided January 6, 2023 in the COA. Divorced dad Kory Everhart won a COA reversal of the trial court’s modification of “legal custody” and its order prohibiting him from “discussing religion” with his daughter. Notably, divorced mother Amber Everhart filed no Appellee’s Brief.

The COA bought Kory’s argument that legal custody was changed from joint to sole (in favor of mother) solely on the basis of religion. Kory is a committed agnostic. Amber is a committed churchgoer who takes child with her. Amber claimed (without proof) that Kory told child that “there is no god.”¹ Held: it was improper to modify custody “solely” on the basis of religion. Moreover, the ban on discussing religion with the child is held to be improper or at least overbroad with respect to dad’s First Amendment rights . . . Case Note by Dave Allen

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¹ Denial of the existence of God is for the atheist and not for the agnostic, who can’t decide one way or the other what he believes.