2024 Appellate Case Notes
CAPSA 1 APRA 0
APRA, or the Access to Public Records Act is well-known as the Indiana version of the federal FOIA. CAPSA is relatively recent and less well-known. The case on review is Mishler v. Union-North United School Corp., as decided in the COA on June 11, 2024 in favor of the School Corp.
Appellant William Mishler was the attorney brother of Andrew Mishler, a teacher who resigned under pressure amid accusations against him of the inappropriate touching of female coworkers and inappropriate comments to them. Though he resigned, Andrew wanted to learn details of the accusations. William filed 2 APRA requests that were denied by the school on the claim of APRA confidentiality. William appealed to the Public Access Counselor. The PAC denied William’s appeal, citing that his APRA requests never identified him as Andrew’s attorney.
William’s next step was to send a third APRA request to the school, taking care to identify himself as Andrew’s attorney. Then William sued the school prior to its response to the third APRA request. Later came the school’s denial of the third APRA request. The school defended alleging William’s failure to apply with the CAPSA requirement of pre-suit notice as found at IC 34-13-3.5-4. CAPSA requires a pre-suit notice to a public school before initiating a civil action or administrative action against it. The notice must contain a proposed remedy. IC 34-13-3.5-7 provides that dismissal without prejudice is the remedy for CAPSA noncompliance. CAPSA notice is akin to the more familiar Notice of Tort Claim.
William unsuccessfully argued waiver of the CAPSA notice requirement. The COA remands to the trial court with instructions to dismiss without prejudice per section 7 . . . Case Note by Dave Allen
Lake Med Mal Reversal
The case on review is Abbas v. Neter-Nu, as decided June 11, 2024 in the COA with the reversal of judgment (by jury trial) in favor of med mal plaintiff Hetep Neter-Nu, who was taken to the Methodist Hospital for nausea and vomiting and wound up losing a foot and lower leg to what looks like an infection at the site of an IV feed in the foot.
The COA held that Judge Bruce Parent of the Lake Superior Court committed reversible error in giving and denying jury instructions. Conceded here is the vicarious liability of a hospital for the “in-the-course” med mal of its agents or employees. Here the nurse who handled the IV and one doctor who examined and discharged Neter-Nu were sued along with the hospital. There was no claim below of direct hospital liability alleging negligent training, supervision or retention. Because the only trial evidence of medical negligence was that of the one nurse and one doctor, held: it was error to instruct the jury (over objection) that negligence of any hospital agent or employee could warrant vicarious liability. Criticism: Given the lack of evidence against other hospital personnel, the overbreadth of the instruction was harmless.
The COA took note of the passage of just a few days between Neter-Nu’s discharge from Methodist and his arrival to medical care in Iowa. Though there was no evidence of an intervening event. Held: Judge Parent erred in refusing an intervening cause instruction. The CLB is in opposition to the practice of giving an intervening cause instruction absent evidence of intervening cause other than duration between events . . . Case Note by Dave Allen
Arbitrability in the SCOTSI
The case on review is Illinois Casualty Company v. B&S of Fort Wayne, as decided June 10, 2024 in the SCOTSI. On the Appellees’ side are 33 “models” (a/k/a strippers) from around the globe whose images were used by Fort Wayne strip clubs as “social media advertisement” without consent.
The strip clubs had liability insurance with Appellant ICC. The policy had an arbitration clause that incorporated the “current rules of the American Arbitration Association.” Held on first impression: such reference to AAA rules means that arbitrability is delegated to an arbitrator.
The absurd SCOTSI result is the application of the arbitration clause to the strippers who were not parties to the insurance policies containing the arbitration clause. The absurdity is mitigated slightly by the status of the strippers as assignees of the insured strip clubs. The assignment put the strippers in privity with ICC . . . Case Note by Dave Allen
Defining “Structural” Error
The case on review is the unsuccessful appeal of the one mother and two dads of 8 children declared CHINS in downstate Bedford. The name of the case is AA, et al. v. Indiana Dept of Child Services, as decided June 10, 2024. The appellate argument of the most interest is that of “structural” error in the proceedings below. “Structural” error is a version (limited to criminal cases?) of fundamental error. There is no cited authority for “structural” error’s application to a CHINS case. Structural error requires no showing of prejudice to warrant a reversal . . . Case Note by Dave Allen
ERISA Benefit Excluding Constructive Trust
The case on review is Geels v. Flottemesch, as decided (2/1) by a split COA panel on June 10, 2024.
Regina Geels was the named beneficiary of her deceased brother’s two employment-based (ERISA) life insurance policies. The trial court imposed a “constructive trust” over the insurance payout for the benefit of the brother’s three daughters, two of whom were adults. The daughters alleged their father’s “intent” for the life insurance proceeds to go to them.
The insurer MetLife raised the defense of ERISA preemption before interpleading the insurance proceeds and being dismissed. The notion was that ERISA required payment to the designated beneficiary, to the exclusion of the trial court’s Order to the contrary. The COA majority agreed . . . Case Note by Dave Allen
Now We All Know
The case on review is Wallace v. State, a/k/a Name Change of Cory M. Wallace. The trial court dismissed Cory’s petition to change the “gender marker” on his birth certificate. With three separate Opinions, the COA panel affirmed. Of interest here is the circumstance that Cory was an inmate in the IDOC when he filed his petition requesting the change to a female gender marker. The trial court’s dismissal was sua sponte due to the inmate status of Cory.
Cited as the “seminal” case is In re Petition for Change of Birth Certificate, 22 N.E.3d 707 (Ind. Ct. App. 2014). For the prohibition of a name change for DOC inmates, see IC 34-28-2-1.5. But the issue on appeal is the gender marker change requested by Cory. The COA encourages the General Assembly to clarify the law in such cases. Look for transfer here . . . Case Note by Dave Allen
Duke Energy Can’t Lose
The day is June 7, 2024. The COA’s daily output is 6 NFP affirmances and 1 reversal, that being in the case of Duke Energy v. Yockey. Diana Yockey owned property in Knox County. Duke Energy brought a condemnation action to acquire an easement over her property. The easement had to do with stringing power lines and to “manage” the vegetation (trees) nearby. Diana’s objections were sustained in the trial court. The trial court was reversed on appeal.
The condemnation and the objections followed an unsuccessful out-of-court purchase bid. Held: Duke has the power to condemn, and judicial review is too narrow for Diana’s objections. While it looks as though the appeal had merit, the CLB has seen many meritorious appeals by parties that were not utility companies that were denied . . . Case Note by Dave Allen
A Teen Who Murdered
The case on review is Kelly v. State, as decided June 6, 2024 in the COA. McKinley Kelly murdered two men in East Chicago when he was 16 years of age. He was sentenced to 110 years in prison, essentially a life sentence. The Lake Superior Court Criminal Division allowed the filing of a successive PCR petition from Kelly and then denied it. Neither the trial court nor the COA seems to have been moved by the argument that juveniles are less culpable (than adults) for murdering someone. As in most successive PCR cases, Kelly was burdened by the rule of waiver of issues not raised in the initial petition and res judicata as to issues that were. Noted: the res judicata bar may be overcome by “extraordinary circumstances”. Kelly’s representation by the State Public Defender suggests the probability of a transfer petition . . . Case Note by Dave Allen
Medical Record Snooping Again
The case on review is Harris v. Deaconess Hospital, as decided June 5, 2024 in the COA with a partial reversal and partial affirmance in the appeal of 13 female plaintiffs whose medical records were “improperly accessed” by the doctor who had some acquaintance with them. They sued the employer hospital on a respondeat superior theory and the doctor. The cause of action was for (1) “invasion of privacy by intrusion into emotional solace” (whatever that means); and (2) intentional infliction of emotional distress.
Noted: the #1 part of the cause of action needs recognition from the SCOTSI. The #2 part (intentional infliction) can be met by reckless behavior. While the trial court awarded SJ to the employer the COA held for genuine issues of fact re the doctor’s recklessness and also as to whether he acted (against employer policy) in the scope of employment. The CLB disagrees slightly with the COA in that the General Assembly is competent (at least in theory) to enact civil tort legislation for the unauthorized viewing of medical records by employees or agents of the providers . . . Case Note by Dave Allen
Harassment by Aerial Drone
The case on review is Scheel v. State, as decided June 5, 2024 with the affirmance in the COA of Jeffery Scheel’s misdemeanor conviction (by bench trial) of “remote aerial harassment” based on his operation of a drone from his lakeside community home. See the offense at IC 35-45-10-6.
Scheel was charged with spying on an across-the-lake family of a married couple with 3 young daughters. Scheel was seen operating a drone while wearing “virtual reality” goggles.¹ When they noticed the drone surveillance the adults were annoyed while the children were scared.
The offense element of an intent to harass seems to be supported by the objective evidence of repetitive, targeted flights of the drone.
While the CLB dislikes the vagueness of the offense, the hope here is that Jeffery Scheel suffers for his actions . . . Case Note by Dave Allen
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¹ The CLB has no idea how VR goggles enhanced Scheel’s experience of unwelcome surveillance.
Physical Attack in the Nursing Home
Judge Calvin Hawkins of the Lake Superior Court is affirmed in this interlocutory appeal of his denial of a motion to dismiss for want of compliance with the MMA. The name of the case is Major Hospital v. Lee, as decided by COA NFP decision of June 4, 2024.
Plaintiff Helen Lee was guardian of “P.L,” who was a gravely disabled patient at Harbor Health. She was a fall risk. One day a fall (from bed) was reported to Helen. She found bodily injuries consistent with a physical beating. Her Complaint made clear that the injuries were not the result of substandard medical care. But there was no proposed Complaint in the IDOI and the defense moved for a TR 12(B)1 dismissal, which was first granted then denied. Affirmed on appeal. The allegation of a physical beating is outside the MMA . . . Case Note by Dave Allen
City Hall v. The Power Company
The Case Note title is not a case name. There are two SCOTSI cases on review: Duke Energy v. City of Noblesville; and City of Carmel v. Indiana Utility Regulatory Commission. Both cases were decided May 30, 2024. In each case “City Hall” is the loser.
A municipality has authority under IC 8-1-2-101 to enact ordinances to “determine the means and methods in which a public utility occupies the municipality’s space.” Such authority is “not . . . unfettered.” The Indiana Code at 8-1-2-101 also gives the IURC authority to void such ordinances deemed unreasonable.
Carmel’s ordinance had the goal of new or replacement power lines being underground rather than above ground on those tasteless utility poles. A city project called for Duke to replace some above-ground lines with new underground lines. Under the ordinance the cost of the work was to fall on the utility rather than the city.
Held: the IURC (the adjudicative body below) was a proper party on appeal.
Held: the ordinance could be declared unreasonable for the result that Duke would seek reimbursement statewide for expense incurred for the sole benefit of Carmel.
What purports to be the majority opinion is joined only by author Justice Massa and CJ Rush. Justices Slaughter and Goff concur separately while Justice Molter dissents in part and concurs in part. The two holdings described above look to have a solid majority.
The related case on review is Duke Energy v. City of Noblesville. Duke planned to build a new facility in Noblesville. Before building could commence there were old structures to demolish. Noblesville tried to burden Duke’s plans with ordinance/permit requirements. Duke began demolition without a permit. Noblesville sued in Circuit Court. Note: Noblesville’s ordinances at issue were of “general applicability.” The trial court ruled in favor of Noblesville. Duke appealed. The COA affirmed. Held: only the IURC could decide whether an ordinance unreasonably interferes with Duke’s public-utility functions. The trial court’s pro-Noblesville ruling is reversed. Remanded. Notably, this decision is unanimous . . . Case Note by Dave Allen
The Former Felon’s Handgun
The case on review is Brackenridge v. State, as decided with a COA reversal of the trial court’s rejection of Aaron Brackenridge’s motion to dismiss the felon-in-possession charge against him.
While Aaron had indeed been convicted of a felony (Class D criminal recklessness), that conviction had been converted to a Class A misdemeanor per IC 35-50-2-7(d). At the time he was caught possessing a handgun, his felony conviction was no longer a felony conviction. The denial of the motion to dismiss is reversed. Look for the AG to request transfer . . . Case Note by Dave Allen
Barely Outside the MMA
Robert Lewis was undergoing surgery (in the hospital) when “the anesthesia machine failed.”¹ He suffered complications and died about a week later. The name of the case is Miller v. Franciscan Alliance, as decided in the COA May 28, 2024 with the NFP reversal of the trial court’s TR 12(B)1 dismissal of the complaint against the hospital alleging the negligent maintenance and inspection of the “anesthesia machine” by nonmedical employees of the hospital. The complaint was filed in civil court while a med mal action pended before the IDOI. Held: the claim of negligent maintenance and inspection by nonmedical employees is outside the MMA . . . Case Note by Dave Allen
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¹ There is probably a better name for the device. The CLB uses the only name used by the COA.
Reading Pipe Revisited?
No law student of my generation could finish the first year Contracts course without study of the “Reading Pipe Case,” otherwise known as Jacob Youngs v. Kent, 129 N.E. 889 (1921). The case on review is Hector v. Nevins, as decided May 23, 2024 in the COA with the NFP affirmance of the trial court’s SJ in favor of the sellers of a house that became problematic for the buyers, who sued. The Reading Pipe controversy involved the selection of remedy (monetary damages or specific performance) when a builder failed to install the brand of pipe specified in the building contract.
In the case on review the buyers allege that the sellers represented that the siding installed in a recent remodel was of the “Hardie brand” of concrete(?) siding. On the “Hardie brand” misrepresentation count, the SJ was affirmed on grounds that the lack of the Hardie brand “did not proximately cause the Buyers’ injury.”
The “injury” of rainwater seepage into the home seems to have been caused by incompetent installation of the siding. The sellers provided a “no defects” disclosure statement that was incorrect yet unavailing to the buyers. The case will be remanded to determine what attorney fees are owed to the sellers pursuant to the Purchase Agreement. The case looks like a return to Caveat Emptor. Though the buyers were understandably indignant, bringing suit was a bad idea. Sometimes the best advice that a lawyer can give to prospective clients is that it is too ricky to file suit. Of course, that is not what a prospective client wants to hear . . . Case Note by Dave Allen
Bankruptcy and the Undisclosed Cause of Action Asset
The case on review is Red Lobster Restaurants v. Fricke, as decided May 21, 2024 in the SCOTSI. The Case Note on the COA decision of July 6, 2023 can be seen among the 2023 Case Notes.
A couple of years into her Chapter 13 bankruptcy, Abigail Fricke fell at a Red Lobster. She failed to promptly file disclosure to the bankruptcy court of her new cause of action asset.
Abigail did (belatedly) update her bankruptcy asset schedule, but only after Red Lobster filed for SJ asserting a lack of standing and judicial estoppel.
The trial court denied SJ. Red Lobster appealed the denial. The COA affirmed. The SCOTSI affirms again on Transfer. The unanimous SCOTSI Opinion cites its own Chapter 7 precedent of Hammes v. Brumley, 659 N.E. 2d 1021 (Ind. 1995) and applies that precedent to Chapter 13 cases. Held: a plaintiff-debtor’s omission of a cause of action from an asset schedule does not deprive him of standing, though he may not be “the real party in interest.” Held: judicial estoppel does not bar the claim if if the omission is cured by the (allowed) amendment of the asset schedule . . . Case Note by Dave Allen
Lake DUI Appeal
The case on review is Lambert v. State, as decided in NFP fashion in the COA, on May 21, 2024. The COA affirmed the jury trial conviction of Christopher Lambert for drunk driving. Notably, Christopher declined to give a sufficient breath sample for a “certified breath test.” There was no mention of a blood draw. He admitted drinking that night (before causing a collision) and failed two field sobriety tests.
It seems that no claim of trial error was preserved by timely objection. Griffith attorney Benjamen Murphy asserted unsuccessfully on appeal that fundamental error ensued from the solicitation of “ultimate issue” opinion evidence, jury instructions, and prosecutorial argument to which trial counsel Jeff Semko (a public defender) did not object. In this fashion appellate counsel Murphy seems to assert the incompetent representation of Lambert by trial court counsel Semko. A final jury instruction singling out the testimony of Lambert was probably erroneous. But the error was not preserved by objection. It was probably contrary to ER 704(a) when the arresting officer testified to his opinion that Lambert was intoxicated. But there was no objection to preserve error. If Lambert elects to continue to challenge his conviction, he needs to consider a PCR Petition on grounds that are simple to discern . . . Case Note by Dave Allen
Protecting Judicial Incompetence
The case on review is the judicial discipline case of Madison Circuit Court Judge Scott Norrick, as decided in the slightly divided SCOTSI on May 17, 2024. Judge Norrick was faulted mostly for failure to supervise staff properly. One result was Judge Norrick presiding over cases in which he or his son were attorneys of record. On the criminal side there were 16 involuntary dismissals (Criminal Rule 4[C]?). Moreover, Judge Norrick issued an ex parte custody change order without giving the opposing party notice or an opportunity to respond. It seems that Judge Norrick ignored notice of his problems before the disciplinary case was brought.
Judge Norrick will be suspended without pay for 45 days. On his return he will have the aid of a mentor judge. The CLB sides with Justice Slaughter who dissented in favor of a more severe penalty . . . Case Note by Dave Allen
Exclusivity of the Probate Code Remedy
The case on review is Salmon v. Tafelski, as decided May 17, 2024 in the COA with the reversal of Lake Superior Court Judge Sedia’s denial of SJ to a civil defendant. The mother of Rita Tafelski died intestate. Rita claimed that her intestate inheritance was diminished by Linda Salmon’s fraud and undue influence causing the decedent to make inter vivos transfers to the benefit of Salmon. Rita’s civil suit for “tortious interference” with her inheritance was filed “outside the estate.” The COA holds that Rita was required to exhaust an adequate Probate Code remedy and instructs Judge Sedia to grant SJ to Linda.
A problem with pursuing Rita’s claim through the estate is that Linda initially was the Personal Representative. Notably, Linda was a sister of the decedent. Then Rita replaced Linda as PR. Despite the appearance of Rita’s claim being litigated in the estate case, a TR 41(E) dismissal (on Linda’s motion) closed the estate. The COA affirmed by NFP decision.
As explained in COA Senior Judge Najam’s decision, the “separate action was transferred back to the trial docket” whatever that means. Notably, the “separate action” was brought in the name of Rita, the intestate heir, rather than the estate (which by then was dismissed).
The CLB will watch for Transfer in this case in which the COA may well have erred . . . Case Note by Dave Allen
Nonbinding Mediation
Kelly v. State is the case on review. This civil appeal confirms all that you ever suspected of the unworthiness of “Welfare Department”¹ caseworkers. The COA decision of May 16, 2024 affirms the trial court’s SJ in favor of the State on the plaintiff’s claim of breach of contract. Concurrent claims for Sec. 1983 violations were unaffected.
For a time the moderately dysfunctional Kelly family had its 6 children (2 of the marriage and 4 of wife’s prior children) placed in foster care while a CHINS case pended. Then the convicted felon/baby daddy of one of Ms. Kelly’s priors managed some visitation supervised by the caseworker. That caseworker promptly began a sexual relationship with the baby daddy. Then the caseworker fabricated accusations against Mr. Kelly so as to remove the children (again) from the Kelly home. Young A.S. was placed with his convict father. The Kelly family was ultimately restored, and the illicit caseworker affair was disclosed.
The Kellys presented the AG with a draft of a complaint. The State agreed to mediate. Mediation resulted in an apparent agreement. Then the AG and governor scuttled the mediation by withholding their consent. Notably, such consent was a condition of the settlement.
The Kellys filed their complaint for contract breach and Sec. 1983 violations. The trial court awarded SJ on the contract count since the withheld approval made the agreement “nonbinding.” The CLB hopes to see a good outcome at trial for the plaintiffs. The AG and governor should regret having reneged on the mediated settlement after a jury properly compensates the Kellys . . . Case Note by Dave Allen
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¹ I recall when the Welfare Department changed its name to DCS (Dept. Of Child Services) in order to distance itself from the well-earned bad reputation of “the Welfare Department.” To remind us all of the DCS lineage, I frequently refer to it as “The Welfare Department”.
Ex Post Facto
The case on review is Brown v. State, as decided May 10, 2024 in the COA. The topic of a “jurisdictional gap” requiring legislative action was previously written about in the June 2022 CLB case note of State v. Neukam. The age-related jurisdictional gap appeared when a youth commits delinquent (criminal) acts before the age of 18 and then, after turning 18, is charged at a time when neither the juvenile or adult court has jurisdiction.
Today in the COA Johnny Webster Brown has won (at least for now) his challenge to the retroactive application of the statute that seemed to cure the age-related jurisdictional gap. Prior to that legislative enactment, prosecution of Johnny Brown was not allowed. Brown asserted that the juvenile court lost jurisdiction when he turned 21 and, accordingly, lacked jurisdiction to waive him to adult criminal court. See the statute at IC 31-30-1-4(d). There is now adult jurisdiction over a 21-year-old for the commission of waivable juvenile offenses.
The CLB has taken a narrow view of the ex post facto clause. Say that someone discovers that dandelion root can be baked, shredded, and smoked resulting in a pleasant, altered state of consciousness. The General Assembly would surely criminalize the above-ground possession of dandelion root. But they could not prosecute smokers of dandelion root for their actions committed prior to enactment of the criminal prohibition. To the CLB the ex post facto clause is more about the criminal prohibition than age-related jurisdiction. That is not to say the CLB disagrees with the COA’s holding against the retroactive application of the jurisdictional fix here . . . Expect a transfer petition from the AG . . . Case Note by Dave Allen
Redacting Med Mal Evidence
The case on review is Bojko v. Anonymous Physician, as decided May 10, 2024 in the SCOTSI, which unanimously reversed an erroneous order of Lake Superior Court Judge Calvin Hawkins. On a medical malpractice case at the review panel stage, Judge Hawkins agreed with the defense that he could and would redact or exclude evidence intended for submission to a review panel. The evidence in question asserted that the defendant doctor treated patients while he was mentally ill or abusing drugs.
Held: Judge Hawkins had no authority under the MMA to become the “gatekeeper” of what evidence could be considered by a medical review panel . . . Case Note by Dave Allen
No Family Fight Anti-SLAPP Defense
As an adult Andrew Campbell wrote in a book and in social media comments that his father Mark Campbell had committed domestic violence against Andrew’s mother decades earlier.
Father Mark responded by suing his son for defamation and false light invasion of privacy. The case on review is Campbell v. Campbell, as decided May 8, 2023 in the COA with the reversal of the trial court’s erroneous anti-SLAPP dismissal of Mark’s complaint. I am reminded here of Article 1 Section 10 of the Indiana Constitution establishing “truth of the matters alleged” as a libel defense. Andrew invoked as a defense the anti-SLAPP statute at IC 34-7-7. The first purpose of anti-SLAPP is protection of a public misconduct whistleblower. The violence alleged by Andrew as seen to be “private conduct” by private individuals.
It is clear from the COA Opinion that Andrew had something of a career in “domestic violence research.” His allegations against his father carried a “me too” vibe.
Held: the anti-SLAPP defense does not apply. The allegation of domestic abuse is defamatory per se. Andrew should be worried . . . Case Note by David Allen
Excessive Sentence Restored
The CLB was on point in May of 2023 when predicting that the AG would request Transfer after the COA’s correction of Dustin Lane’s excessive sentence for 10 counts of invasion of privacy by letter from prison. While in custody for the battery of his Wife, Dustin violated a no-contact order by sending her 10 nonthreatening letters about family matters.
The Transfer case on review is Lane v. State, as decided by a split (3/2) SCOTSI on May 2, 2024. The decision was to restore the consecutive sentences of 300 days each on Dustin’s 10 misdemeanor convictions. It looks to the CLB that one of the most likely cases for a grant of Transfer follows a COA sentence reduction . . . Case Note by Dave Allen
Parental Privilege
Wherever we set the bar (if we do) on a parent’s physical discipline of a misbehaving child, there are those who will go too far with the physical punishment and then claim parental authority for doing so. So far the choice in Indiana is to set the bar nowhere and to let the judge or jury decide what parental discipline is allowed. The CLB is aware of no statutory answer to how many times you can smack Junior on the butt with an open hand or at what age you can use a belt, if ever.
Sometimes it is a CHINS case where the issue arises. At other times it is a criminal case. Custody fights may also involve habits of physical discipline of a child. How far a parent can go without legal consequence was a subtopic of the case on review, Ndiaye v. State, as decided in the COA on May 1, 2024. The appellant was Papa Ndiasse Ndiaye. If that is his real name, he was most likely born outside of the USA or born of foreign parents. Papa’s daughter (second grader) was caught stealing candy at school. He was humiliated by the report. He found evidence of the theft at home. Papa struck daughter in the face “once or twice” (or more). He struck her multiple times on the arm and thigh with a belt. There was also some injury to her eye affecting her vision. The child urinated on herself.
Well later Papa threatened to cut off the daughter’s hand for stealing. This may have been culturally acceptable in the context of Papa’s heritage. Clearly, such a threat is improper in the view of Americans whether or not it is criminal.
Papa was charged with battery and intimidation for the described conduct. For the battery case he was granted a parental discipline jury instruction which did him no good. He was convicted of both charges. He appealed the denial of his parental discipline instruction on the intimidation charge. Affirmed . . . Case Note by Dave Allen
Duration of a Judgment
The case on review is Converging Capital v. Steglich, as decided in the COA on May 1, 2024 with a reversal of the trial court’s dismissal of proceedings supplemental on a judgment rendered 15 years earlier.
Despite the less-than-clear legal provisions for the 10-year duration of a money judgment, it seems that a pro supp on a 20-year-old judgment is not barred by limitations. The COA theory is that proceedings supplemental are a continuation of the original filed proceeding that produced the judgment.
The CLB questions whether such a superannuated money judgment can be enforced when a pro supp unveils non-exempt assets or income. See IC 34-55-1-2(a) for the “leave of court” condition on an “execution” per the judgment after 10 years.
It is time for the General Assembly to clarify the time limits on enforcement of a money judgment . . . David Allen
Replevin Dismissal Reversed
The case on review is the NFP reversal of Judge Calvin Hawkins and his TR 12(B)6 dismissal (or SJ disposition) of a straightforward replevin complaint by the former live-in-exhusband of Ann Marie Estrada. Alan Gull was kicked out of the shared residence titled solely to the exwife. She kept his personal property. He sued to recover it. Judge Hawkins dismissed. The COA reversed.
Though it may be fact sensitive rather than evident on the face of the complaint, the CLB sees a probable limitations defense. See the 6-year statute at IC 34-11-2-7(3). The period is said to begin when the plaintiff “knew or should have known” of the wrongful detention. While observing that the Motion to Dismiss was converted to SJ by the introduction of evidence “outside the pleading” the COA found an unsettled issue of fact as to the accrual date . . . Case Note by Dave Allen
An Uncivil Forfeiture
Parolee Dylan Williams tested positive for illegal drugs. “Agents” decided to search his apartment pursuant to his parole agreement. Midway thru the search a warrant was obtained. Drugs and $11,180.00 in cash were found. The State sought “civil” forfeiture of the cash.
The case on review is Smith v. State, as decided on transfer in the SCOTSI on April 30, 2024. Angela Smith is an aunt of Dylan Williams who intervened in the forfeiture action claiming ownership of the cash and denying any connection between the money and criminal activity. She produced bank records supporting her claims about the origin of the cash.
The trial court ruled against Angela. The COA affirmed by memorandum decision. Great description: “Civil forfeiture is a legal fiction . . .” There is Opinion criticism of the “incentives” to the State. Held: forfeiture laws will be narrowly construed. There must be substantial evidence of a connection to criminal activity. On the evidence here there is no “rebuttable presumption” of the criminal nexus. The State failed in its burden of proof.
If anything, the case means that forfeiture may require (without the rebuttable presumption) actual evidence of the criminal activity connection rather than a reasonable suspicion of it.
To the CLB, Angela Smith’s story of how she handed her junkie parolee nephew $15,000.00 “to hold for her” lacks credibility. Still, the trial court made no such finding . . . Case Note by Dave Allen
The General Assembly at your Service
The case on review is Rokita v. Tully, as decided April 29, 2024 in the COA with a reversal of Barbara Tully’s APRA victory at the trial court level (on judicial review) following administrative losses. The bone of contention was an advisory opinion to AG Rokita from the Indiana Office of Inspector General (“OIG”). Rokita claimed the opinion was confidential and thus excluded from APRA disclosure. He won on the administrative level before losing in the trial court.
The twist in the appeal is what the General Assembly did (at Rokita’s request?) while the appeal was pending. The General Assembly amended the statute relating to OIG duties excepting his opinions from APRA and making the amendment retroactive. Citing the legislative action, the COA reversed. I see it as an irony that the COA reversed upon no holding of error in the trial court. Moreover, Tully asserted a claim of “log-rolling”¹ constitutional defect that was ruled upon by the COA though never submitted to a trial court. Here a trial court ruling which was apparently accurate on the day of its entry was reversed due to subsequent action of the General assembly under direction of AG Rokita. To the AG the litigation policy when losing a statutory argument was simply to have his toady General Assembly change the statute retroactively. This happened once to your blogger when the statute was a period of limitations. That occurred during a prior AG administration. Look for Transfer . . . Case Note by Dave Allen
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¹ The Indiana Constitution at Article 4 Sec. 19 limits legislative acts to a single subject.
Unprotected Inmate Speech
The case on review is Jones v. Hawk, as decided April 26, 2024 in the COA. Convicted murderer Roman Lee Jones sued deputy warden Sharon Hawk and other prison employees in both their official and personal capacities. His complaint was that he was removed for 90 days from his prison “job” in the law library for having voiced his opinion protected by the First Amendment.
While he and others waited in a hallway for restroom access Jones “explained” to another inmate his view of a restrictive policy on restroom access. A prison employee “intervened” to declare that Jones was misstating policy details. Jones answered in a defiant, angry and confrontational manner, according to the prison employee. She later complained to deputy warden Hawk, and the work suspension followed.
Jones’ complaint was pro se. It is unclear whether he filed under Sec. 1983 or the ITCA.¹ The trial court awarded SJ to the prison employees. The COA affirmed. Held: the confrontational response to the intervening prison employee took his speech beyond First Amendment protection . . . Case Note by Dave Allen
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¹ I even looked at the fill-in-the-blank pro se complaint without being able to discern whether it was filed under Sec. 1983 or as a simple tort claim under the ITCA.
The Fate of a Non-Compete Clause
To the CLB the old, familiar non-compete clause in employment contracts is at or just beyond a turning point. Such clauses no longer have the judicial favor they once enjoyed. Notable exceptions to the disfavor may include the “trade secret” non-compete and the sale non-compete.
The case on review is Kesler v. Indiana University Health Physicians, as decided April 25, 2024 in the COA. The unanimous panel reversed the trial court’s award of injunctive relief to the former employer of Dr. Kenneth Kesler.
Dr. Kesler was a thoracic surgeon with his own surgical procedure to remove “complex germ cell cancerous tumors” of the chest. His contract with the IU system declared a 30-mile non-compete radius upon his departure. He sent the notice of intent. Then everyone sued.
After the trial court’s entry of a preliminary injunction enforcing the 30-mile radius, the COA reviewed whether the action below was supported by the evidence and proper. Reversal followed. Grounds included the potential harm (of the preliminary injunction) to Dr. Kesler and to the public. Dr. Kesler’s portrayal as a unique healer of the desperately ill weighed heavily in his favor. By contrast, a salesman, auto mechanic, or carpenter would not be the focus of such a public interest analysis.
The best argument in favor of the IU system is that Dr. Kesler signed the contract and did so voluntarily. Watch for Transfer . . . David Allen
Another Right to Jury Trial Dispute
The case on review is Colvin v. Taylor, as decided in the COA on April 18, 2024. It is another dispute over the right to jury trial. The rejection of the jury demand and the affirmance of that rejection are more in line with the observed trend than yesterday’s COA decision upholding the right to a jury trial. The case began with Taylor’s Complaint to foreclose on a land sale contract. The case was assigned an “MF” designation. Colvin countered for abuse of process and conversion and demanded jury trial, which was denied. On Colvin’s appeal the COA affirms. The COA theory is that the counterclaims were drawn into equity by the equitable nature of the principal claim.
I did a comparison of panel names from the Colvin case and yesterday’s Nemeth Properties v. Panzica. Remarkably, COA Judge Altice sat on both panels. To the CLB the two decisions are hard to reconcile. It is probably time for some SCOTSI guidance by way of a Transfer grant . . . Case Note by Dave Allen
LLC Formation and Jury Trial for Unjust Enrichment
The case on review is Nemeth Properties v. Panzica, as decided April 17, 2024 in the COA.
Andrew Nemeth and three Panzica brothers allegedly agreed to form an LLC. Nemeth filed Articles of Organization. Later the Panzica brothers made a backdated Operating Agreement listing as the sole member an LLC owned solely by them.
Nemeth sued for breach of contract and for unjust enrichment. He was denied trial by jury. The breach of contract claim was decided by SJ against Nemeth. The unjust enrichment claim was decided against Nemeth by bench trial. Nemeth appealed. Reversed.
The trial court SJ noted the absence of any written operating agreement naming Nemeth a member of the LLC. Held: a pre-formation oral contract may establish initial membership of an LLC. Articles of Organization need not list initial LLC members.
The right to jury trial of a civil claim depends in part on whether the cause of action existed in 1851 and otherwise whether the cause of action is analogous to one at law or one in equity as those terms were understood in 1851. The COA views the contract implied-at-law basis of the unjust enrichment claim. For a claim of implied contract there is clearly a right to jury.
If there is a primary lesson of the COA decision, it is to plot membership on writing at the time of an LLC formation. The CLB will watch for Transfer of the COA decision. It seems to the CLB that the trend in recent years has been the restriction of the right to jury trial rather than its expansion . . . Case Note by Dave Allen
Premises Liability at Church
The case on review is Calvary Temple Church v. Kirsch, as decided April 15, 2024 in the COA. Gerard Kirsch was a Calvary Temple Church member involved as a volunteer in the construction of a garage on the premises. While climbing a ladder he fell and was injured. He sued. The Church moved for SJ and was denied. The Church appealed. The COA affirmed. Of particular interest to the case is IC 34-31-7-2 granting churches limited liability for on-premises injury.
The application of the statute seems to be to premises used primarily for worship. As in derogation of common law, the statute will be narrowly construed. Held: the site of Kirsch’s fall was not a worship area. Watch for Transfer. Counsel for Cavalry should have challenged on SJ Kirsch’s claim of negligence. Notably, the CLB wonders whether the statute is in derogation of common law charitable immunity . . . Case Note by Dave Allen
The Fundamental Error of “And/Or”
The case on review is Dunn v. State, as decided April 10, 2024 in the SCOTSI. Sabrina Dunn successfully challenged her conviction for the murder of her abusive ex-husband while the two were close neighbors. The error found by the SCOTSI arose from a jury instruction on the state’s burden of proof in response to Sabrina’s claim of self-defense. Notably, the killing took place inside Sabrina’s house after her ex let himself in despite a protective order barring him. Moreover, Sabrina fired at him around a dozen times.
The instruction in issue told the jury that it was the State’s burden to prove beyond reasonable doubt that Sabrina did not act in self-defense “and/or” in defense of her dwelling. The COA affirmed the conviction holding that Sabrina had waived any objection to the “and/or” text of the instruction.
As stated in the SCOTSI Opinion fundamental error is that which makes a fair trial impossible or which blatantly violates “basic due process.”
The error of “and/or” is subtle enough to be missed at first glance. As used in the instruction the “and/or” term described the State’s burden to disprove defense of self or defense of dwelling. An exact reading would excuse the State from disproving defense of dwelling if it first disproved defense of self. Such subtle error will be ignored in the majority of appellate reviews.
“Verbal monstrosity” is one of the descriptions of the “and/or” conjunction. The CLB disagrees. There is nothing ambiguous about “and/or.” It means the very same as “or,” which includes the possibility of “and” in any series of words in which “or” appears. The CLB criticism of “and/or” is that the “and” is unnecessary beyond reminding the weak-minded, for instance, that “a” or “b” may mean “a,” “b,” or both. In a sense, “and/or” amounts to lawyers talking down to others presumed to be less intelligent . . . Case Note by David Allen
Addendum: The SCOTSI unnecessarily criticized the “and/or” conjunction in a fashion that will open the door to many claims of ambiguity in written material. Eventually, the SCOTSI will back away somewhat from that criticism.
Expunging the Acquittal
The case on review is Kerwood v. State, as decided April 10, 2024 in the COA. Ironically, the secret of Rory Kerwood’s acquittal of the offense of impersonating an officer is now public record. Below Rory was first charged but acquitted. Then he was successful in obtaining an expungement order. The order directed the county sheriff to “redact and seal” his records. The sheriff declined compliance. Rory sued and blamed the sheriff’s department for the loss of a fire department position.
Below it was held that Rory did not have an implied private right of action to compel the sheriff to expunge records within the sheriff’s office.¹ However, the trial court held that Rory had a commonlaw remedy.
Rory’s appeal contests the trial court holding that he could not pursue a private statutory cause of action against the sheriff and further contests an adverse summary judgment on his commonlaw counts. The COA affirms.
The CLB is wary of expungement law generally, given its foundation of hiding the truth or spreading a lie. In the case on review Rory Kerwood carved his name into public record as that “weird guy” who keeps trying to impersonate a law enforcement officer. His effort to make his record private has backfired . . . Case Note by Dave Allen
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¹ The lack of a private remedy under expungement statutes is one more example of a right without a remedy. In the case on review the holding puts the sheriff above the law.
Gender “X” and the BMV
The case on review is Indiana BMV v. Fitz Simmons, et al. as decided April 9, 2024 in the COA. During the decades when I customarily visited the BMV every four years for license renewal, I became accustomed to questions about my address, eye and hair color, height, weight, etc. But no one ever asked me to declare a gender. My male gender is evident at a glance and I never learned of the short-lived option of “gender choice.” Males were not invited to claim female status (and vice versa), but anyone could ask from 2019 to 2020, for an “X” gender designation, meaning “not specified.”
Some “nonbinary” individuals with licenses or ID cards applied to amend their state credentials with the trendy new “X” gender class. But the BMV changed its policy back to the traditional male/female model with no other choice.
The nonbinaries sued and lost at the level of administrative review. There seems to have been no timely complaint for judicial review. But 4 months after the administrative review loss the nonbinaries sued the BMV for declaratory and injunctive relief. On appeal the COA rightly holds that the trial court erred in excusing the untimeliness of the request for judicial review.
Less rightly, the COA Opinion holds that the declaratory action was somehow independent of the judicial review and was not waived by delay. The trial court awarded SJ to the nonbinaries. The COA reverses based in part on its conclusion that “gender” in Title 9 means “sex” and not some matter of a person’s gender preference.
The CLB predicts a Transfer request but no prospect of a nonbinary victory in the SCOTSI . . . Case Note by Dave Allen
Social Media for Sex Offenders
The case on review is Rose v. State, as decided April 8, 2024 in the COA. It has to do with sex offender “registration.”
Rose tried out three dating websites but failed to register his accounts/username with the county sheriff. At issue on Rose’s appeal was the definition of “social networking website.”
The unanimous COA holding is that the “opportunity-to-communicate” element of the registration requirement does not require a messaging or chat function at the website. The conviction is affirmed, setting the bar low on construing the definition of an element of a crime. Convicted sex crime offenders would be well-advised to avoid websites that require signing in . . . Case Note by Dave Allen
“Ensoulment” in the COA
Update: The CLB prediction of a “nearly certain” transfer petition came to pass on May 20, 2024, apparently the deadline date for the filing. The next CLB prediction is that the SCOTSI will grant transfer, conferring on the AG a greater favor than you or I would receive.
The case on review is Medical Licensing Board v. Anonymous Plaintiff 1, et al., as decided April 4, 2024 in the COA. Transfer to the SCOTSI is a near certainty. We are in the wake of our SCOTSI holding that there is no state constitutional right to an elective abortion. See Medical Licensing Board v. Planned Parenthood, 211 N.E.3d 957 (Ind. 2023). Now the Court of Appeals has found statutory protection of a woman’s freedom of choice.
That statutory shield is known as Religious Freedom Restoration Act (a/k/a RFRA). See IC 34-13-9. According to the COA Opinion, the “abortion law” at IC 16-34-2-1 violates statutory RFRA rights of the plaintiffs¹. But how is an abortion a woman’s exercise of religion? The answer is that it is not². The RFRA angle is more in the nature of freedom from the overbearing religious beliefs of others. To the CLB, it appears that the COA decision is that the abortion law is too close to a forbidden establishment of the religious tenet that “ensoulment” occurs at the moment of conception.
When the trial court entered a preliminary injunction against enforcement of the abortion law, the State appealed. Later, the trial court certification of the case as a class action was appealed and consolidated. The COA panel affirmed the class action certification while remanding for a narrowing of the preliminary injunction. The problem seems to be that the preliminary injunction, as entered below, is broader than necessary to protect RFRA rights. Look for Transfer . . . Case Note by Dave Allen
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¹ One of the “et al.” plaintiffs is “Hoosier Jews for Choice.” The COA held that the group has “associational standing.” In this era of the lack-of-standing defense, this is an important holding.
² The COA conclusion that abortion is a religious exercise is simply wrong.
Third Party Spoliation Dismissal
It was late May of 2023 when the CLB reviewed the case of Safeco v. Blue Sky, as decided May 25, 2023 in the COA. Safeco had covered a fire loss that may have stemmed from a defective Cabela’s product. Repair contractor Michaelis destroyed the evidence. Safeco brought a “third party spoliation” claim. The trial court entered a TR 12(B)(6) dismissal. The COA affirmed.
On Transfer a slightly divided SCOTSI affirms on April 3, 2024. In partial dissent, Justice Goff would impose a duty of evidence preservation on a “fire-remediation” company . . . Case Note by Dave Allen
Beware the Premises Liability
The NFP case on review is Espinoza v. St. Mary Medical Center, as decided April 1, 2024 in the COA. Martha Espinoza tripped and fell on two overlapped floor mats while at the medical center to accompany a family member to an appointment.
At trial Lake Superior Court Judge Sedia awarded judgment on the evidence to the medical center for Martha’s failure to prove actual or constructive knowledge of the hazard by the medical center. There was evidence that the hazardous mat combo was in an area of high traffic. It seems an allowable inference that the mats belonged to the medical center. To the CLB there was sufficient evidence of constructive knowledge for it to be a jury issue. Judge Sedia’s contrary holding is affirmed . . . Case Note by Dave Allen
Subject Matter Jurisdiction
The case on review is Tingley v. First Financial Bank, as decided April 1, 2024 in the COA. FNB was the trustee of a land trust created in Illinois. FNB (an Illinois Bank) was then acquired by First Financial, located in Terre Haute. Suit was filed by a beneficiary hoping to force a sale of the trust corpus and a cash distribution. Suit was filed both in Indiana and Illinois. First Financial filed a TR 12(B)(1) motion to dismiss alleging a lack of subject matter jurisdiction. The trial court¹ granted the dismissal. Reversed (3/0) in the COA.
Held: the trial court had subject matter jurisdiction over his kind of case and erred in dismissing. I will watch for transfer . . . Case Note by Dave Allen
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¹ Despite the considerable distance to Terre Haute, I have practiced there in the impressive Vigo County Courthouse. I can attest that trial court Judge Lakshmi Reddy is a serious, compassionate judge. I didn’t say “perfect.”
IMPERMISSIBLE Prosecutorial Vindictiveness
The case on review is Hogg v. State, as decided March 27, 2024 in the COA with a ruling in favor of interlocutory appellant Justin Hogg.
Hogg previously won a reversal of a theft conviction due to a “material variance” between the charging information and the evidence at trial. The case on review involved “five additional criminal charges” filed by the State after Hogg’s successful appeal. The five new charges arose from the same criminal activity that was central to the prior appeal. Hogg’s motion to dismiss was denied. Then came this interlocutory appeal. See IC 35-34-1-4 for Indiana’s “statutory” double jeopardy defense where there was a previous prosecution. Held: no help from the statute; and no double jeopardy bar where evidence at prior trial was sufficient to support the conviction. Cited: precedent that a vindictive due process violation will be presumed when new (more numerous or more severe) charges appear after a successful appeal or grant of mistrial . . . Case Note by Dave Allen
Gunshot Wound and Aggravated Battery
The case on review is W.H. v. State, as decided March 27, 2024 in the COA with a reversal of the juvenile court adjudication for level 3 felony aggravated battery (if committed by an adult). It looks like W.H. committed an unprovoked shooting of another juvenile, wounding him in the calf. The evidence would have supported a charge of attempted murder. Instead, the prosecutor alleged only level 3 felony battery. But see IC 35-42-2-1.5 requiring (as charged) an injury (not the weapon) creating “a substantial risk of death.” Here the evidence is held insufficient for the “substantial risk of death” from the injury element. It matters not that the injury came from a firearm.
The CLB has mixed emotions about the result. Watch for Transfer . . . Case Note by Dave Allen
Accord & Satisfaction?
The case on review is Mayes v. Goldman Sachs Bank, as decided March 27, 2024 in the COA. Ceira Mayes took out a personal loan and then defaulted on repayment. While she owed more than $9,000.00, she had her “debt relief” (bankruptcy) lawyer to send a check for a mere $200.00 with a letter offering that sum as payment in full. The lender cashed the check and then sued for the balance. The trial court ruled for the lender. Affirmed on appeal.
Reference is made to IC 26-1-3.1-311 and its requirements for an accord and satisfaction. Held: the offer of $200.00 on a debt of $9,000.00 was not in “good faith” as required by statute. Moreover, Ciera failed to show (as required by statute) that the debt was unliquidated or disputed. Caveat here to any debtor’s counsel who unilaterally sends a check with “settlement” language . . . Case Note by Dave Allen
Eviction Reversal
The case on review is Hazelwood v. Common Wealth Apartments, as decided March 22, 2024 in the COA with a reversal of the eviction of DeMarcus Hazelwood for a rent arrearage. Common Wealth accepted federal housing subsidies, making it subject to corresponding federal law. See 15 U.S.C. § 9058(c) for requirement of 30-day notice to quit before filing eviction case. Common Wealth did not comply. Eviction reversed with instructions to dismiss the eviction case. The concurring Opinion of Judge Bailey informs of the expiration of the 30-day notice requirement soon after it became effective in the case of DeMarcus Hazelwood . . . Case Note by Dave Allen
LOFS Loses
The case on review is Lake of the Four Seasons Property Owners Association, Inc. v. State, an NFP decision of March 15, 2024 worthy of CLB attention solely due to local interest.
The point of the case seems to be that subdivision security guards are not police and cannot exercise police powers, even on the property they patrol, and even with some level of consent of the residents. Of course, there is always the exception of a security guard who happens to be a sworn officer at work on his side job.
The HOA sued for a declaratory judgment of authority of its guards to stop, detain, an/or issue citations on LOFS property. Lake Superior Court Judge Bruce Parent denied relief. The COA affirmed.
The civil action seems to have been a reaction to a Lake County Criminal charge against LOFS for impersonating a law enforcement officer. The CLB agrees with Judge Parent’s ruling and the COA affirmance. One notable exception to the rule that security guards lack police powers is the exercise of “shoplifter detention” in retail establishments. See IC 35-33-6-2 . . . Case Note by Dave Allen
Wadle and Double Jeopardy Analysis
The case on review is A.W. v. State, as decided March 12, 2024 in the SCOTSI. A.W. (I’ll call him “Albert”) was charged as a juvenile with weapons offenses arising from the possession of a handgun with an extended magazine of 30 bullets and a “Glock Switch” to convert the firing from semi-automatic to full automatic. How many crimes can be prosecuted here? Albert was “adjudicated” for possession of a machine gun¹, a level 5 felony if committed by an adult and “dangerous possession of a firearm” a class A misdemeanor. The inclination of the CLB is that the “dangerous possession” charge should be a lesser included offense of the machine gun possession. The SCOTSI agreed and held accordingly.
In Wadle v. State, 151 N.E.3d 227 (Ind. 2020) the SCOTSI adopted a new method for analysis of double jeopardy claims. Substantive double jeopardy is about multiple punishments for the same act. This is distinct from the procedural double jeopardy bar of more than a single prosecution.
In the case on review the SCOTSI reaffirmed the 3-part Wadle test for substantive double jeopardy claims with the “small but crucial adjustment” that ambiguities from charging instruments will be construed in favor of defendants.
Noted: Article 1 Sec. 14 of the Indiana Constitution is a double jeopardy ban to be ignored pursuant to the practice of “constitutional avoidance” when cases can be decided without a constitutional ruling. Per Wadle the SCOTSI approach is to look at Sec. 14 for the “procedural strand” while deciding substantiative matters under statutory law. See IC 35-38-1-6 barring conviction for both an offense and its lesser included offense.
Concurring in result only Justice Goff rails at the lack of clarity in the law of double jeopardy analysis. He is correct . . . Case Note by Dave Allen
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¹ For the certiorari petition in this case the CLB recommends attention to the issue of whether the “Glock switch” made the weapon a machine gun as of the date of Albert’s offense prior to current “Glock switch” legislation.
Check with the Secretary of State
The case on review is Rock Creek Capital, LLC v. Tibbett, as decided March 13, 2024 in the COA with the affirmance of summary judgment below in favor of the collection case defendant. The peculiar reason for the defendant’s victory was that Rock Creek was a foreign LLC not licensed to do business in Indiana and thereby lacked standing to sue her for collection. The defense theory is that the unlicensed (in Indiana) LLC behaved unlawfully in violation of the FDCPA and Indiana Deceptive Consumer Sales Act. See 15 USC § 1692 and IC 24-5-0.5-3(a).
As for a foreign corporate entity not licensed in Indiana but suing here nonetheless, the proper remedy is dismissal of the suit without prejudice. The problem is a fixable one. Beyond the need of a license to do business Rock Creek needed a “collection agency license” which it did not have according to the affirmed partial summary judgment for the defendant. Watch for Transfer . . . Case Note by David Allen
Noncustodial Parenting time and Church Activities
The case on review is Bardonner v. Bardonner, as decided March 12, 2024 in the COA. Noncustodial father Kenneth Bardonner appealed the trial court order modifying his parenting time.
Father had a history of being a head case but not of the Bible-thumping variety. He was found to have no regard for Mother’s authority to make the religious decisions. An issue of controversy was Father’s preference for All Saints Orthodox Church. Whether church attendance there was harmful or not, Mother’s custodial decision was against it.
Father was ordered not to take child to activities of his Church, and his parenting time was constricted some. The unanimous COA panel affirmed finding sufficient evidence for the modification and no overriding First Amendment issue about the religious preference . . . Case Note by Dave Allen
Repudiation and Parental Liability for College
A nuance of the law of college expense liability for children of divorce is that a parent who is “repudiated” by the child in question is (thereby) relieved of contributing toward the college expense. The case on review is Wells v. Wells, as decided March 12, 2024 by a split (2/1) COA panel with the Region’s own Judge Tavitas in dissent.
The majority affirmed the trial court’s finding of repudiation. Oddly, Father was the custodial parent until the family dispute erupted. Oddly, the dispute was whether or not daughter should enlist in the Air Force upon graduation. Daughter changed her mind about the Air Force then moved out of father’s house into the house of her boyfriend and his parents. Notably, father had agreed in a Marital Settlement from years earlier that he would pay for college.
Daughter intervened below and was the appellant. Mother seems not to have taken part in the matter. “Repudiation” is defined as the “complete refusal” to participate in a relationship with the parent after the child turns 18 years.
The dissent of Judge Tavitas asserted inapplicability of the repudiation doctrine because of father’s agreement in the marital settlement to pay for college. The majority saw father’s old promise to pay for college as just another term of agreement that could be modified. Watch for a Transfer request . . . Case Note by Dave Allen
An Inadmissible Conviction
The case on review is Games v. State, as decided March 11, 2024 in the COA with the affirmance of Jermaine Games’ conviction of the murder of his girlfriend’s toddling son.
The girlfriend, Crystal Cox, had been convicted of the murder when Games went on trial. His lawyer mentioned during opening argument to the jury that Crystal had been convicted of the murder. The State obtained a mistrial. Games was subsequently tried and convicted. His appeal included a double jeopardy claim asserting the impropriety of the mistrial.
The crux is that if Crystal’s conviction was admissible, then mention of it was not grounds for mistrial. Much dicta here about admissibility or inadmissibility of a conviction of a person other than the defendant . . . Case Note by Dave Allen
A Rusty Republican
Thanks to Justice Massa of the SCOTSI I know now that Indiana’s Primary Election Law dates to 1915, only two years after the 17th amendment provided for the selection of U.S. Senators by popular vote of the electorate. To appear on the primary ballot of his political party, a candidate must qualify as a member of that party pursuant to the “Affiliation Statute” at IC 3-8-2-7. One method of such qualification is to have voted in the party’s primary in the last two primaries in which they voted.¹ The alternate method is to be certified as a party member by their county party chair.
The case on review is Morales v. Rust, as “explained” by the SCOTSI on March 6, 2024 after having decided the issue February 27, 2024. Rarely has the SCOTSI appeared to be so splintered in the vote tally. One remarkable aspect of the splintering is that the apparent “Opinion of the Court” by Justice Massa is “joined” by no other justice though Justices Molter and Slaughter “concur” by way of separate opinion. CJ Rush and Justice Goff dissent with separate opinion. 84 pages of mostly dicta hold the three separate opinions. Those pages are a testament to the discomfort of our SCOTSI on the topic of partisan politics.
John Rust of Seymour sought to be on the Republican primary ballot for the party nomination for U.S. Senate. His primary voting record did not qualify him. His county party chairman declined to certify him as a Republican. So he sued for declaratory relief and won relief in the trial court. The Secretary of State appealed and won the reversal from our divided SCOTSI.
Held: the Affiliation Statute is not unconstitutional. The CLB’s view of this mess is that John Rust should seek a third party nomination (the Libertarians, for example) and appear as such on the November ballot. Condign punishment for Republicans would be the consequent loss of the Senate seat . . . Case Note by Dave Allen
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¹ The CLB sees this method of qualification as problematic for particularly young candidates seeking elected office not having a minimum age restriction. Such candidates might not have been of voting age for two elections.
Race to the Putative Father Registry
Rarely has your blogger been tasked with handling a putative father registration. Notably, a dad seeking to establish paternity must register. All your blogger knew about the time of registration is that it must come after a live birth. Then there comes the case on review, Adoption of L.A., as decided March 6, 2024 in the COA. Here is the chronology.
On August 15, 2022 baby girl L.A. was born to unwed birth mother. On August 17, 2022, birth mother consented to the adoption of L.A. On August 25, 2022 adoptive parents filed a petition to adopt. On September 23, 2022 putative father registered with the putative father registry. This came less than 40 days after the birth and just less than a month after the filing of the adoption petition.
It seems now that IC 31-19-5-12 requires a putative father to register “not later than” certain specified deadlines in order to be entitled to a notice of an adoption proceeding. In the case on review putative father barely missed his statutory deadlines. Accordingly, under IC 31-19-5-18 putative father’s “implied consent” was given in irrevocable fashion. The consent is to the adoption itself and to the absence of any notice of it.
Below in the case on review the trial court erred in holding that putative father’s registration was timely. The COA reversed. It does not appear that putative father participated in the appeal. Did he ever get notice of the adoption proceeding? The caveat of the case on review is that a putative father opposing the adoption of his child needs to accomplish the putative father registration within 30 days of the birth. A later registration may (as here) be ineffective . . . Case Note by Dave Allen
No Oral Warranty
The case on review is Logan v. Evans, as decided March 4, 2024 in the COA. Notably, the case was a small claims appeal involving the “statute of frauds” as found at IC 32-21-1(b)(5). That rendition of the stature of frauds requires a writing for “an action” upon any agreement “not to be performed within one year.”
Here the “agreement” in question was an alleged 10-year warranty on HVAC equipment installed in the home of the plaintiff. The installer’s (alleged) warranty was not in writing. The COA affirms the trial court ruling in favor of the installer . . . Case Note by Dave Allen
Beware Wrongful Death Procedure
It was October 3, 2020 when Justin Davis had a fatal (to him) auto accident. Earlier that day he visited the familiar Fair Oaks Farm where he was provided with an excess of alcohol. Exactly two years later on October 3, 2022 Connie Davis-Brumley filed suit against Fair Oaks in her capacity as “natural mother” of Justin. Also on that 3rd of October she filed a probate petition for appointment as special personal representative to prosecute Connie’s civil claim of a dram shop action on behalf of the drunk rather than the victim of the drunk. On the next day October 4, 2022, Connie was appointed special administratrix. But not all was well with Davis-Brumley v. Fair Oaks, the case on review.
Less than 3 weeks after the mentioned filings, Connie filed a motion to substitute the estate for herself as “natural mother” plaintiff in the wrongful death action. Fair Oaks answered with a TR 12 (B)(6) motion to dismiss.
The Wrongful Death Act requires that the complaint be filed: 1. Within 2 years and 2. by the personal representative of the estate. While suit was filed on the last day of the limitations period, there was no personal representative until the following day. The trial court denied the motion to substitute the special administratrix and granted the motion to dismiss. Connie appealed. Affirmed in the COA by way of Judge Tavitas Opinion.
The CLB has great sympathy for the region lawyer who represented Connie. It would have been easy for the trial court to grant the substitution and derail the motion to dismiss. . . . Case Note by David Allen
Security Cam Footage Admission
The case on review is Irwin v. State, as decided February 28, 2024 in the COA. Drug dealer Alexander Irwin did business from his Richmond apartment. The apartment complex had a security camera facing the back entrance to Irwin’s apartment where many customers came and went.
The interesting part is the authentication of the security cam footage for admission at trial. See ER 901(a). The landlord was not called. A second cop witness provided sufficient evidence of authentication . . . David Allen
Reversal of TR 60(B) Relief After TR 41(E) Dismissal
The case on review is Starr Indemnity v. NIBCO, as decided February 26, 2024 in the COA. The trial court had entered a TR 41(E) (failure to prosecute) dismissal of the declaratory judgment action of NIBCO. The trial court then set aside the dismissal. Starr appealed. The COA reversed.
In the trial court the TR 60(B) motion to reinstate was filed 20 months post-dismissal. One lawyer for NIBCO had received the TR 41 (E) notice of intention to dismiss but failed to respond. The trial court granted relief on the basis that it had not conducted the hearing required by TR 41(E). The delay of 20 months seems to be more than the allowable “reasonable time,” and the attorney’s simple neglect did not meet the “exceptional circumstance” requirement of TR 60(B)(8). Given the delay, relief under TR 60(B) was the only avenue open to NIBCO . . . Case Note by Dave Allen
The Absent Trustee
The case on review is Teising v. State, as decided February 15, 2024 in the SCOTSI. The COA’s (vacated) decision of December 15, 2022 was previously reviewed in a Case Note. The COA decision reversing Township Trustee Jennifer Teising’s conviction of the theft of her Trustee’s salary that she collected while living in Florida and being ineligible to serve as Trustee. While she wintered in Florida the Trustee’s office was closed to the public. The CLB was duly critical of the COA reversal. The COA misconstrued residence with domicile, which arguably did not change.
Remarkably, the SCOTSI agreed that the criminal convictions must be reversed, but on different grounds. To the SCOTSI the State’s evidence was insufficient to show Teising’s criminal intent to collect a salary illegally. To the CLB the SCOTSI opinion rewards Teising for ignorance of the law: not knowing (on the evidence presented) that she forfeited her office (and salary) by moving out of the Township . . . Case Note by Dave Allen
The Post-Appeal TR 60(B) Relief
The case on review cries out for Transfer for reasons suggested in the Case Note title. The name of the case is Automotive Finance v. Meng Liu, as decided February 15, 2024 in the COA by a split (2/1) panel. Meng Liu was the wife of Ning Ao until their divorce in 2020.
While Meng and Ning were married, her signature (or purported signature) turned up on a personal guaranty of a business-related promissory note entered into by Ning. Ning defaulted. The lender sued. Meng asserted that she did not knowingly sign the guaranty. Still, the trial court entered SJ against Meng on the guaranty. Meng appealed but failed to file her appellant’s brief within the time allowed. The COA dismissed the appeal “with prejudice.”
When collection proceedings below resulted in the seizure of $20,000.00 from an account of Meng’s, she filed for TR 60(B) relief, which was granted, essentially setting aside the SJ subject of the dismissed appeal . . . Case Note by Dave Allen
Parent Party Host Liability
The case on review is K.M.W. v. Doe, as decided February 12, 2024 in the COA. The W’s were parents to K.D.W., a minor. Parents hosted a party at their home where K.D.W. allegedly sexually molested Jane Doe.
The Does sued on grounds of premises liability and negligent parental supervision. At issue is whether 1990’s COA precedent is overruled by subsequent SCOTSI cases. Senior Judge Shepard writes for the unanimous panel. Held: Wells v. Hickman, 65 N.E.2d 172 (App. 1995) has not been implicitly overruled with respect to a parent’s responsibility and foreseeability. The general rule is that the common law does not hold parents liable for the torts of their children. Result here is that trial court’s defense SJ for host parents is affirmed as to premises liability but reversed as to the claim of negligent parental supervision of K.D.W., who was known to be a problem child with a history of sexual misconduct . . . Case Note by Dave Allen
Grandparent Vis and Adoption
The grandparent visitation case on review is Kornman v. Bowling, as decided February 13, 2024 in the COA. The grandchild was born out of wedlock and mother (daughter to Grandma Bowling) subsequently died. After her informal visitation was cut off Grandma filed for visitation under the GVA. Father had remarried. Stepmom filed for adoption but Grandma’s GVA petition was filed prior to the adoption decree. Hence, Grandma did not lose standing by reason of the adoption. See IC 31-17-5-3(b).
The trial court awarded visitation to Grandma and the trial court ordered Parents to pay Grandma’s attorney fees of $20,000.00. All is affirmed . . . Case Note by Dave Allen
Landlocked in Hamilton County
The case on review is Morehouse v. Dux North, LLC as decided on Transfer in the SCOTSI on February 8, 2024. Opinion author Slaughter turns professorial to explain in this case of landlocked parcels and the claim of implied easement that: 1. An implied easement by prior use must be based on “servitude” predating the severance into separate parcels while: 2. a claim of easement of necessity need not date to prior to severance. Moreover, grant of easement of necessity requires the impossibility of access to the property by other means. The impracticality of alternate access is not enough. Noted: Under Indiana law, easements may arise by grant, prescription, or implication. See here Justice Slaughter’s “tests” for an implied easement. Held: easement denied . . . Case Note by Dave Allen
Dram Shop Statute and the Common Law
The case on review is WEOC, Inc. v. Niebauer, a Transfer case decided in the SCOTSI on February 12, 2024. See the COA rendition of the case in my March 15, 2023 Case Note. It involves a defense TR 12(B)(6) motion challenging a commonlaw negligence count filed alongside a statutory dram shop count. At the end of the Case Note the CLB warned “Look for Transfer.” Held in the SCOTSI: The dram shop statute has modified but did not wholly supplant the body of commonlaw dram shop negligence. A commonlaw negligence count containing the statutory elements will survive a TR 12(B)(6) motion to dismiss . . . Case Note by Dave Allen
Red Flag Review
The case on review is Morgan v. State, as decided February 9, 2024 in the COA. Despite my affinity with the Second Amendment, I have previously written favorably of Indiana’s “red flag” law found at IC 35-47-14-1 et seq. James Morgan was “off his meds” and was unduly argumentative with guests at his home. Then he came out brandishing one handgun, and bearing one other handgun and a shotgun. Others felt threatened. One called 911.
Morgan was armed when police arrived and continued to be uncooperative. Police wound up seizing a small arsenal of firearms.
When, as below, the Court finds probable cause, police may retain the firearms pending the evidentiary hearing where there is a standard of proof by “clear and convincing evidence” of the dangerous nature of the person. Held: evidence against Morgan was sufficient.
A second issue was whether the seized firearms should have been turned over to Morgan’s father. Then trial court answered “no.” The COA affirmed, noting that the father had not appeared at the trial court hearing . . . Case Note by Dave Allen
Richard Allen Update
Richard Allen (no relation to your blogger) is the man charged with the murder of two teen girls in Carroll County. We all saw the grainy cell phone video of the bearded man walking and ordering the girls “down the hill” prior to the murders. From all the information I have heard or read, it appears that prosecutors have the right defendant. If anyone is deserving of Indiana’s death penalty, it is the killer of Abigail Williams and Liberty German in 2017 in Delphi, Indiana.
The case on review is State ex rel. Richard Allen v. Carroll Circuit Court, as decided February 8, 2024 in the SCOTSI. The case is a mandate action involving several issues, including the special judge’s disqualification of Allen’s favored public defenders. A slightly fragmented (4/1) SCOTSI ordered the restoration of the favored public defenders, despite concerns of the special judge as to the quality of representation and despite a leak of confidential case info from the lawyer’s office. Held: attorney disqualification issues may be reviewed through original actions. The key to the restoration order seems to be the alleged prejudice to Allen of the change of representation, particularly the delay of trial.
On Allen’s other requests the SCOTSI denied disqualification of the special judge and denied the 70-day speedy trial request that was filed in the SCOTSI but not in the trial court . . . Case Note by Dave Allen
Who Pays for False Arrest?
The case on review is State v. Leonard, as decided in the SCOTSI on February 6, 2024. The case is a civil appeal on transfer from the COA. At issue is whether the State is liable (through a duty to indemnify) for a Section 1983 “false arrest” judgment against a conservation officer.
On its face, 42 U.S.C. Sec. 1983 imposes personal liability only and not vicarious liability on government units. Compare to Indiana’s Tort Claim Act at IC 34-13-3-5 disfavoring individual liability.
Long after Kailee Leonard, a motorist, struck and killed his dog before leaving the scene, conservation officer Johnson’s efforts resulted in the issuance of a criminal summons. Though there was never an actual arrest, Kailee sued under Sec. 1983 and obtained a money judgment. The question is whether she can collect from the State.
The Indiana Indemnification Statue at IC 34-13-4-1 requires the State to indemnify, subject to just a few exceptions including criminal activity. Held: the officer’s conduct was not criminal. The State will indemnify . . . Case Note by Dave Allen
Waiving the Competency Hearing
The case on review is Brunette v. State, as decided February 2, 2024 in the COA. Jake Brunette’s murder conviction was affirmed over his assertion of error in the trial court’s failure to conduct a full competency hearing. After defense counsel filed a motion to determine competency, two of three appointed psychiatrists concluded Brunette was competent to stand trial. Defense counsel was quizzed by the court and expressly waived the hearing. Problem is that the obligation to conduct a full evidentiary hearing is supposed to be unwaivable. The State’s solution was to call waiver by another name: invited error. To the CLB there is not a dime’s worth of difference. Held: having invited the error (by counsel) Brunette could not complain on appeal about the error of not conducting a full competency hearing . . . Case Note by Dave Allen
Not in my Neighborhood
The case on review is Willow Haven v. Nagireddy, as decided February 2, 2024 in the COA. Willow Haven was building a group home in Carmel in single-family zoning for up to 10 elderly sufferers of dementia. Hari and Saranya Nagireddy lived on an adjacent lot. They sued for declaratory and injunctive relief.
See the Fair Housing Act at 42 U.S.C. § 3601 et seq. for the prohibition of discrimination against the disabled. Noted: the ongoing conflict between local zoning and the need for elderly housing. See Indiana compliance with FHA at IC 12-28-4.
Notably, Willow Haven applied to the City for a building permit. The permit was granted. Hari and Saranya asked the City for a “stop work” order but did not “exhaust” administrative remedies. Held: Hari and Saranya were not “parties” to issuance of the building permit and did not need to exhaust administrative remedies.
The City’s zoning “UDO” included licensed group homes as single-family. A split (2/1) COA panel affirms the trial court’s grant of the preliminary injunction against Willow Haven. Watch for Transfer . . . Case Note by Dave Allen
Crime and Indigency
The case on review seems to be of no great import. It is Spells v. State, as decided January 30, 2023 in the SCOTSI. Tailar (pronounced “Taylor”?) Spells was at or near an Indy tavern when police arrived to break up an altercation. Tailar approached the scene, spat on a cop, and was arrested for bodily waste battery and resisting. Tailar’s modest cash bail of $250.00 was posted by another person. The bond poster and Tailar both signed a cash-bond agreement permitting the court the apply the bond toward fines, costs, costs of defense, etc. Tailar was tried and convicted of battery and given a suspended sentence with community service. The fine, court costs, and public defender fee exceeded the $250.00 bond. Her appeal was not about the conviction but rather about the taking of the bond money and assessment of an excess of $60.00 without an indigency hearing or inquiry into her ability to pay.
Held: the cash bail statute at IC 35-33-8-3.2 permits the retention of public defender costs but not most other fines, costs, or fees without an indigency determination. See the indigency determination statute at IC 35-33-7-6.5.
The CLB advice to any non-defendant who posts bail money for a friend is that it is “spent money.” It seems that everyone wants a piece of a cash bond . . . Case Note by Dave Allen
Custody of the Frozen Pre-Embryo
The case on review is Freed v. Freed, as decided January 26, 2024 in the COA. The issue was what to do with one frozen “pre-embryo” left over from a married couple’s (successful) IVF efforts. Of course, the Freeds’ marriage was dissolved. They resolved all issues, except the “custody” of one frozen pre-embryo. The issue was truly one of first impression in Indiana appellate courts. There is no known Indiana legislation on the topic.
The trial court awarded the frozen pre-embryo to the wife, and husband appealed. Affirmed.
Father argued that giving the frozen pre-embryo to Wife violated his “fundamental right of procreation.”
Wife’s announced intent to the trial court was to implant the frozen pre-embryo in the hope of having a second child. She doubted her ability to conceive another child by conventional means. She likened the embryos to “my children.” Husband’s preference was to have the embryo “disposed of” by the storage facility. He did not want to father a second child with Wife.¹
Noted: the written agreement between the parties and the storage facility did not determine disposition of the frozen pre-embryo in the event of divorce. Had it done so, there would be the question of whether such an agreement can be binding on the courts. To the CLB the issue gets even more interesting when Wife has the baby and issues of custody and support arise. Would such a child be “of the marriage?” Would the case be in paternity court or divorce court?
Judicial authority in divorce cases must come from legislation. Indiana has no such legislation to allow a trial court to award “custody” of a frozen pre-embryo as though it were a living child.²
Noted: There is a Uniform Parentage Act (not passed in Indiana) that could relieve Husband of responsibility for a child resulting from the post-dissolution “placement” of the embryo.
Wife argued that Husband already gave any required consent to her wishes when he consented to fertilize (by IVF) her extracted ova. The COA Opinion by Judge Kenworthy was just a nose hair away from discussing “best interests of the ovum.” The CLB can guarantee a petition for Transfer. Whether the SCOTSI is ready to accept Transfer remains to be seen. Like it or not, a fertilized ovum is not a child whose “custody” may be determined in divorce court . . . Case Note by Dave Allen
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¹ For Husband the case holding is oddly parallel to the current Indiana abortion ban in that it subjects him to be coming a parent (again) contrary to his will.
² See, for instance, the definition of “child custody proceeding” at IC 31-21-2-5. It describes types of proceedings “with respect to a child.”
A Med Mal/SJ Update
The case on review is Korakis v. Memorial Hospital, as decided January 25, 2024 in the SCOTSI. The decision is used to resolve an inconsistency between SCOTSI holdings of 1992 and 1993. To the CLB, the delay of 30+ years in doing so is inexcusable. The discordant precedent cases are Oelling v. Rao, 593 N.E.2d 189 (Ind. 1992) and Jordan v. Derry, 609 N.E.2d 1104 (Ind. 1993). The two decisions seem to differ on the question of whether the summary judgment standard in a med mal case requires a medical expert to expressly state the applicable standard of care in his affidavit. Oelling’s answer is yes while Jordan’s answer is no. In the case on review the SCOTSI elects to “retire” that portion of the Oelling rule requiring a med mal SJ affidavit to expressly state the applicable standard of care. The rule remaining is that the standard of care may (or may not) be inferred from the affidavit. I looked for an apology in Korakis and found none . . . Case Note by Dave Allen
Dual Prisoner Complaints
On this 25th day of January 2024 both the COA and the SCOTSI handed down opinions in prisoner complaints. One prisoner appeal was successful while the other was not. The two cases on review are Hill v. Chesterfield (in the COA) and Zaragoza v. Wexford (in the SCOTSI).
The Hill case involved inmate Asher Hill’s complaint under Sec. 1983 about the water supply in his cell being shut off for 12 days due to a neighbor’s threat to “flood the range.” The trial court dismissed the suit per IC 34-58-1-2 authorizing judicial review of newly filed prisoner complaints prior to their being docketed. The split (2/1) COA panel affirmed the trial court dismissal on the theory that the complaint fell short on the Sec. 1983 element of malice on the part of the defendant prison employees. The CLB favors the written dissent of COA judge Brown and its theme that pro se complaints should be liberally construed.
The SCOTSI case on Zaragoza v. Wexford involved inmate Edward Zaragoza’s complaint about the medical treatment of his condition of hypothyroidism. The defendants were doctors who prescribed the drug Synthroid. Zaragoza complained of Synthroid side effects. Noted: the prison doctors were not qualified providers for MMA purposes. Despite the abundance of evidentiary conflicts the trial court granted summary judgment to the doctors. Reversed.
To the CLB it appears that Asher Hill should petition for Transfer to the SCOTSI, which may be less hostile to his complaint than the COA majority . . . Case Note by Dave Allen
GVA Standing
See IC 31-17-5 for the grandparent visitation act (GVA). The child of the case was born out of wedlock. Child’s mother was the custodian. She and her mother (grandmother to child) had a falling out such that the child’s visits were cut off. The simple point here is that a grandparent on the custodial side loses no eligibility to sue for grandparent visitation. The case on review is Welbaum v. Bowser, as decided in the COA January 24, 2024. The COA reversed the palpably ignorant trial court dismissal for want of standing.
See the Opinion for some helpful “standard of review” dicta for when a party has at first a de novo standard of review (for dismissal for want of standing) and then compromises that standard of review by filing a motion to correct error, denial of which is reviewed for abuse of discretion. The CLB advocates extreme caution with respect to the filing of a motion to correct errors when the denial may adversely affect the COA’s standard of review of the initial error. But always check TR 59(A) to make sure that your case is not one of those few in which a motion to correct errors is required. I would hate to forfeit an appeal for neglecting to file a mandatory motion to correct errors. . . . Case Note by Dave Allen
An Unintentional but Knowing Homicide
The case on review is Konkle v. State, as decided January 24, 2024 in the COA by a split (2/1) panel reversing the voluntary manslaughter conviction of Zachariah Konkle. Konkle and decedent Michael Steele were working at a county fair. Konkle got word that a mentally disabled girl, while behaving badly, had been mocked by a fair worker. He promised the girl’s mother that he “would take care of it.” Later he confronted Steele, who had a bad heart. That condition was unknown to Konkle, who wanted to beat Steele, not to kill him. They fought. Steele died later due to the “manual asphyxiation” of Konkle’s choke hold.
The prosecution charged murder an overcharge but won a conviction for voluntary manslaughter. Noted: voluntary manslaughter must be “knowing.” The panel majority found fundamental error in the prosecution’s resort to the “eggshell victim rule” in final argument. The CLB regards the “eggshell victim rule” as being applicable only to civil tort law. Look for Transfer . . . Case Note by Dave Allen
Dual Reversals
The case on review is State v. Woodworth, as decided January 23, 2024 in the COA. The State prevailed on its assertion of abuse of discretion in the trial court’s grant of its “own motion” motion to correct after the conviction of Trisha Woodworth for neglect of a dependent resulting in death. But Trisha cross-appealed asserting the insufficiency of evidence to sustain her conviction. The COA agreed and reversed her conviction.
After the trial court praised the defense counsel, it imagined an ineffectiveness of counsel and ordered a new trial. Had it been a bench trial, Woodworth would probably not have been convicted.¹ Evidence was that the child of 8 months of age had a days-old head injury when she became unresponsive in the care of the babysitter, who became the defendant. While the expert testimony was in conflict, it is most likely that there was a post-injury blood clot that led to a stroke . . . Case Note by Dave Allen
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¹ Uncle Ned cautions us to “never trust a jury.”
The “Forceful” Threat of Suicide
When your blogger entered the practice of law it was not possible for a husband to commit the rape of his wife. Things have changed. The case on review is Morales v. State, as decided January 23, 2024 in the COA with the affirmance of the rape convictions of estranged husband Michael Morales.
Michael and wife K.M. were separated. Michael was unstable and suicidal. He followed her home one evening to find her in the company of a co-worker. He chased the man away. While clutching an AR-15 rifle left by the guest, Michael threatened suicide unless his wife performed oral sex, which she did. Later it was vaginal intercourse while Michael clutched the AR-15 and threatened suicide.
Michael argued on appeal that the “threat” element of his rape charged required the threat of harm to K.M. and not his threat to kill himself. The COA disagreed. Transfer is warranted . . . Case Note by Dave Allen
Undue Influence and Burden of Proof
The case on review is Willis v. Ringbauer, a family fight, as decided January 23, 2024 in the COA. The COA’s NFP decision affirmed the trial court ruling against Brandy Willis in her effort to set aside the quitclaim deed (to the farm) executed in the hospital by a convalescing matriarch Diane Headley to her adult son.
Granddaughter Brandy Willis would have inherited the farm but for the quitclaim. As PR of the Headley estate she sued to set aside the deed for undue influence. The core issue on appeal is whether the burden of proof was on Brandy Willis as plaintiff or upon grantee Billy Ringbauer. Brandy argued to no avail that the “confidential relationship as a matter of law” put the burden of proof on the grantee. The unanimous COA panel disagreed. The CLB sees a good case for Transfer here . . . Case Note by Dave Allen
Corpus Delicti Reminder
The case on review was decided a few days ago (January 19, 2024) in the COA with CJ Altice’s NFP Opinion reversing the conviction of David Neanover for unlawful possession of a firearm. What makes the NFP decision in Neanover v. State worth of CLB attention is its reliance on the corpus delicti. Neanover was visited by police responding to a “shots fired” report. He freely admitted firing his AR-15 into an earthen embankment. Later the police learned of Neanover’s Ohio conviction for domestic battery, making him ineligible to legally possess a firearm. See IC 35-47-4-6 for the A misdemeanor prohibition.
The only substantial evidence at Neanover’s bench trial was Neanover’s “confession” which was admitted over corpus delicti objection. No one had actually seen Neanover in possession of a firearm. Given the absence of evidence that the crime (illegal possession) was actually committed by someone, Neander’s confession was inadmissible. Conviction is reversed. Look for Transfer . . . Case Note by Dave Allen
Discovery, Contempt, and Jurisdiction During Appeal
The case on review is AMW Investments v. The Town of Clarksville, as decided January 19, 2024 in the COA. AMW owned the land. Its subsidiary operated the “Theatre X” adult entertainment venue located there. The town administratively revoked Theatre X’s business license for zoning ordinance violations. The subsidiary petitioned for judicial review. The town counterclaimed for a preliminary injunction, which it won. AMW took the interlocutory appeal (as a matter of right). While the appeal pended the town served discovery requests. AMW eventually filed an objection that the appeal was pending and, accordingly, there was no trial court jurisdiction.
The town filed a motion to compel. The town prevailed in the appeal. After a hearing the trial court granted the motion to compel. The trial court held that AMW’s initial response to the discovery request cited only the alleged loss of jurisdiction. The town argued that AMW thereby waived objections that were raised in AMW’s “First Supplemental Response.” See Appellate Rule 14(H) for the retention of trial court jurisdiction absent an order to the contrary. The trial court agreed that objections omitted from AMW’s Initial Response were waived. The finding of contempt was appealed by AMW.
Held: trial court erred in refusing to consider (re the motion to compel) the “Supplemental Response” objections added prior to hearing on the motion to compel. The majority (2/1) holding is that a discovery objection is not waived when filed prior to hearing on a motion to compel and when no objection deadline has been set. Concurring in result Judge Felix opines that an untimely discovery objection does not necessarily amount to waiver . . . Case Note by Dave Allen
Judge Bradford’s Short Straw¹
The case on review is EdgeRock Development v. C.H. Garmong, as decided January 19, 2024 in the COA. The online “Slip Opinion” begins with just over one full page of attorney appearances amid a count of 56 pages. The Developer ran out of money for a development project in or near the Hamilton County City of Westfield. The project came crashing down. Contractors recorded mechanic’s liens against land parcels owned in part by Developer EdgeRock and in part by others. Edgerock’s parcels were secured by a mortgage with First Bank. The first legal issue of interest is the question of lienholder priority between First Bank’s mortgage and the Contractor’s mechanic’s liens. The trial court held, in part, that the Contractor’s mechanic’s liens were valid and held priority over “a portion” of First Bank’s mortgage interest. The second legal issue of interest seems to be who could claim reimbursement to paid road-impact fees (“RIF Funds”). Of less legal interest is the trial court’s entry of judgment against Edge Rock for breach of contract with the Contractor Garmong.
There is some relevance to the background of there being 5 parcels comprising nearly 18 acres owned by three different owners. There were four businesses planned plus some apartments.
COA Judge Bradford wrote for the unanimous panel. The issue of lien priority was resolved by the holding that certain mechanic’s liens were invalid. Equally underwhelming is the holding that distribution of RIF money is stayed pending a Hamilton Commercial Court ruling in a related case.
The city of Westfield interpleaded the RIF money by depositing the same with the trial court. The trial court rulings that followed resulted from a mix of summary judgment and bench trial.
Noted in the Bradford Opinion is that a mechanic’s lien recorded within 90 days of performing labor or supplying materials relates back to the date that the labor or material supply began.
A sub-issue of the case involves the allowable geographic spread of a mechanic’s lien during the development of multiple parcels. The claim of lien may cross a lot line from where the work was done if the improvement is “connected” to the adjacent lot. This is possible only when there is common ownership of adjacent lots.
A nice point of law is that a lien that is “overstated” by reason of the claim therein for work done on other “unconnected” properties may be rendered void where the overstatement results from intent or culpable negligence.
Judge Bradford’s Opinion will certainly face a Transfer Petition. If Transfer is granted without the summary approval of the Opinion, its usefulness as precedent will be gone. Nonetheless, it will continue to be useful to some for its citations to precedent . . . Case Note by Dave Allen
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¹ The CLB imagines members of the three-judge COA panel drawing straws to select the Opinion writer. If that is what happened, Judge Bradford drew the short straw.
Too Late to Swap Public Defenders
The case on review is Kelly v. State, as decided January 10, 2024 in the COA. Jeremy Kelly was charged with the murder of his father plus robbery. The State filed notice of intent to seek habitual offender enhancement. The court appointed the Public Defender’s office to represent Kelly. The PD and prosecutor worked out a Plea Agreement to reduce the murder charge to voluntary manslaughter and to drop the habitual enhancement. The change of plea took place. The plea had open sentencing.
On the day before sentencing Kelly filed a pro se motion to withdraw his guilty plea. At sentencing the withdrawal motion was denied. The PD who had been maligned by Kelly moved to withdraw. Withdrawal was denied. Kelly asked for a different PD. Denied.
On appeal Kelly challenged only the trial court’s refusal to replace his Public Defender. Held: Affirmed. No abuse of discretion . . . Case Note by Dave Allen
Swimming Pool Premises Liability
The case on review is Pennington v. Memorial Hospital of South Bend, as decided January 9, 2024 in the SCOTSI. What looks at first glance like a med mal case is actually premises liability over the indoor swimming pool at the hospital’s “health & fitness” center.
Dr. Jennifer Pennington was doing the backstroke when she swam headfirst into a “wing wall” within the pool separating a disability ramp from the rest of the pool.¹ Held: SJ for pool’s architects is affirmed – SJ for pool’s operators is reversed due to “some evidence” of the risk of harm (foreseeability).
Noted: Dr. Pennington was an invitee on the premises and was owed a duty respecting “dangerous conditions.” . . . Case Note by Dave Allen
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¹ This case reminds your blogger of a day in his own life around 1991. The location was the Hammond Fitness Center’s indoor pool below the civic center. While swimming most of a pool length underwater, your blogger failed to see the pool wall ahead. With my arms well below the shoulders I struck the pool wall with my forehead. I immediately felt the impact down to my toes and quickly stood above the surface. Just a little more impact could have left me floating face-down in the water. The only other pool-area patron was minding his own business in the whirlpool tub and probably would not have seen me in distress. A couple of days later I was in court with a wounded forehead. I spoke about it to Harolyn (Honey) Goldenberg who died so prematurely soon after. Life and death are fickle.
More Legal Marijuana and Quantitative THC Testing
Traffic Stop. Odor of marijuana. Vehicle search. Bag of something “field tested” positive for marijuana. Conviction by jury. Appeal for insufficiency. Reversed.
The case on review is Lakes v. State, as decided January 9, 2024 in the COA. To the CLB an initial issue is whether a field test should even be admissible at trial. Below there was no apparent Daubert objection. The field test was “positive for marijuana” without revealing whether the material tested had in excess of 0.3% of THC by dry weight.
The CLB boldly predicts that the General Assembly will come to the rescue of marijuana prosecutions by (for instance) making the < 0.3% THC issue an affirmative defense with the burden of proof on the defendant . . . Case Note by Dave Allen
TR 60(B) v. the Default Judgment
The case on review is Expert Pool Builders, LLC v. Vangundy, as decided January 2, 2024 in the SCOTSI with an affirmance of the trial court’s entry of a default judgment.
The question is whether a defaulted party must make a TR 60(B) motion to set aside before it can obtain appellate review. The answer is that it depends on the circumstances. Held: the TR 60(B) requirement from case law does not apply to a default judgment entered after a party responds to the motion for default to no avail.
While the SCOTSI concludes it was error for the COA to dismiss the appeal for want of a TR 60(B) motion, it still upheld the trial court’s entry of default . . . Case Note by Dave Allen