2022 Appellate Case Notes
The College Credit Union Cases
The twin cases on review are Land v. IU Credit Union and Neal v. Purdue Federal Credit Union, as decided December 30, 2022 in the COA. To the CLB there appears to be an effort by the COA to encourage a grant of Transfer, as in the case of two COA panels simultaneously handing down contradictory declarations of law. The flaw in that theory as applied here is that the Land and Neal decisions are not necessarily contradictory, even though opposite results were reached.
Tonia Land filed suit against the IU Credit Union claiming the wrongful assessment of overdraft fees. She filed on behalf of herself and a putative class of others. The Credit Union moved to compel arbitration pursuant to (purported) contract. The trial court granted the motion to compel arbitration. Land appealed. The COA reversed and remanded.
Land’s initial contract with the Credit Union (when she became a customer) was in writing and had no arbitration clause. Later the Credit Union emailed to Land (an online banking customer) a contract Addendum including an arbitration clause. Land had the right to “opt out” of the Addendum. She did not. She claimed never to have seen the Addendum which was emailed with an account statement and without mention of the “Addendum” in the email title. The “notice” to Land was the type of notice that most of us tend to never see or to ignore when it is seen.
The COA considered in Land whether there was a valid agreement to arbitrate. The critical issue was whether the Credit Union served its Addendum proposal in a reasonable manner. Given the Credit Union’s deficient service there was no “meeting of the minds” as to an arbitration agreement.
Jeffery Neal was the successor plaintiff in a parallel suit against the Purdue FCU. The critical factual distinction is that Mr. Neal conceded (through counsel) his awareness of a mailed Arbitration provision. When Purdue FCU moved to compel arbitration, Neal claimed waiver by conduct in the course of the litigation. The trial court granted the motion to compel arbitration, and the COA affirmed. The Neal Opinion (authored by Judge Crone) took a position (with which the CLB disagrees) that any conduct of the FCU supporting waiver was interrupted by the substitution of plaintiffs. The Opinion denied to Neal the right to claim waiver of arbitration by the FCU’s conduct before Neal joined the litigation.
Look for Transfer. The Land panel mentioned the grant of Transfer in Decker v. Star Financial Group, Inc., 187 N.E.3d 937 (Ind. Ct. App. 2022). Decker is quite similar to Land . . . Case Note by Dave Allen
Nonconforming Use and Relocation by Inches
UPDATE: Trial Court is affirmed per SCOTSI Transfer. See Case Note of 9/25/23 Opinion.
The case on review is Noblesville, Indiana BZA v. FMG Indianapolis, LLC as decided December 27, 2022 in the COA with the appellate reversal of the trial court’s reversal of a municipal “stop work order.” FMG had a “pole sign” that predated zoning law prohibition of new pole signs (a/k/a billboards). FMG’s pole sign was “grandfathered in” as a legal but nonconforming use.
Then came an April storm which caused substantial damage to the pole sign. FMG began repairs without obtaining a building permit. A municipal bureaucrat noticed the work being done. A “stop work order” was issued. Under the mentioned zoning law a nonconforming sign would lose its legal status “upon relocation.” Here the critical “relocation” was the installation of steel supports “approximately 18 to 36 inches north” of the location of destroyed wooden supports.
The trial court reviewing the BZA action was apparently not persuaded that steel supports installed no more than 36 inches from the old support location amounted to a “relocation” sufficient to forfeit the sign’s legal status as a nonconforming use. The COA found the relocation sufficient for the forfeiture of legal status. COA Chief Judge Bradford dissented in part to urge remand and an opportunity for FMG to salvage its nonconforming use.
A criticism of the COA Opinion is that it gives great deference in ordinance construction to municipal bureaucrats while giving none to the trial court. Transfer would be a good idea but probably will not happen . . . Case Note by Dave Allen
Marriage and Medicaid Eligibility
Among the eligibility requirements for Medicaid coverage are those defining “exempt” assets and limits on monthly income. If you have too much property or too much income, you are ineligible absent a “spend down.” The analysis becomes more complicated when there is a “community spouse” in addition to the “institutionalized spouse.” The former most likely resides in the marital home while the latter most likely resides in a nursing home. Medicaid is a major source of nursing home funding for the infirm elderly among us.
Mary M. Weber was the community spouse of the incapacitated Clarence E. Weber. Clarence’s income was too high for full Medicaid benefits, the point being that he would have to pay for a good portion of his care with his own income before Medicare would pick up the remainder. Money paid for nursing home care would not be available to Mary.
Mary had lawyers who tried to secure for her the benefit of Clarence’s income that would otherwise be consumed by nursing home expenses. The legal efforts were good enough for the trial court but not for the COA in the case on review, In re the Guardianship of Clarence E. Weber, as decided December 21, 2022.
Central to the case on review is the “monthly allowance” that Mary could claim as her separate income not available to Clarence. The dollar amount of a community spouse’s monthly allowance is statutory for most, but may be increased if one spouse has a court order of support from the other in a higher sum. Moreover, the dollar amount of the community spouse’s “monthly allowance” may be increased due to “exceptional circumstances” established by way of administrative hearing or court order. See IC 12-15-2-2.5. The legal strategy employed on Mary’s behalf began with her becoming Clarence’s temporary guardian. After appointment as temporary guardian Mary petitioned for spousal support in the guardianship case. To the CLB such filing was in breach of the guardian’s fiduciary duty to Clarence and in breach of Clarence’s due process rights. One remedy could have been a special guardian other than Mary. Another could have been a guardian ad litem to represent Clarence in response to the request for spousal support.
Mary petitioned for support under IC 31-16-14-1. According to the COA analysis, a support order for Mary under IC 31-16-14-1 would require that Clarence be “a habitual drunkard,” which was not the case. Still, the trial court awarded generous spousal support.
Eventually the FSSA intervened in the guardianship and sought relief from the spousal support that tended to shift the cost of Clarence’s care from him to the State.
Faced with the inapplicability of IC 31-16-14-1, Mary pled “exceptional circumstances” for the first time. The trial court allowed the FSSA intervention but denied relief. The unanimous COA panel reversed as to relief.
The COA Opinion authored by Judge Vaidik can be read as a suggestion of what Mary’s lawyers could or should have done to accomplish the goal or protecting Clarence’s income from his nursing home costs and thereby aiding Mary.
There is nothing wrong with a man’s income and assets being used for his own end-of-life care. The problem is that those expenses tend to be too high. From the hospital to the nursing home pricing is excessive and predatory. As seen in Allen v. Clarian Health Partners, 980 N.E.2d 852 (Ind. 2012), the SCOTSI has no willingness to aid in controlling medical expenses. The General Assembly should step forward . . . Case Note by Dave Allen
Trustee in Absentia and “Open” While CLOSED
The case on review is Teising v. State, as decided December 15, 2022 in the COA with a reversal of Jennifer Teising’s multiple convictions for theft of her own salary for the time period that she was not a resident of the township that she served as Trustee. Like many hoosiers (of retirement age) Jennifer liked to winter in Florida. She spent “several weeks” in Florida in January of 2020. Then in March there came the COVID-19 “lockdown.” Jennifer fired her office manager who populated the Wabash Township Trustee’s Office while Jennifer spent her time elsewhere. Jennifer hired a replacement office manager who kept the office “open but closed to the public.” WHAT?!! Closed to the public is closed, not “open” with an asterisk. The inclusion of such a phrase in the (Judge Altice) COA Opinion is nonsense that insults the reader. Still, that nonsense may not be the weakest part of the reversal.
Jennifer claimed to be “working remotely” from her travel trailer in a panhandle beach town. The CLB accepts the description of “remotely” while withholding judgment on the claim of “working.” The Absent Trustee spent most of 2020 far from Wabash Township though she still had rented living quarters there after selling her own home in June of 2020. When she moved from the home she owned to rented space in a shared residence she took care to update her driver’s license, bank statements, and voter registration. Still, she mostly lived elsewhere as one would expect of a nomadic retiree.
People and politicians began to notice Jennifer’s absence. She declined requests to resign, even after the Township Board issued a “statement” calling for her resignation. She was charged with theft. She was tried to the bench and convicted. She was sentenced. She appealed while her sentence was stayed.
The COA panel declared the evidence insufficient to prove theft. Sufficiency-of-evidence reversals from the COA are notably disfavored in the SCOTSI. But the COA added an interesting twist by declaring a related erroneous interpretation of a statute. That statute is IC 36-6-4-2(b) which codifies the constitutional requirement that a township trustee must reside within the township and otherwise forfeits the office. The COA reasoning is that the State had the burden of proving the lack of a Wabash Township residence. Opinion author Judge Altice seems to erroneously equate residency with domicile in concluding that the Trustee could not lose her Wabash Township residency until establishing residency elsewhere. This error merits correction on Transfer . . . Case Note by Dave Allen
Addendum: To the CLB the Trustee committed the misconduct of collecting a salary while not working. The recital of facts preceding criminal charges begs for legislation for the removal of a non-working Trustee or other elected official. The CLB does not recommend vesting the removal power in the Township Advisory Board. But the Board should have standing to initiate a civil quo warranto court action to remove an absent or non-working trustee.
The Lie of Expungement
The most fundamental, inherent problem with Indiana’s expungement statute is the lie that a duly convicted criminal suddenly has no conviction and never had a conviction. While I understand the benevolent intent behind our expungement law, I detest how the judicial system is expected to embrace lies. In the view of the CLB it is an abuse of legislative power for the General Assembly to enact laws requiring the judiciary to wallow in falsehoods. No good deed should be prefaced with a lie.
One complication of the expungement lie arose in the case on review, N.H. v. State, as decided December 13, 2022 in the COA. According to the unanimous COA panel, the Hon. Teresa Cataldo of the Elkhart Superior Court erred in this expungement case by declining to make a finding not supported by evidence but nonetheless mandated by statute.
While granting N.H.’s expungement request the trial court judge declined to find and order that he was a “proper person” under IC 35-47-1-7. According to N.H., such a “proper person” finding was required by IC 35-38-9-10(c).
In overruling N.H.’s motion to correct error the trial court judge noted that there are 14 criteria critical to “proper person” status and that not having a felony conviction is merely one of the 14. Moreover, the expungement of N.H.’s list of convictions from Elkhart County does not eliminate the prospect of unexpunged convictions from Elkhart County or elsewhere.
According to the unanimous COA Opinion the reference at IC 35-38-9-10(c) to “proper person” under IC 35-47-1-7(2) applies solely to the felony conviction criterion and not to the remaining 13 criteria of “proper person” status. The Opinion further concluded— against all logic—that inclusion of the “proper person” finding in an expungement order is less than an actual restoration of rights.¹ The best argument in support of the COA Opinion is that it most likely complies with the actual (though ill-expressed) intent of the General Assembly respecting the meaning of a “proper person” finding and order. The AG is certain to request Transfer. The CLB urges the SCOTSI to grant Transfer . . . Case Note by Dave Allen
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¹ IC 35-47 pertains to gun rights. IC 35-47-2-3(f) lists the carry license requirement of being a “proper person.”
An Unconditional, Continuing Guaranty
What do you call a “schlemiel” with a pen in his hand?. . . A co-signer! . . . (rim shot) Don’t be a co-signer. The case on review is Shoaff v. First Merchants Bank, as decided December 12, 2022 in the COA.
A now-retired Fort Wayne lawyer, Thomas M. Shoaff, became guarantor of a loan upon which the “insurance company”’ borrower defaulted. When sued by lender First Merchants Shoaff argued that he was released from the guaranty by the “material alteration” of the underlying obligation. The trial court disagreed. While the terms of the underlying loan were modified without Shoaff’s express consent, the COA wrongly held the changes not to be “material” while otherwise noting the broad “waiver and consent” provision of the guaranty. The CLB favors a grant of Transfer to clarify a guarantor’s release of liability upon changes in the underlying obligation . . . Case Note by Dave Allen
Foley’s First?
COA Judge Peter R. Foley was sworn in on October 11, 2022. While I noticed his (unfamiliar) name listed in a few concurrences (without Opinion), I had not seen an Opinion authored by Judge Foley until today. The case on review is the successful interlocutory appeal of Avis Deforest White after the trial court’s denial of his motion to suppress evidence from a traffic stop made on peculiar grounds. A split (2/1) COA panel reversed that denial of suppression on December 9, 2022 in White v. State.
Corporal Nelson of the Brownsburg PD observed White’s car “shortly after midnight” and “ran the plate.” The response was that the registration was not expired but was nonetheless “inactive.” For Corporal Nelson that was enough to make a traffic stop yielding a stolen firearm and drugs.
Title 9 Article 18 Chapter 4 of the Indiana Code is titled “Proof of Registration.” Section 2(c) of Chapter 4 declares it a Class C infraction to operate a vehicle without a certificate of registration or “legible reproduction.”
I can’t say that I know what the BMV means by the term “inactive” registration. Corporal Nelson admitted that he was equally uninformed. He should be applauded for his honesty though gently criticized for his willingness to make a traffic stop on such uncertain grounds. Experience teaches that almost any motorist being tailed by police will creep across a center line, speed by a couple of mph, or change lanes without a signal. Corporal Nelson should have exercised a bit of patience.
Judge Foley capably reviews the traffic stop as a warrantless seizure of sorts requiring “reasonable suspicion” to meet the applicable exception to the warrant requirement. Can there be “reasonable suspicion” when there is no infraction?
A recent Case Note (of November 23, 2022) titled “The Unavailing Protection of Section 11″ reviewed Mercado v. State and its holding that a traffic stop based upon a mistake of law will be held unreasonable by reason thereof, as opposed to the more lenient rule for a mistake of fact.
In the case on review Judge Foley declares the General Assembly has not made it an infraction to operate a vehicle on an “inactive” registration and that a traffic stop for an “inactive” registration is objectively unreasonable. The SCOTSI may disagree, as did COA Judge Robb in dissent. A Transfer request from the AG is a certainty. A grant of Transfer is likely. Judge Foley’s first published Opinion may result in a slapdown. While I worry that Judge Foley’s Opinion will be rejected by the SCOTSI, I view it as a positive that his error (if that is the case) is in favor of constitutional search and seizure protections rather than the opposite . . . Case Note by Dave Allen
Confronting the Mask
The case on review is Mills v. State, decided in the COA on November 10, 2022. Judge Riley, Judge Vaidik, and Judge Bailey all affirm the rulings therein.
Willie Mills and his son (“Mills” and “Junior,” respectively) had beaten and robbed a man in his home. A neighbor reported the incident and described the assailants and vehicle. Mills and Junior were later arrested at a nearby gas station. Mills was charged with burglary, armed robbery, and battery with a deadly weapon. He was later found guilty and, being a repeat offender, had his sentence enhanced by nine years, totaling in a twenty-seven year sentence with no time suspended. The case went to the COA.
Most notable of the three issues raised in court was the topic of face masks and the right to confrontation. Mills had claimed that his right to confrontation had been infringed upon at trial due to the use of face masks, though he never brought up this issue in the trial court. Absent fundamental error, failure to state such in the trial court meant waiver of reviewing that issue according to Hughes v. State (Ind. Ct. App. 2020). Moreover, the COA failed to find grounds on which this right had been infringed upon, though they were happy to cite cases from courts outside the state of Indiana¹ for reference.
Confrontation is best executed when the full face can be viewed and when face masks are not obstructing one’s view of the face. Notably, the Indiana Constitution at Article 1 Section 13 sets forth a right of “face to face” confrontation in criminal cases. A masked witness is not “face to face” with the accused, and the COA seems to agree. The Opinion itself stated how Mills was asked to remove his mask while testifying, an action which fulfilled the requirement for confrontation.
On the topic of fundamental error, Mills had failed to establish that such had come to pass. Not only did he neglect to bring up the issue of his inability to have a fair trial in the trial court, but he also failed to prove that the masks, worn or not, infringed upon his right to a proper confrontation in the first place. Thus he failed to establish error.
It is my position and that of the CLB that we all have the moral imperative to infect no one with COVID-19. The surest way to satisfy that moral imperative is to never be infected, a goal that is achievable while challenging, too challenging for most of the general population. A breach of the imperative to infect no one is not deserving of forgiveness, despite the level of remorse, in that the consequences of such breach may include harm to countless others.
This may be a case that ends up being transferred to the Indiana Supreme Court. Be on the lookout for that. I see that, once again, the best solution to a problem is to never have a problem in the first place . . . Case Note by Lauren Rothbauer, paralegal in training
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¹ One case came from Tennessee (State v. Daniels, 2022), another from Ohio (State v. Hadlock, 2021), another from California (People v. Lopez, 2022), and another from the Southern District of New York (United States v. Tagliaferro, 2021).
An Under-Advisement Departure
What happens when your case is tried before a judicial officer who takes the matter under advisement and then departs from that judicial office without having ruled? The case on review is LaMotte v. LaMotte, as decided November 30, 2022 in the COA with a reversal of the trial court’s refusal of a new hearing to Crystal LaMotte after a divorce decree teeming with disappointment.
Magistrate Kimberly Mattingly of the Marion Superior Court: received Crystal LaMotte’s handwritten request for findings of fact and conclusions of law per TR 52(A); heard the evidence over a long and contentious final hearing featuring a custody fight; took the matter under advisement; and then left her magistrate job without ever making the requisite findings and recommended orders.
The judge whom Magistrate Mattingly had served “reviewed the evidence” and issued a ruling over Crystal’s objection and in rejection of her request for retrial. When the ruling came down against Crystal, she appealed, asserting that her due process rights were breached by findings from a judicial officer who had not witnessed the testimony and who had no observation of demeanor to aid in the task of assessing credibility. The COA agreed.
I know I have seen cases of the under-advisement backlog of a dead or retired judge being decided by a successor. Still, the COA sides with the COA’s decision in the case on review. The opposite result could be defensible if the matter under advisement were pure legal argument, such as a motion for summary judgment . . . Case Note by Dave Allen
Meaningful Consultation
The case on review is L.W. v. State, as decided November 23, 2022 in the COA with a reversal (in this interlocutory appeal) of the trial court’s refusal to suppress a blood draw to which a minor had consented without a prior private consultation with her mother.
L.W. was driving an SUV when she collided with and killed a motorcyclist. Her mother was on scene before the police. L.W. was seventeen (17) years of age. The officer insisted on a “routine” blood draw. No mention was made of field sobriety testing or breath testing for alcohol. While L.W. consented to the blood draw in the presence of her mother, there was no private consultation.
According to the State the blood draw revealed presence of a metabolite of THC. The prosecution commenced as a juvenile delinquency action. Held: a blood draw is subject to the 4th Amendment warrant requirement. See IC 31-32-5-1 for the statutory prerequisites of a juvenile’s waiver of a constitutional right. “Meaningful consultation” with a parent or guardian is required, unless waived knowingly and voluntarily. Here the cop admitted the absence of any advisement of the right to a meaningful pre-waiver parent-child consultation. It seems to have been held that privacy is essential to meaningful consultation.
The unanimous COA panel reverses and remands with instructions to grant the motion to suppress . . . Case Note by Dave Allen
A Posthumous Reversal
The case on review is Rice v. State, as decided November 28, 2022 in the COA. This may be a final reversal of the late Lake Superior Court Criminal Division Judge Diane R. Boswell, who was the occasional target of condign criticism from the CLB.
Briana Rice had a boyfriend, Terrondy Jones, until she resolved an argument by running him down with her car, inflicting mortal injury. Briana was charged with murder, voluntary manslaughter, domestic battery by means of a deadly weapon, and leaving the scene of a fatal accident. She was acquitted of murder and convicted of all other mentioned offenses. Her appeal asserted double jeopardy preclusion of some of the convictions. In a partial win for Briana, the COA panel agreed that the conviction for domestic battery resulting in death was precluded under a Wadle analysis. See Wadle v. State, 151 N.E. 3d 227 (Ind. 2020). While Judge Boswell “merged” the convictions for voluntary manslaughter and domestic battery (as a double jeopardy fix) the COA held that it was necessary to vacate the domestic battery conviction.
The COA Opinion is notable for Judge Riley’s scholarly dive into current Hoosier double jeopardy analysis under Wadle, which is described as the SCOTSI’s new path away from the problematic rule of Richardson v. State, 717 N.E.2d 32 (Ind. 1999). The Opinion avoids the issue of whether “common law” precedent existing during the Richardson era survived Wadle.
A slight criticism of COA Judge Riley comes from her acceptance of denial of Transfer as some sort of precedential authority . . . Case Note by Dave Allen
The Unavailing Protection of Section 11
The case on review is Mercado v. State, as decided November 23, 2022 in the COA. The case involved a “sham” traffic stop to nab meth-dealing Angelito Mercado after an “ex” girlfriend ratted on him for concessions in prosecutions against her and her new felonious boyfriend. Apart from being planned in advance, the traffic stop of Angelito Mercado was a sham in that he was stopped for DWS while driving on a private (commercial) roadway. The offense of DWS requires a publicly maintained way.
Police found drugs in the car after getting a warrant and eventually recovered drugs from Angelito’s anus. The trial court denied the motion to suppress evidence but certified the matter for interlocutory appeal. The COA affirmed.
The Judge Mathias Opinion makes repeated references to Heien v. North Carolina, 574 U.S. 54 (2014) and describes that case as a lessening of Fourth Amendment protection in the case of a traffic stop resulting from an officer’s ignorance of the law and his consequent incorrect conclusion that there was a violation of law authorizing the stop. A mistake that is “objectively reasonable” does not violate Fourth Amendment rights.
The Mathias Opinion recognizes that Heien lessened the judicially recognized scope of Fourth Amendment protections existing prior to Heien. Still, there is Article 1 Section 11 of the Indiana Constitution and its protections against unreasonable search and seizure unsullied by Heien. While this looked good for Angelito, the COA held that there was no showing here of a Section 11 violation although Section 11 is described as rendering unreasonable any traffic stop arising from the officer’s mistaken understanding of the law. The officer’s mistake of fact is more forgivable under Section 11 case law . . . Case Note by Dave Allen
Summer Camp Blues and the Wrong Department
Say you’re rear-ended by a pickup truck in or near the City of Carmel. You notice a “municipal” plate on the vehicle. On its door you read the words “City of Carmel” in large print and “Parks Department” in small print. You might well send your Notice of Tort Claim to the City of Carmel. If you did, you would risk the loss of your claim altogether.
The case on review is S.E. v. City of Carmel, as decided November 22, 2022 in the COA. While the unanimous (Chief) Judge Bradford Opinion appears to be correct, I dislike the result of affirming the trial court’s award of summary judgment to the City of Carmel due to a technical error most likely attributable to plaintiff’s counsel.
Mother Katherine signed up child S.E. (Sophia) for a summer camp “hosted by the Carmel/Clay¹ Dept. of Parks and Recreation.” S.E. was allegedly bullied and targeted in a “pseudo-sexual” assault perpetrated by an unnamed fellow camper. Mother Katherine sued the City of Carmel for alleged supervisory negligence. The City denied having anything to do with the summer camp or the Parks Department sharing its name.
Even though the City funded the Parks Department and even though the City mayor appointed 4 (of 9) Parks Department board members, the trial court held that the City and the Parks Department were not the same entity for ITCA purposes. There is no mention of any effort in the trial court to substitute the Parks department as the defendant. Nor is there mention of whether a Notice of Tort Claim to the City would amount to requisite notice to the Parks Department. There could well be one appeal remaining in this controversy . . . Case Note by Dave Allen
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¹ “Clay” is the Township.
Commissioners v. Sheriff
As though re-election (while under indictment) wasn’t enough, Lake County Sheriff Oscar Martinez, Jr. scored another victory in the COA on November 16, 2022 in the case of Lake County Board of Commissioners v. Lake County Sheriff, the case on review. Remarkably, there is no appearance by a Lake County lawyer in the appeal.
The litigation below in the court of Judge Stephen Scheele was a fight over which governmental official or group has the authority to enter into a contract for the provision of “medical and healthcare services” to inmates of the Lake County Jail. Both the sheriff and the Board of Commissioners claimed a requisite, exclusive contractual authority. Judge Scheele held in favor of the Sheriff. The COA panel (including Judge Tavitas) affirmed without dissent.
Readers of the CLB may recall among the 2022 Appellate Case Notes the “Lake Sues Itself” entry from the COA Opinion of July 12, 2022 in the similar case of Lake County Board of Commissioners v. Lake County Council. The prize in that case was control of the Lake County “purchasing agency” and the county data processing agency. The decisive factor (so far) has been a pair of Title 36 statutes, one authorizing the Council to establish new agencies and another (applicable only to Lake County) transferring to the Council authority over purchasing and data processing. The predicted Transfer request is pending.
In the case on review the COA holding is that the Sheriff has contractual authority over matters of the jail and the care of its prisoners . . . Case Note by Dave Allen
Addendum: Ere long there will most likely be a new Sheriff in town. See 45G03-2201-F6-000024. There is a pending interlocutory appeal. The appeal involves the trial court’s denial of a Motion to Dismiss for allegedly defective grand jury proceedings leading to the indictment of the Sheriff. It is likely that the COA will affirm and remand for trial. Given that Martinez was charged by indictment (rather than by criminal information), there is no Probable Cause Affidavit to summarize the operative facts of the case. Still, there were published news accounts asserting that Martinez was speeding (by a lot) as he drove from the Lake County Government Center and that he declined to pull over when State Police attempted a traffic stop. For you or me such conduct amounts to an F6 felony.
The Joint (Legal) Custody Tie-Breaker
The case on review is Paternity of A.R.S., as decided November 16, 2022 in the COA. To the CLB the most interesting aspect is the trial court’s (appealed) holding that mother would hold the tie-breaking vote whenever she and father were in disagreement over decisions of joint legal custody. While legal custody here was joint, mother had primary physical custody.
The COA affirmed mother’s tie-breaker status while describing in a footnote that the situation was “not truly joint legal custody.” Your blogger has often recommended a tie-breaker clause where (unlike here) the parties stipulate to joint legal custody. The point of such a tie-breaker clause is to spare the parties a trip back to court whenever they disagree about a legal custody decision. I am not accustomed to seeing my wisdom in that regard adopted by our courts while judicially ordering joint legal custody.
Now there is precedent for approval of the tie-breaker clause when joint custody is ordered by the court in a contested case . . . Case Note by Dave Allen
Ralph’s Third Strike
The disciplinary case on review is In Re Ralph Winston Staples, as decided November 2, 2022 by way of Per Curiam Opinion of the unanimous SCOTSI.
Your blogger recalls Ralph Staples from his time in Lake County. He prosecuted for a time. He defended for a time. Then he left for Indianapolis. Ralph generally appeared to be amiable with a big personality. I heard he had ambitions that would not be met in this corner of the State. Hence the relocation (or exile?) to Indianapolis.
I ran Ralph’s name on Odyssey for cases in the appellate courts since 2001. There were 8 hits, all disciplinary cases. In the Per Curiam Opinion from the case on review there is mention only of two prior punishments of Ralph, one being a public reprimand and the other a suspension with automatic reinstatement. The violations preceding those “disciplines” were described as neglect of clients’ cases, failing to appear at hearings, and disregarding court orders.
The violation leading to the latest case is described as collecting a retainer (through an office manager) and then foisting the case onto an unaffiliated attorney without consent of the client. Despite a court judgment, Ralph has refused for 3 years to refund the fees he collected but did not earn. Then during the disciplinary proceedings Ralph is said to have behaved badly.¹
Ralph Winston Staples is no longer young. His suspension for one year without automatic reinstatement does not end in a year. It will be multiple years for Ralph to be far from the practice of law, after which Ralph will likely be too old to rebuild a law practice. The suspension without automatic reinstatement may well be the functional equivalent to disbarment. According to the SCOTSI Opinion, Ralph’s suspension is well-deserved and necessary to protect the public . . . Case Note by Dave Allen
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¹ It may be relevant that Ralph represented himself in the disciplinary proceedings.
Boykin for Juveniles
UPDATE: For Transfer Decision of the SCOTSI, see Case Note of October 6, 2023.
The Lake County case on review is T.D. v. State as decided October 31, 2022 in the COA with a reversal of the trial court’s refusal to set aside a delinquency adjudication based upon the juvenile’s admission without sufficient prior advisement of rights.
Notably, T.D.’s admission to an act of delinquency was made by way of “virtual” hearing in June of 2020, the height of the COVID disruption.
See the juvenile waiver statute at IC 31-37-12-5. Held: the standard for challenging juvenile waivers should be the same as that for adult pleas of guilty, though a juvenile must proceed under TR 60(B) rather than PCR rules . . . Case Note by Dave Allen
The Authority of No Authority
The case on review is R.K.W. Homes v. Hutchinson, as decided October 28, 2022 in the COA. Consider: a contract for construction of a very expensive new home; cost overruns; customer dissatisfaction; tender of less than contractor’s total bill; mechanic’s lien; and litigation.
Builder R.K.W. substantially prevailed at (jury) trial. Then Builder filed post-verdict motions to add attorney fees and prejudgment interest to its award. The trial court denied the motions without a hearing, reasoning that attorney fees and prejudgment interest had been “before the court for trial.”
The COA theory for reversal of the trial court is that Builder’s claims for attorney fees and prejudgment interest were “not ripe” before the jury verdict. Therefore, such claims could be introduced post-verdict.
An interesting subpart of the COA Opinion is the friendly response to what the CLB calls the “offensive assertion” of a lack of caselaw authority. Normally an absence of caselaw authority is used defensively against the adversary who asserts some fictitious point of law in support of meritless argument.
Here counsel for Builder claimed to be “unaware of Indiana case law or procedural rule” requiring Builder to give advance notice of the potential for post-verdict motions for attorney fees or interest. The COA declared itself equally “unaware” of any such legal authority . . . Case Note by Dave Allen
Privacy of the Purse
The case on review is Cinamon v. State, as decided October 25, 2022 in the COA. It was Christy Cinamon’s successful interlocutory appeal of the trial court’s denial of her motion to suppress evidence from the search of a purse or bag belonging to her and found in the living room of a house being searched.
Police executed a search warrant at the home of Donald Stelzel. It is unclear what items, if any, were sought by way of the search warrant. However, the warrant was described as allowing a search for Stephanie Hawkins, a resident there. When police entered they saw Cinamon among a group of four people “hanging out” in the living room. The living room visitors were asked to step outside. The requested consent to a general search of the residence was granted by Stelzel.
An officer in the living room spied a small bag or strapless purse on the floor next to a couch. He did not know who owned it. He opened the purse to find dope, paraphernalia, and a debit card with Cinamon’s name on it. A safe assumption is that Cinamon’s little purse or dope bag was outside the scope of the search warrant. Noted: Stelzel’s consent to search would not cover personal items belonging to others. This puts police in a difficult spot when they see a container without a name on it.
Held: the search of Cinamon’s purse violated her privacy rights under the Fourth Amendment and under Article 1 Section 11 of the Indiana Constitution. The trial court’s denial of the motion to suppress is reversed. Watch for Transfer . . . Case Note by Dave Allen
The PTD Contract
Just a few years back your blogger engaged in the difficult defense of a young male defendant who was favored with a Pretrial Diversion Agreement and who then behaved without restraint in the commission of new offenses. There was very little precedent then on revocation of a PTD agreement. Now there is a bit more, thanks to COA Judge Weissmann. The case on review is Smith v. State, as decided October 25, 2022 in the COA.
Convicted sex offender Jeremiah Smith was apprehended while violating his “lifetime parole” as a sex offender by visiting his own child of 16 months. Police arrested Smith for a felony “lifetime parole” violation and for misdemeanor trespass for entering an apartment complex from which he had been banned. The State charged the misdemeanor, entered into the PTD Agreement, and then experienced a change of heart.
The State’s change of heart (“buyer’s remorse” in the words of Judge Weissmann) prompted it to revoke the agreement (in the absence of breach by Smith) and to add the felony count to the charges. The first bit of prosecutorial nonsense to be struck down was the State’s lame assertion that the PTD was not a “contract” (by reason of no consideration) and could be revoked at will. The sponsorship of such argument dishonors the Office of the Attorney General.
Held: Smith was entitled to the benefit of his contract. The State was not at liberty to resume the withheld misdemeanor prosecution or to add on the felony. Reversed . . . Case Note by Dave Allen
Tavitas on a Tear
This 24th day of October 2022 is a telling day for COA Judge Tavitas (formerly of the Lake Superior Court Room Three). Anyone who wondered a few years back how the newly appointed COA Judge Tavitas would turn out can stop wondering. Today’s digital advance sheets from the Indiana Judiciary Site feature three consecutive for-publication Opinions from Judge Tavitas. In each case Judge Tavitas held for the governmental party. The sole reversal in the triad was necessary to undo the trial court ruling in favor of a PCR petitioner. Notably, COA Judge Riley dissented to the reversal without separate Opinion.
The first of the triad is People for Community, Inc. v. City of Fort Wayne, as decided October 24, 2022 in the COA. The “People for Community” (or “PFC”) owned a Fort Wayne Building that was apparently falling apart. The City brought an administrative action concluding in a demolition order. The PFC filed for judicial review but did so without a lawyer. See IC 36-7-9-5(a) for “unsafe building” demolition order law. See IC 34-9-1-1(c) for the requirement that corporations (including non-profit corps) be represented by an attorney in all litigation except small claims.
Although the trial court should probably have dismissed the petition for judicial review for want of an attorney’s signature, it instead gave PFC a deadline for engaging a lawyer. The deadline was missed. The trial court dismissed. PFC appealed. Judge Tavitas and her concurring panel members affirmed. While the COA, ruling here may appear harsh, it is a correct application of the law.
The second case is State v. Hamilton, also decided October 24, 2022 in the COA by way of a Judge Tavitas Opinion. But here there was a reversal (in favor of the State, of course) and a dissent (without opinion) by Judge Riley. Edward Hamilton had pled guilty (by way of plea agreement) to one count of multiple drug charges. Sentencing was “left open.” Hamilton had apparently been misinformed about suspendability of the sentence to be imposed. The trial court so found in granting post-conviction relief to Hamilton based upon ineffectiveness of counsel. But Judge Tavitas committed that forbidden act of re-weighing the evidence on appeal so as to hand the State its victory in this rare State’s appeal of a PCR decision. And Judge Tavitas did so unapologetically and seemingly with an insouciant lack of awareness of her own words and actions. Doctrine of the CLB is that there cannot be different rules for re-weighing evidence on appeal depending on the identity of the Appellant.
The third Tavitas Opinion is from Alexander v. State, as also decided in the COA on October 24, 2022. Michael Alexander unsuccessfully appealed his domestic battery conviction for the brutal beating of the woman who bore him two children. The beating began in the doorway of a South Bend liquor store and continued in the adjacent parking lot.
Alexander asserted on appeal that his due process rights were violated by the State’s “failure to collect and preserve” a surveillance video from the interior of the liquor store. An officer testified he viewed the video and that it did not show anything (in his opinion) “of evidentiary value.” The video was not preserved.
Alexander tried to treat the loss of surveillance video as a Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) violation in the nature of the State’s suppression of evidence favorable to the accused. The “Catch 22″ for Alexander is that he could not prove the content of video images that no longer exist. There is some cruelty in the criticism of Alexander’s inability to prove the content of unavailable evidence.
Judge Tavitas adequately described the two-pronged rule: 1. the State’s failure to preserve “materially exculpatory” evidence is a due process violation; and 2. the State’s failure to preserve “potentially useful evidence” is a due process violation only when the defendant can show bad faith. Whether or not there was bad faith by police, Alexander had no real chance of securing a bad faith finding. Nor could he prove exculpatory content of video images that he was never allowed to see.
Not mentioned in the Tavitas Opinion is whether the trial court favored Alexander below with a “spoliation” jury instruction allowing the jury to presume that video which the State failed to preserve was unfavorable to the State’s case . . . Case Notes by Dave Allen
The Power and Immunity of Magistrates
The case on review is Stephens v. Hart, as decided October 14, 2022 in the COA. Convict James Stephens filed a successive petition for post-conviction relief, which is a disfavored procedure regulated by PC Rule 12. As one might guess, the petition was referred or delegated to a magistrate, the Hon. Peggy Ryan Hart. Stephens apparently did not like Magistrate Hart. He filed a “Motion for Elected Judge to Sit and Decide.” Magistrate Hart granted the motion but then continued to rule upon motions and ultimately denied the PCR Petition. Notably, the COA affirmed Magistrate Hart’s denial of relief. The appeal on review is of the trial court’s TR 12(B)(6) dismissal of Stephens’ civil suit against Magistrate Hart for allegedly violating his due process rights. Magistrate Hart asserted the defense of judicial immunity.
While judicial immunity is both deep and broad, it is not (in theory) unlimited. Judicial immunity may not apply to nonjudicial administrative matters like personnel actions. For immunity in judicial actions, the judge must stay within his jurisdiction. Magistrate Hart appears to have lost personal jurisdiction over Stephens when the case was transferred to the elected judge. Still, she had subject matter jurisdiction over PCR cases. That was enough for the COA to afford judicial immunity. It scares the (paranoid?) Libertarian within me that some distant judge who has never seen me can enter an order against me (say commitment to a mental health facility) with no risk of being liable for damages.
It is noted in the Opinion that a 2020 amendment to “the magistrate statute” grants to magistrates “the same powers as a judge” excepting the power of judicial mandate. See IC 33-23-5-8 and 8.5. Accordingly, Magistrate Hart is said to have had the authority (a/k/a jurisdiction) to deny Stephens’ PCR Petition . . . Case Note by Dave Allen
Limitless CHINS Jurisdiction
Mom and her two children were just passing through the hoosier state en route to Arizona from their West Virginia home when Mom had her mental breakdown. She found her way to a hospital ER. She behaved irrationally and combatively. She called DCS to look after her kids.
DCS filed a CHINS petition. Mom challenged jurisdiction under the UCCJA. While Mom was right, the trial court and COA rejected her claim. Indiana was not the “home state” of the children and never was their home state. There was another state (West Virginia) where courts would have UCCJA jurisdiction. See IC 31-21-5-1. While there had been a genuine emergency it was ephemeral and gone by the time legal proceedings were under way.
Trying to persuade an Indiana court that it lacks jurisdiction or authority to do what it is inclined to do is too often a wasted effort . . . Case Note by Dave Allen
More Leaked Medical Information (from the same provider)
UPDATE: See SCOTSI Transfer Opinion of 9/25/23 for holding partially in favor of victim of public disclosure.
Once again there is an appeal involving the (Marion County) Community Health Network and leaked medical information. The case on review is Z.D. v. Community Health Network, Inc. as decided October 6, 2022 in the COA. Patient Zakiyyah Darden was examined in the emergency department of a Community facility in Indianapolis. A diagnosis from test results received later was included in a letter to another person sent by a Community employee. The recipient of the letter was a high school classmate of Darden’s daughter. The classmate posted the letter on facebook, making a public disclosure. Darden learned of her diagnosis from her daughter who read it on Facebook.
While the case on review was being briefed in the COA, the SCOTSI handed down its decision in Community Health Network v. McKenzie, 185 N.E.3d 368 (Ind. 2022) holding for the existence of a cause of action for the public disclosure of private information.
Some points of interest in the case on review are that plaintiff need not prove any mens rea and that public disclosure may evolve from a private disclosure for which the leaker is liable.
While agreeing with the trial court that Darden may not recover emotional distress damages under a negligence theory, the COA reversed the trial court’s summary judgment in favor of Community on the invasion of privacy count . . . Case Note by Dave Allen
A COVID Class Action
The case on review is Mellowitz v. Ball State University as decided October 5, 2022 in the COA with a reversal of the trial court’s interlocutory ruling against eligibility for class action certification. Keller J. Mellowitz sued Ball State for its retention of tuition and fees when, in the spring semester of 2020, it cancelled in-person classes and closed campus facilities in response to the emerging COVID-19 pandemic.
After the complaint was filed, the General Assembly enacted legislation, (see IC 34-12-5-7) barring class actions against colleges for claims of COVID-related breach of contract or unjust enrichment. Mellowitz had filed suit on behalf of himself and “all others similarly situated.” Notably, the anti-class-action legislation was made retroactive to March 1, 2020.
The defendants below invoked the “section 7″ legislative ban on such class actions. Mellowitz responded that the statute was procedural and void for being in conflict with TR 23. Mellowitz lost below. The unanimous COA panel (Opinion by Judge Crone) agreed with Mellowitz and reversed the trial court’s holding that class actions such as the one on review were precluded by the mentioned legislation.
The case on review is interesting as another example of the resolution of perceived conflict between a statute and a rule of court in matters of procedure rather than substance. There is a good chance in this case of a grant of Transfer by the SCOTSI . . . Case Note by Dave Allen
Suing the Accountant
Like most of us professionals an accountant may be sued for professional malpractice. Unlike most of us professionals, accountants are favored with an exceptionally short limitations period within which they may be sued. The case on review is Residential Warranty Services v. L.M. Henderson and Co. as decided September 28, 2022 in the COA with an affirmance of the trial court’s award of TR 12(C) judgment on the pleadings in favor of the defendant/appellee accounting firm. The statutory favor of a short limitations period is found at IC 25-2.1-15-2. Whether based on negligence or breach of contract an action against your accountant must be filed within one year of the act or omission or within one year of when the act or omission is discovered or should have been discovered by “exercise of reasonable diligence.” Subsection (2) of the statute looks like a statute of repose requiring suit to be brought within three years regardless of any discovery date.
The accounting firm had been preparing plaintiff’s tax returns over several years incorporating “cash basis” rather than “accrual.” The plaintiff “discovered” this practice (which would have been obvious from the tax returns) and filed suit for alleged damages² within two years but not within one year. Plaintiff squirmed and tried (to no avail) to call its claim a breach of fiduciary duty or misrepresentation. Held: plaintiff loses; and plaintiff’s tender of an affidavit (outside the pleadings) did not convert the matter from a TR 12(C) motion to a TR 56 summary judgment . . . Case Note by Dave Allen
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¹ To the CLB it is intuitive that a tort suit for professional malpractice should be filed within two years.
² The plaintiff alleged that it was subjected to higher income tax obligations due to the accounting method elected by the defendant accounting firm.
The Dog on the Witness Stand
The case on review is Jose Luis Izaguirre v. State of Indiana, decided in the COA on September 14, 2022 and previously tried before a jury. The central question may be whether it was erroneous for the trial court to allow, over defense objection, the child victim to be accompanied on the witness stand by a comfort animal (here a dog of undisclosed breed).
Appellant-Defendant Izaguirre had previously admitted to three acts of child molestation. In the end he was found innocent of one count and guilty of two. Izaguirre appealed the Judgment of Conviction and Sentencing order filed May 20, 2021. On appeal, Izaguirre had taken issue with the fact that the child witness, his stepdaughter, was permitted the use of a comfort dog while testifying. If I were a criminal defendant I would worry that a child witness exchanging affection with a dog might be seen by the jury as more innocent and more in need of protection than she might otherwise appear. His Appellant’s Brief stated that the Court produced no findings that the comfort animal was necessary. The statute that permits the use of comfort animals for witnesses under the age of 16 is IC 35-40-5-13.
Surprisingly enough, this isn’t the first COA case in which a “comfort item” had been brought into the court. In Stewart v. State (Ind. App. 2016) there appeared a child witness who also needed a comfort dog while on the witness stand. Stewart argued that the presence of the dog implied to the jury that the child needed to be protected from Stewart, underscored the child’s innocence, and emphasized the credibility of the child’s testimony. While Stewart couldn’t demonstrate any prejudice he suffered as a result of the dog’s presence, the court did (at Stewart’s request) remind the jury that the dog was a comfort item and not there for the purposes of protecting the child.
In both Izaguirre and Stewart, it was concluded that the trial court did not err or abuse its discretion in allowing the child witness a comfort dog. I doubt that the ruling would be any different if the “comfort object” were a blanket or a toy.
I highly doubt a case like this would go to the Indiana Supreme Court. Nonetheless, I look forward to seeing other cases in which IC 35-40-5-13 appears . . . Case note by Lauren Rothbauer, Paralegal in training
Violation of the “Inviolate”
UPDATE: This decision of the COA is overturned by the SCOTSI Transfer decision of October 31, 2023 affirming the trial court grant of jury demand.
Article 1 Sec. 20 of the Indiana Constitution provides: “In all civil cases, the right to trial by jury shall remain inviolate.” The expression of the right to jury trial at Trial Rule 38(A) clarifies that issues of law and fact that were of “exclusive equitable jurisdiction” as of June 18, 1852 “shall be tried by the court.” The year 1852 was the year following the 1851 adoption of the Indiana Constitution. The 18th of June, 1852 is a date of no importance known to the CLB.
The case on review is State v. $2,435 in United States Currency and Alucious Kizer. Mr. Kizer was the subject of a Fort Wayne traffic stop. He ran from the stop but not quickly enough to avoid capture. While still running he “attempted to dispose of” an assortment of drugs. The cash in question was partially from Mr. Kizer’s person while the rest was from the car he had been driving.
According to Odyssey, Mr. Kizer has pending Allen County misdemeanor and felony cases that appear to be from the described arrest. But the appeal on review is an interlocutory one from the State’s civil case for forfeiture of the currency taken from Mr. Kizer and from the car. The trial court ultimately granted the jury demand, and the State appealed. Notably, Mr. Kizer failed to file an Appellee’s Brief.
The COA reversed on the theory that civil forfeiture is actually an equitable action for which there was no right to a jury trial in 1852 . . . Case Note by Dave Allen
The Breed of the Dog
The old, discredited adage of dogbite cases is (or was) that “the first bite is free.” The underlying legal theory includes the questionable presumption that any pet dog is docile and the inferential leap that owners cannot discern a dog’s violent inclination until it actually bites someone. Without knowledge of a dog’s inclination to bite, an owner would not be held responsible for his dog’s “first bite.” See Royer v. Pryor, 427 N.E.2d 1112 (Ind. Ct. App. 1981).¹
The erosion of the “first bite” defense is demonstrated by Tucker v. Duke, 873 N.E.2d 664 (Ind. Ct. App. 2007) wherein the COA noted that vicious propensity of pit bulls sufficient to put their owners on notice of the need (and duty) to protect others. If there is a “pit bull rule” it was extended to Great Danes in the case on review, Daniel v. Drake, as decided September 9, 2022 in the COA.
Delivery driver Damon Daniels was bitten outside the Drake residence while making a delivery. The dog was the Drakes’ 2-year-old Great Dane who had limited contact with strangers. The Drakes moved for summary judgment asserting a lack of actual knowledge that the dog was dangerous prior to the biting of Damon Daniels. Daniels opposed summary judgment with an expert affidavit asserting that Great Danes are inherently dangerous. The trial court awarded SJ to the owners. The COA reversed.
The (unanimous) Opinion cites Pozanski v. Horvath, 788 N.E.2d 1255 (Ind. 2003) for the notion that a first time unprovoked bite is, by itself, something less than retroactive proof of the owner’s actual or constructive knowledge of dangerous propensity . . . Case Note by Dave Allen
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¹ See IC 15-20-1-3 for the dog-bite liability statute for mail carriers and such. The case on review does not mention this statute.
Text Messages NOT a Written Contract
The case on review is Truelove v. Kinnick, as decided September 6, 2022 in the COA with the NFP affirmance of the trial court’s dismissal of Shad Truelove’s complaint for breach of (alleged) contract for the sale of real estate.
The real issue is whether there was a written agreement to purchase real estate as required by the “statute of frauds” at IC 32-21-1-1. That statute requires a writing signed by the obligated party in the matter of enforcement of a “contract for the sale of land.”
Here there were text messages back and forth between Shad and the supposed agent of the property owners. The text messages seem to show agreement as to purchase price and some other terms. Notably, the COA and trial court seem to have accepted the concept that a “text message could qualify as a writing that satisfied the statute of frauds.” Left unexplained here is how the signature requirement is met by a text message. However, the COA held that the text messages failed to adequately describe: the land to be conveyed; each party to the transaction; and other terms. The COA would not allow “parol evidence” to confirm any essential element missing from the text messages.
It looks as though Shad sued for damages rather than specific performance. He did not sue the person who outbid him for the purchase . . . Case Note by Dave Allen
Post-Expiration Revocation of Probation
The case on review is Elston v. State, as decided September 1, 2022 in the COA with a partial affirmance and partial reversal of the probation revocation from the trial court. It appears that Jeramie Elston was unable or unwilling to avoid criminal conduct and consequent arrests. He was charged in November of 2017 with Misdemeanor domestic battery. While that case pended he was charged in May of 2018 with Felony obstruction of justice. Finally, in February of 2019 Jeramie entered into a plea agreement in both cases. Sentences of 180 days and 365 days were suspended to probation.
Then in August and October 2019 Jeramie picked up two new Felony battery charges. Before the end of October the State filed a petition to revoke probation in the earlier two cases. No action on the petition to revoke took place for “nearly two years.”
Faced with a revocation hearing on August 31, 2022, Jeramie moved to dismiss the revocation action on grounds that he had completed his terms of probation. The trial court denied the motion to dismiss and later ordered Jeramie to serve all of his suspended time.
One year after “termination” of probation seems to be the absolute deadline for filing the petition to revoke for a violation during the probationary period. See IC 35-38-2-3. Another deadline that may apply is that the petition must be filed within 45 days of notice to the State of the violation. The petition below occurred during the probationary term but missed the 45-day deadline as to the (new offense) violation committed in August of 2019. Since the October 2019 offense should suffice to revoke both terms of probation, the partial reversal will not likely be to the benefit of Jeramie . . . Case Note by Dave Allen
Part Two of the Archdiocese and its Gay School Teachers
In late November of 2021 the CLB posted its review of Payne-Elliot v. Roman Catholic Archdiocese of Indianapolis, 180 N.E.3d 311 (Ind. Ct. App. 2021). Therein the CLB declared the certainty of a Transfer request, the probability of a Transfer grant, and the prospect of SCOTUS review on Certiorari. On August 31, 2022 the SCOTSI granted Transfer as it handed down its decision affirming the trial court’s dismissal of the complaint of gay school teacher Joshua Payne-Elliot who was fired for having married his same-sex partner.
As of today two-thirds of the CLB prediction have come to pass. A grant of Certiorari is warranted but uncertain.
The Opinion by Justice Slaughter was not an actual majority Opinion in that it was joined only by Justice Massa. Justices David and Goff concurred in the judgment without separate Opinion. Chief Justice Rush did not participate. Accordingly, the SCOTSI decision of August 31, 2022 may not bear much weight as precedent in future cases before the SCOTSI. Justice Slaughter disagreed in part with the trial court dismissal by holding that there was jurisdiction to hear the case such that TR 12(B)(1) dismissal was unwarranted. On the other hand, Justice Slaughter agreed with the trial court’s alternative TR 12(B)(6) dismissal for “failure to state a claim upon which relief may be granted.” Justice Slaughter embraced the “church-autonomy doctrine” as the legal basis for dismissal of the suit against the archdiocese and held that the complaint shows that this doctrine “bars” the claims. Ironically, Justice Slaughter declared the dismissal to be “without prejudice.” It would have been more rational to add prejudice against re-filing by calling the result a judgment on the pleadings. There is subtle irony in the use of the term “without prejudice” in a case that arose from prejudice against a gay man fired for his exercise of a constitutional right.
The CLB makes note that the Slaughter Opinion bears no analysis of the weighing of the competing interests of the parties. A minor point of interest is the declaration that a court of general jurisdiction is not “ousted of subject-matter jurisdiction” by the assertion of a religious defense. This declaration will be cited again and again in “church fight” litigation . . . Case Note by Dave Allen
SCOTSI Remembers Pirtle
The CLB has praised the SCOTSI’s venerable holding in Pirtle v. State, 323 N.E.2d 634 (IN 1975); and the CLB has gently criticized the SCOTSI when restricting the Pirtle rule that persons “in custody” deserve advice of their right to counsel when solicited for consent to certain searches.¹ Praise is called for in the matter of McCoy v. State, as decided August 29, 2022 by a slightly divided SCOTSI.
James McCoy happened to be wanted on a warrant at the time he was a burglary victim visited by police investigating that burglary. While McCoy was in handcuffs (excellent evidence of “in custody” status) the police officer asked McCoy to escort him into the house to “document” missing items. McCoy agreed and led the officer inside where the officer soon smelled burnt “spice” and saw likely drug paraphernalia. The officer withdrew and obtained a search warrant.
After conviction of several possession counts McCoy appealed the trial court’s denial of his motion to suppress evidence derived from his uninformed consent and the consequent warrant. The trial court had found Pirtle inapplicable where the search to which consent was given was unrelated to McCoy’s “in custody” status. Writing for himself and three others, SCOTSI Justice Goff declared a “clear violation” of the rule of Pirtle.
While concurring in the result, Justice Massa wrote separately to suggest the prospect of “reconsidering Pirtle in a future case.” The CLB disapproves of the Massa concurrence . . . Case Note by Dave Allen
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¹ Pirtle is sort of a Miranda rule applicable to consent to searches rather than consent to interrogation. Authority for Pirtle is not the Fourth Amendment but rather the Indiana Constitution at Article 1 Section 11. The SCOTSI has applied Pirtle only to consent to search houses and vehicles, to the exclusion of consent to search of a person.
A Pair of Lake Superior Court Reversals
The first case on review is 624 Broadway, LLC v. Gary Housing Authority, as decided in the SCOTSI on August 29, 2022. Judge Scheele of the Lake Superior Court Room Five had ruled in this “administrative condemnation” case that statutory service by publication to the LLC owner was sufficient. The real issue is that of damages, or compensation for the building taken by eminent domain.
The unanimous SCOTSI held that notice of proceedings by publication was insufficient under federal due process review. See IC 32-24-2 for such administrative takings. See also IC 36-7-18-28.
Here the GHA knew who owned the property and had the name and address of the registered agent of that LLC. Still, the only notice given was by publication. While the LLC’s agent learned of the administrative proceedings through a collateral source and appeared at an administrative session, there was harm from the late notice in that it gave the LLC insufficient time for an appraisal prior to assessment of damages . . . Case Note by Dave Allen
The second case on review is the NFP reversal of Lake Superior Court Room One Judge John Sedia on August 29, 2022 in the matter of Ace Property and Casualty v. Liberty Mutual. The case arose from a premises liability suit after Jane Jones fell on property owned by Gateway Arthur, Inc. Jane prevailed and won a damages award of more than $1.4 million. Gateway carried liability insurance with Liberty Mutual capped at $1 million and an excess/umbrella policy with Ace. The litigated issue was Ace’s refusal to pay the excess after exhaustion of Liberty’s $1 million coverage.
Ace’s defense to indemnification was its claim that it had not received timely notice of the claim as required under the policy. Notably, Liberty engaged the lawyers who defended Gateway.
Gateway had, of course, notified Liberty of the suit and blamed Liberty for not passing that notice on to Ace. Liberty responded that it had done so by way of notice to “PG Genatt,” supposedly Ace’s “broker/agent.” Sharing an address and partial name with “PG Genatt” there was “Genatt Associates, Inc.,” the actual broker for the Ace policy.
The issue litigated below by summary judgment was whether “PG Genatt” and “Genatt Associates, Inc.” were the same entity for purposes of notice to Ace. Judge Sedia held in favor of Liberty and its alleged notice to Ace. The unanimous COA panel reversed (and remanded) due to the perceived deficiency of Liberty’s designated evidence that it had sent notice to Ace’s agent . . . Case Note by Dave Allen
Local Verdict Reversed
The case on review is Indiana State Police v. Estate of Damore, as decided August 26, 2022 in the COA. What started out in the Lake Superior Court Room Two as a $4,000,000 wrongful death verdict against the State Police and State of Indiana has all but dissolved. Michael Damore drove a motorcycle westbound on the Toll Road near Portage. He had been speeding and had been pursued by police. Then he stopped at a toll booth. As he emerged from the tool booth he collided with a State Police vehicle making a U-turn across multiple lanes of traffic. Michael died as a result of the collision.
Michael’s speed on impact was disputed. If speeding, Michael may have committed contributory negligence.¹ There is no question that the ISP trooper failed to yield right-of-way to oncoming traffic.
An interesting issue on appeal was whether the trial court (Judge Calvin Hawkins) erred in granting an Order in limine on the motion of the Estate. The motion successfully sought to prohibit at trial any mention of Michael’s dangerous operating on the other side of the toll booth. Lawyers need to be careful of what they ask for. The trial court granted the motion in limine. Of course, the COA reversed on grounds that the evidence in issue was relevant and not unfairly prejudicial.
The sole defense witness at trial was a trooper/accident reconstruction expert whose testimony was stricken in whole when he violated the order in limine by making reference to the Estate’s motion. The unanimous COA opinion by Judge Tavitas declared the expert’s violation “brief and harmless” to the effect that the striking of his testimony was disproportionate to the harm of the violation. To the CLB, the striking of the expert’s testimony in its entirety was severe but not an abuse of discretion.
The COA found further error in the trial court’s refusal of two “negligence per se” instructions that are seen to be faulty by the CLB. Finally, the COA found insufficient evidence to establish the financial dependence of Michael’s mother, the practical difference being the limitation of the mother’s damages to the amount permitted by the AWDS as opposed to the GWDS damages awarded by the jury . . . Case Note by Dave Allen
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¹ Recall that comparative fault, as a partial defense, is unavailable in Tort Claim cases. Rather, there is “old school” contributory negligence as a total defense.
Reversal of Sentencing Fees
The case on review is Sears v. State, as decided August 26, 2022 in the COA. Brian Sears was convicted of Class A misdemeanor (retail) theft. On appeal he challenged his sentencing rather than his conviction. The challenged parts of his sentencing were fees normally imposed in drug or drunk driving convictions.
The COA Opinion reviews the statutory authority for the “drug interdiction” and “countermeasure” fees imposed and concludes that neither was statutorily authorized for imposition upon a theft conviction. Reversed . . . Case Note by Dave Allen
Back to Work for the SCOTSI
Before the 23rd day of August the most recent Opinion of the SCOTSI was handed down July 21, 2022. There was one other July Opinion on the 19th. A period of 54 days (June 30, to August 22, 2022) produced only two SCOTSI Opinions. That was summer recess. The end of summer recess may have come on August 23, 2022 with the unanimous Opinion in Minges v. State. This could well be the final SCOTSI Opinion by Justice David, whose retirement is near. On the other hand, Justice David could author a series of pre-retirement Opinions to right old wrongs.
What the SCOTSI did in Minges was to take a baby step away from its own godawful precedent in State ex rel. Keaton v. Cir. Ct. of Rush County (“Keaton”), 475 N.E.2d 1146 (Ind. 1985). In Keaton a SCOTSI majority of three Justices held that a criminal defendant’s discovery request for a verbatim police report could be blocked by a “work product” objection.
The CLB has often observed the absence of specific rules for criminal discovery. Minges reminds us of TR 26 pertaining to the scope of civil discovery and its “cross-over” applicability to criminal discovery. The Minges Opinion overrules Keaton and remands to the trial court to determine whether the police report from the drunk driving arrest of Frank Minges is somehow privileged as work product of the prosecutor.
With the Minges Opinion the SCOTSI has taken a mere baby step, but certainly one in the right direction . . . Case Note by Dave Allen
An “Exigency” Fabrication
The case on review is out of Lake County and Senior Judge Michael Bergerson. It is McGhee v. State, as decided August 10, 2022 in the COA with the affirmance of the murder conviction (by jury trial) of James Edward McGhee, Jr.
The interesting issue on appeal is whether the warrantless acquisition of McGhee’s cell-site location information (CSLI) violated his rights under the Fourth Amendment or Article 1 Section 11 of the Indiana Constitution.
Sidne Buchanan never made it home from a date with McGhee. Sidne was beaten to death by McGhee at his residence before he dumped the body in an Illinois forest preserve. When Sidne went missing, her family and Gary police knew that she had gone to a concert with McGhee.
Well after Sidne’s death and when she had been “missing” for over 48 hours FBI agents requested (without a warrant) the CSLI for the cell phones of both Sidne and McGhee. Obviously, McGhee would have no standing to object as to Sidne’s records. As for his own records (which were incriminating) he argued that their acquisition violated his rights under the 4th Amendment and Article 1 Section 11 of the Indiana Constitution.
In 2018 the SCOTUS held that the acquisition of CSLI records over a “substantial period” of time constituted a search for Fourth Amendment purposes. Carpenter v. United States, 138 S. Ct. 2206 (2018). On the other hand, the 7th Circuit has held that the collection of CSLI over just a few hours did not constitute a Fourth Amendment search. United States v. Hammond, 996 F.3d 374, 391-92 (7th Cir. 2021). In the case on review the COA declined to hold whether or not a “search” occurred in favor of the lame declaration that exigent circumstances authorized the warrantless acquisition of records. Wholly absent from the Opinion’s reasoning is any explanation of how there was insufficient time to request a warrant. Moreover, the Opinion (authored by COA Judge Mathias) circumvents any hard scrutiny, of the elements of the exigency by lamely declaring that the “totality of circumstances” amounted to an exigency.
While the CLB withholds any opinion on whether collection of McGhee’s CSLI amounted to a “search” it is clear to the CLB that the holding of “exigent circumstances” is unworthy of the COA. A grant of Transfer is most unlikely . . . Case Note by Dave Allen
INPRS, PERF, and NO QDRO
Here is an assignment for the Indiana General Assembly now that it has finished the task of taking away a woman’s freedom of choice: make Indiana’s public retirement funds divisible by Qualified Domestic Relations Order. ERISA pensions have been subject to QDRO division in divorce cases since around 1986, and the world has not ended.
The case on review is Smith v. Smith, as decided August 9, 2022 in the COA by way of a long, labored unanimous Opinion authored by Judge Tavitas. Apart from the mixed affirmance, reversal, and remand, the Opinion is of interest for its (uncritical) discussion of State pensions not subject to division by QDRO, even though a vested benefit is clearly “property” subject to division in divorce cases.
Given the lack of QDRO availability for State pensions, Indiana trial courts must resort to cumbersome and imperfect means of dividing the benefits from a pension that is a marital asset . . . Case Note by Dave Allen
Religious Use Zoning (for Protestants)
The case on review is Tri State and Satoor v. Farmers State Bank, as decided July 29, 2022 in the COA with an affirmance of the trial court ruling against a real estate purchaser urging fraud by the seller. The difficulty experienced by the purchaser arose from a zoning issue. The property in question included a building. For years the building was rented to a (protestant) religious congregation as a church, and the “R3″ zoning in effect allowed such use.
The property went up for sale. Realtor Mark Miller (not a defendant) created a for-sale listing of the property as a “religious facility.” Appellant/purchaser Satoor wanted to establish a Hindu Temple. She saw the property being used as a religious facility. She entered into a purchase agreement which contained no warranty of zoning for a particular use. No one seems to have checked the zoning. After the closing the “Tri-State” Hindu Temple was restricted to “small gatherings” pursuant to “banquet facility” zoning that no party had known of.
The COA Opinion does not explain when the zoning was changed so as to ban usage as a religious facility. The CLB is sufficiently cynical to suspect that the zoning change coincided with the expression of interest by Hindus in the purchase of the property.
The COA seems to refuse to recognize the possibility of fraud in the (passive) misrepresentation of the applicable zoning. In the case at bar, it was probably a matter of mutual mistake, or enough (perhaps) to cancel prior to closing but not enough for a post-closing recission. The realtor who created a false listing should have been sued . . . Case Note by Dave Allen
Addendum: Lawyers representing buyers need to check the zoning, preferably before the purchase agreement is signed.
The Asymmetrical Arbitration Clause
The Lake County case on review is Haddad v. Properplates, Inc., as decided July 28, 2022 in the COA with a partial reversal and remand.
Khaldoun and Issa Haddad contracted with Properplates for a construction project, during which the Haddads filed suit against Properplates. The Haddads appealed the trial court order to compel arbitration.
The contract between the parties required arbitration when “the Contractor has a dispute.” Notably, the Haddads filed suit. Then Properplates denied that claim and filed counterclaims. The trial court (Judge Sedia) held that the initial Complaint had to be arbitrated along with the Counterclaims. The COA reversed in part, holding that the initial Complaint filed by the Haddads need not be arbitrated.
The arbitration clause in dispute was inartfully written. The trial court construed it liberally while the COA did not. To the COA, language of when “the Contractor has a dispute” referred solely to claims asserted by the Contractor and not to claims asserted against the Contractor. This seems at odds with the caselaw preference for the liberal construction of arbitration clauses. Look for Transfer.
Remand to the trial court is ordered for consideration of whether arbitration of the Counterclaims should be stayed pending “resolution” of the initial Complaint . . . Case Note by Dave Allen
Recess Mischief
On July 21, 2022 the SCOTSI handed down its second “summer recess” opinion. The case of Lake County origin was City of Gary v. Nicholson, wherein a group of citizens including the litigious one-time Gary City Court Judge Doug Grimes sued to enjoin enforcement of a Gary municipal ordinance alleged to be in violation of Indiana statutes. The State of Indiana intervened. Gary characterized its ordinance as “welcome city” legislation to protect the rights of immigrants. The citizen plaintiffs characterized the challenged ordinance as an unlawful effort to establish a “sanctuary city” for illegals.
The chapter of Indiana Code in issue is IC 5-2-18.2 titled “Citizenship and Immigration Status and Enforcement of Federal Immigration Laws.” Section 3 of the chapter prohibits local ordinances that would restrict a police officer’s communication with federal officials with respect to undocumented immigrants. Section 4 prohibits a local government’s restriction of enforcement of federal immigration laws. Section 5 grants statutory standing for “a person lawfully domiciled in Indiana” to sue a local governmental entity to compel compliance with Chapter 18.2. Section 6 requires a court to enjoin a violation of Section 3 or 4.
According to our unanimous SCOTSI, Section 5 is meaningless. The CLB has previously written favorably on the concept of statutory standing. One aspect of statutory standing is that judicial acceptance of it is consistent with Separation of Powers doctrine. The judiciary should leave to the General Assembly that which is done within its grant of authority. There is, of course, always the option of judicial review of legislation for constitutional defects.
To the CLB, the statutory grant of standing to legal residents makes sense. If you see your property value dropping along with public safety and quality of life in a neighborhood beset by undocumented immigrants, then you are injured. I doubt that the SCOTSI would agree. It is more likely that the SCOTSI would require (for standing) some special injury apart from the general injury suffered by the community at large.
It is unclear how the pivotal issue of standing was addressed below, where there was a defense motion to dismiss citing only TR 12(B)(6) grounds. However, it seems that a lack of standing to sue is an issue that our SCOTSI will entertain whenever it is raised. The CLB has contempt for such exceptions to the rule that error asserted on appeal must first be preserved at the trial court level.
Held: No injury means no standing for the plaintiffs despite the statutory grant of standing. Held: Public standing still requires private injury. Accordingly, there is no rational version of public standing in Indiana.
While the State may have standing to challenge a municipal ordinance that contravenes State law, the State’s participation in this litigation requested no relief from Gary. The State agreed that dismissal would be appropriate upon a determination that the plaintiffs lacked standing. And that was the result.
To those keeping score of such matters it may appear that Judge Scheele of the Lake Superior Court Room Five has suffered the reversal of his holding in favor of the plaintiffs enjoining enforcement of (unspecified) provisions of the municipal ordinance for contravention of State law.
Although Judge Scheele clearly followed the law as set out at IC 5-2-18.2 without having been asked to decide the standing issue addressed by the SCOTSI, he stands technically reversed for the “error” of not dismissing on grounds not raised before him . . . Case Note by Dave Allen
No Friends for the Deadbeat Dad
Joshua L. Barton of Brown County is a deadbeat dad, convicted of felony non-support of his two children. Barton appealed his conviction and lost in the COA. The case on review is Barton v. State, as decided July 18, 2022. Notably, Barton was represented by attorney Stacy Uliana of Bargersville.
The appeal asserted error in the trial court’s admission (over objection) of a Pretrial Diversion Agreement in Barton’s jury trial for felony non-support. The Pretrial Diversion Agreement came at the end of the first wave of prosecution. The prosecution was renewed when Barton breached the Agreement. Within the 18-month duration of the Diversion Barton was convicted of invasion of privacy. The State filed notice that it would resume prosecution. A Plea Agreement fell apart when Barton was “unable” to establish a factual basis for the plea.¹ The case was set for jury trial.
The trial court decided the admissibility issue with the notion that Barton stipulated to the admissibility of the Agreement by way of the following text therein:
“[Defendant] 2. acknowledges this filed document may be used in Court against the Defendant.” (emphasis added)
The CLB agrees with Barton that he did not stipulate (by the cited text) that his admission of guilt from the Agreement would be admissible against him at trial without consideration of the merits of his evidentiary objection. The COA erroneously affirmed the trial court and then participated in a forbidden weighing of evidence by concluding that any error in the admission of evidence would have been harmless.
While I would not consent to the representation of Mr. Barton, I believe that he deserved better than he got from the trial court and the COA . . . Case Note by Dave Allen
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¹ The CLB prefers the procedure of the prosecution reading the PC Affidavit, after which the defendant states his agreement. Indiana judges will not accept an Alford plea from a defendant who tenders a guilty plea while claiming innocence.
The Knowing, Intelligent Waivers of the Incompetent
The case on review is Matter of the Civil Commitment of L.B., as decided July 15, 2022 in the COA with a rare reversal. The reversal arises from the manner that L.B., alleged to be seriously mentally ill, was allowed to waive his right to counsel.
Such waivers must be based upon an express finding that the respondent is mentally capable of “knowingly, voluntarily, and intelligently” waiving the right to counsel. Here L.B. was too crazy to make an intelligent waiver. His reasoning for self-representation was delusional.
It may be paradoxical that a trial court’s acceptance of a waiver of counsel should weigh against an assertion of mental incompetence. L.B. will not necessarily be turned loose. His case is remanded for a new commitment hearing . . . Case Note by Dave Allen
Lake Sues Itself
The CLB is intrigued whenever it appears that a government entity is suing itself. That is very nearly the essence of the case on review, Lake County Board of Commissioners v. Lake County Council, as decided July 12, 2022 in the COA.
The CLB views the conflict as one between the executive branch and legislative branch of Lake County Government. As usual in such conflicts, winners and losers are determined by the judicial branch, first local courts and then the appellate system. At issue in the subject litigation is control as expressed in two ordinances adopted by the Council. The ordinances were vetoed by the Commissioners, and the Council overrode the vetoes. Then came the litigation in the form of the Council’s Complaint for declaratory judgment.
In the trial court proceedings before Judge Sedia of the Lake Superior Court Room One there were cross-motions for summary judgment. Judge Sedia held in favor of the Council. The COA affirmed by way of the unanimous Opinion authored by Chief Judge Bradford.
Now for a description of the ordinances. No. 1451B was the Council’s establishment of itself as the “purchasing agency” for Lake County. Think of all the vendors and their political sponsors. Then came No. 1451M creating a data-processing agency. Think patronage, control, and access.
To the intuition of the CLB it seems that the purchasing of supplies and services is inherently more of an executive function than a legislative function. As for data-processing, I thought that the County already had an agency for the past couple of decades. The Council’s ordinance “establishing” a data-processing agency also gave the Council control over appointments to the agency’s governing board. Again, it seems to the CLB that government board appointments are traditionally more of an executive function, though not exclusively so.
We all know something of Indiana’s “home rule” laws declaring what the State leaves to the discretion of local government, so long as the local ordinance does not conflict with State law. Within the realm of “home rule” local powers are assigned to the executive branch or to the legislative branch. IC 36-2-3.5-4 lists executive powers including the power at (b)(7) to “control all disbursements and expenditures” of revenues and the power at (b)(11) to “supervise county administrative offices” (except for offices of elected officials). These statutory provisions seem to weigh in favor of the Commissioners.
On the other hand, IC 36-2-3.5-5(b)(7) empowers the legislative branch to establish new agencies. What trumps all else in the statutory analysis is IC 36-1-3.5-5, which applies expressly to Lake County and transfers “jurisdiction” to the Council of the matters of a county purchasing agency and data processing. End of story. Still, a Transfer request is probable. The SCOTSI should decline . . . Case Note by Dave Allen
Addendum: An oddity to this litigation is that it was decided by a single judge rather than the whole civil division of the Lake Superior Court sitting en banc under LR 14. IC 36-4-4-15 provides for en banc consideration of separation-of-powers disputes, but only for municipalities.
A New Drug
The case on review is Armes v. State, as decided July 8, 2022 in the COA with a reversal of the trial court’s denial of a void-for-vagueness challenge to drug charges against Travis Armes and two co-defendants.
The drug in question is called “MDMB” (for short). I hadn’t heard of it either. It was added to Schedule I (of controlled substances) administratively by the Indiana Board of Pharmacy by way of an “Emergency Rule.”¹
The COA held that the “Emergency Rule” complied with the authorizing statute but that it fails to provide adequate information for a person of ordinary intelligence to determine what amounts to MDMB. Accordingly, the criminal prohibition is unconstitutionally vague and should be dismissed.
MDMB is described as a “synthetic cannabinoid.” A recognized aspect of such is that “minor variances” in the chemical structure of synthetics may place the new version beyond the criminal prohibition while it still delivers the gratification that our government endeavors to eliminate.
The COA’s void-for-vagueness analysis relied solely upon the United States Constitution, to the exclusion of the Indiana Constitution. The COA Opinion notes that the SCOTSI has not decided whether the State Constitution vagueness analysis is the same as the federal standard. Notably, the Emergency Rule did not provide the chemical composition of MDMB.
The AG will surely request Transfer, though the COA decision is sound . . . Case Note by Dave Allen
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¹ To the CLB it is an abomination and a breach of the separation of powers for a legislature to empower an administrative agency to declare new criminal offenses by rule.
Close to a Guarantee
The case on review is B.P. v. Indiana Department of Child Services, as decided in the COA on July 7, 2022 with a rare CHINS reversal delivered by a split (2/1) panel.
The mother in the case (call her “Jane”) was a mentally ill meth abuser who went off her beneficial medications and discontinued her therapy. She picked up multiple criminal charges for misconduct other than her daily use of methamphetamine. Remarkably, the majority Opinion by COA Judge Najam with Bailey concurring REVERSED the trial court’s CHINS finding. Chief Judge Bradford dissented persuasively.
The CLB declares the near certainty of a Transfer grant followed by a SCOTSI affirmance of the trial court . . . Case Note by Dave Allen
Driving on Meth and “Department of Technology”
This case on review is Awbrey v. State, as decided July 6, 2022 with a COA reversal of Jeffrey Awbrey’s F6 felony conviction for operating a motor vehicle while intoxicated. The State charged Aubrey with driving while intoxicated under IC 9-30-5-2. The elevation from misdemeanor to F6 felony had to be by reason of a prior conviction. See IC 9-30-5-3(a). Tucked away in a footnote of the Judge Tavitas Opinion is mention of the pivotal circumstance that the State failed to charge Awbrey under IC 9-30-5-1 with operating a vehicle with a controlled substance or metabolite in his blood. Under that statute there is no “legal limit” for a Schedule I or II controlled substance. Rather, any quantitative amount of the drug or its metabolite in a driver’s blood amounts to a violation.
At trial the arresting officer made no real case for the element of impairment that seems to be an element of the offense as charged under IC 9-30-5-2. The State called a witness described as the “assistant director from the Indiana State Department of Technology.” The obvious error is that “Technology” was written where “Toxicology” should have appeared. See Slip Opinion at par. 7 line 2. I looked online for a link to report this typo and found none. That is a deficit that the COA should remedy. The assistant director testified about methamphetamine impairment and her expectation that there would be impairment based on the quantitative level of meth indicated in the blood testing. Judge Tavitas declared that the witness “did not actually opine that Awbrey was impaired.”
While the CLB concurs with Judge Tavitas, it recognizes this For Publication reversal as being in the category most likely to draw a Transfer petition. If there is Transfer here the SCOTSI should affirm the COA’s reversal and adopt the Tavitas Opinion.
As recreational marijuana becomes legal in more jurisdictions there should be objective standards on how much THC in the blood disqualifies a person from driving. The CLB is reminded how Hammond Mayor Tom McDermott was filmed smoking marijuana (quite legally) in an Illinois backyard on April 20th (the unofficial marijuana holiday) earlier this year. Marijuana is a schedule I controlled substance. The CLB hopes that mayor McDermott remembered not to drive home on April 20th or drive at all over the following couple of weeks during which marijuana or THC or metabolites would be detectable in his blood . . . Case Note by Dave Allen
Cops Wiretapping Themselves
The case on review is Young v. South Bend Common Council, as decided June 30, 2022 in the COA by way of 36 pages¹ of rambling (unanimous) Slip Opinion authored by Judge Crone. In simple terms, a complaint by intervenors to a lawsuit filed by the South Bend Common Council against the “South Bend City Administration” was dismissed in the trial court. The COA considered the motion to dismiss as one of summary judgment while remanding “for development of a factual record.”
The “factual record” began with the South Bend Police Dept. implementing a policy of recording some, but not all, of its phone lines for calls that were outgoing or incoming. The recordings were stored. One line not originally slated for recording was added to the pool of recorded lines on request of the officer using that number as his own. Years passed. The phone line was passed around. People forgot that it was a recorded line. Then a “communications officer” was “troubleshooting the recording system” and heard an interesting conversation on the subject line, number 6031. She went to a superior with her suspicion that illegal activity was afoot. The Police Chief decided to allow the recording of line 6031 to continue for investigative purposes. The Chief directed his communications officer to “find” certain conversations on line 6031. She complied and produced cassette tapes of conversations of 8 dates in 2011. When circumstances came to light the Chief was demoted, and the communications officer was fired.
Meanwhile the council issued a “legislative subpoena” to the City requesting copies of the recordings. The City filed a District Court complaint for declaratory judgment to determine whether disclosure of the recordings would violate the Federal Wiretap Act.
The State court litigation started with the council seeking to compel compliance with its subpoena. The Intervenors were persons inside or outside of the Police Dept. whose conversations were recorded.
Within the COA Opinion there is helpful discussion of the Federal Wiretap Act at 18 U.S.C. § 2511 et seq. and the Indiana Wiretap Act at IC 35-33.5-5-4. Neither Act bars “interception” when at least one party to the conversation has consented to the interception. Discussed are the “ordinary course of business exception,” prison inmate calls, and “accidental” recording. A distinction was drawn between the line 6031 calls “accidentally” recorded and those recorded intentionally for investigative purposes . . . Case Note by Dave Allen
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¹ When writing Briefs for the COA we advocates are limited by rule to a maximum page or word count. The CLB would like to see the COA imposing that duty of brevity upon itself.
Inviting Fundamental Error
The case on review is Miller v. State, as decided June 29, 2022 in the SCOTSI. I wonder whether Miller will be the last SCOTSI Opinion preceding the Court’s summer recess.
Terrance Trabain Miller was the subject of a traffic stop which resulted in discovery of drugs and a handgun. The State charged six offenses, including unlawful possession of a firearm by a serious violent felon. Prosecution of the gun charge was bifurcated by agreement. Phase One would involve a jury determination of whether Miller possessed a firearm. If so, Phase Two would consider whether Miller was a “statutory serious violent felon.”
Phase One of the trial began with a preliminary jury instruction belonging in Phase Two. It referred to a person in possession of a firearm after conviction and sentencing for an offense under IC 35-47-4-5. Though the instruction did not declare Miller’s prior conviction, it suggested a prior conviction. Without a prior conviction there would have been no purpose for the instruction.
Miller’s trial counsel agreed to the preliminary instruction suggesting his client had a prior conviction. Fundamental error may be asserted on appeal when there was no timely objection or other preservation of the error in the trial court. Like any other error, fundamental error can be waived when “invited” by the defense. Error is invited when “part of a deliberate, well-informed trial strategy.” Mere ignorance and neglect do not amount to the invitation of fundamental error.
The SCOTSI majority of four (Opinion by Massa) concluded that there was invitation of error such that it was unnecessary to determine whether the error was fundamental. In her partial dissent C.J. Rush disagreed with the holding of invited error and “would review Miller’s claim for fundamental error.” The C.J. did not assert that there was fundamental error . . . Case Note by Dave Allen
No Fruit of the Poisonous Confession
The case on review is State v. Jones, as decided June 27, 2022 in the COA. Tala M. Jones was driving in Richmond, Indiana while her license was suspended. A cop who knew her and knew of the suspension made the traffic stop. When Tala had been ordered out of the car but not yet handcuffed or Mirandized, the cop asks whether there is anything (illegal) in the car. Tala responds that there is marijuana in the car. The cop found the marijuana, handcuffed Tala, and continued interrogating her. She admitted to having a handgun, heroin, and crack cocaine concealed in her bra. Then the cop gave Miranda warnings!
There were suppression proceedings below in the trial court. The trial court suppressed the heroin and cocaine as a fruit of a Miranda violation. The trial court theory was that the Indiana Constitution required that suppression. Both sides appealed.
A remarkable feature of the cases arises from United States v. Patane, 542 U.S. 630 (2004), a plurality decision of the SCOTUS said to limit the “fruit of the poisonous tree” doctrine following a Miranda violation and statement against interest. The COA Opinion views Patane as holding that a Miranda violation does not require suppression of any resulting physical evidence (such as drugs from under a bra strap).
The COA was asked to determine that Article 1 Section 14 of the Indiana Constitution (location of the State privilege against self-incrimination) requires suppression of fruit of the poisonous confession. The COA held in the negative.
The CLB dislikes the Jones holding. In this era of eroding rights under the U.S. Constitution (except for 2nd Amendment), it is a good time for Indiana to strengthen protections of the Indiana Constitution. The CLB observes that the application and meaning of provisions of the Indiana Constitution are not fully developed in appellate case law. It seems, however, that the COA prefers to leave the heavy lifting to the SCOTSI. Here’s hoping that the SCOTSI is up to that task . . . Case Note by Dave Allen
Variations on TR 12(B)(8)
Indiana Trial Rule 12 (B)(8) lists as grounds for dismissal:
“(8) The same action pending in another state court of this state.”
But what about a similar action pending in another state court of another state? That was the situation presented in BFD Enterprises v. Koepnick, as decided June 23, 2022 in the COA.
Jeff Koepnick was a truck driver for BFD. He was given a load to deliver by way of a route through Indiana. Jeff took his wife, Shamarie Shauer, with him. BFD required that she sign a liability waiver.
Somewhere in Huntington County Jeff drove the semi-truck into an overpass support pillar. The crash destroyed the truck, killed Jeff, and injured Shamarie. There was evidence that Jeff was drunk when he crashed BFD’s truck.
Several months later and within days of each other BFD filed suit in Indiana against its (dead) driver and Shamarie while the widow filed suit in Kentucky against BFD. BFD’s suit was filed first but Shamarie was first to effect service. BFD sued Jeff and Shamarie for property damages asserting joint liability for the drunken trucking. Shamarie sued BFD for her injuries asserting respondeat superior liability and negligence in the hiring, retention, and supervision of her dead husband.
The Indiana trial court dismissed the Indiana case, apparently in anticipation of its refiling as a counterclaim in Kentucky. The COA affirmed. Analysis by the COA was mostly on the concept of comity and to a lesser extent on the “more convenient forum” provision of TR 4.4(C). The COA provides a helpful review of comity factors . . . Case Note by Dave Allen
The Crime of Home Alone
How old must a child be to be left home alone without the risk of criminal prosecution of the parent? How old should the “latchkey” kid be for the couple of hours between the arrival home from school and the parent’s arrival home from work? How old to be left home alone overnight? For the weekend? There are no reliable answers to those questions that a lawyer may hear from clients. In an area of law befitting objective legislative standards, there are none.
The case on review is Becklehimer v. State as decided June 24, 2022 with a rare insufficiency-of-evidence reversal of Chasity¹ M. Becklehimer’s conviction of F6 neglect of a dependent, her 13-year-old son, J.K.
It seems that Chasity had two boys at home, 13-year-old J.K. and 4-year-old C.D. One Friday she travelled to Pennsylvania to meet with her husband, a truck driver. She took C.D. with her but left J.K. home alone. The refrigerator was fully stocked. There were rules about no guests in the house and contacting grandparents who lived nearby. J.K. had been left home alone on about five prior occasions “without incident.”
It was Saturday night when J.K. was home and witnessed his “friend” B.D. apparently trying to break into the house by forcing a window. J.K. called 911, per his maternal instructions. Police arrived. J.K. was exhibiting great fear. He may have complained to police about being left at home. Grandparents arrived at the scene and expressed shock that Chasity had left J.K. at home without telling them. Days later Chasity was charged with F6 neglect of a dependent. She was tried and convicted by a jury.
Chasity appealed asserting the insufficiency of evidence to sustain the conviction. Chasity seems to have conceded that J.K. was her dependent. She challenged sufficiency of evidence to show that she knowingly placed J.K. in situation that endangered his life or health. The COA noted its own precedent that the Neglect Statute applies only to “actual and appreciable” dangers to life or health. Such was held to be consistent with a “knowing” mens rea.
The COA’s expression of insufficiency is that the State failed to establish that Chasity was “subjectively aware of a high probability” that her absence for the weekend put J.K. in danger.
While the CLB sees the reversal as a just result, such just results are far from immune to cancellation on Transfer. By reversing for insufficiency of mens rea evidence, the COA sets a bold precedent . . . Case Note by Dave Allen
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¹ To the CLB the name appears to be an inept rendering of “Chastity” by a parent whose inability to spell matches his/her stupidity in baby naming.
Juvenile Jurisdiction
The case on review is State v. Neukam, as decided June 23, 2022 in the SCOTSI over the dissents of Justices Massa and Goff. Per the SCOTSI majority the chronology of crime and age presented results in serious criminal behavior being excused by a “jurisdictional gap” that may be closed only by legislative action.
The State claims that Anthony Neukam molested a young cousin over several years, during which he turned eighteen. Anthony was charged at age twenty with molestation after his eighteenth birthday. At the age of 22 the State filed a juvenile delinquency petition alleging acts prior to Anthony’s eighteenth birthday. The State then dismissed the delinquency petition and moved to add Anthony’s alleged juvenile offenses to the (adult) criminal case. The trial court rightly denied leave to add juvenile offenses to an adult prosecution. The State appealed. The COA affirmed, as did the SCOTSI.
Dissenting Justices Massa and Goff would allow the State to delay the filing of a delinquency petition against a juvenile offender until that person reaches the age of twenty-one, at which time the State would be free to prosecute the juvenile offense in an adult criminal court. To the CLB the dissenters are clearly outside the mainstream of appellate jurisprudence in this matter . . . Case Note by Dave Allen
A Deposition Denial
For Steven Church this is a bad time to be the defendant in a child molestation prosecution. He had sought to take the deposition of his 8-year-old accuser. Then came new legislation restricting his right to do so. See IC 35-40-5-11.5. When judicial leave to take the deposition was denied, Steven appealed and won a temporary victory in the COA. On June 23, 2022 the SCOTSI issued its Opinion on Transfer affirming the trial court’s denial in Church v. State. To the CLB the SCOTSI Opinion is further evidence that an accused or convicted child molester has no friend in the criminal justice system. One observation is that of Justice Massa’s unrestrained references to the complaining witness as the “victim” when there has been no trial to determine that. Such references to an accuser as “victim” run contrary to the presumption of innocence.
A statute restricting the ability to depose a witness sounds procedural. But the Justice Massa Opinion calls it substantive in that it “predominantly furthers public policy objectives.” This is not a workable standard in discerning the procedural or substantive nature of statutes. The announced standard does not appear to be supported by precedent. The next time I find a trial rule that I dislike I may challenge it as “furthering public policy objectives.”
The SCOTSI Opinion in Church is a disappointment to the CLB. A potential silver lining for Steven Church is that he need not worry about a discovery deposition becoming an evidentiary deposition at trial if and when the young accuser becomes unable or unwilling to appear at trial. The CLB’s unease with the denial of pretrial deps of complaining witnesses in molestation prosecutions does not extend to deposition protocols designed to shield an accuser from intimidation . . . Case Note by Dave Allen
No Fight Like a Family Fight
The “NFP” case on review is Galanos v. Galanos, as decided June 23, 2022 in the COA. Elements of the case included a quite elderly mother, some property, and two adult children awaiting their inheritance. One adult offspring of Eugenia Galanos is the Lake County Bar’s own George Galanos, who was a “pro se” appellee in the appeal brought by George’s sister, Niki Galanos. Niki’s appeal was an unsuccessful challenge to the trial court’s orders in favor of George after he petitioned for appointment of a guardian (himself) and for other relief, including revocation of a power or attorney in favor of Niki. Following his appointment as (temporary) guardian, George petitioned for recovery of assets by way of declaring the invalidity of certain property transfers from Eugenia to Niki.
Later probate commissioner Harris entered a protective order “in lieu of guardianship” and declared void the challenged transfers to Niki.
Uncle Ned has shared his observation that there is no fight like a family fight. The accuracy of that observation stands confirmed by the Galanos siblings . . . Case Note by Dave Allen
A Warning Too Soon OR
A Sniff Too Late
The case on review is Powers v. State, as decided June 22, 2022 in the COA. Powers was the interlocutory appeal of auto passenger Brooklyn Powers from the trial court’s denial of her motion to suppress evidence recovered from the subject vehicle following a traffic stop and dog sniff. There is a helpful review here of dog sniff suppression cases from the delay inherent in the dog sniff (in a typical case).
Here the officer looked at the driver’s license, registration, etc. and did a warrant check. He issued the warning ticket before he was ready to let the car (and its occupants) leave the scene. The officer was motivated by the occupants’ nervous demeanor and Brooklyn’s junkie-like appearance. The eventual dog sniff was positive for narcotics. Brooklyn was charged for drugs, paraphernalia, and a handgun. She appealed the trial court’s denial of her motion to suppress. The COA reversed, holding, in part, that the officer improperly delayed the vehicle occupants after the reason for the stop was completed with the warning ticket . . . Case Note by Dave Allen
The Cases of Summer’s Eve
On this 20th day of June, 2022 the COA has favored us with a dozen decided cases. Here are some summaries.
White v. Szalasny was a landlord/tenant suit wherein the landlord shot himself in the foot by filing his suit for property damages in that the tenants successfully counterclaimed for the landlord’s failure to return (or account for) their security deposit.¹ The narrow holding of interest is that counsel for the tenants were entitled to collect fees for their time spent in obtaining the judicial award of attorney fees. Since the trial court eliminated such efforts from its award of attorney fees, the COA reversed and remanded.
To the CLB there was nothing unreasonable in the trial court’s limitation of fees. Under the cited statute it is reasonable fees that may be recovered. When attorney fees amount to multiples of the sum in controversy, reasonableness is on thin ice.
Russell v. State was the successful interlocutory appeal of the denial of Sarah Russell’s motion to dismiss a charge of “escape” filed against her while serving home detention for misdemeanors.
Sarah’s “escape” was allowing the battery on her ankle bracelet to “die” for want of recharging. The COA noted that the trial court was without authority to sentence Sarah as it did. Accordingly, she could not “escape.” For those convicted of misdemeanors home detention may be imposed only as a condition of probation.
Shelton v. Hayes is from the Lake Superior Court Room Three (Magistrate Olsen). It is in that sparsely populated appellate category of grandparent visitation. When a father died, mother agreed to very generous visitation for paternal grandfather. Their agreement received court approval. For the remarried mother Grandpa’s frequent time with grandson became less convenient. She began denying most of the visits. Grandpa petitioned for contempt and enforcement. Mother petitioned to modify her agreement. Grandpa moved for appointment of a guardian ad litem. The motion was granted over mother’s objection.
Held: the trial court was without authority to appoint a GAL in a grandparent visitation case over the objection of a party. The remedy for this error was remand to the trial court to reconsider the rulings in favor of grandpa without taking into account the previous testimony of the GAL. Other holdings include affirmance of the trial court in saddling mother with the same modification burden that would apply in a modification contest between parents.
Gosten v. State is one more example of the familiar “right without a remedy.” Donnelle Goston, Sr. is father to 3 minor children. It seems that the children were being physically abused and that the abuse was known to DCS. After the physical abuse (in the home of mother and stepdad) caused permanent damage father sued the State, County DCS, and other entities on behalf of himself and his children alleging negligence. The trial court eventually awarded SJ to the DCS on grounds of immunity under the ITCA.
Under IC 31-33-18-4 DCS is obligated to give “verbal and written notice” of its “abuse or neglect” investigations to parents and guardians of children. The DCS clearly breached that statutory duty owed to father. Thanks to the trial court and the COA, said breach of duty comes with total impunity. The cited statute is rendered meaningless. The SCOTSI, General Assembly, or both should move to allow a private cause of action for violation of IC 31-33-18-4, which requires no level of competence in child abuse investigation but simply notice to those who should have notice . . . Case Notes by Dave Allen
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¹ See IC 32-31-3-12 for landlord’s obligation and IC 32-31-3-15 the consequence that a breaching landlord sacrifices his damage claim.
That Slippery RFRA Defense
“RFRA” is the acronym for “Religious Freedom Restoration Act.” The federal version at 42 U.S.C. § 2000 was held by the SCOTUS to be invalid for application to the states. See City of Boerne v. Flores, 521 U.S. 507 (1997). The Hobby Lobby case was decided under the federal application of RFRA.
The Indiana version of RFRA is codified at IC 34-13-9-0.7 et seq. It has been held to provide a defense to criminal prosecutions that “substantially burden religious exercise” unless the state shows the prosecution to be the “least restrictive means” of furthering a compelling government interest.
The RFRA-related case on review is Blattert v. State, as decided June 15, 2022 in the COA. Scott Blattert, Jr. beat his children, claiming a religious (Christian) imperative to do so. When charged with criminal actions Scott claimed the RFRA defense. The prosecution countered with a motion in limine to effectively strike that defense. The trial court gave the State its order in limine, prompting Scott’s interlocutory appeal. The COA affirmed. The case will go to trial without mention of the RFRA defense.
While the CLB detests parents who beat their children, it is not convinced that Scott Blattert should be wholly deprived of his RFRA defense at trial. At some point the success or failure of the RFRA defense should be a jury issue in cases tried by a jury. It is clear that Scott showed evidence of his claimed religious privilege or obligation to beat his sinful offspring. To the CLB it appears that the trial court weighed the evidence to dispense with the RFRA defense and to deprive this vile father of the right to present his sole defense. Generally, a defendant who presents some evidence in support of a defense is entitled to a jury instruction upon that defense.
The COA blindly affirmed the trial court’s order in limine striking Scott’s RFRA defense. In doing so it seems to have approved the trial court’s apparent conclusion that the prosecution showed (as a matter-of-law?) that criminal prosecution was the “least restrictive means” of furthering a compelling governmental interest. That a CHINS proceeding to remove endangered children from a home would be “more restrictive” than a criminal prosecution of the father seems absurd to the CLB.
If the CLB had a vote it would be cast in favor of a grant of transfer . . . Case Note by Dave Allen
Two Days and Two Roofing Cases
UPDATE: See 2023 case notes for the July 19, 2023 Transfer Decision in favor of Hoosier Contractors.
On June 8, 2022 the COA decided Hoosier Contractors, LLC v. Gardener. On June 9, 2022 a COA panel with two judges in common with the Gardener panel handed down its Opinion in Five Star Roofing v. Armored Guard Window & Door. Both cases involve the substantially unsuccessful appeals of roofing contractors. Other than that the two cases are quite dissimilar.
The Gardener case appears to be a product of that predatory practice of some roofers and other home repair contractors who descend on a community after destructive weather events in search of insured buildings in need of repair. Hoosier Contractors made a contract with Sean Gardener for repair of his damaged, insured residential roof. The contract was conditional upon insurance coverage for the proposed repairs. That contingency was met. The insurer paid Gardener (allegedly) “nearly $60,000.00″ for roof repairs. Rather than allow Hoosier to proceed with repairs, Gardener paid another company around $18,000.00 to repair his roof.
Hoosier (unwisely) sued Gardener for breach of contract. He counterclaimed with a putative class action alleging violations of the Home Improvement Contractors Act (HICA) actionable under the Deceptive Consumer Sales Act (DCSA). HICA is codified at IC 24-5-11 while DCSA can be found at IC 24-5-0.5.
The trial court found that Hoosier’s contract had two prima facie HICA violations: the absence of a price for the work; and the absence of a description of the work to be done. Hoosier apparently intended a price equal to every penny of insurance money collected for the repairs. The work to be done was not specified in the contract in that it was executed in advance of determining what repairs would be covered by insurance payment.
The trial court denied summary judgment to Hoosier on its claim for breach of contract. The trial court denied summary judgment to Gardener on his claim that the contract was “null and void” for its HICA violations. The trial court certified a class action while requiring that notice to potential class members include a warning of liability for Hoosier’s attorney fees should Hoosier prevail. Both sides appealed. The COA affirmed in all respects.
An interesting issue brought up by Hoosier centers on the “statutory liquidated damages” clause of the DCSA. There is also the related issue of “standing.” The COA panel held that “actual” damages are not a prerequisite to claiming “statutory liquidated damages” and that standing may be conferred by statute.¹ Hoosier’s argument on liquidated damages will stay around until the SCOTSI slaps it down. If Transfer follows, the SCOTSI should attend to that task.
The roofing case of June 9, 2022 is Five Star Roofing v. Armored Guard Windows & Door. Five Star entered into a subcontractor agreement with Armored Guard, a contractor on the subject construction project. After Five Star performed out of compliance with the contract it was “terminated.” Armored Guard obtained estimates and then signed a new contract for the remaining work at a higher price. Armored Guard then sued Five Star for contractual damages.
Armored Guard was awarded summary judgment, and Five Star appealed. The COA affirmed except for the technicality of the start date for Armored Guard’s prejudgment interest.
Perhaps the most interesting part of the COA Opinion (by Judge Brown) is the discussion of a strict standard for TR 56 admissibility of affidavit content (including opinion of a non-expert) and then a liberal, forgiving standard for declaring the harmlessness of error in such admissibility holdings. The showing of error without the showing of prejudice is simply a lost appeal. The CLB holds that the harmlessness of error should not be presumed; nor should the appellant always bear the burden of disproving such harmlessness. Still, the CLB concurs in result . . . Case Note by Dave Allen
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¹There is a parallel here to the 7th Circuit Opinion of (then) Judge Amy Coney Barrett against the recovery of statutory liquidated damages for an FDCPA violation in Casillas v. Madison Ave Associates, Inc. 926 F.3d 329 (7th Cir. 2019). That holding is discussed in the CLB’s featured article of October 14, 2020 on the Barrett nomination to the SCOTUS.
Another Offending Pole Barn
The case on review is Warriner Investments, LLC v. Dynasty Homeowners Association, Inc., as decided in the COA on June 8, 2022. The case is similar to King v. Dejanovic, 170 N.E.3d 268 (Ind. Ct. App. 2021) as reviewed in the CLB’s 2021 Appellate Case Notes. In each case homeowners decided to erect a pole barn on their residential property despite restrictive covenants or HOA declarations. In each case indignant neighbors prevailed (at least in part) over the pole barn builders. In the 2021 King case restrictive covenants in the subdivision barred the pole barn. In the Warriner case now on review, the pole barn could be built, but only with prior approval of the HOA Board. The Warriners began construction before they applied for approval. When approval was denied, the Warriners continued with the construction. The HOA sued.
The trial court technically held for the HOA and assessed HOA attorney fees of more than $25,000.00 against the Warriners. Still, the trial court denied the HOA request for the injunctive relief of a demolition order. It seems that the renegade Warriners get to keep their offending pole barn. The COA affirmed the trial court in all respects. The CLB would agree with a remand to the trial court to consider propriety of injunctive measures shy of demolition. Keep an eye out for Transfer . . . Case Note by Dave Allen
Posthumous Jurisdiction
The case on review is Dennis v. Dennis, as decided June 3, 2022 in the COA. Appellant Jacqueline Dennis won a reversal of the trial court’s dismissal of her petition for post-decree relief following the divorce and the death of her former husband years later.
Pursuant to the parties’ court-approved settlement agreement from 2007 Jacqueline was supposed to pay Gary Dennis nearly $20,000.00 for his interest in the marital home. Jacqueline paid the money, but Gary never delivered the quitclaim deed that he was supposed to deliver per the settlement agreement. Years passed. Gary died while his judgment lien against the marital residence remained in effect.
After Gary’s passing Jacqueline petitioned the divorce court for the satisfaction and release of Gary’s lien. Noting that Gary had died, the trial court declared a lack of jurisdiction to consider Jacqueline’s petition. She appealed the trial court’s dismissal and won in the COA. A cursory review of the divorce case record on Odyssey reveals no apparent effort on the part of Jacqueline to join, substitute, or even serve Gary’s estate.
The CLB has previously written of interplay between death and divorce. See the featured Article “No Common Law of Divorce” as posted July 5, 2016 and its analysis of Arcelor Mittal Pension Plan v. Hickey, the NFP decision of the COA posted June 30, 2016.
While there should be no option for divorce against a dead spouse, there may be post-decree issues of enforcement that should be judicially addressed even after the death of an obliged spouse. For statutory evidence of this point see IC 31-16-6-7(a)(2) to the effect that a father’s obligation of child support does not necessarily end with his death . . . Case Note by Dave Allen
“Legal” Paternity v. DNA
So the moron shows up after his “sometimes girlfriend” gives birth to a child. She tells him he’s the father and hands him a paternity affidavit. The moron signs.¹ Then there’s a CHINS case on undisclosed allegations. Then the foster parents seek to adopt.² The case on review is B.A. v. D.D., as decided May 26, 2022 in the COA.
The big question below was whether the moron’s consent to adoption is necessary in light of his establishment of “legal” paternity by way of the paternity affidavit. The question was complicated by the circumstance that moron had taken a DNA test (in the course of adoption proceedings) showing that he was not the biological father. Once more we see the distinction between “legal” paternity (by way of affidavit) and the DNA evidence disproving actual biological paternity.
The issues on moron’s appeal were whether the trial court erred in ordering DNA testing and whether the trial court erred in granting summary judgment to adoptive parents upon the issue of whether moron’s consent to adoption was required.
The COA held that there was no error in the ordering of DNA testing. As for the summary judgment issue, moron complicated matters with an untimely summary judgment response that was then stricken by the trial court. The COA found no error in that striking. Still, the COA reasoned that it was the burden of the adoptive parents to demonstrate the absence of a “legal” father rather than moron’s duty to demonstrate the existence of a “legal” father. On the designated evidence the COA reversed the summary judgment in favor of adoptive parents on that issue of whether they needed moron’s consent. The COA concluded that DNA evidence excluding biological paternity “is not dispositive” of whether moron’s consent to adoption is required . . . Case Note by Dave Allen
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¹ Most of this sequence is what the CLB presumes to have happened.
² The CLB speculation is that adoptive parents might have fared better by waiting for a CHINS-related termination of parental rights.
Forfeiture of Confrontation
The case on review is Galloway v. State, as decided May 24, 2022 in the COA. William Dejuan Antonio Galloway, Jr. of Gary was wearing an ankle bracelet and supposedly under “house arrest” when he ventured out to rob and shoot some neighbors. Between the crime and the trial a witness died. There was some evidence that the dead witness had been killed by Galloway.
The prosecution filed a trial court motion for “forfeiture by wrongdoing,” regarding admissibility of the dead witness’s statement to police. The defense countered that admission of the statement of a dead witness would violate his right of confrontation under federal and state constitutions. The trial court concluded that the statement would be admissible and that Galloway’s confrontation right was “forfeited by wrongdoing.”
The statement was admitted at trial, over objection. Galloway was found guilty (by jury) of multiple felonies. The COA affirmed.
A deficit in the COA Opinion by Judge Altice is the absence of discussion of the burden of proof upon the prosecution to make its case for the forfeiture of confrontation by an uncharged criminal act. A danger in the Opinion is the notion that confrontation applies to the witness and not to the declarant. This point of law is then used as a lever to dispense with confrontation (with the declarant) by using a hearsay witness in court (who may be confronted). This is a very dangerous approach, unworthy of the COA . . . Case Note by Dave Allen
COVID and the Congestion of Empty Courtrooms
The case on review is Smith v. State, as decided May 23, 2022, in the COA. At issue is the SCOTSI’s Order of December 14, 2020 respecting CR 4(B) speedy trial in the pandemic era. Your intuition is right if you guessed that the right to a speedy trial would sustain collateral damage.
The SCOTSI Order of December 14, 2020 provided for a virtual suspension of CR 4(B) from that date to March 1, 2021. Moreover, the Order provided that “speedy trial” settings after March 1, 2021 would be subject to “congestion of the court calendar or locally existing emergency conditions.” Both court congestion and emergencies are exceptions to the CR 4(B) right to speedy trial for an incarcerated defendant.
Despite having filed a speedy trial motion Tyler Smith was not brought to trial within 70 days of March 1, 2021. He filed a CR 4(B) motion to dismiss, which was denied. He was brought to trial and convicted of attempted murder and other offenses. He appealed and lost in the COA.
The “congestion” was fabricated. Smith was charged in Fulton Superior Court, which had no congestion problem. Rather, the policy was to conduct jury trials only in the Fulton Circuit Court, where there was space for the distancing of jurors and other participants. The supposed congestion of the Fulton Circuit Court was used to negate the right to speedy trial in the Fulton Superior Court.
It is not surprising here to see the COA panel bow to the rule-making will of the SCOTSI while erstwhile cherished constitutional rights are sacrificed. Time will tell what accommodations, if any, the COA will allow for the rest of us in the endeavors of life disrupted by the COVID pandemic . . . Case Note by Dave Allen
Reversal by Video
The last time (to the best of my recollection) the COA dared to reverse a conviction in reliance on a videotaped depiction of the offense, it was slapped down by the SCOTSI. That case was Royce Love v. State. The COA reversal was at 61 N.E.3d 290 (Ind. Ct. App. 2016), and the SCOTSI Transfer decision was at 73 N.E.3d 693 (Ind, 2017). The current case on review is Carmouche v. State, as decided May 17, 2022 in the COA.
Paul Lester Carmouche was an inmate in the Marion County Jail who had a grievance against that facility’s mail clerk. When the mail clerk opened a “dormitory” door to notify Carmouche of the rejection of outgoing mail, he kicked that door in anger or frustration. The mail clerk testified that the door struck her in the right knee, resulting in pain and some swelling. Carmouche was charged with Battery as a Class A misdemeanor. He was convicted by way of bench trial.
In addition to the mail clerk’s testimony, there was videotape of the incident. The COA concluded from its view of the video that the kicked door did not hit the right knee of the mail clerk as charged. Accordingly, the unanimous COA panel reversed the conviction and “discharged” Carmouche.
The interesting aspect of the “sufficiency” reversal here is that the COA uses the video images to cancel the testimony of the mail clerk which would otherwise have been sufficient, standing alone, to sustain the conviction. In essence, the COA has committed a weighing of the evidence. While the CLB supports what the COA has done here the SCOTSI may well accept Transfer to reinstate Carmouche’s conviction or to remand for a new trial.
A secondary issue in the appeal is Carmouche’s claim that his supposed waiver of trial by jury was invalid in that he had not been adequately advised of his rights and the need to demand jury trial in a misdemeanor prosecution. The COA agreed. If the SCOTSI declares on Transfer that the evidence was sufficient, Carmouche should still get a new trial before a jury . . . Case Note by Dave Allen
Prior Restraint of Speech
OR
“Free to Disparage”
The case on review is Israel v. Israel, as decided May 16, 2022 in the COA. Jamie Israel (husband) was divorced from Wife Yaima Israel. Jamie asserted error below as to division of property, legal custody, and attorney fees. On these “substantive” issues he lost in the COA. However, he was able to salvage a moral victory as to the trial court’s non-disparagement clause.
The trial court’s non-disparagement clause is described as restraining the parties from ever making disparaging remarks about the other, regardless of whether the child (of the marriage) happens to be present. The COA agreed (unanimously) with father that the non-disparagement clause was an unconstitutional prior restraint on speech and overbroad in that it forbade the parties from disparaging the other outside the presence of the child.
In the view of the CLB, the trial court’s broad non-disparagement clause was an example of “do-gooder” social justice prevailing (temporarily) over the better policy of just following the law. Apart from being limited to the presence of the child, the non-disparagement clause drafted on remand should have an expiration date. That date should be no later than the child’s presumptive emancipation on his 19th birthday . . . Case Note by Dave Allen
Another Glock, Another Broadway Murder
The case on review is Craft v. State, as decided May 12, 2022 in the COA with an affirmance of the murder conviction of Fredrick David Craft. There are parallels to the case of Young v. State from the preceding case note directly below: both cases were prosecutions for murder perpetrated on Gary’s Broadway; both murder weapons were (probably) Glock semi-automatic pistols; and both cases involved some measure of doubt as to the identity of the shooter. The biggest difference between the two cases is that Marquis Young won a reversal while the conviction of Frederick Craft was affirmed.
The date was September 27, 2020. The time was 2:30 a.m. The location was the 700 block of Broadway in Gary in a parking area next to “entertainment venue Loft Adiq” which had just closed for the night. At least two Gary Police Department Officers were on the scene for crowd control and deterrence of criminal conduct. Then shots rang out, more than 50 over just a few seconds.¹
Within a short time Mr. Craft was apprehended after being confronted by police while running with another man. Craft complained that he had been shot. He had no firearm on his person. According to the Appellant’s Brief, no GSR testing was done to detect the presence or absence of gunshot residue on Craft’s hand, forearm, or sleeve. Some additional gunfire was heard after Craft was in police custody. The man seen running with Craft eluded capture.
Officer Garza saw one shooter and later identified Craft as that person. Garza saw Craft firing at Kevin Blackmon, who fell to the ground and died. After the gunfire abated, police recovered 111 bullet castings as the scene.
Two handguns were found in an alley. Several more were found in Craft’s locked Jeep Grand Cherokee, including a “modified” 9-millimeter Glock with an “extended double barrel magazine.” A firearm examiner testified that 85 of all 111 shell casings were fired from this modified Glock. The “modification” of the Glock was from semi-automatic to full automatic firing. DNA testing revealed that multiple persons had touched or handled the modified Glock.
A problem with the evidence is that Craft had no opportunity (post-gunfire) to go to his Jeep and deposit the Glock there. Though there was no direct evidence of it, the prosecution theory was that Craft handed off the Glock to another person (the running companion?) who then placed it into the locked Jeep without being seen. Despite this evidentiary issue the testimony of Officer Garza that he saw Craft firing at Mr. Blackmon should have been sufficient to withstand the appellate challenge to sufficiency of the evidence.
Craft’s more substantial appellate issue was his assertion of prosecutorial misconduct in the final argument of Lake County Deputy Prosecutor Maureen Koonce. Craft’s trial counsel objected at least four times during the State’s closing arguments.
The gist of the objections was that Deputy Prosecutor Koonce was making assertions unsupported by evidence of record. The trial court judge (the late Diane Ross Boswell) warned Koonce a couple of times for straying from the evidence. She denied a motion for mistrial. There was no defense motion for an admonishment of the jury to ignore what it had heard.
The COA panel was unanimous in rejecting the State’s argument that Craft waived his claim of prosecutorial misconduct by failing to request an admonishment of the jury to ignore portions of the State’s closing argument. In so doing, the COA panel gave a narrow reading to the SCOTSI holding in Ryan v. State, 9.N.E.3d 663 (Ind. 2014). The COA held that (to preserve error in the denial of a mistrial) there need be no admonishment request “where it would not be effective.” Behind this policy is a measure of deference to the decision of defense counsel that admonishment would not be an adequate remedy for the prosecutorial misconduct.
Despite the boilerplate judicial doctrine of not weighing evidence on appeal, the Opinion recites that “Given the evidence against Craft, the probable persuasive effect of the prosecutor’s statements was minimal.” Accordingly, there was no “grave peril” to the defense as required for a mistrial.
In the view of the CLB Deputy Prosecutor Koonce clearly indulged in an ethical breach that should never be seen in a criminal (or civil) case. The CLB would like to see a Transfer review of the issue of mistrial for prosecutorial misconduct . . . Case Note by Dave Allen
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¹ More than 50 shots over just a few seconds means that there were multiple firearms and/or “full automatic” firing taking place. One officer saw two shooters.
Sufficiency-of-Evidence Appeal
UPDATE. On December 13, 2022 the SCOTSI unanimously affirmed the convictions of Marquis Young while reasoning that the evidence (which they would not reweigh) at trial was sufficient to support the convictions. Once again the SCOTSI demonstrates that sufficiency-of-evidence appeals are “DOA.”
Pardon my acronyms, but I have long observed that nearly 100% of sufficiency-of-evidence appeals of criminal convictions are DOA (dead on arrival) in the COA (Court of Appeals). An exception to that general rule is the case on review, Young v. State, as decided May 11, 2022 in the COA by a split (2/1) panel.
Marquis David Young was convicted of murder and attempted murder for a gas-station shooting in Gary near 45th and Broadway. A lone shooter emptied a .40 caliber magazine of 20+ bullets into a vehicle and at some men nearby. There was a single weapon, likely a .40 caliber Glock semi-automatic pistol. Marquis was at the gas station when 3 men arrived. He then left the station in his vehicle and turned onto a nearby street. A short time later the shooting commenced. No one was able to identify the shooter. However, some video camera evidence was recovered. Of 3 cameras, one was black-and-white, one was color, and one was infrared. One of the camera views showed a “suspect” tossing a lit cigarette or cigar in the alley behind the gas station. A cigarette butt recovered from the alley two days later was linked to Marquis by DNA testing. However, there was less than proof positive that the smoker from the alley was also the shooter. The video evidence was of a person wearing pants (dark) and shoes (white) consistent with what Marquis donned that day. As for head gear, there was a bit of discrepancy. Marquis had been seen wearing a black stocking cap before driving off from the gas station. The infrared video of the shooter showed a “white or light-colored” head covering “appearing to be a do-rag.” There was discussion of how the heat of an object (like a skull) could impact the shade perception on the infrared video.
Though no gun was recovered from Marquis or from the scene there was evidence that he had searched the internet a week or two post-shooting for information on how to disassemble and clean a .40 caliber Glock pistol.
The COA Opinion (by Judge Vaidik) held that the evidence fell short of the standard of “substantial evidence of probative value.” Judge Crone dissented, finding the evidence below sufficient for the jury’s verdicts. Judge Crone was more willing than the panel majority to draw “inferences” of guilt (reasonable or not) from the modest evidence. Though the AG should not request Transfer, he will. The SCOTSI could well be more generous to the prosecution in reviewing the evidence.
The State deserves credit in this case for developing its available evidence, including DNA comparison and computer (or smart phone) searches. The Lake County Appellate Public Defender program and attorney Sean C. Mullins deserve credit for winning the reversal. Here’s hoping that they can keep that victory . . . Case Note by Dave Allen
Another Form of Speedy Trial
Most of us know of the right of a criminal defendant to a “speedy and public trial” as provided in the Sixth Amendment to the United States Constitution. A parallel right to a speedy trial (in civil cases, too) resides in Article 1 Sec. 12 of the Indiana Constitution. The Indiana Supreme Court’s Criminal Rule 4 adds detail to a criminal defendant’s right to a speedy trial.
But one limitation to the speedy trial entitlement for a criminal defendant is that he (or she) must be both arrested and charged before the speedy trial clock of CR 4 begins to tick. There is a subset of criminal cases wherein the objectionable delay takes place after the (alleged) offense but prior to any arrest or criminal charge.¹ One such case is the one on review, Williams v. State, as decided in the COA on May 4, 2022 in Joel Williams’ interlocutory appeal of the trial court’s denial of his motion to dismiss charges filed against him some 35 years after an alleged rape and criminal deviate conduct in the course of a 1984 home invasion in Hobart. When the delay precedes the bringing of charges the matter is considered as an assertion of a Fifth Amendment due process violation rather than a Sixth Amendment violation. Some cases of pre-charge delay may be barred by the passage of a statutory limitations period while others are not. There is no statute of limitation for the class A felonies brought against Joel Williams.
Components of the due process violation are undue delay and prejudice. Delay may be “undue” when there is no justification for delay. The “prejudice” component must involve “actual and substantial prejudice” to the defendant’s right to a fair trial. Under Indiana Sixth Amendment case law a post-charge delay of a year is presumed prejudicial. Vermillion v. State, 719 N.E.2d 1201, 1206 (Ind. 1999). There was no mention of Vermillion in the Williams Opinion.
In the case on review the COA affirms the denial of dismissal while blaming Williams for his inability to prove exactly how deceased witnesses would have testified or how unavailable evidence would have aided his defense. Williams was entitled to a presumption of prejudice which was not afforded by the trial court or the COA.
The COA predicts that there will be a Transfer Petition and that the SCOTSI will decline to accept Transfer . . . Case Note by Dave Allen
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¹ There is still another subset of cases based on the perceived violation of “the right to a speedy arrest” after charges have been filed. Your blogger has handled only one case within this rare subset.
Rules of Criminal Discovery?
The case on review is Ramirez v. State, as decided April 27, 2022 in the SCOTSI with a reversal of the conviction of Juventino Ramirez and remand for a new trial. Two issues on appeal are the scope or manner of criminal discovery and the question of postponing the commencement of trial when “new allegations” are communicated on the eve of trial.
Much of the (unanimous) Opinion by CJ Rush is couched in terms of “fair trial” without reference to “due process.” Juventino had been convicted below of sexual misconduct with his stepdaughter who had participated in a video-taped “forensic interview.” The defense lawyer was allowed to view the tape in the prosecutor’s office but was denied a copy to use elsewhere.
The Opinion tells us of Allen County’s Local Criminal Rule 13 requiring application to the trial court and the showing of “specific necessity” for obtaining copies of “audio or videotape.” Defense counsel petitioned the trial court but was slapped down with a protective order prohibiting Ramirez from having a copy of the accusatory recording. Defense counsel argued to no avail that Local Rule 13 was invalid as being in conflict with Rules of Trial Procedure. While the SCOTSI agreed that Local Rule 13 was invalid and the trial court erred in denying a copy off the interview tape, that error was held insufficient to require a reversal. The CLB begs to differ with the SCOTSI on this point.
After notice of “extensive” new allegations on the eve of trial, defense counsel requested a postponement of trial on the morning it was set to commence. The trial court denied the request. Remarkably, the SCOTSI reversal of conviction came from that denial of the motion for continuance described as “untimely” by the trial court. The trial court’s abuse of discretion included its apparent failure to weigh the “diverse interests” that would be impacted by altering the trial schedule.
The CLB is reminded of its previous calls for adoption (by the SCOTSI) of criminal discovery rules. In the absence of such rules, disputes as to discovery must be resolved on the basis of case law and that malleable concept of “fair trial” . . . Case Note by Dave Allen
Limiting Judicial Authority
The case on review is Rambo v. Rambo, as decided April 25, 2022 in the COA. The COA held, clearly and simply, that the trial court lacked the requisite statutory authority to order the sale of marital assets as part of a provisional order. In the unanimous Opinion COA Judge Vaidik noted that IC 31-15-4 includes authority for a provisional award of possession (but not for sale). By contrast, IC 31-15-7 includes authority for a final hearing order of sale of assets.
The COA is to be commended here for limiting judicial authority to what the legislature has allowed, rather than expanding judicial authority to all that the legislature has not prohibited. Such limitation of judicial authority is particularly appropriate in the realm of divorce as to which there is no inherent judicial authority but only that delegated by the legislative branch. An explanation of this underappreciated principle can be found here in the CLB in the Featured Article of July 5, 2016 titled “No Common Law of Divorce.” . . . Case Note by Dave Allen
The Force of Forcible Resistance
The CLB declares (or merely observes) that there is chaos in the case law pertaining to what does or does not constitute “force” for purposes of the “forcible” resistance of law enforcement. The particular case on review is Runnells v. State, as decided April 21, 2022 in the COA. The COA panel unanimously reversed Randy Runnells’ conviction below for resisting law enforcement. See the offense at IC 33-44.1-3-1. Randy seems to admit some mild resistance while denying that it was “forcible.”
The primary (not exclusive) source of chaos in the case law is the holding in Graham v. State, 903 N.E.2d 963 (Ind. 2009) that the mere “stiffening of one’s arms” during the cuffing procedure would suffice as forcible resistance. In the case on review, Opinion author Judge Weissman wrote of Graham and other case law in a scholarly manner. The COA panel declined to follow the “stiffening” doctrine of Graham. The evidence below was that Randy Runnells resisted cuffing by twice “pulling away.” The officer then wrestled Randy to the ground and cuffed him. The theory of the prosecution was that the “pulling away” was forcible resistance. Notably, the officer was not arresting randy for an offense when he decided to employ handcuffs. Given Randy’s very erratic behavior, cuffing seems to have been a reasonable precaution.
If Transfer is granted it should be an opportunity for the SCOTSI to overturn the il-advised holding in Graham¹ . . . Case Note by Dave Allen
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¹ The CLB notes that Graham was authored by then CJ Shepard for a SCOTSI of which not one Justice remains. This is not to suggest that a change of SCOTSI Justices warrants the reconsideration and revocation of older case law. The justification for overturning Graham is that it was bad law in 2009 and remains bad law.
The Digital Fine Print
The case on review is Decker v. Star Financial Group, as decided April 20, 2022 in the COA. Cliff and Wendy Decker brought a class action suit against their bank for recovery of improperly assessed overdraft fees. The bank defended successfully below by invoking an arbitration clause from the “Terms and Conditions” of the subject account. The arbitration clause had been added to the “Terms and Conditions” by way of digital fine print attached to a digital monthly statement. The Deckers lost below with the argument that they had not received “reasonable notice” of the addition of the arbitration clause and that such notice was required under the “Terms and Conditions.” COA Judge Tavitas wrote for the majority of a split (2/1) COA panel with Judge Crone in dissent.
While the CLB will almost always side with Judge Tavitas over Judge Crone, there is concern here that the pro-arbitration SCOTSI may adopt the Crone position that reasonable notice of the arbitration clause was given such that the clause became part of the contract between the bank and the Deckers. Notably, the arbitration provision implemented unilaterally by the bank also seemed to bar class actions against the bank by account holders.
According to the Tavitas majority Opinion, there was digital service to the Deckers of the arbitration provision in the final two pages of a 14-page digital monthly statement. The Deckers did not see or review that end-of-statement notice. The Deckers maintained their account. The first issue addressed by Judge Tavitas was whether there was an actual agreement to arbitrate. The answer to that foundational question will come from Indiana contract law, even when the (alleged) agreement invokes federal arbitration law.
The Deckers prevailed in the COA on their argument that their notice of the bank’s unilateral addition of an arbitration clause was not “reasonable” in that it was “buried” under other content. Watch for Transfer . . . Case Note by Dave Allen
Legal Cannabis?
The case on review is Fedij v. State, as decided April 11, 2022 in the COA with the unanimous reversal (in part) of Lisa Rose Fedij’s misdemeanor convictions for possession of marijuana and for possession of paraphernalia. The marijuana conviction was reversed while the paraphernalia conviction was left intact.
The interesting aspect of the COA Opinion (by Judge Mathias) is that it may (unintentionally, I’m sure) burden the State and aid the defense in many marijuana prosecutions. Here is an excerpt of the trial testimony of State’s witness Officer Jellison:
“There are two variations of the cannabis plant . . . one is legal and one is not legal . . . the difference in the legality is the THC content.”
To the CLB it appears that Officer Jellison gave an inartful description of relevant Indiana law. We assume that Officer Jellison meant hemp, as defined at IC 15-15-13-6, when referring to “legal” cannabis:
Sec. 6. As used in this chapter, "hemp" means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis, for any part of the Cannabis sativa L. plant. As added by P.L.165-2014, SEC.1. Amended by P.L.190-2019, SEC
By comparison, here is the definition of “marijuana” from IC 35-48-1-19:
Sec. 19. (a) "Marijuana" means any part of the plant genus Cannabis whether growing or not; the seeds thereof; the resin extracted from any part of the plant, including hashish and hash oil; any compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.
(b) The term does not include:
(1) the mature stalks of the plant;
(2) fiber produced from the stalks;
(3) oil or cake made from the seeds of the plant;
(4) any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom);
(5) the sterilized seed of the plant which is incapable of germination;
(6) hemp (as defined by IC 15-15-13-6); [emphasis added]
(7) low THC hemp extract; or
(8) smokable hemp.
As added by P.L.5-1988, SEC.199. Amended by P.L.165-2014, SEC.3; P.L.153-2018, SEC.22; P.L.190-2019, SEC.29.
The CLB would appreciate a formal study as to whether common “Indiana ditch weed” is above or below that legal threshold of 0.3% THC on a dry weight basis.
Lisa Rose possessed plant material ready for smoking plus (allegedly) THC infused edibles. Such edibles may be within the definition of “hemp product” at IC 15-15-13-6.5:
Sec. 6.5. As used in this chapter, "hemp product" means a product derived from, or made by, processing hemp plants or plant parts including derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers. However, the term does not include: (1) smokable hemp (as defined by IC 35-48-1-26.6); or (2) products that contain a total delta-9-tetrahydrocannabinol concentration of more than three-tenths of one percent (0.3%) by weight. As added by P.L.190-2019, SEC.7.
The critical issue from the case on review is whether the State proved that the seized substances were within the THC range required of “marijuana.” The evidence which the State offered in the trial court was the declaration of THC content on the product packaging of the edibles. The COA rightly held that the packaging claims were hearsay that were not excepted from the Rule (of inadmissibility over objection) by evidence of reliability.
As for the seized plant material, the forensic testing could not distinguish between (legal) hemp and (illegal) marijuana, at least not without quantitative testing that was not performed.
The useful point of the COA Opinion is that the defense in every marijuana prosecution out there is entitled to insist (at trial when it is too late to cure the deficit) on proof that the plant material or other product exceeds the THC “legal limit” of 0.3%. It matters not that the plant material is identified as cannabis sativa L unless and until there is admissible evidence of THC percentage . . . Case Note by Dave Allen
The Gravity of Cheerleading
Young Isabella Reynolds was a Lafayette area highschool cheerleader (on the JV squad) filling in on the varsity. During practice of a cheerleading routine she suffered “extensive injuries to her face and mouth.” Though the negligence (or worse) of others likely contributed to Isabella’s fractured jaw and fractured teeth, she has no remedy, thanks to the “don’t know sports” SCOTSI and a sheepish COA. The case on review is Tippecanoe School Corp. v. Reynolds, as decided April 7, 2022 in the COA.
The unanimous COA panel reversed the trial court’s denial of summary judgment as to the claim of negligent supervision. The COA probably should not have accepted the interlocutory appeal of the School Corp. Isabella was a JV squad “flyer,” meaning that she was the one lifted or thrown into the air during the routines. The CLB assumes she was petite.
Head varsity cheerleading coach Roberta Patton invited Isabella to join the varsity for a basketball game to fill in for an absent “flyer.” During a pre-game warmup Isabella’s “teammates” “hoisted” her in the air but failed to lower her safely to the floor. She was dropped (face first) onto a bare hardwood floor. Floor mats were available but not in use.
Because the routine in question was not outside of “ordinary” cheerleading and the minimal (or less) supervision of the coach was likewise not outside of the “ordinary” coaching of cheerleaders, the COA concluded that SCOTSI precedent ¹ precluded any remedy for Isabella. The COA held not only in favor of the “teammates” who dropped Isabella but also in favor of the coach who presided over the routine. ²
Here the COA should have distinguished between “participant” or “teammate” duty and the duty of a compensated adult coach. The trapeze or tightrope artist will remove the safety harness only for the live performance when the circus goers are paying to be thrilled. Cheerleaders have no need to thrill the sport fans when the cheerleaders are off by themselves for a pre-game warmup. It would have been appropriate to use floor mats during the warmup. The SCOTSI’s inability to distinguish between competitive performance versus mere practice or exercise is a disappointment to the CLB. I can hardly blame the COA for following (bad) precedent . . . Case Note by Dave Allen
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¹ See Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011) and Megenity v. Dunn, 68 N.E.3d 1080 9ind, 2017).
² The School Corp. was a respondeat superior defendant.
Student Rebellion
The most remarkable COA case from the last week of March was the consolidated appeal of two cases, one each from Monroe County and Tippecanoe County, the respective homes of Indiana University and Purdue. In March of 2020 each university switched its “in person” classes to “remote learning” in response to the COVID pandemic and executive orders declaring a “public health disaster.” The (shortened) case name is Trustees of Indiana University v. Spiegel. The decision date was March 31, 2022.
Students who had paid for “in person” instruction sued their schools for refunds. Each suit survived a defense TR 12(B)(6) motion to dismiss or TR 12(C) motion for judgment on the pleadings. Those orders were certified for interlocutory appeal, and the cases were consolidated.
Curiously absent from the COA’s unanimous Opinion (per Judge Crone) is any mention of force majeure respecting the students’ contract claims. Moreover, there is no discernible discussion of whether Governor Holcomb’s executive orders were within his legal authority. ¹ To some extent there was discussion of IC 34-12-5-7, enacted in April of 2021 and made “retroactive” to March 1, 2020. The statute purports to forbid the filing or certification of such COVID-based suits as the ones on review. Notably, the General Assembly acted only after the trial courts had entered the orders on appeal.
The COA panel dodged consideration of the statutory prohibition of certain class actions by declining to address the statute “for the first time on appeal.” Given the timing of the legislation the universities could not have asserted the statute as a defense in the trial court. To the CLB, the rule against considering an issue “for the first time on appeal” is a pragmatic rule of waiver. In the cases on review there was no waiver when the subject statute did not exist while the cases were being argued in the trial court. Being a pure issue of law, the impact of IC 34-12-5-7 could well have been considered by the COA without prior “screening” in a trial court.
The result of the COA decision is that the cases will be sent back to the trial courts for contentious, expensive, and unnecessary litigation. The CLB urges the SCOTSI to accept Transfer in order to avoid that fate . . . Case Note by Dave Allen
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¹ The CLB has expressed the opinion that Gov. Holcomb exceeded his authority.
SCOTSI’s Return to Civil Forfeiture
The case on review is Abbott v. State, as decided by a slightly divided SCOTSI on March 29, 2022. This was Terry Abbott’s appeal of a civil forfeiture judgment. The appeal was successful in reversing an adverse summary judgment on the forfeiture of about $9,000.00 in cash seized from the then suspected (now convicted) drug dealing Abbott.
Readers of the CLB may recall prior posts about the civil forfeiture case of Tyson Timbs and his seized Land Rover. Therein the SCOTSI was schooled by the SCOTUS about the applicability to the States of the 8th Amendment “excessive fines” prohibition. One citation (of several) in the Timbs saga is 134 N.E.3d 12 (Ind. 2019). Timbs was cited by C.J. Rush in her partial dissent in the case on review. Notably, Terry Abbott did not introduce any 8th Amendment issue.
The SCOTSI was unanimous in the reversal of the summary judgment awarded below to the State in its civil forfeiture action filed under the general forfeiture statute at IC 34-24-1 and the racketeering forfeiture statute at IC 34-24-2. The reversal was warranted in that Abbott had designated evidence below calling into question the source of the seized cash. Abbott claimed that the seized cash was independent of any drug sales.
In affirmance of the trial court the SCOTSI held that the racketeering forfeiture statute does not permit the trial court to release seized property (cash in this case) to hire a lawyer. Moreover, the SCOTSI affirmed (4/1) the trial court’s refusal to appoint counsel in this civil case under IC 34-10-1. In lone dissent C.J. Rush would have found an abuse of discretion in the trial court’s denial of appointed counsel.
If Abbott couldn’t get a lawyer, who handled the appeal? The appellate lawyers hailed from an “Institute for Justice” in Arlington, Virginia . . . Case Note by Dave Allen
Contractor Liability Beyond Privity
The case on review is U.S. Automatic Sprinkler Corp. v. Erie Insurance, as decided March 29, 2022 in the COA. The part of the decision of interest to the CLB pertains to the issue of contractor liability to parties not in contractual privity. Here there had been property damage suits against a fire protection (sprinkler) contractor in privity with one of several building tenants. The sprinkler system malfunctioned (by the bursting of frozen pipes), and “non-contract tenants” suffered property damages. The COA reversed the trial court’s denial of SJ to the Sprinkler Corp. defendant.
The Sprinkler Corp. had moved for SJ upon the “acceptance rule” applicable where a contractor’s work is accepted by the party in contractual privity. Traditionally, the acceptance released the contractor form negligence liability to persons not in privity. The SCOTSI abolished the rule of privity in certain personal injury situations but not for mere loss of property. Faced with claims for property damage only, the COA applied the privity rule to the benefit of the Sprinkler Corp.
Criticism: If my office neighbor has work done that could damage my office property, I regard the contractor as having a duty to me to perform the work competently so as not to damage my property . . . Case Note by Dave Allen
The Sale that Wasn’t a “Sale”
The case on review is Munster Steel Co. v. CPV Partners, as decided March 28, 2022 in the COA. To the CLB, the COA decision is an erroneous affirmance of an erroneous trial court holding. While the SCOTSI has the wisdom to correct this blatantly erroneous central holding it may not deem the case Transfer-worthy.
The real estate involved in this litigation is known to your blogger and to many residents of the Calumet Region. The property is the once-abandoned Munster Steel location (in Munster) just east of Calumet Avenue and south of the Canadian National Railway tracks near 45th Avenue. ¹ There is now substantial commercial development on the property.
Munster Steel sold out to CPV Partners. The Contract included a provision for a “fee” to the sellers if the buyer resold the property within two years of closing with Munster Steel. That circumstance came about when CPV Partners conveyed the property (for consideration) to the Town of Munster and its Redevelopment Commission.
Munster Steel sued, alleging that said transfer satisfied the “subsequent sale” contract provision entitling it to its “fee.” The trial court was the Lake Superior Court Civil Division Room Seven. The trial court was swayed by the defendant’s clever but lame argument that its transfer was not a “sale” but rather an “equitable mortgage.” To the CLB that assertion was beyond the pale of legal nuance and fully in the realm of legal absurdity. Notably, the Town of Munster was the record owner (suggesting a transfer) of at least part of the property for more than a year commencing in October of 2015. Also notable is the circumstance that the trial court declined parol evidence from Munster Steel while accepting from the other side the parol claim of its intent to establish an equitable mortgage rather than a sale . . . Case Note by Dave Allen
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¹ If memory serves, there were once the remains of a brick factory on or adjacent to the subject property.
“Harmful to Minors”
The COA date of decision is March 23, 2022. The case name is Chapman v. State. The Opinion was from former CJ (now senior judge) Shepard with one concurrence and a dissent from Judge Robb. To the CLB there is a high probability of a grant of Transfer for SCOTSI review.
Cory Chapman was a former public school band director who sent messages to former student/band member professing his love while also transmitting sexual jokes and images. The girl talked. Chapman was charged with “disseminating matter harmful to minors,” a level 6 felony per IC 35-49-3-3. Chapman invoked his right to a “preliminary determination” of whether the “matter” is “probably harmful to minors” pursuant to IC 35-49-2-4. The trial court found that the “matter” is “probably harmful to minors.” Chapman filed an interlocutory appeal which the COA accepted before affirming the trial court.
The State contested whether the preliminary determination procedure of IC 39-49-2-4 was applicable where no “matter” had been seized. The COA majority held that applicability of the procedure could not be “entirely ruled out,” whatever that means. ¹
Accordingly, the COA considered the messages and images from Chapman under the definition of “matter harmful to minors” found at IC 35-49-2-2. The statutory description is (to the CLB) too vague to pass constitutional muster. Still, the COA carried on to affirm the trial court holding that the “matter” was “probably harmful to minors.” Notably, the COA majority held also that Chapman’s First Amendment (free speech) challenge was waived for failure to raise the issue in the trial court.
Perhaps the pinnacle of statutory vagueness (were that considered) is the reference in IC 35-49-2-2 to “prevailing standards in the adult community.” The evolution of “community standards” from the legislation origin year of 1983 to the appellate decision year of 2022 was recognized by Judge Mathias in his concurrence and by Judge Robb in her dissent.
To the CLB Judge Robb’s dissent was more persuasive than the majority Opinion. Moreover to the CLB, the described content of Cory Chapman’s messages was in the “PG” category (at worst). If such is “harmful to minors” then it is time to close down theaters, bookstores, and much of the internet . . . Case Note by Dave Allen
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¹ The CLB is an advocate of a defendant’s option to demand an adversary probable cause hearing in any felony prosecution. Ex Parte PC “hearings” offend rights of due process and right to counsel.
Sudden Emergency Insanity
The case on review is Patrick v. Henthorn as decided March 3, 2022 in the COA. There must be a grant of Transfer to undo the insanity of this “sudden emergency” Opinion. First the trial court awarded summary judgment to defendant April Henthorn, who caused serious injury to the hapless Walter Patrick. It seems that April has suffered for decades from a peculiar, rare allergy to consumed protein. April manages the condition (called “OTC”) by medication and diet. She reports symptoms “very rarely” except for August 18, 2017.
On that date April was driving into Indianapolis from south suburban Johnson County, she lost consciousness and (consequently) control of her vehicle. Before coming to rest, April’s vehicle crossed an intersection and struck two other vehicles. Walter had been in one of those two other vehicles.
Walter’s suit against April alleged negligence. Her response included the defense of “sudden emergency not of her own making.” April blamed the accident on her loss of consciousness. She blamed the loss of consciousness on her OTC. She demanded summary judgment asserting her lack of fault from the “unforeseeable” loss of consciousness. The trial court agreed and awarded summary judgment in April’s favor. The COA panel agreed without dissent.
Public policy is ill-served by an award of civil impunity to a motorist who passes out behind the wheel due to a chronic medical condition that she has had for decades. When we take the wheel we each accept a duty to other motorists and passengers to remain conscious. While a stroke could well be a “sudden emergency” for a previously asymptomatic driver, April knew of her OTC and of the potential for sudden incapacitation. Yet she drove. I wonder whether she obtained her operator’s license by withholding information. ¹
The SCOTSI will receive a Transfer request and should grant it to rein in this insane application of the “sudden emergency” defense. A person (say an epileptic) with a known chronic disorder that can cause sudden incapacity should, as a matter of sound public policy, bear the risk of responsibility for consequent harm upon others when that person elects to drive. That person may manage his risk with adequate liability insurance. For an innocent, law-abiding driver harmed by another to be deprived of a remedy is not sound public policy. The SCOTSI should step in to alter case law precedent to the extent necessary to make April civilly liable for the harm she caused . . . Case Note by Dave Allen.
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¹ See, for instance, IC 9-24-2-3(a)(3) prohibiting the BMV from issuing a license to “an individual . . . suffering from a physical or mental disability or disease that prevents . . . reasonable and ordinary control over a motor vehicle.”
Drug Court Dropout
The case on review is Mitchell v. State, as decided February 28, 2022 in the COA with a partial reversal, partial affirmance, and a remand. Randall Mitchell had been arrested with paraphernalia and illicit drugs in his possession. He pled guilty to a misdemeanor and a Level 6 Felony, respectively, for possession of paraphernalia and for possession of Methamphetamine. In exchange for the guilty pleas Randy was admitted to a drug court program. Randy repeatedly broke drug court protocol with urine testing that was positive for drugs.
There was a motion to terminate Randy’s drug court participation. He admitted violation of Program terms. He was kicked out of the Program. Judgment was entered on those guilty pleas that had previously been taken under advisement. Randy was sentenced to 1 ½ years in the DOC. He appealed the duration of his sentence and the placement in the DOC.
I had hoped for appellate review of substance and procedure for ejection from a “problem solving court” program, the most common of which are for drug offenders and veterans. There was no such issue on appeal. I had hoped for appellate review of the “scientific evidence” issues of proving drug use with a urine test shipped out (most likely) to an out-of-state lab. There were no such issues on appeal.
The most interesting aspect of the appeal was the reversal for a commitment to the DOC for a Level 6 felony when such commitment was not authorized by law. See IC 35-38-3-3. The COA remanded with instructions to commit Randy to the appropriate county jail . . . Case Note by Dave Allen
Peer Review Immunity
The case on review is Apuri v. Parkview Health System, Inc., as decided February 21, 2022 in the COA. Dr. Apuri sued over the non-renewal of his hospital privileges. He was a cardiologist who had enjoyed “privileges” at Parkview Hospital. In his suit Dr. Apuri asserted breach of contract and related theories.
Apuri’s suit was stopped short of consideration on the merits. The trial court and COA both held that the defendants were immune under the federal Health Care and Quality Improvement Act (42 U.S.C. 11101 et seq.). The COA Opinion notes the parallel Indiana Peer Review Act at IC 34-30-15-1. Notably, the non-renewal of Apuri’s hospital privileges resulted from “peer review,” which is broadly immunized under the mentioned legislation.
While the COA Opinion seems to be in compliance with the federal statutory grant of immunity, the CLB favors a narrow construction of statutes that have the clear capacity to deprive a person of contractual rights or (in this case) a claim for compensation for breach of contract . . . Case Note by Dave Allen
Summer Basketball Trumps Father’s Rights
Mother lives in Noblesville with 14 year old son J.K. Dad lives in Texas. Parenting time order gave Dad 7 weeks of summer recess parenting time. That was modified against Dad’s wishes in order to accommodate J.K.’s wish to participate in a summer basketball program in Indiana.
The name of the case on review is Paternity of J.K. as decided with a February 16, 2022 COA Opinion (by Judge Tavitas) affirming the trial court’s order depriving Dad of most of his parenting time.
The CLB agrees with Dad that a teen’s “hoop dreams” should not diminish a father’s parenting time. The trial court conclusion that unrestrained basketball time is in the teen’s “best interests” seems contrary to common sense and to public policy.
Whether it be a summer job, (voluntary) summer school, or tennis camp, a child of 14 has no summer recess activity important enough to cancel a father’s cherished parenting time. Part of the responsibility to “honor thy father” with parenting time falls upon the child. While the CLB expects no grant of Transfer, a review on Transfer is merited . . . Case Note by Dave Allen
Adverse Possession of Public Way
The case on review is Thalls v. Draving as decided February 9, 2022 in the COA with an affirmance of the trial court’s adverse possession award.
When there is a residential development bordering a recreational lake there is most likely some provision for an easement of access or other means of assuring lake access to owners of lots (“distal lots”) that are not adjacent to the lake. In the case on review there was a Plat (recorded in 1924) for a lakeside development called Waw-Wil-A-Way Park. The land in dispute is a walkway 6 feet wide stretching from the street on the inland side of lakefront lots to the lake. From the plat it appears that the walkway was not an easement across the adjacent lakefront lots but rather a separate space between two lots.
The Complaint below was initiated by ownership of two distal lots on the inland side of the mentioned street. The family owning the distal lots since the 1950’s had used the walkway for decades. They made improvements to the walkway, paid for seawall maintenance, and installed and seasonally removed a boat pier at the end of the walkway.
The record owners of the walkway disclaimed any interest in the walkway. The remaining defendants were the owners of the two lake adjacent lots on either side of the walkway.
The trial court heard evidence and held that the plaintiff (as owner of the two distal lots) had established adverse possession of the walkway from the street to the water’s edge. Notably, the plaintiff’s family paid no real estate taxes while establishing adverse possession. It seems that the walkway had never been on the tax rolls, a circumstance consistent with the position of public ownership.
The trial court declined to find a dedication of the walkway to public use in the absence of evidence that County Commissioners had ever accepted such a dedication. In addition to awarding adverse possession to the distal lot owners, the trial court held them to be otherwise entitled to a prescriptive easement over the walkway.
While the result here does not seem unjust, the CLB views purchase or vacation, rather than adverse possession, to be the legal means for the transfer of a public right of way to private ownership. ¹ After nearly 100 years a plat setting out public access should be taken as having created a public way regardless of the inaction of County Commissioners. The CLB would like to see Transfer . . . Case Note by Dave Allen
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¹ While looking for something else, your blogger came across IC 32-21-7-2 supporting the CLB’s intuitive position that a public way should not be at risk of alienation through adverse possession.
Municipal Appointees and Removal “for Cause”
Waller v. City of Madison was decided February 3, 2022 in the COA and is the case on review. Robert Waller had mayoral appointments to the City of Madison Plan Commission and BZA. Notably, current mayor Bob Courtney “inherited” Waller, whose appointments were from a previous mayor.
There was a Board of Public Works hearing attended by Waller and the mayor. The exchange between the two was “lengthy and argumentative.” About three weeks later the mayor rescinded Waller’s mayoral appointments to the Plan Commission and BZA. The mayor’s recission letter cited Waller’s behavior at the mentioned hearing. Notably, Waller’s appearance at the hearing was not in his capacity as a member of the Plan commission or BZA.
Waller sued alleging his removal was unlawful. He moved for a preliminary injunction to return him to his Board positions. The trial court denied injunctive relief. Waller’s appeal was of that denial and was as a matter of right under Appellate Rule 14(A)(5). The split (2/1) COA panel reversed and remanded on perceived trial court errors in application of legal standards for removal of an appointee and for review of Waller’s claim that his purported misconduct was protected free speech. COA Judge Tavitas dissented, reasoning that Waller failed to prove all four grounds generally required for issuance of a preliminary injunction.
The COA majority Opinion reached back to 1879 for case law construing “for cause” as used in the context of removal of an appointee. See the removal statute requiring “cause” for removal at IC 36-7-4-218(f) and 906(f). The majority concluded that being combative against your mayor in a public forum is not “cause” for removal and may be within First Amendment protection.
The CLB would be pleased to hear of Waller’s repeated failure (on remand) to obtain injunctive relief . . . Case Note by Dave Allen
Duty and the Elementary School
The case on review is Hopkins v. Indianapolis Public Schools as decided in the COA on January 31, 2022.
Young DeShawn Yarbrough attended Ralph Waldo Emerson School 58 in Indianapolis. At the end of the school day DeShawn stood in line to board the bus that was to take him home. DeShawn was in the second grade. Despite DeShawn being where he was supposed to be and despite the blue tag attached to his book bag to confirm his status as a bus rider, some moron of a teacher pulled him out of the line for bus boarding and sent him to be among the students designated to walk from school to nearby homes.
Deshawn was essentially abandoned. He did not know the way home on foot. He walked the wrong direction. He encountered a homeless guy and threatening dogs. Finally a good Samaritan saw him wandering nowhere near home. Focusing unnecessarily on supposed transport-at-dismissal policy, the trial court awarded SJ to the defense in the parents’ suit to recover damages for the boy’s mental anguish. The COA wisely reversed the trial court’s SJ award in favor of the school district.
From the trial court’s erroneous award of SJ to the defense the CLB is reminded of “discretionary function immunity” under IC 34-13-3-3 which a municipality may cite to excuse its failure to repair sidewalks, particularly where its plan for sidewalk repair/replacement excludes the time and location of the given injury on defective pavement. Here the CPA rightly expressed the duty of a public elementary school to exercise “ordinary and reasonable care.” COA Judge Crone seldom earns the praise of the CLB but deserves recognition for his Hopkins Opinion, though it ran a bit longer than necessary . . . Case Note by Dave Allen
The Tenant’s Dog and the Landlord
The case on review is Marchino v. Stines as decided January 31, 2022 in the COA.
Matthew Marchino and his family lived in one side of a duplex. Woodrow Stines and his pit bull “Boy” lived in the other side. The dog’s vicious nature was known to others, including landlord Rex Lott.
One day, “Boy” the pit bull bit young Marcellus Marchino, the human boy next door. The available defendants were Stines and Lott. Though Stines had liability, it seems likely that his pocket was shallow. Conversely, landlord Lott seems to have had a deep pocket but no liability, at least according to the award of SJ in the trial court and the COA affirmance.
Lott’s successful SJ argument was that he had no control over the real estate and, accordingly, no duty to young Marcellus. Even though Stine’s lease required landlord approval of pets and gave a right of inspection to the landlord, the COA dispensed with those circumstances of limited landlord control of the premises. The CLB would prefer case law precedent holding landlords vicariously liable for allowing their tenants to harbor dangerous, aggressive pets. It seems that a distinction could or should have been made here based upon the circumstances that Marcellus was part of a tenant family, such that landlord Lott owed Marcellus some greater duty than he would owe to a stranger . . . Case Note by Dave Allen
“ACE” “Inhibited”
The “ACE” from the Note title refers to “alcohol concentration equivalent” while “Inhibited” is another word for “suppressed.” The case on review is Priest v. State as decided January 25, 2022 in the COA.
Bryan Priest was charged below with operating a commercial vehicle with an ACE between 0.04 and 0.08. A BAC Datamaster breath test reported an ACE of 0.042 in the blood of Bryan Priest. Bryan moved to exclude the Datamaster printout as hearsay. The motion was denied. Bryan’s interlocutory appeal followed.
See Mullins v. State, 646 N.E.2d 40 (Ind. 1995) for the holding that a breath test printout may be admissible as an exception to the hearsay rule. Here the COA reverses the trial court’s denial of Bryan’s motion to suppress . . . Case Note by Dave Allen
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¹ Notably, drivers of commercial vehicles need to be a bit more sober than the driver of a private vehicle who commits no crime below 0.08.
TR 12(B)(6) and More in the SCOTSI
C.J. Rush has waxed professorial in the unanimous Opinion in the Residences at Ivy Quad (HOA) v. Ivy Quad Development as decided in the SCOTSI on January 25, 2022. Apart from the central issue of the trial court’s dismissal of several defendants on TR 12(B)(6) grounds, the Opinion delves into the law of: implied warranty of habitability; and the “economic loss doctrine.”
Below there were owners of newer condos who discovered defective construction and sued multiple entities for bad design, bad construction, or breach of warranty. Notably, the HOA was the named plaintiff . . . Case Note by Dave Allen
Relation Back per TR 15(C)
When an amended complaint adds a new cause of action or new defendant after the applicable limitations period has passed, the facial untimeliness may be forgiven under TR 15(C) pertaining to the “relation back” of amendments to the date of the original pleading. The case on review is Lake County v. Klisurich as decided January 20, 2022 with a COA affirmance in part and reversal in part of the (Porter County) trial court’s denial of a defense motion to dismiss an amended complaint adding federal claims to a “State tort” case and adding new defendants more than five years after expiration of an applicable two-year limitations period.
Such relation back under TR 15(C) requires first that any new claim arises from the factual circumstances pled in the initial complaint and then that the new party “has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense” and that the new party “knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him.” The Rule contains provisions for the satisfaction of the quoted requirements in the case of a governmental entity being added as a party.
To the thinking of the CLB there is no provision of TR 15(C) warranting relation back of an amendment without the opportunity for a factual inquiry into prejudice (to a defendant) from the delay. In the case on review the COA allowed relation back of the addition of §1983 claims against a Sheriff’s deputy for (allegedly) breaking into plaintiff’s house without a warrant or the excuse of hot pursuit. On the other hand, the COA disallowed relation back of the addition of Lake County and its Sheriff’s Department as defendants where the initial Complaint named a Lake County Sheriff’s deputy but no government agency. Remarkably, the clairvoyant COA divined that the plaintiffs made a strategic decision to leave Lake County and its Sheriff’s Department out of the lawsuit as initially filed and that, accordingly, they were not omitted “by mistake.” The CLB holds that a strategic decision may still be a mistake.
Do not be surprised if there is a Transfer petition. If requested, Transfer should be denied . . . Case Note by Dave Allen
Revenge Porn with Neither Revenge nor Porn
Once again the SCOTSI has demonstrated its detachment from the Bill of Rights. The case on review is State v. Katz as decided January 18, 2022 by way of the unanimous SCOTSI Opinion (by Justice Massa) reversing the trial court’s dismissal of a so-called “revenge porn” prosecution on grounds of the unconstitutionality of IC 35-45-4-8.
College student frat boy Conner Katz was receiving oral sex from his girlfriend R.S. when he defiled the gratifying episode by taking a cellphone video of his partner’s head bobbing up and down over his crotch. R.S. was clothed. Her face was not visible in the video. Conner’s penis was likewise unseen.
The prohibition of IC 35-45-4-8 includes the non-consensual distribution of an “intimate image.” I have already written how the image came into being. Conner then “distributed” that video by sending it to former girlfriend C.H. Since R.S. was unaware of the existence of the video she did not and could not consent to its distribution. To the CLB there is doubt as to the “intimate” status of the video. C.H. was sufficiently informed to realize that the bobbing head belonged to R.S. At some point Conner asked C.H. to refrain from mention of the video. What C.H. did was what a man should expect of an “ex” whom he foolishly empowered: She told R.S. about the video. R.S. confronted Conner, obtained an apologetic confession, and notified police through a lawyer.
Once charged Conner moved to dismiss asserting that the “image” was not “intimate” in that there was no depiction of face or penis. In addition to alleging this failure to sufficiently allege a violation of the statute, Conner asserted the unconstitutionality of the statute under First Amendment free speech and Article 1, Section 9 of the Indiana Constitution. Conner argued overbreadth of the prohibition and the applicability of “strict scrutiny” of the (free) speech inhibiting prohibition. Conner found supporting appellate decisions from Minnesota and Texas.
The trial court invited reversal with the unnecessary holding of unconstitutionality of the statute. That trial court action cleared the path for the State’s “direct appeal” to the SCOTSI under Appellate Rule 4(A)(1)(b). While the State appealed to uphold its criminal statute, Conner cross-appealed, asserting that the case below should have ended upon a failure to state an offense. The SCOTSI noted the conclusory statutory language (“intimate” and such) to conclude that the Information sufficiently stated an offense. There was no willingness to consider the PC Affidavit or other sources for the sufficiency of allegations to state an offense. It is the position of the CLB that a PC Affidavit should be considered in the course of a challenge to the sufficiency of a criminal Information.
While conceding that Conner’s activity was “expressive conduct” protected by state and federal constitutions, the SCOTSI dispensed with the constitution-based challenges. ¹ The CLB urges Conner’s lawyers to proceed with an application for Certiorari . . . Case Note by Dave Allen
Addendum: While your blogger sees a constitutional defect in the statute under which Mr. Katz is charged, it is clear that he should suffer consequences for his damnable behavior. Beyond the notoriety from the SCOTSI case, Mr. Katz is facing consequences of a civil suit for damages brought by R.S. and (oddly) her identical twin. The civil suit seems to have been stayed during criminal proceedings. From the Complaint we learn that Conner’s fraternity was Phi Kappa Theta at Trine university. Mr. Katz has brought discredit upon his school, not to mention his family.
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¹ While the CLB would classify the term “intimate” as inherently vague, the SCOTSI Opinion makes no mention of void-for-vagueness doctrine.
“NIED” and the Bystander Rule
By “NIED” the CLB refers to the action for Negligent Infliction of Emotional Distress. The case on review is Ceres Solutions Cooperative, Inc. v. Estate of Bradley, as decided January 12, 2022 in the COA. Ceres Solutions refilled the propane tank at Kenneth Bradley’s house that was shared with wife Kathy Bradley and son Eric Bradley. Though Ceres Solutions was at the site to refill the propane tank, its employee did not check for leaks. In the litigation that followed, Ceres Solutions did not contest negligence on its part. It is unclear whether the supplier’s supposed duty to check for propane leaks is the product of contract, common law, assumption of duty or other source.
It the wee morning hours an explosion rocked the premises. The blast was followed by multiple relatively small fires spread about. Eric Bradley was badly injured. Kathy was killed.
Nearly 3 hours after the initial explosion Kenneth Bradley arrived from work to what remained of his home. He learned of the explosion at a roadblock set up near his home. He saw his injured son and learned of the death of his wife.
The litigation that followed included Kenneth’s claims for emotional distress from his discovery of his still-burning home while he could not find his wife but saw his injured son. Ceres Solutions filed a motion for summary judgment challenging the NIED claims as to Kathy and Eric. The trial court granted a defense summary judgment as to the claim arising from Eric but denied summary judgment on the claim arising from Kathy.
Ceres appealed the ruling adverse to it and Kenneth cross-appealed the ruling adverse to him. The COA held for Kenneth, affirming the denial of summary judgment as to Kathy and reversing the grant of summary judgment as to Eric.
Kenneth was nowhere near the home when the explosion happened. He did not witness the blast. He was not injured in the blast. He could not feel the concussive impact of the blast. His arrival to the scene was nearly 3 hours after the blast.
Kenneth was not a “bystander” as defined in the case law. He certainly has claims for loss of consortium, affection, and services. Still, the COA erred in treating him as a bystander to qualify for NIED damages. Transfer will be requested and should be granted. Notably, the SCOTSI employed some “incremental expansion” of the common law respecting a claim for intentional infliction of emotional distress as inflicted upon a parent from the sexual abuse of a disabled child. See K.G. v. Smith as decided by the SCOTSI on December 22, 2021 . . . Case Note by Dave Allen
(Step)Father’s Rights
The case on review is G.S., Jr. v. H.L. ¹ , as decided January 10, 2022 in the COA. The child’s mother (“Sue”) was married to “Art” and had a child with him. Then they divorced and Sue moved in with the man “Joe” who would father the child whose custody was at issue. Sue and Joe broke up after a child (“Tom”) was born to them. Joe was mostly an absent father over the next several years while Sue reconciled with Art and lived with him and her two children.
DCS became involved with the allegation that Sue had provided marijuana to her older child (the teen-aged child of Art).
Joe’s paternity of Tom had not been adjudicated when DCS contacted him. Then there was a paternity action wherein Sue participated to the point of moving for an order to “maintain the status quo” of the subject child being in the custody of stepfather Art. It is unclear from the Opinion how Art became a party to the paternity action.² Art won temporary and permanent custody. Joe appealed and lost in the COA.
Joe challenged the sufficiency of the evidence to overcome the presumption that a minor child should be in the custody of one or both parents. The COA found evidence sufficient to overcome that presumption by the standard of “clear and convincing.”
The COA Opinion seems to the CLB to be less skeptical of nonparental custody than required by precedent and good practice. Clarification on Transfer would be welcome . . . Case Note by Dave Allen
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¹ The CLB hates the loss of actual names in so many of our appellate decisions. These cases are far less memorable without an actual name (Like Baxendale, Marbury, (Dred) Scott, Plessy, or Miranda).
² It looks as though Art had become a de facto custodian of stepson Tom.
Right to Counsel and Discovery
The case on review is Marshall v. State as decided January 7, 2022 in the COA with a reversal of Jermaine DeWayne Marshall’s conviction of misdemeanor trespass. Jermaine was displeased with his public defender. At a court appearance he requested discharge of the public defender. The court discharged the public defender and set the case for a bench trial with no substantial discussion of waiver of right to counsel. Jermaine also complained at that time of his lack of discovery materials. The deputy prosecutor represented that discovery would go to Jermaine in the jail.¹
Then came the trial date. The judge then had a lengthy discussion of waiver of counsel. Jermaine elected to proceed pro se. He complained of nonreceipt of discovery to no avail. The judge declared the State’s obligation met by the filing of discovery documents with the Clerk, even though the jailed detainee had no access to records of the Clerk.
The unanimous COA Opinion criticized the “day of trial” waiver advisement and held that the waiver of counsel was not shown to be “knowing, voluntary, and intelligent.” The Opinion further held that the provision of discovery in a format (Clerk’s file) inaccessible to the jailed defendant was a due process violation. The CLB concurs with enthusiasm . . . Case Note by Dave Allen
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¹ Though bonded out on the misdemeanor charges from the appealed case, Jermaine was still jailed on a felony charge.
Criminal Discovery Blues
The case on review is Minges v. State, as decided January 4, 2022 in the COA. Frank E. Minges, III filed an interlocutory appeal to challenge the court’s denial of his motion to compel discovery of a complete and accurate copy of the police report describing the events leading to drunk driving charges.
The Dearborn County Prosecutor seems to have a policy allowing such police reports to be viewed but not copied unless defense counsel agrees to a “protective order” that requires return of the report at disposition of the case. When defense counsel filed a motion to compel, the Prosecutor asserted a claim of privilege which, he argued, left the trial court without authority to order production. The trial court denied the motion to compel while relying on the precedent of Keaton v. Circuit Court of Rush County, 475 N.E.2d 1146 (Ind. 1985).
Keaton was wrongly decided by a split (3/2) SCOTSI. The current SCOTSI should accept Transfer, acknowledge the error, and overrule it.
The CLB declaration that Keaton was wrongly decided and should be overruled is not to say that prosecutors cannot claim privilege in discovery disputes. However, it is absurd to hold that a prosecutor’s mere assertion of privilege automatically ends the dispute in favor of the prosecution. A prosecutor should have to prove the merits of a privilege claim, just like any other litigant . . . Case Note by Dave Allen
Addendum: The CLB renews its call for the SCOTSI to favor us with criminal procedure rules for (liberal) criminal discovery. If the SCOTSI wonders what authority it has to declare such rules, it need look no further than Article 1 Sec. 13 of the Indiana Constitution.
COVID Force Majeure
When the list of attorneys for parties and amicus entities occupies an entire slip opinion page, you know there is an underlying issue of importance. The case on review is of that ilk: Indiana Repertory Theatre v. The Cincinnati Casualty Co. as decided January 4, 2022 with a COA affirmance of the trial court’s partial summary judgment for an insurer of the appellant Indiana Repertory Theatre (“IRT”).
The central issue on appeal was whether insurance policy text describing coverage for “direct physical loss or direct physical damage” would cover loss of use of IRT facilities during the COVID-19 pandemic. The trial court answered with a “No,” and the COA agreed.
In March of 2020 the IRT was forced to close down for the theater season amid lockdown orders on the state and municipal levels. Given the policy language at issue, the CLB has to agree with the trial court and COA that a COVID-related business interruption is not covered in the insurance category of “direct physical damage.” Still, a grant of Transfer would be appropriate. The IRT’s theory seems to be that the (presumed) presence of COVID-19 on its premises amounted to physical damage.
The CLB continues to maintain that the COVID-19 pandemic may constitute a force majeure excusing the nonperformance of contractual duties. However, the force majeure doctrine does not provide for the revision of an insurance policy to expand the risk coverage . . . Case Note by Dave Allen