2024 Appellate Case Notes
Unprotected Inmate Speech
The case on review is Jones v. Hawk, as decided April 26, 2024 in the COA. Convicted murderer Roman Lee Jones sued deputy warden Sharon Hawk and other prison employees in both their official and personal capacities. His complaint was that he was removed for 90 days from his prison “job” in the law library for having voiced his opinion protected by the First Amendment.
While he and others waited in a hallway for restroom access Jones “explained” to another inmate his view of a restrictive policy on restroom access. A prison employee “intervened” to declare that Jones was misstating policy details. Jones answered in a defiant, angry and confrontational manner, according to the prison employee. She later complained to deputy warden Hawk, and the work suspension followed.
Jones’ complaint was pro se. It is unclear whether he filed under Sec. 1983 or the ITCA.¹ The trial court awarded SJ to the prison employees. The COA affirmed. Held: the confrontational response to the intervening prison employee took his speech beyond First Amendment protection . . . Case Note by Dave Allen
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¹ I even looked at the fill-in-the-blank pro se complaint without being able to discern whether it was filed under Sec. 1983 or as a simple tort claim under the ITCA.
The Fate of a Non-Compete Clause
To the CLB the old, familiar non-compete clause in employment contracts is at or just beyond a turning point. Such clauses no longer have the judicial favor they once enjoyed. Notable exceptions to the disfavor may include the “trade secret” non-compete and the sale non-compete.
The case on review is Kesler v. Indiana University Health Physicians, as decided April 25, 2024 in the COA. The unanimous panel reversed the trial court’s award of injunctive relief to the former employer of Dr. Kenneth Kesler.
Dr. Kesler was a thoracic surgeon with his own surgical procedure to remove “complex germ cell cancerous tumors” of the chest. His contract with the IU system declared a 30-mile non-compete radius upon his departure. He sent the notice of intent. Then everyone sued.
After the trial court’s entry of a preliminary injunction enforcing the 30-mile radius, the COA reviewed whether the action below was supported by the evidence and proper. Reversal followed. Grounds included the potential harm (of the preliminary injunction) to Dr. Kesler and to the public. Dr. Kesler’s portrayal as a unique healer of the desperately ill weighed heavily in his favor. By contrast, a salesman, auto mechanic, or carpenter would not be the focus of such a public interest analysis.
The best argument in favor of the IU system is that Dr. Kesler signed the contract and did so voluntarily. Watch for Transfer . . . David Allen
Another Right to Jury Trial Dispute
The case on review is Colvin v. Taylor, as decided in the COA on April 18, 2024. It is another dispute over the right to jury trial. The rejection of the jury demand and the affirmance of that rejection are more in line with the observed trend than yesterday’s COA decision upholding the right to a jury trial. The case began with Taylor’s Complaint to foreclose on a land sale contract. The case was assigned an “MF” designation. Colvin countered for abuse of process and conversion and demanded jury trial, which was denied. On Colvin’s appeal the COA affirms. The COA theory is that the counterclaims were drawn into equity by the equitable nature of the principal claim.
I did a comparison of panel names from the Colvin case and yesterday’s Nemeth Properties v. Panzica. Remarkably, COA Judge Altice sat on both panels. To the CLB the two decisions are hard to reconcile. It is probably time for some SCOTSI guidance by way of a Transfer grant . . . Case Note by Dave Allen
LLC Formation and Jury Trial for Unjust Enrichment
The case on review is Nemeth Properties v. Panzica, as decided April 17, 2024 in the COA.
Andrew Nemeth and three Panzica brothers allegedly agreed to form an LLC. Nemeth filed Articles of Organization. Later the Panzica brothers made a backdated Operating Agreement listing as the sole member an LLC owned solely by them.
Nemeth sued for breach of contract and for unjust enrichment. He was denied trial by jury. The breach of contract claim was decided by SJ against Nemeth. The unjust enrichment claim was decided against Nemeth by bench trial. Nemeth appealed. Reversed.
The trial court SJ noted the absence of any written operating agreement naming Nemeth a member of the LLC. Held: a pre-formation oral contract may establish initial membership of an LLC. Articles of Organization need not list initial LLC members.
The right to jury trial of a civil claim depends in part on whether the cause of action existed in 1851 and otherwise whether the cause of action is analogous to one at law or one in equity as those terms were understood in 1851. The COA views the contract implied-at-law basis of the unjust enrichment claim. For a claim of implied contract there is clearly a right to jury.
If there is a primary lesson of the COA decision, it is to plot membership on writing at the time of an LLC formation. The CLB will watch for Transfer of the COA decision. It seems to the CLB that the trend in recent years has been the restriction of the right to jury trial rather than its expansion . . . Case Note by Dave Allen
Premises Liability at Church
The case on review is Calvary Temple Church v. Kirsch, as decided April 15, 2024 in the COA. Gerard Kirsch was a Calvary Temple Church member involved as a volunteer in the construction of a garage on the premises. While climbing a ladder he fell and was injured. He sued. The Church moved for SJ and was denied. The Church appealed. The COA affirmed. Of particular interest to the case is IC 34-31-7-2 granting churches limited liability for on-premises injury.
The application of the statute seems to be to premises used primarily for worship. As in derogation of common law, the statute will be narrowly construed. Held: the site of Kirsch’s fall was not a worship area. Watch for Transfer. Counsel for Cavalry should have challenged on SJ Kirsch’s claim of negligence. Notably, the CLB wonders whether the statute is in derogation of common law charitable immunity . . . Case Note by Dave Allen
The Fundamental Error of “And/Or”
The case on review is Dunn v. State, as decided April 10, 2024 in the SCOTSI. Sabrina Dunn successfully challenged her conviction for the murder of her abusive ex-husband while the two were close neighbors. The error found by the SCOTSI arose from a jury instruction on the state’s burden of proof in response to Sabrina’s claim of self-defense. Notably, the killing took place inside Sabrina’s house after her ex let himself in despite a protective order barring him. Moreover, Sabrina fired at him around a dozen times.
The instruction in issue told the jury that it was the State’s burden to prove beyond reasonable doubt that Sabrina did not act in self-defense “and/or” in defense of her dwelling. The COA affirmed the conviction holding that Sabrina had waived any objection to the “and/or” text of the instruction.
As stated in the SCOTSI Opinion fundamental error is that which makes a fair trial impossible or which blatantly violates “basic due process.”
The error of “and/or” is subtle enough to be missed at first glance. As used in the instruction the “and/or” term described the State’s burden to disprove defense of self or defense of dwelling. An exact reading would excuse the State from disproving defense of dwelling if it first disproved defense of self. Such subtle error will be ignored in the majority of appellate reviews.
“Verbal monstrosity” is one of the descriptions of the “and/or” conjunction. The CLB disagrees. There is nothing ambiguous about “and/or.” It means the very same as “or,” which includes the possibility of “and” in any series of words in which “or” appears. The CLB criticism of “and/or” is that the “and” is unnecessary beyond reminding the weak-minded, for instance, that “a” or “b” may mean “a,” “b,” or both. In a sense, “and/or” amounts to lawyers talking down to others presumed to be less intelligent . . . Case Note by David Allen
Addendum: The SCOTSI unnecessarily criticized the “and/or” conjunction in a fashion that will open the door to many claims of ambiguity in written material. Eventually, the SCOTSI will back away somewhat from that criticism.
Expunging the Acquittal
The case on review is Kerwood v. State, as decided April 10, 2024 in the COA. Ironically, the secret of Rory Kerwood’s acquittal of the offense of impersonating an officer is now public record. Below Rory was first charged but acquitted. Then he was successful in obtaining an expungement order. The order directed the county sheriff to “redact and seal” his records. The sheriff declined compliance. Rory sued and blamed the sheriff’s department for the loss of a fire department position.
Below it was held that Rory did not have an implied private right of action to compel the sheriff to expunge records within the sheriff’s office.¹ However, the trial court held that Rory had a commonlaw remedy.
Rory’s appeal contests the trial court holding that he could not pursue a private statutory cause of action against the sheriff and further contests an adverse summary judgment on his commonlaw counts. The COA affirms.
The CLB is wary of expungement law generally, given its foundation of hiding the truth or spreading a lie. In the case on review Rory Kerwood carved his name into public record as that “weird guy” who keeps trying to impersonate a law enforcement officer. His effort to make his record private has backfired . . . Case Note by Dave Allen
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¹ The lack of a private remedy under expungement statutes is one more example of a right without a remedy. In the case on review the holding puts the sheriff above the law.
Gender “X” and the BMV
The case on review is Indiana BMV v. Fitz Simmons, et al. as decided April 9, 2024 in the COA. During the decades when I customarily visited the BMV every four years for license renewal, I became accustomed to questions about my address, eye and hair color, height, weight, etc. But no one ever asked me to declare a gender. My male gender is evident at a glance and I never learned of the short-lived option of “gender choice.” Males were not invited to claim female status (and vice versa), but anyone could ask from 2019 to 2020, for an “X” gender designation, meaning “not specified.”
Some “nonbinary” individuals with licenses or ID cards applied to amend their state credentials with the trendy new “X” gender class. But the BMV changed its policy back to the traditional male/female model with no other choice.
The nonbinaries sued and lost at the level of administrative review. There seems to have been no timely complaint for judicial review. But 4 months after the administrative review loss the nonbinaries sued the BMV for declaratory and injunctive relief. On appeal the COA rightly holds that the trial court erred in excusing the untimeliness of the request for judicial review.
Less rightly, the COA Opinion holds that the declaratory action was somehow independent of the judicial review and was not waived by delay. The trial court awarded SJ to the nonbinaries. The COA reverses based in part on its conclusion that “gender” in Title 9 means “sex” and not some matter of a person’s gender preference.
The CLB predicts a Transfer request but no prospect of a nonbinary victory in the SCOTSI . . . Case Note by Dave Allen
Social Media for Sex Offenders
The case on review is Rose v. State, as decided April 8, 2024 in the COA. It has to do with sex offender “registration.”
Rose tried out three dating websites but failed to register his accounts/username with the county sheriff. At issue on Rose’s appeal was the definition of “social networking website.”
The unanimous COA holding is that the “opportunity-to-communicate” element of the registration requirement does not require a messaging or chat function at the website. The conviction is affirmed, setting the bar low on construing the definition of an element of a crime. Convicted sex crime offenders would be well-advised to avoid websites that require signing in . . . Case Note by Dave Allen
“Ensoulment” in the COA
The case on review is Medical Licensing Board v. Anonymous Plaintiff 1, et al., as decided April 4, 2024 in the COA. Transfer to the SCOTSI is a near certainty. We are in the wake of our SCOTSI holding that there is no state constitutional right to an elective abortion. See Medical Licensing Board v. Planned Parenthood, 211 N.E.3d 957 (Ind. 2023). Now the Court of Appeals has found statutory protection of a woman’s freedom of choice.
That statutory shield is known as Religious Freedom Restoration Act (a/k/a RFRA). See IC 34-13-9. According to the COA Opinion, the “abortion law” at IC 16-34-2-1 violates statutory RFRA rights of the plaintiffs¹. But how is an abortion a woman’s exercise of religion? The answer is that it is not². The RFRA angle is more in the nature of freedom from the overbearing religious beliefs of others. To the CLB, it appears that the COA decision is that the abortion law is too close to a forbidden establishment of the religious tenet that “ensoulment” occurs at the moment of conception.
When the trial court entered a preliminary injunction against enforcement of the abortion law, the State appealed. Later, the trial court certification of the case as a class action was appealed and consolidated. The COA panel affirmed the class action certification while remanding for a narrowing of the preliminary injunction. The problem seems to be that the preliminary injunction, as entered below, is broader than necessary to protect RFRA rights. Look for Transfer . . . Case Note by Dave Allen
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¹ One of the “et al.” plaintiffs is “Hoosier Jews for Choice.” The COA held that the group has “associational standing.” In this era of the lack-of-standing defense, this is an important holding.
² The COA conclusion that abortion is a religious exercise is simply wrong.
Third Party Spoliation Dismissal
It was late May of 2023 when the CLB reviewed the case of Safeco v. Blue Sky, as decided May 25, 2023 in the COA. Safeco had covered a fire loss that may have stemmed from a defective Cabela’s product. Repair contractor Michaelis destroyed the evidence. Safeco brought a “third party spoliation” claim. The trial court entered a TR 12(B)(6) dismissal. The COA affirmed.
On Transfer a slightly divided SCOTSI affirms on April 3, 2024. In partial dissent, Justice Goff would impose a duty of evidence preservation on a “fire-remediation” company . . . Case Note by Dave Allen
Beware the Premises Liability
The NFP case on review is Espinoza v. St. Mary Medical Center, as decided April 1, 2024 in the COA. Martha Espinoza tripped and fell on two overlapped floor mats while at the medical center to accompany a family member to an appointment.
At trial Lake Superior Court Judge Sedia awarded judgment on the evidence to the medical center for Martha’s failure to prove actual or constructive knowledge of the hazard by the medical center. There was evidence that the hazardous mat combo was in an area of high traffic. It seems an allowable inference that the mats belonged to the medical center. To the CLB there was sufficient evidence of constructive knowledge for it to be a jury issue. Judge Sedia’s contrary holding is affirmed . . . Case Note by Dave Allen
Subject Matter Jurisdiction
The case on review is Tingley v. First Financial Bank, as decided April 1, 2024 in the COA. FNB was the trustee of a land trust created in Illinois. FNB (an Illinois Bank) was then acquired by First Financial, located in Terre Haute. Suit was filed by a beneficiary hoping to force a sale of the trust corpus and a cash distribution. Suit was filed both in Indiana and Illinois. First Financial filed a TR 12(B)(1) motion to dismiss alleging a lack of subject matter jurisdiction. The trial court¹ granted the dismissal. Reversed (3/0) in the COA.
Held: the trial court had subject matter jurisdiction over his kind of case and erred in dismissing. I will watch for transfer . . . Case Note by Dave Allen
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¹ Despite the considerable distance to Terre Haute, I have practiced there in the impressive Vigo County Courthouse. I can attest that trial court Judge Lakshmi Reddy is a serious, compassionate judge. I didn’t say “perfect.”
IMPERMISSIBLE Prosecutorial Vindictiveness
The case on review is Hogg v. State, as decided March 27, 2024 in the COA with a ruling in favor of interlocutory appellant Justin Hogg.
Hogg previously won a reversal of a theft conviction due to a “material variance” between the charging information and the evidence at trial. The case on review involved “five additional criminal charges” filed by the State after Hogg’s successful appeal. The five new charges arose from the same criminal activity that was central to the prior appeal. Hogg’s motion to dismiss was denied. Then came this interlocutory appeal. See IC 35-34-1-4 for Indiana’s “statutory” double jeopardy defense where there was a previous prosecution. Held: no help from the statute; and no double jeopardy bar where evidence at prior trial was sufficient to support the conviction. Cited: precedent that a vindictive due process violation will be presumed when new (more numerous or more severe) charges appear after a successful appeal or grant of mistrial . . . Case Note by Dave Allen
Gunshot Wound and Aggravated Battery
The case on review is W.H. v. State, as decided March 27, 2024 in the COA with a reversal of the juvenile court adjudication for level 3 felony aggravated battery (if committed by an adult). It looks like W.H. committed an unprovoked shooting of another juvenile, wounding him in the calf. The evidence would have supported a charge of attempted murder. Instead, the prosecutor alleged only level 3 felony battery. But see IC 35-42-2-1.5 requiring (as charged) an injury (not the weapon) creating “a substantial risk of death.” Here the evidence is held insufficient for the “substantial risk of death” from the injury element. It matters not that the injury came from a firearm.
The CLB has mixed emotions about the result. Watch for Transfer . . . Case Note by Dave Allen
Accord & Satisfaction?
The case on review is Mayes v. Goldman Sachs Bank, as decided March 27, 2024 in the COA. Ceira Mayes took out a personal loan and then defaulted on repayment. While she owed more than $9,000.00, she had her “debt relief” (bankruptcy) lawyer to send a check for a mere $200.00 with a letter offering that sum as payment in full. The lender cashed the check and then sued for the balance. The trial court ruled for the lender. Affirmed on appeal.
Reference is made to IC 26-1-3.1-311 and its requirements for an accord and satisfaction. Held: the offer of $200.00 on a debt of $9,000.00 was not in “good faith” as required by statute. Moreover, Ciera failed to show (as required by statute) that the debt was unliquidated or disputed. Caveat here to any debtor’s counsel who unilaterally sends a check with “settlement” language . . . Case Note by Dave Allen
Eviction Reversal
The case on review is Hazelwood v. Common Wealth Apartments, as decided March 22, 2024 in the COA with a reversal of the eviction of DeMarcus Hazelwood for a rent arrearage. Common Wealth accepted federal housing subsidies, making it subject to corresponding federal law. See 15 U.S.C. § 9058(c) for requirement of 30-day notice to quit before filing eviction case. Common Wealth did not comply. Eviction reversed with instructions to dismiss the eviction case. The concurring Opinion of Judge Bailey informs of the expiration of the 30-day notice requirement soon after it became effective in the case of DeMarcus Hazelwood . . . Case Note by Dave Allen
LOFS Loses
The case on review is Lake of the Four Seasons Property Owners Association, Inc. v. State, an NFP decision of March 15, 2024 worthy of CLB attention solely due to local interest.
The point of the case seems to be that subdivision security guards are not police and cannot exercise police powers, even on the property they patrol, and even with some level of consent of the residents. Of course, there is always the exception of a security guard who happens to be a sworn officer at work on his side job.
The HOA sued for a declaratory judgment of authority of its guards to stop, detain, an/or issue citations on LOFS property. Lake Superior Court Judge Bruce Parent denied relief. The COA affirmed.
The civil action seems to have been a reaction to a Lake County Criminal charge against LOFS for impersonating a law enforcement officer. The CLB agrees with Judge Parent’s ruling and the COA affirmance. One notable exception to the rule that security guards lack police powers is the exercise of “shoplifter detention” in retail establishments. See IC 35-33-6-2 . . . Case Note by Dave Allen
Wadle and Double Jeopardy Analysis
The case on review is A.W. v. State, as decided March 12, 2024 in the SCOTSI. A.W. (I’ll call him “Albert”) was charged as a juvenile with weapons offenses arising from the possession of a handgun with an extended magazine of 30 bullets and a “Glock Switch” to convert the firing from semi-automatic to full automatic. How many crimes can be prosecuted here? Albert was “adjudicated” for possession of a machine gun¹, a level 5 felony if committed by an adult and “dangerous possession of a firearm” a class A misdemeanor. The inclination of the CLB is that the “dangerous possession” charge should be a lesser included offense of the machine gun possession. The SCOTSI agreed and held accordingly.
In Wadle v. State, 151 N.E.3d 227 (Ind. 2020) the SCOTSI adopted a new method for analysis of double jeopardy claims. Substantive double jeopardy is about multiple punishments for the same act. This is distinct from the procedural double jeopardy bar of more than a single prosecution.
In the case on review the SCOTSI reaffirmed the 3-part Wadle test for substantive double jeopardy claims with the “small but crucial adjustment” that ambiguities from charging instruments will be construed in favor of defendants.
Noted: Article 1 Sec. 14 of the Indiana Constitution is a double jeopardy ban to be ignored pursuant to the practice of “constitutional avoidance” when cases can be decided without a constitutional ruling. Per Wadle the SCOTSI approach is to look at Sec. 14 for the “procedural strand” while deciding substantiative matters under statutory law. See IC 35-38-1-6 barring conviction for both an offense and its lesser included offense.
Concurring in result only Justice Goff rails at the lack of clarity in the law of double jeopardy analysis. He is correct . . . Case Note by Dave Allen
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¹ For the certiorari petition in this case the CLB recommends attention to the issue of whether the “Glock switch” made the weapon a machine gun as of the date of Albert’s offense prior to current “Glock switch” legislation.
Check with the Secretary of State
The case on review is Rock Creek Capital, LLC v. Tibbett, as decided March 13, 2024 in the COA with the affirmance of summary judgment below in favor of the collection case defendant. The peculiar reason for the defendant’s victory was that Rock Creek was a foreign LLC not licensed to do business in Indiana and thereby lacked standing to sue her for collection. The defense theory is that the unlicensed (in Indiana) LLC behaved unlawfully in violation of the FDCPA and Indiana Deceptive Consumer Sales Act. See 15 USC § 1692 and IC 24-5-0.5-3(a).
As for a foreign corporate entity not licensed in Indiana but suing here nonetheless, the proper remedy is dismissal of the suit without prejudice. The problem is a fixable one. Beyond the need of a license to do business Rock Creek needed a “collection agency license” which it did not have according to the affirmed partial summary judgment for the defendant. Watch for Transfer . . . Case Note by David Allen
Noncustodial Parenting time and Church Activities
The case on review is Bardonner v. Bardonner, as decided March 12, 2024 in the COA. Noncustodial father Kenneth Bardonner appealed the trial court order modifying his parenting time.
Father had a history of being a head case but not of the Bible-thumping variety. He was found to have no regard for Mother’s authority to make the religious decisions. An issue of controversy was Father’s preference for All Saints Orthodox Church. Whether church attendance there was harmful or not, Mother’s custodial decision was against it.
Father was ordered not to take child to activities of his Church, and his parenting time was constricted some. The unanimous COA panel affirmed finding sufficient evidence for the modification and no overriding First Amendment issue about the religious preference . . . Case Note by Dave Allen
Repudiation and Parental Liability for College
A nuance of the law of college expense liability for children of divorce is that a parent who is “repudiated” by the child in question is (thereby) relieved of contributing toward the college expense. The case on review is Wells v. Wells, as decided March 12, 2024 by a split (2/1) COA panel with the Region’s own Judge Tavitas in dissent.
The majority affirmed the trial court’s finding of repudiation. Oddly, Father was the custodial parent until the family dispute erupted. Oddly, the dispute was whether or not daughter should enlist in the Air Force upon graduation. Daughter changed her mind about the Air Force then moved out of father’s house into the house of her boyfriend and his parents. Notably, father had agreed in a Marital Settlement from years earlier that he would pay for college.
Daughter intervened below and was the appellant. Mother seems not to have taken part in the matter. “Repudiation” is defined as the “complete refusal” to participate in a relationship with the parent after the child turns 18 years.
The dissent of Judge Tavitas asserted inapplicability of the repudiation doctrine because of father’s agreement in the marital settlement to pay for college. The majority saw father’s old promise to pay for college as just another term of agreement that could be modified. Watch for a Transfer request . . . Case Note by Dave Allen
An Inadmissible Conviction
The case on review is Games v. State, as decided March 11, 2024 in the COA with the affirmance of Jermaine Games’ conviction of the murder of his girlfriend’s toddling son.
The girlfriend, Crystal Cox, had been convicted of the murder when Games went on trial. His lawyer mentioned during opening argument to the jury that Crystal had been convicted of the murder. The State obtained a mistrial. Games was subsequently tried and convicted. His appeal included a double jeopardy claim asserting the impropriety of the mistrial.
The crux is that if Crystal’s conviction was admissible, then mention of it was not grounds for mistrial. Much dicta here about admissibility or inadmissibility of a conviction of a person other than the defendant . . . Case Note by Dave Allen
A Rusty Republican
Thanks to Justice Massa of the SCOTSI I know now that Indiana’s Primary Election Law dates to 1915, only two years after the 17th amendment provided for the selection of U.S. Senators by popular vote of the electorate. To appear on the primary ballot of his political party, a candidate must qualify as a member of that party pursuant to the “Affiliation Statute” at IC 3-8-2-7. One method of such qualification is to have voted in the party’s primary in the last two primaries in which they voted.¹ The alternate method is to be certified as a party member by their county party chair.
The case on review is Morales v. Rust, as “explained” by the SCOTSI on March 6, 2024 after having decided the issue February 27, 2024. Rarely has the SCOTSI appeared to be so splintered in the vote tally. One remarkable aspect of the splintering is that the apparent “Opinion of the Court” by Justice Massa is “joined” by no other justice though Justices Molter and Slaughter “concur” by way of separate opinion. CJ Rush and Justice Goff dissent with separate opinion. 84 pages of mostly dicta hold the three separate opinions. Those pages are a testament to the discomfort of our SCOTSI on the topic of partisan politics.
John Rust of Seymour sought to be on the Republican primary ballot for the party nomination for U.S. Senate. His primary voting record did not qualify him. His county party chairman declined to certify him as a Republican. So he sued for declaratory relief and won relief in the trial court. The Secretary of State appealed and won the reversal from our divided SCOTSI.
Held: the Affiliation Statute is not unconstitutional. The CLB’s view of this mess is that John Rust should seek a third party nomination (the Libertarians, for example) and appear as such on the November ballot. Condign punishment for Republicans would be the consequent loss of the Senate seat . . . Case Note by Dave Allen
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¹ The CLB sees this method of qualification as problematic for particularly young candidates seeking elected office not having a minimum age restriction. Such candidates might not have been of voting age for two elections.
Race to the Putative Father Registry
Rarely has your blogger been tasked with handling a putative father registration. Notably, a dad seeking to establish paternity must register. All your blogger knew about the time of registration is that it must come after a live birth. Then there comes the case on review, Adoption of L.A., as decided March 6, 2024 in the COA. Here is the chronology.
On August 15, 2022 baby girl L.A. was born to unwed birth mother. On August 17, 2022, birth mother consented to the adoption of L.A. On August 25, 2022 adoptive parents filed a petition to adopt. On September 23, 2022 putative father registered with the putative father registry. This came less than 40 days after the birth and just less than a month after the filing of the adoption petition.
It seems now that IC 31-19-5-12 requires a putative father to register “not later than” certain specified deadlines in order to be entitled to a notice of an adoption proceeding. In the case on review putative father barely missed his statutory deadlines. Accordingly, under IC 31-19-5-18 putative father’s “implied consent” was given in irrevocable fashion. The consent is to the adoption itself and to the absence of any notice of it.
Below in the case on review the trial court erred in holding that putative father’s registration was timely. The COA reversed. It does not appear that putative father participated in the appeal. Did he ever get notice of the adoption proceeding? The caveat of the case on review is that a putative father opposing the adoption of his child needs to accomplish the putative father registration within 30 days of the birth. A later registration may (as here) be ineffective . . . Case Note by Dave Allen
No Oral Warranty
The case on review is Logan v. Evans, as decided March 4, 2024 in the COA. Notably, the case was a small claims appeal involving the “statute of frauds” as found at IC 32-21-1(b)(5). That rendition of the stature of frauds requires a writing for “an action” upon any agreement “not to be performed within one year.”
Here the “agreement” in question was an alleged 10-year warranty on HVAC equipment installed in the home of the plaintiff. The installer’s (alleged) warranty was not in writing. The COA affirms the trial court ruling in favor of the installer . . . Case Note by Dave Allen
Beware Wrongful Death Procedure
It was October 3, 2020 when Justin Davis had a fatal (to him) auto accident. Earlier that day he visited the familiar Fair Oaks Farm where he was provided with an excess of alcohol. Exactly two years later on October 3, 2022 Connie Davis-Brumley filed suit against Fair Oaks in her capacity as “natural mother” of Justin. Also on that 3rd of October she filed a probate petition for appointment as special personal representative to prosecute Connie’s civil claim of a dram shop action on behalf of the drunk rather than the victim of the drunk. On the next day October 4, 2022, Connie was appointed special administratrix. But not all was well with Davis-Brumley v. Fair Oaks, the case on review.
Less than 3 weeks after the mentioned filings, Connie filed a motion to substitute the estate for herself as “natural mother” plaintiff in the wrongful death action. Fair Oaks answered with a TR 12 (B)(6) motion to dismiss.
The Wrongful Death Act requires that the complaint be filed: 1. Within 2 years and 2. by the personal representative of the estate. While suit was filed on the last day of the limitations period, there was no personal representative until the following day. The trial court denied the motion to substitute the special administratrix and granted the motion to dismiss. Connie appealed. Affirmed in the COA by way of Judge Tavitas Opinion.
The CLB has great sympathy for the region lawyer who represented Connie. It would have been easy for the trial court to grant the substitution and derail the motion to dismiss. . . . Case Note by David Allen
Security Cam Footage Admission
The case on review is Irwin v. State, as decided February 28, 2024 in the COA. Drug dealer Alexander Irwin did business from his Richmond apartment. The apartment complex had a security camera facing the back entrance to Irwin’s apartment where many customers came and went.
The interesting part is the authentication of the security cam footage for admission at trial. See ER 901(a). The landlord was not called. A second cop witness provided sufficient evidence of authentication . . . David Allen
Reversal of TR 60(B) Relief After TR 41(E) Dismissal
The case on review is Starr Indemnity v. NIBCO, as decided February 26, 2024 in the COA. The trial court had entered a TR 41(E) (failure to prosecute) dismissal of the declaratory judgment action of NIBCO. The trial court then set aside the dismissal. Starr appealed. The COA reversed.
In the trial court the TR 60(B) motion to reinstate was filed 20 months post-dismissal. One lawyer for NIBCO had received the TR 41 (E) notice of intention to dismiss but failed to respond. The trial court granted relief on the basis that it had not conducted the hearing required by TR 41(E). The delay of 20 months seems to be more than the allowable “reasonable time,” and the attorney’s simple neglect did not meet the “exceptional circumstance” requirement of TR 60(B)(8). Given the delay, relief under TR 60(B) was the only avenue open to NIBCO . . . Case Note by Dave Allen
The Absent Trustee
The case on review is Teising v. State, as decided February 15, 2024 in the SCOTSI. The COA’s (vacated) decision of December 15, 2022 was previously reviewed in a Case Note. The COA decision reversing Township Trustee Jennifer Teising’s conviction of the theft of her Trustee’s salary that she collected while living in Florida and being ineligible to serve as Trustee. While she wintered in Florida the Trustee’s office was closed to the public. The CLB was duly critical of the COA reversal. The COA misconstrued residence with domicile, which arguably did not change.
Remarkably, the SCOTSI agreed that the criminal convictions must be reversed, but on different grounds. To the SCOTSI the State’s evidence was insufficient to show Teising’s criminal intent to collect a salary illegally. To the CLB the SCOTSI opinion rewards Teising for ignorance of the law: not knowing (on the evidence presented) that she forfeited her office (and salary) by moving out of the Township . . . Case Note by Dave Allen
The Post-Appeal TR 60(B) Relief
The case on review cries out for Transfer for reasons suggested in the Case Note title. The name of the case is Automotive Finance v. Meng Liu, as decided February 15, 2024 in the COA by a split (2/1) panel. Meng Liu was the wife of Ning Ao until their divorce in 2020.
While Meng and Ning were married, her signature (or purported signature) turned up on a personal guaranty of a business-related promissory note entered into by Ning. Ning defaulted. The lender sued. Meng asserted that she did not knowingly sign the guaranty. Still, the trial court entered SJ against Meng on the guaranty. Meng appealed but failed to file her appellant’s brief within the time allowed. The COA dismissed the appeal “with prejudice.”
When collection proceedings below resulted in the seizure of $20,000.00 from an account of Meng’s, she filed for TR 60(B) relief, which was granted, essentially setting aside the SJ subject of the dismissed appeal . . . Case Note by Dave Allen
Parent Party Host Liability
The case on review is K.M.W. v. Doe, as decided February 12, 2024 in the COA. The W’s were parents to K.D.W., a minor. Parents hosted a party at their home where K.D.W. allegedly sexually molested Jane Doe.
The Does sued on grounds of premises liability and negligent parental supervision. At issue is whether 1990’s COA precedent is overruled by subsequent SCOTSI cases. Senior Judge Shepard writes for the unanimous panel. Held: Wells v. Hickman, 65 N.E.2d 172 (App. 1995) has not been implicitly overruled with respect to a parent’s responsibility and foreseeability. The general rule is that the common law does not hold parents liable for the torts of their children. Result here is that trial court’s defense SJ for host parents is affirmed as to premises liability but reversed as to the claim of negligent parental supervision of K.D.W., who was known to be a problem child with a history of sexual misconduct . . . Case Note by Dave Allen
Grandparent Vis and Adoption
The grandparent visitation case on review is Kornman v. Bowling, as decided February 13, 2024 in the COA. The grandchild was born out of wedlock and mother (daughter to Grandma Bowling) subsequently died. After her informal visitation was cut off Grandma filed for visitation under the GVA. Father had remarried. Stepmom filed for adoption but Grandma’s GVA petition was filed prior to the adoption decree. Hence, Grandma did not lose standing by reason of the adoption. See IC 31-17-5-3(b).
The trial court awarded visitation to Grandma and the trial court ordered Parents to pay Grandma’s attorney fees of $20,000.00. All is affirmed . . . Case Note by Dave Allen
Landlocked in Hamilton County
The case on review is Morehouse v. Dux North, LLC as decided on Transfer in the SCOTSI on February 8, 2024. Opinion author Slaughter turns professorial to explain in this case of landlocked parcels and the claim of implied easement that: 1. An implied easement by prior use must be based on “servitude” predating the severance into separate parcels while: 2. a claim of easement of necessity need not date to prior to severance. Moreover, grant of easement of necessity requires the impossibility of access to the property by other means. The impracticality of alternate access is not enough. Noted: Under Indiana law, easements may arise by grant, prescription, or implication. See here Justice Slaughter’s “tests” for an implied easement. Held: easement denied . . . Case Note by Dave Allen
Dram Shop Statute and the Common Law
The case on review is WEOC, Inc. v. Niebauer, a Transfer case decided in the SCOTSI on February 12, 2024. See the COA rendition of the case in my March 15, 2023 Case Note. It involves a defense TR 12(B)(6) motion challenging a commonlaw negligence count filed alongside a statutory dram shop count. At the end of the Case Note the CLB warned “Look for Transfer.” Held in the SCOTSI: The dram shop statute has modified but did not wholly supplant the body of commonlaw dram shop negligence. A commonlaw negligence count containing the statutory elements will survive a TR 12(B)(6) motion to dismiss . . . Case Note by Dave Allen
Red Flag Review
The case on review is Morgan v. State, as decided February 9, 2024 in the COA. Despite my affinity with the Second Amendment, I have previously written favorably of Indiana’s “red flag” law found at IC 35-47-14-1 et seq. James Morgan was “off his meds” and was unduly argumentative with guests at his home. Then he came out brandishing one handgun, and bearing one other handgun and a shotgun. Others felt threatened. One called 911.
Morgan was armed when police arrived and continued to be uncooperative. Police wound up seizing a small arsenal of firearms.
When, as below, the Court finds probable cause, police may retain the firearms pending the evidentiary hearing where there is a standard of proof by “clear and convincing evidence” of the dangerous nature of the person. Held: evidence against Morgan was sufficient.
A second issue was whether the seized firearms should have been turned over to Morgan’s father. Then trial court answered “no.” The COA affirmed, noting that the father had not appeared at the trial court hearing . . . Case Note by Dave Allen
Richard Allen Update
Richard Allen (no relation to your blogger) is the man charged with the murder of two teen girls in Carroll County. We all saw the grainy cell phone video of the bearded man walking and ordering the girls “down the hill” prior to the murders. From all the information I have heard or read, it appears that prosecutors have the right defendant. If anyone is deserving of Indiana’s death penalty, it is the killer of Abigail Williams and Liberty German in 2017 in Delphi, Indiana.
The case on review is State ex rel. Richard Allen v. Carroll Circuit Court, as decided February 8, 2024 in the SCOTSI. The case is a mandate action involving several issues, including the special judge’s disqualification of Allen’s favored public defenders. A slightly fragmented (4/1) SCOTSI ordered the restoration of the favored public defenders, despite concerns of the special judge as to the quality of representation and despite a leak of confidential case info from the lawyer’s office. Held: attorney disqualification issues may be reviewed through original actions. The key to the restoration order seems to be the alleged prejudice to Allen of the change of representation, particularly the delay of trial.
On Allen’s other requests the SCOTSI denied disqualification of the special judge and denied the 70-day speedy trial request that was filed in the SCOTSI but not in the trial court . . . Case Note by Dave Allen
Who Pays for False Arrest?
The case on review is State v. Leonard, as decided in the SCOTSI on February 6, 2024. The case is a civil appeal on transfer from the COA. At issue is whether the State is liable (through a duty to indemnify) for a Section 1983 “false arrest” judgment against a conservation officer.
On its face, 42 U.S.C. Sec. 1983 imposes personal liability only and not vicarious liability on government units. Compare to Indiana’s Tort Claim Act at IC 34-13-3-5 disfavoring individual liability.
Long after Kailee Leonard, a motorist, struck and killed his dog before leaving the scene, conservation officer Johnson’s efforts resulted in the issuance of a criminal summons. Though there was never an actual arrest, Kailee sued under Sec. 1983 and obtained a money judgment. The question is whether she can collect from the State.
The Indiana Indemnification Statue at IC 34-13-4-1 requires the State to indemnify, subject to just a few exceptions including criminal activity. Held: the officer’s conduct was not criminal. The State will indemnify . . . Case Note by Dave Allen
Waiving the Competency Hearing
The case on review is Brunette v. State, as decided February 2, 2024 in the COA. Jake Brunette’s murder conviction was affirmed over his assertion of error in the trial court’s failure to conduct a full competency hearing. After defense counsel filed a motion to determine competency, two of three appointed psychiatrists concluded Brunette was competent to stand trial. Defense counsel was quizzed by the court and expressly waived the hearing. Problem is that the obligation to conduct a full evidentiary hearing is supposed to be unwaivable. The State’s solution was to call waiver by another name: invited error. To the CLB there is not a dime’s worth of difference. Held: having invited the error (by counsel) Brunette could not complain on appeal about the error of not conducting a full competency hearing . . . Case Note by Dave Allen
Not in my Neighborhood
The case on review is Willow Haven v. Nagireddy, as decided February 2, 2024 in the COA. Willow Haven was building a group home in Carmel in single-family zoning for up to 10 elderly sufferers of dementia. Hari and Saranya Nagireddy lived on an adjacent lot. They sued for declaratory and injunctive relief.
See the Fair Housing Act at 42 U.S.C. § 3601 et seq. for the prohibition of discrimination against the disabled. Noted: the ongoing conflict between local zoning and the need for elderly housing. See Indiana compliance with FHA at IC 12-28-4.
Notably, Willow Haven applied to the City for a building permit. The permit was granted. Hari and Saranya asked the City for a “stop work” order but did not “exhaust” administrative remedies. Held: Hari and Saranya were not “parties” to issuance of the building permit and did not need to exhaust administrative remedies.
The City’s zoning “UDO” included licensed group homes as single-family. A split (2/1) COA panel affirms the trial court’s grant of the preliminary injunction against Willow Haven. Watch for Transfer . . . Case Note by Dave Allen
Crime and Indigency
The case on review seems to be of no great import. It is Spells v. State, as decided January 30, 2023 in the SCOTSI. Tailar (pronounced “Taylor”?) Spells was at or near an Indy tavern when police arrived to break up an altercation. Tailar approached the scene, spat on a cop, and was arrested for bodily waste battery and resisting. Tailar’s modest cash bail of $250.00 was posted by another person. The bond poster and Tailar both signed a cash-bond agreement permitting the court the apply the bond toward fines, costs, costs of defense, etc. Tailar was tried and convicted of battery and given a suspended sentence with community service. The fine, court costs, and public defender fee exceeded the $250.00 bond. Her appeal was not about the conviction but rather about the taking of the bond money and assessment of an excess of $60.00 without an indigency hearing or inquiry into her ability to pay.
Held: the cash bail statute at IC 35-33-8-3.2 permits the retention of public defender costs but not most other fines, costs, or fees without an indigency determination. See the indigency determination statute at IC 35-33-7-6.5.
The CLB advice to any non-defendant who posts bail money for a friend is that it is “spent money.” It seems that everyone wants a piece of a cash bond . . . Case Note by Dave Allen
Custody of the Frozen Pre-Embryo
The case on review is Freed v. Freed, as decided January 26, 2024 in the COA. The issue was what to do with one frozen “pre-embryo” left over from a married couple’s (successful) IVF efforts. Of course, the Freeds’ marriage was dissolved. They resolved all issues, except the “custody” of one frozen pre-embryo. The issue was truly one of first impression in Indiana appellate courts. There is no known Indiana legislation on the topic.
The trial court awarded the frozen pre-embryo to the wife, and husband appealed. Affirmed.
Father argued that giving the frozen pre-embryo to Wife violated his “fundamental right of procreation.”
Wife’s announced intent to the trial court was to implant the frozen pre-embryo in the hope of having a second child. She doubted her ability to conceive another child by conventional means. She likened the embryos to “my children.” Husband’s preference was to have the embryo “disposed of” by the storage facility. He did not want to father a second child with Wife.¹
Noted: the written agreement between the parties and the storage facility did not determine disposition of the frozen pre-embryo in the event of divorce. Had it done so, there would be the question of whether such an agreement can be binding on the courts. To the CLB the issue gets even more interesting when Wife has the baby and issues of custody and support arise. Would such a child be “of the marriage?” Would the case be in paternity court or divorce court?
Judicial authority in divorce cases must come from legislation. Indiana has no such legislation to allow a trial court to award “custody” of a frozen pre-embryo as though it were a living child.²
Noted: There is a Uniform Parentage Act (not passed in Indiana) that could relieve Husband of responsibility for a child resulting from the post-dissolution “placement” of the embryo.
Wife argued that Husband already gave any required consent to her wishes when he consented to fertilize (by IVF) her extracted ova. The COA Opinion by Judge Kenworthy was just a nose hair away from discussing “best interests of the ovum.” The CLB can guarantee a petition for Transfer. Whether the SCOTSI is ready to accept Transfer remains to be seen. Like it or not, a fertilized ovum is not a child whose “custody” may be determined in divorce court . . . Case Note by Dave Allen
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¹ For Husband the case holding is oddly parallel to the current Indiana abortion ban in that it subjects him to be coming a parent (again) contrary to his will.
² See, for instance, the definition of “child custody proceeding” at IC 31-21-2-5. It describes types of proceedings “with respect to a child.”
A Med Mal/SJ Update
The case on review is Korakis v. Memorial Hospital, as decided January 25, 2024 in the SCOTSI. The decision is used to resolve an inconsistency between SCOTSI holdings of 1992 and 1993. To the CLB, the delay of 30+ years in doing so is inexcusable. The discordant precedent cases are Oelling v. Rao, 593 N.E.2d 189 (Ind. 1992) and Jordan v. Derry, 609 N.E.2d 1104 (Ind. 1993). The two decisions seem to differ on the question of whether the summary judgment standard in a med mal case requires a medical expert to expressly state the applicable standard of care in his affidavit. Oelling’s answer is yes while Jordan’s answer is no. In the case on review the SCOTSI elects to “retire” that portion of the Oelling rule requiring a med mal SJ affidavit to expressly state the applicable standard of care. The rule remaining is that the standard of care may (or may not) be inferred from the affidavit. I looked for an apology in Korakis and found none . . . Case Note by Dave Allen
Dual Prisoner Complaints
On this 25th day of January 2024 both the COA and the SCOTSI handed down opinions in prisoner complaints. One prisoner appeal was successful while the other was not. The two cases on review are Hill v. Chesterfield (in the COA) and Zaragoza v. Wexford (in the SCOTSI).
The Hill case involved inmate Asher Hill’s complaint under Sec. 1983 about the water supply in his cell being shut off for 12 days due to a neighbor’s threat to “flood the range.” The trial court dismissed the suit per IC 34-58-1-2 authorizing judicial review of newly filed prisoner complaints prior to their being docketed. The split (2/1) COA panel affirmed the trial court dismissal on the theory that the complaint fell short on the Sec. 1983 element of malice on the part of the defendant prison employees. The CLB favors the written dissent of COA judge Brown and its theme that pro se complaints should be liberally construed.
The SCOTSI case on Zaragoza v. Wexford involved inmate Edward Zaragoza’s complaint about the medical treatment of his condition of hypothyroidism. The defendants were doctors who prescribed the drug Synthroid. Zaragoza complained of Synthroid side effects. Noted: the prison doctors were not qualified providers for MMA purposes. Despite the abundance of evidentiary conflicts the trial court granted summary judgment to the doctors. Reversed.
To the CLB it appears that Asher Hill should petition for Transfer to the SCOTSI, which may be less hostile to his complaint than the COA majority . . . Case Note by Dave Allen
GVA Standing
See IC 31-17-5 for the grandparent visitation act (GVA). The child of the case was born out of wedlock. Child’s mother was the custodian. She and her mother (grandmother to child) had a falling out such that the child’s visits were cut off. The simple point here is that a grandparent on the custodial side loses no eligibility to sue for grandparent visitation. The case on review is Welbaum v. Bowser, as decided in the COA January 24, 2024. The COA reversed the palpably ignorant trial court dismissal for want of standing.
See the Opinion for some helpful “standard of review” dicta for when a party has at first a de novo standard of review (for dismissal for want of standing) and then compromises that standard of review by filing a motion to correct error, denial of which is reviewed for abuse of discretion. The CLB advocates extreme caution with respect to the filing of a motion to correct errors when the denial may adversely affect the COA’s standard of review of the initial error. But always check TR 59(A) to make sure that your case is not one of those few in which a motion to correct errors is required. I would hate to forfeit an appeal for neglecting to file a mandatory motion to correct errors. . . . Case Note by Dave Allen
An Unintentional but Knowing Homicide
The case on review is Konkle v. State, as decided January 24, 2024 in the COA by a split (2/1) panel reversing the voluntary manslaughter conviction of Zachariah Konkle. Konkle and decedent Michael Steele were working at a county fair. Konkle got word that a mentally disabled girl, while behaving badly, had been mocked by a fair worker. He promised the girl’s mother that he “would take care of it.” Later he confronted Steele, who had a bad heart. That condition was unknown to Konkle, who wanted to beat Steele, not to kill him. They fought. Steele died later due to the “manual asphyxiation” of Konkle’s choke hold.
The prosecution charged murder an overcharge but won a conviction for voluntary manslaughter. Noted: voluntary manslaughter must be “knowing.” The panel majority found fundamental error in the prosecution’s resort to the “eggshell victim rule” in final argument. The CLB regards the “eggshell victim rule” as being applicable only to civil tort law. Look for Transfer . . . Case Note by Dave Allen
Dual Reversals
The case on review is State v. Woodworth, as decided January 23, 2024 in the COA. The State prevailed on its assertion of abuse of discretion in the trial court’s grant of its “own motion” motion to correct after the conviction of Trisha Woodworth for neglect of a dependent resulting in death. But Trisha cross-appealed asserting the insufficiency of evidence to sustain her conviction. The COA agreed and reversed her conviction.
After the trial court praised the defense counsel, it imagined an ineffectiveness of counsel and ordered a new trial. Had it been a bench trial, Woodworth would probably not have been convicted.¹ Evidence was that the child of 8 months of age had a days-old head injury when she became unresponsive in the care of the babysitter, who became the defendant. While the expert testimony was in conflict, it is most likely that there was a post-injury blood clot that led to a stroke . . . Case Note by Dave Allen
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¹ Uncle Ned cautions us to “never trust a jury.”
The “Forceful” Threat of Suicide
When your blogger entered the practice of law it was not possible for a husband to commit the rape of his wife. Things have changed. The case on review is Morales v. State, as decided January 23, 2024 in the COA with the affirmance of the rape convictions of estranged husband Michael Morales.
Michael and wife K.M. were separated. Michael was unstable and suicidal. He followed her home one evening to find her in the company of a co-worker. He chased the man away. While clutching an AR-15 rifle left by the guest, Michael threatened suicide unless his wife performed oral sex, which she did. Later it was vaginal intercourse while Michael clutched the AR-15 and threatened suicide.
Michael argued on appeal that the “threat” element of his rape charged required the threat of harm to K.M. and not his threat to kill himself. The COA disagreed. Transfer is warranted . . . Case Note by Dave Allen
Undue Influence and Burden of Proof
The case on review is Willis v. Ringbauer, a family fight, as decided January 23, 2024 in the COA. The COA’s NFP decision affirmed the trial court ruling against Brandy Willis in her effort to set aside the quitclaim deed (to the farm) executed in the hospital by a convalescing matriarch Diane Headley to her adult son.
Granddaughter Brandy Willis would have inherited the farm but for the quitclaim. As PR of the Headley estate she sued to set aside the deed for undue influence. The core issue on appeal is whether the burden of proof was on Brandy Willis as plaintiff or upon grantee Billy Ringbauer. Brandy argued to no avail that the “confidential relationship as a matter of law” put the burden of proof on the grantee. The unanimous COA panel disagreed. The CLB sees a good case for Transfer here . . . Case Note by Dave Allen
Corpus Delicti Reminder
The case on review was decided a few days ago (January 19, 2024) in the COA with CJ Altice’s NFP Opinion reversing the conviction of David Neanover for unlawful possession of a firearm. What makes the NFP decision in Neanover v. State worth of CLB attention is its reliance on the corpus delicti. Neanover was visited by police responding to a “shots fired” report. He freely admitted firing his AR-15 into an earthen embankment. Later the police learned of Neanover’s Ohio conviction for domestic battery, making him ineligible to legally possess a firearm. See IC 35-47-4-6 for the A misdemeanor prohibition.
The only substantial evidence at Neanover’s bench trial was Neanover’s “confession” which was admitted over corpus delicti objection. No one had actually seen Neanover in possession of a firearm. Given the absence of evidence that the crime (illegal possession) was actually committed by someone, Neander’s confession was inadmissible. Conviction is reversed. Look for Transfer . . . Case Note by Dave Allen
Discovery, Contempt, and Jurisdiction During Appeal
The case on review is AMW Investments v. The Town of Clarksville, as decided January 19, 2024 in the COA. AMW owned the land. Its subsidiary operated the “Theatre X” adult entertainment venue located there. The town administratively revoked Theatre X’s business license for zoning ordinance violations. The subsidiary petitioned for judicial review. The town counterclaimed for a preliminary injunction, which it won. AMW took the interlocutory appeal (as a matter of right). While the appeal pended the town served discovery requests. AMW eventually filed an objection that the appeal was pending and, accordingly, there was no trial court jurisdiction.
The town filed a motion to compel. The town prevailed in the appeal. After a hearing the trial court granted the motion to compel. The trial court held that AMW’s initial response to the discovery request cited only the alleged loss of jurisdiction. The town argued that AMW thereby waived objections that were raised in AMW’s “First Supplemental Response.” See Appellate Rule 14(H) for the retention of trial court jurisdiction absent an order to the contrary. The trial court agreed that objections omitted from AMW’s Initial Response were waived. The finding of contempt was appealed by AMW.
Held: trial court erred in refusing to consider (re the motion to compel) the “Supplemental Response” objections added prior to hearing on the motion to compel. The majority (2/1) holding is that a discovery objection is not waived when filed prior to hearing on a motion to compel and when no objection deadline has been set. Concurring in result Judge Felix opines that an untimely discovery objection does not necessarily amount to waiver . . . Case Note by Dave Allen
Judge Bradford’s Short Straw¹
The case on review is EdgeRock Development v. C.H. Garmong, as decided January 19, 2024 in the COA. The online “Slip Opinion” begins with just over one full page of attorney appearances amid a count of 56 pages. The Developer ran out of money for a development project in or near the Hamilton County City of Westfield. The project came crashing down. Contractors recorded mechanic’s liens against land parcels owned in part by Developer EdgeRock and in part by others. Edgerock’s parcels were secured by a mortgage with First Bank. The first legal issue of interest is the question of lienholder priority between First Bank’s mortgage and the Contractor’s mechanic’s liens. The trial court held, in part, that the Contractor’s mechanic’s liens were valid and held priority over “a portion” of First Bank’s mortgage interest. The second legal issue of interest seems to be who could claim reimbursement to paid road-impact fees (“RIF Funds”). Of less legal interest is the trial court’s entry of judgment against Edge Rock for breach of contract with the Contractor Garmong.
There is some relevance to the background of there being 5 parcels comprising nearly 18 acres owned by three different owners. There were four businesses planned plus some apartments.
COA Judge Bradford wrote for the unanimous panel. The issue of lien priority was resolved by the holding that certain mechanic’s liens were invalid. Equally underwhelming is the holding that distribution of RIF money is stayed pending a Hamilton Commercial Court ruling in a related case.
The city of Westfield interpleaded the RIF money by depositing the same with the trial court. The trial court rulings that followed resulted from a mix of summary judgment and bench trial.
Noted in the Bradford Opinion is that a mechanic’s lien recorded within 90 days of performing labor or supplying materials relates back to the date that the labor or material supply began.
A sub-issue of the case involves the allowable geographic spread of a mechanic’s lien during the development of multiple parcels. The claim of lien may cross a lot line from where the work was done if the improvement is “connected” to the adjacent lot. This is possible only when there is common ownership of adjacent lots.
A nice point of law is that a lien that is “overstated” by reason of the claim therein for work done on other “unconnected” properties may be rendered void where the overstatement results from intent or culpable negligence.
Judge Bradford’s Opinion will certainly face a Transfer Petition. If Transfer is granted without the summary approval of the Opinion, its usefulness as precedent will be gone. Nonetheless, it will continue to be useful to some for its citations to precedent . . . Case Note by Dave Allen
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¹ The CLB imagines members of the three-judge COA panel drawing straws to select the Opinion writer. If that is what happened, Judge Bradford drew the short straw.
Too Late to Swap Public Defenders
The case on review is Kelly v. State, as decided January 10, 2024 in the COA. Jeremy Kelly was charged with the murder of his father plus robbery. The State filed notice of intent to seek habitual offender enhancement. The court appointed the Public Defender’s office to represent Kelly. The PD and prosecutor worked out a Plea Agreement to reduce the murder charge to voluntary manslaughter and to drop the habitual enhancement. The change of plea took place. The plea had open sentencing.
On the day before sentencing Kelly filed a pro se motion to withdraw his guilty plea. At sentencing the withdrawal motion was denied. The PD who had been maligned by Kelly moved to withdraw. Withdrawal was denied. Kelly asked for a different PD. Denied.
On appeal Kelly challenged only the trial court’s refusal to replace his Public Defender. Held: Affirmed. No abuse of discretion . . . Case Note by Dave Allen
Swimming Pool Premises Liability
The case on review is Pennington v. Memorial Hospital of South Bend, as decided January 9, 2024 in the SCOTSI. What looks at first glance like a med mal case is actually premises liability over the indoor swimming pool at the hospital’s “health & fitness” center.
Dr. Jennifer Pennington was doing the backstroke when she swam headfirst into a “wing wall” within the pool separating a disability ramp from the rest of the pool.¹ Held: SJ for pool’s architects is affirmed – SJ for pool’s operators is reversed due to “some evidence” of the risk of harm (foreseeability).
Noted: Dr. Pennington was an invitee on the premises and was owed a duty respecting “dangerous conditions.” . . . Case Note by Dave Allen
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¹ This case reminds your blogger of a day in his own life around 1991. The location was the Hammond Fitness Center’s indoor pool below the civic center. While swimming most of a pool length underwater, your blogger failed to see the pool wall ahead. With my arms well below the shoulders I struck the pool wall with my forehead. I immediately felt the impact down to my toes and quickly stood above the surface. Just a little more impact could have left me floating face-down in the water. The only other pool-area patron was minding his own business in the whirlpool tub and probably would not have seen me in distress. A couple of days later I was in court with a wounded forehead. I spoke about it to Harolyn (Honey) Goldenberg who died so prematurely soon after. Life and death are fickle.
More Legal Marijuana and Quantitative THC Testing
Traffic Stop. Odor of marijuana. Vehicle search. Bag of something “field tested” positive for marijuana. Conviction by jury. Appeal for insufficiency. Reversed.
The case on review is Lakes v. State, as decided January 9, 2024 in the COA. To the CLB an initial issue is whether a field test should even be admissible at trial. Below there was no apparent Daubert objection. The field test was “positive for marijuana” without revealing whether the material tested had in excess of 0.3% of THC by dry weight.
The CLB boldly predicts that the General Assembly will come to the rescue of marijuana prosecutions by (for instance) making the < 0.3% THC issue an affirmative defense with the burden of proof on the defendant . . . Case Note by Dave Allen
TR 60(B) v. the Default Judgment
The case on review is Expert Pool Builders, LLC v. Vangundy, as decided January 2, 2024 in the SCOTSI with an affirmance of the trial court’s entry of a default judgment.
The question is whether a defaulted party must make a TR 60(B) motion to set aside before it can obtain appellate review. The answer is that it depends on the circumstances. Held: the TR 60(B) requirement from case law does not apply to a default judgment entered after a party responds to the motion for default to no avail.
While the SCOTSI concludes it was error for the COA to dismiss the appeal for want of a TR 60(B) motion, it still upheld the trial court’s entry of default . . . Case Note by Dave Allen