2016 Appellate Case Notes

Counting the Days (Again)

Another instance here of the COA applying TR 6(A) to a statutory time period. See my light criticism of that practice in an earlier appellate case note on the June 14, 2016 COA Opinion in Schafer v. Borchert, 55 N.E.3d 914 (Ind.Ct.App. 2016). The more recent case is Dobeski v. State, ___ N.E.3d ___ decided by the COA on December 12, 2016. Dobeski was a recently released prisoner who had seven days (from his release) to register as a sex offender.

Indianapolis Police measured the “seven days” from the hour of Dobeski’s release to the same hour of the seventh day following. Dobeski was arrested on that seventh day after the hour of his release but with around ten hours remaining in the day. While the State computed “seven days” as precisely 168 hours commencing with the moment of release, Dobeski asserted that no part of the day of release should be counted and that he had until the end (midnight) of the seventh day following to register. Applying TR 6(A) to a statutory time period, the COA agreed with Dobeski and reversed his conviction (for failing to register) for insufficiency of evidence that seven days had passed when he was arrested…Case Note by Dave Allen.

Long Walks on Long Beach

UPDATE:  See Transfer Decision of February 13, 2018 in 2018 Case Notes.

Do we trespass when we take a long walk (moonlit or not) down a beach dotted with private homes? The beach in question is Long Beach in LaPorte County. Chances are that you’ll never be able to afford a beachfront residence there. The subject body of water is Lake Michigan (notably “navigable”). The case is Gunderson v. State, ____ N.E.3d ____, decided December 7, 2016 in the COA. A predecessor case (not cited in Gunderson) is LBLHA v. Town of Long Beach, 28 N.E.2d 1077 (Ind.Ct.App. 2015) wherein beachfront property owners sued the town rather than the state in the effort to obtain a declaratory judgment of the beach ownership near the water’s edge. By contrast the Gundersons got it right by suing the State and the DNR.

Both cases focused on ownership of that portion of beach that is sometimes wet and sometimes dry, to-wit: the land between the “ordinary low water mark” and the “ordinary high water mark.” Some variation in water level is attributable to storms or tides. Moreover, Lake Michigan water levels are inherently less constant than sea levels and are known to go up and down over the years. The Gundersons claimed ownership to the water’s edge, though it be higher or lower. A nice holding here is that with Indiana’s 1816 statehood came ownership of the “beds” of its navigable waters. But how high upon the beach is the “bed” when the water line varies by the hour, by the day, by the season, and by the year? The answer would seem to be that the “bed” subject to state ownership extends up the beachfront to the “ordinary high water mark.”

Turning the perspective toward that of the beachfront property owner he may have absolute title from his home to the OHWM and then shared title (with the state/public trust) from that line to the OLWM. The COA declared invalid a clause of the Indiana Administrative Code (IAC) setting the OHWM at an elevation of precisely 581.5 feet. Rather, the OHWM is to be decided by means confounding the best efforts of surveyors. Once the OHWM is set for a particular area, it is unclear whether and how often a new “ordinary” should be determined to reflect changes in Lake Michigan’s elevation. Would (the late) Justice Scalia have held that it all depends on the Lake level in 1816?

My point here is that the COA’S amorphous definition of OHWM is an invitation to endless litigation. The SCOTSI should (and will) accept Transfer to provide a more objective, knowable standard. A closing observation is that it’s the Lake that owns its shore…Case Note by Dave Allen

Father by Estoppel

The case is Sheetz v. Sheetz decided November 23, 2016 by a split (2/1) COA panel. Per usual, the CLB favors the dissent. While married to prison inmate Benjamin Sheetz, wife Ronnie Sheetz became pregnant by another man. Benjamin was released from prison soon before the child was born. Benjamin was present at the birth and signed the birth certificate as “father.” He instructed Ronnie not to contact the biological father and promised to raise the child as his own.

The plan worked until Ronnie filed for divorce. Benjamin no longer wanted to be father to the child. Ronnie and Benjamin stipulated that the child was born during the marriage but that Benjamin was not the father. Still, the trial court still decreed that Benjamin was the father (by reason of estoppel) and ordered him to pay support for the child.

There have been cases of res judicata legally establishing the paternity of a husband who mistakenly believed himself to be the biological father of a child born during wedlock. See, for instance, Fairrow v. Fairrow, 559 N.E.2d 597 (Ind. 1990). But this writer is unaware of legal precedent from Indiana establishing paternity by estoppel in the case of a child born in wedlock.

Russell v. Russell, 682 N.E.2d 513 (Ind. 1997) and IC 31-9-2-13 clearly hold that a “child of the marriage” for purposes of custody, support, etc. is a child of both parties to the marriage, including children of the parties born out of wedlock and children born (to both parties) or adopted during the marriage. While Benjamin Sheetz had signed the birth papers as “father,” there is the Opinion in Seger v. Seger, 780 N.E.2d 855 (Ind.Ct.App. 2002) holding that a husband can disavow his voluntary paternity affidavit when he is not the biological father.

Here the COA majority imagines a rule of equitable estoppel applicable to deny relief to the cuckold husband. The dissent (Judge Najam) called out his erring colleagues and wrote accurately and to the point that “there is no equitable paternity in Indiana.”

The official position of the CLB is that there should be a grant of Transfer in this case…Case Note by Dave Allen

A Pair of SCOTSI Auto Stop Cases

Both cases were handed down November 29, 2016, and both were decided unanimously with Opinion written by Justice Massa. Both cases involved warrantless auto stops which led to the discovery of incriminating evidence and appeal. Both cases involved legitimate concerns about the physical well-being of a person prior to any detention. The relevant difference is that the trial court’s admission of evidence challenged on Fourth Amendment grounds was reversed in one case and affirmed in the other, so showing the legal community what is and what is not a constitutionally permissible stop and detention in cases where concern for a person’s welfare motivates the police intrusion. The two cases are Osborne v. State, ____ N.E.3d ____ (Ind. 2016) and Cruz-Salazar v. State, ____ N.E.3d ____ (Ind. 2016), both decided November 29, 2016.

Mary Osborne was the subject of a gas station clerk’s 1:00 a.m. phone call to police reporting a woman “stuck underneath her vehicle.” When a police officer arrived, Mary Osborne had already emerged from underneath her car and driven away. Seeing Mary’s departing vehicle, the arriving officer turned and followed, anticipating (surely) some traffic infraction to give cause for a stop. When Mary was seen to drive without infractions, the officer stopped her anyway to check on her well-being. While Mary gave a surprisingly rational explanation of how she found herself (temporarily) beneath her own vehicle, the officer smelled alcohol. Mary failed field sobriety testing, a PBT, and then a post-arrest breathalyzer at the Hamilton County Jail. Mary filed a motion to suppress the evidence resulting from the warrantless stop. The trial court denied suppression but certified its order for interlocutory appeal. There came a reversal in the COA following by Transfer.

Recent Fourth Amendment Cases in the COA

What do truancy, community caretaking, and collective knowledge have in common? The cases are Jacobs v. State (11/07/16), McNeal v. State (11/14/16), and Dunson v. State (11/18/16). The common thread is that (suspicion of) truancy, community caretaking, and collective knowledge were factors relied upon by the State to justify the warrantless stop/detention/search in these cases. All three defendants lost at trial and on appeal on the admission of their handguns or drugs.

In Jacobs the scene was a park in Indianapolis near a school. Juveniles perceived to be of school age were among a group of male youths and adults who gathered in the park during school hours. Some of those gathered wore red, a reputed gang color. Jordan Jacobs and a companion were walking away from the park when set upon by police who demanded that they stop. Jordan continued walking but finally complied with a more forceful order to hit the ground. Jordan had not been observed to engage in any criminal behavior. Still, he was ordered to the ground and handcuffed while being told he was not under arrest. Naturally, Jordan was carrying a handgun (without a permit) and was charged accordingly. Though Jordan was too old to be considered a truant, the State prevailed on the suppression issue by (lamely) maintaining that a “reasonable suspicion” of truancy justified the Terry stop. The COA majority agreed while Judge Crone dissented (the day before his November 8th retention), waxing scholarly about the history of the exclusionary rule in Indiana.

The next case in the triad is McNeal v. State in which the scene was an East-side Indianapolis sidewalk where a man called “Kemo” was seen to be lying face down. An officer stopped for a “welfare check,” determined that the subject was in distress, and called for medical assistance. The first new arrival was William McNeal who urged Kemo to come out of his stupor and leave. Though walking and talking, McNeal seemed also to be in some sort of distress. McNeal’s speech deteriorated into gibberish, and he fell over the prone Kemo. The officer concluded that McNeal also required medical attention, but McNeal insisted that he had to leave. The officer responded by handcuffing McNeal. An ID check of McNeal revealed an outstanding warrant while the search incident to arrest produced three baggies of cocaine. The trial court admitted the cocaine into evidence and convicted McNeal. In affirming the trial court the COA described the cuffing of McNeal as “investigative detention.” Without deciding whether McNeal’s detention was justified by probable cause for public intoxication, the COA held that the “community caretaking” exception to the warrant requirement applies to people in distress and not just to impounded motor vehicles.

The third and final case is Dunson v. State, the appeal of another conviction for unlawful possession of a handgun. Indianapolis was the scene, as in the two prior cases. Police responded to 911 calls of men with guns, a possible mob, and a break-in in progress. Officers arrived to find a badly beaten but coherent woman. As Charles Dunson rode by on a scooter or motorcycle, the woman identified him as being “involved.” One officer radioed the description, location, and direction of the suspect, adding that “he may be involved.” The suspect was stopped and detained in short order. A pistol was found in Dunson’s waist band. The issue on appeal was whether police had “reasonable suspicion” for a Terry stop. Dunson argued that the officers who stopped him had even less information than the officer who radioed for the stop. The COA affirmed the conviction and admission of the handgun with the holding that the “collective knowledge” of the police was sufficient for an investigative stop.

Of these three cases, the CLB does not expect any grant of Transfer but supports Transfer in Jacobs to address Judge Crone’s dissent.

Civil Forfeiture and the 8th Amendment

The case is State v. Timbs, a split (2/1) COA decision of October 20, 2016. Tyson Timbs purchased a 2012 Land Rover for more than $42,000.00 using life insurance proceeds from the death of his father. Then he began using the vehicle to purchase and transport heroin for sale. After two controlled buys (and the arrangement of a third), Tyson was busted for dealing. He pled to one count of Class B felony dealing, for which he was sentenced to a partially executed term and ordered to pay various costs, including reimbursement of investigative costs. There remained pending an action for civil forfeiture of the Land Rover, the subject of appeal.

Tyson argued that he sold heroin “only twice” (probably untrue but uncontradicted), that he was convicted on a single count, and that forfeiture of his valuable Land Rover would be an “excessive fine” prohibited by the 8th Amendment. He also pointed out that the maximum (statutory) fine for his criminal offense was $10,000.00 while claiming his vehicle was worth more than four times that amount. Remarkably, the COA majority agreed with the trial court that forfeiture of the Land Rover would be excessive, applying a standard of de novo review on that issue. While the CLB tends to concur with the COA majority, one must appreciate the absurdity of allowing the criminal with the most expensive vehicle to avoid forfeiture while lesser rides are taken. The remedy could be a legislative tweak allowing the State to obtain a possessory lien on a high-value vehicle subject to redemption by the owner for a constitutionally permissible sum. Expect a Transfer Petition from the State…Case Note by Dave Allen

Deadlines, Hard and Soft

Consider Ind. Appellate Rule 9(A) providing that an appeal is initiated by the filing of a Notice of Appeal within thirty days of the notation of a final judgment on the docket. For quite a long time the thirty-day deadline of App. Rule 9(A) was a hard, jurisdictional deadline, such that missing the deadline sacrificed any intended appeal. Then came Adoption of O.R., 16 N.E.3d 965 (Ind. 2014) wherein it was held that missing the deadline for appeal was not jurisdictional after all and that consideration (on the merits) of an ostensibly untimely appeal could be warranted by “extraordinary compelling circumstances.”

Now consider the statutory deadlines under the Administrative Orders & Procedures Act (AOPA) and under the “1600 series” of zoning laws at IC 37-7-4-1600 to 1616. To obtain judicial review under the AOPA or under a “1600 series” zoning action, one is subject to deadlines for filing the Petition and then for filing the administrative record. Are such statutory deadlines pertaining to judicial review (in a trial court rather than the Court of Appeals) rendered any less rigid by the holding of Adoption of O.R.?

The case that provoked my query is Allen County Plan Commission v. Olde Canal Place Association (OCPA), decided October 11, 2016 by a unanimous COA panel. The “OCPA” had appeared in opposition when the Plan Commission granted a zoning change and design waivers to accommodate the construction of multiple family housing in a formerly commercial zone.¹ The once-extended deadline for filing the administrative record was not met. The defendant developer moved to dismiss. Ultimately, the trial court set aside its dismissal under TR 60(B)(1). The defendant developer and the Plan Commission appealed with the assertion that OCPA could never establish the meritorious claim required for TR 60(B)(1) relief in that it would be impossible to file an administrative record after the missed deadline. The COA agreed and reversed and remanded with instructions to restore the dismissal of OCPA’s petition for judicial review.

The COA Opinion cited two post-Adoption of O.R. SCOTSI decisions slamming the door on efforts to obtain relief from agency record filing deadlines in OCPA cases. The COA drew the analogy between judicial review in zoning and in AOPA cases and applied the “hard deadline” doctrine of the AOPA to zoning.

The key difference between the Allen County Plan Commission case and Adoption of O.R., may be the difference between a statutory deadline and a deadline established by judicial rule. If my intuition is accurate, the SCOTSI will defer more to filing deadlines established by legislation…Case Note by Dave Allen.
¹The standing of the OCPA as an “aggrieved” party was not explained and should not be presumed. See, for instance, Robertson v. BZA, 669 N.E.2d 310 (Ind.Ct.App. 1988).

Divorce Settlement Fraud, the Shield of Privilege, & the Sword

Note the long title for this Note about a longer (37-page) COA Opinion of September 9, 2016 in Waterfield v. Waterfield. The Waterfields had been married 29 years when Julie sued in 1997 to divorce Richard. While they were wealthy, it seems that only Richard knew how wealthy they were, and he was coy about sharing information. Meanwhile, Julie was more interested in a marital settlement than conducting discovery about marital assets known only to Richard. Julie settled (against legal advice) after obtaining an informal “disclosure statement” from Richard. This Statement recited full disclosure and was incorporated by the divorce decree. Within a month of the divorce, Julie discussed her settlement regret with her lawyer.

Nearly six years after the divorce Julie filed a Complaint (an original action as opposed to a post-decree motion in the divorce court) alleging fraud in Richard’s Disclosure Statement and requesting relief including the setting aside of the Settlement Agreement and divorce decree. See IC 34-11-2-7(4) for the six-year limitations period for “actions for relief against frauds.” Richard responded, in relevant part, with a counterclaim for abuse of process and for statutory attorney fees pursuant to IC 34-52-1-1(b).

In the course of litigation Julie asserted her lack of knowledge (during the divorce) of marital assets and her reliance upon Richard’s representations. Richard countered with a request for access to the file of Julie’s divorce lawyer (who was not an advocate in the fraud case). Julie objected on grounds of attorney/client privilege. The trial court found a partial waiver of privilege on Julie’s part and allowed Richard to access seven documents from the file of Julie’s divorce lawyer. Thereafter, Richard was awarded summary judgment against all of Julie’s claims, leaving only Richard’s abuse of process and attorney fee claims pending.

In the litigation of Richard’s unresolved claims he served a discovery request inquiring when Julie’s fraud case lawyer had reviewed the file of Julie’s divorce lawyer and also inquiring as to the fees of the fraud case lawyer. Julie objected on grounds of attorney/client privilege. Richard moved to compel and won a favorable ruling from the trial court. Julie declined to comply. Richard moved for sanctions, including the sanction of default against Julie for her noncompliance with the Order compelling discovery.¹ The trial court entered a default against Julie and later set the fee award at more than $840,000.00. (Julie had paid her own lawyer more than $3,650,000.00.)

With judgment entered Julie was finally able to appeal as a matter of right. If Julie expected to find sympathy in the COA, she was misinformed. The COA affirmed the discovery order as to the file of the divorce lawyer, reasoning that “a party may not place an issue before the trier of fact and then assert a privilege to prohibit the introduction of evidence regarding that issue.” Judge Riley put it rather succinctly with this observation: “By having chosen the sword [suing her “ex”], Julie must now relinquish the shield [of privilege].” The COA affirmed the trial court as to each appealed ruling. While this case note is about attorney/client privilege and its waiver, there is much more in the COA Opinion. Good reading for a slow afternoon…Case Note by Dave Allen
¹While the CLB has no sympathy for Julie, it’s fair to mention that Ind. Appellate Rule 14(A) respecting interlocutory appeals as a matter of right does not allow such an appeal from a challenged discovery ruling until a sanction is entered for the payment of money. Accordingly, defiance of an order compelling discovery is a legitimate (though risky and controversial) strategy.

The “Shall” in TR 8(C)

On September 8, 2016 the COA handed down a 3/0 reversal in V. Ganz Builders v. Pioneer Lumber, a Porter County case in which creditor Pioneer Lumber had been awarded Summary Judgment in its collection action against V. Ganz Builders and its guarantor on an account for tools and building supplies. It seems that the suit was filed well after the expiration of the six-year limitations period applicable to actions on accounts per IC 34-11-2-7. Remarkably, the defendants did not assert a limitations defense in their responsive pleading.

Trial Rule 8(C) lists more than 20 affirmative defenses (including limitations) and provides that a “responsive pleading shall set forth affirmatively” (emphasis added) such matters of defense. This case is about what happens when an available limitations defense is omitted from the responsive pleading but raised later in the proceedings. While the defendants failed to raise the limitations defense in the responsive pleading, they did raise it at the summary judgment level and did so without seeking to amend their deficient responsive pleading.

The best argument for the first mention of a limitations defense at the summary judgment level is the Opinion in Honeywell, Inc. v. Wilson, 500 N.E.2d 1251 (Ind.Ct.App. 1986), a products liability case. When sued over an allegedly defective safety switch (which it manufactured), Honeywell had no way of knowing the age of the product. When Honeywell learned pursuant to discovery that the switch was manufactured in 1968, it raised the consequently available limitations defense in a summary judgment motion. The COA approved Honeywell’s introduction of a limitations defense at the summary judgment stage.

By contrast, the defendant credit customer of Pioneer Lumber knew or should have known (without reliance on products of discovery) when it last did business on its account. Mindful of that distinction, the trial court held that the limitations defense was waived. The COA concluded that the previously available but ignored limitations defense could be raised at the summary judgment level so long as the opposing party failed to show prejudice from the tardiness in assertion of that defense. Accordingly, the COA determined that the defendant was entitled to summary judgment upon its limitations defense.

The suspicion at the CLB is that the COA went a bit too far in its holding. It is seen here as erroneous to allow the initial assertion of a mandatory affirmative defense at any stage of the litigation so long as the opposition lacks evidence of substantial prejudice. This would be a good case for Transfer…Case Note by Dave Allen.

Another Transfer Wish Granted

The case (pertaining to chemical test refusals) in the COA was Burnell v. State, 44 N.E.3d 771 (Ind.Ct.App. 2015) “decided” September 24, 2015. Noting the inherent chaos when each judge of the COA panel writes separately, the CLB case note ended with a query and a prayer “So what is the legal standard on refusals? Hope for Transfer.”

Today (August 23, 2016) the SCOTSI clarified the legal standard (5/0) in affirming the trial court’s decision not to set aside the administrative suspension for Kristy Burnell’s alleged refusal to take a breath test after a traffic stop and an officer’s suspicion of drunk driving. After failing field sobriety testing Kristy was asked to take a “chemical” test, and she seemed to assent by her words but was equivocal with her actions of walking away from the officer twice and insisting that she needed first to speak with her police officer uncle. The officer declared a refusal and cuffed Ms. Burnell.

The SCOTSI Opinion (per Justice Rucker) rejects the COA’s Judge Pyle “holding” (joined by no other Judge) that anything short of an unqualified, unequivocal consent constitutes a refusal. Here is the standard. A “refusal” occurs when a “reasonable person in the officer’s position would be justified in believing the motorist was capable of refusal and manifested an unwillingness to submit to the test.”…Case Note by Dave Allen

A Caveat for Cohabitants

How likely is a Criminal Trespass appeal to add to the law (I call it “common law divorce.”) governing the affairs of unmarried cohabitants in the course of an uncivil breakup? Despite the long odds, the COA both reversed the Criminal Trespass conviction and fired a shot across the bow of those Hoosier gents who previously felt at liberty to summarily eject a troublesome live-in domestic partner. The case is Appollos v. State decided 3/0 in the COA on August 19, 2016.

While “seeking to move into a new residence,” Jessi Appollos had a “conversation” with Andre Francois on social media and scored a furnished bedroom in Andre’s house. Though Jessi was supposed to pay rent, the amount was not determined. Nor was there any written lease.

Jessi moved in and soon began having a sexual relationship with her landlord. Then she lost her source of income. There was some in-kind rent when Jessi provided limited child care services. Less than a month after moving in Jessi argued with Andre, who packed Jessi’s belongings and demanded that she leave. Naturally, Jessi declined to leave and telephoned the police to complain that her “boyfriend” (not her landlord) was trying to kick her out. When Jessi persisted in her refusal to leave after police arrived and couldn’t produce a written lease (to prove tenant status), she was arrested for Criminal Trespass. A jury found Jessi guilty of Criminal Trespass and of an added charge of Disorderly Conduct. Jessi appealed the Criminal Trespass conviction asserting an insufficiency of evidence.

The key issue was whether the State provided evidence to establish that she had no contractual interest in the property. The COA declared that there was enough of a lease here to entitle Jessi to a 10-day notice to quit per IC 32-31-1-6. Since Andre gave no such notice, Jessi was held to have had a contractual interest on the day that she was arrested for refusing to leave.

Some criticism. The COA did not have to go so far as it did in reversing Jessi’s conviction. The COA could (and probably should) have held that undisputed evidence confirmed Jessi’s claim to a reasonable belief in a contractual interest such that she lacked the requisite intent to commit a criminal trespass. Instead, the COA reached out unnecessarily to establish a reckless precedent extending landlord-tenant law to an unknown number of cohabitants. According to the COA there can be a valid lease in the absence of specified rent. According to the COA the police had no right to demand that Jessi leave and no right to arrest her for Criminal Trespass when she declined. If you and your live-in romantic partner (in your home) break up, and if you had some agreement (say for expense sharing), do you have to serve a written 10-day notice and/or sue for eviction to get him/her out? Of course, a written cohabitation agreement would make sense though it’s unlikely that Jessi or Andre would ever have thought to make such an agreement. This Opinion of the COA merits Rehearing or Transfer…Case Note by Dave Allen.

Not Too Trivial for Transfer

“Is this case too trivial for Transfer?” That was the closing comment to my appellate case note on the 2/1 April 28, 2016 COA decision in Weaver v. State, 53 N.E.3d 1225 (Ind.Ct.App. 2016). There the COA majority had reversed Corey Weaver’s Refusal to Identify conviction for an insufficiency of evidence even though he denied having “any particular name,” stalled 17 minutes before giving his date of birth, and never gave his address. By adopting a palpably incorrect construction of IC 34-28-5-3.5, the COA majority found the evidence insufficient to convict.

Since this was a mere misdemeanor case dealing with an odd, seldom-used statute, I wondered whether it was “too trivial for Transfer.” Apparently not. Today (August 5, 2016) the SCOTUS dedicated four paragraphs of text in a Per Curiam decision to slap down the errant COA majority and restore the conviction for Refusal to Identify.

The statute applies only after a person (not necessarily a motorist) is stopped for an infraction or ordinance violation. My view is that in the case of an auto stop, the duty to identify will not apply to a passenger who has not obviously committed an infraction or ordinance violation. If the person stopped doesn’t produce a driver’s license, he is obligated to provide his name, address, and date of birth and to do so (per the SCOTSI holding) promptly…Case Note by Dave Allen.

Transfer Bait from the COA

I will nearly guarantee Transfer in this 2/1 COA decision of August 4, 2016 in Zanders v. State. The COA majority reversed Marcus Zanders’ convictions for liquor store robberies and related crimes on Fourth Amendment grounds. After Zanders was identified as a suspect, police made an “emergency” (warrantless) request to cell service provider AT&T for “historical data” including the numbers called by Zanders and the cell phone tower locations from the origin of each call. The provider complied, and the incriminating data was used to obtain a search warrant resulting in even more incriminating evidence.

There was no real emergency to justify a warrantless request for the cell phone data. So the question (of first impression) became whether Zanders had a “reasonable expectation of privacy” in the cell phone usage data when that data was held by a third party. Is it possible for me to have a reasonable expectation of privacy in cell phone data that I have never possessed or seen? The topic is ripe for legislation setting national standards for obtaining such records from cell service providers. While we wait for Congress to do its job, look for a Transfer Opinion in this case…Case Note by Dave Allen

Waiving the Nonexistent Remedy

Is it possible to waive (by way of Plea Agreement) the potential benefit of a statute that doesn’t yet exist? According to the Lake County Prosecutor and Indiana Attorney General the answer would be “yes.” The case is State v. Smith decided August 2, 2016 in the COA. After entering into a Plea Agreement and pleading guilty (as agreed) in the year 2000 to Class “D” Felony Theft, Wallace Irvin Smith III filed in May of 2015 a Petition under IC 35-50-2-7(d) to convert his conviction from the “D” Felony to an “A” Misdemeanor.

The State objected, citing the Plea Agreement which included Smith’s waiver of his right to seek “misdemeanor treatment” at sentencing. The Plea Agreement referred to the authority of the trial court judge under IC 35-50-2-7(c) to convert a “D” felony to an “A” misdemeanor at sentencing. The remedy of IC 35-50-2-7(d) was not introduced until 2012 and thus was not part of the sentencing code in the year 2000 when Smith pled guilty. Accordingly (as the COA holds), Smith was free to request the conversion despite his history of a Plea Agreement and language of Waiver therein.

Analysis: This correct holding in a conversion case should be applicable also to expungement petitions that follow a plea agreement…Case Note by Dave Allen

TR 41(E) Dismissal of a PCR Petition

Convicted murderer/habitual offender Chawknee Caruthers had his convictions affirmed in Caruthers v. State, 926 N.E.2d 1016 (Ind. 2010). Soon thereafter he filed a pro se PCR Petition. Then a public defender appeared for him and withdrew nearly three years later while it seems that Mr. Caruthers was neglecting to prosecute his Petition. In March of 2015 the PCR Petition had been pending nearly five years when the trial court set the case (and more than 100 other cases) for a TR 41(E) dismissal “hearing” for want of prosecution. The trial court dismissed the PCR case without any discernible hearing, and Caruthers appealed. The COA Reversed July 29, 2016. TR 41(E) twice mentions “hearing” with respect to the dismissal of cases for want of prosecution. But is the hearing requirement actual? Does the hearing requirement mean only an opportunity for a hearing? Does TR 73(A) negate the hearing requirement of TR 41(E)? All these questions are answered to the effect that TR 41(E) does in fact require a hearing of some sort. The CCS in Caruthers’ PCR case showed the dismissal but made no reference to a hearing. The COA cited as controlling authority Rumfelt v. Himes, 438 N.E.2d 980 (Ind. 1982), wherein the TR 41(E) hearing requirement was confirmed while the SCOTSI declined to hold that the violation of the hearing requirement could be dismissed as harmless error…Case Note by Dave Allen.

Arrestee Strip Searches

The case is State v. Pitchford decided July 29, 2016 in the COA. Notably, this is a State’s appeal of the trial court’s Order suppressing evidence (a bag of dope tucked between the buttocks) found in a (routine) warrantless strip search of Dejon Pitchford, who was in police custody on a preliminary charge of misdemeanor battery. The (Marion County) jailors seemed to think that there was no need for a warrant or for reasonable suspicion of concealed weapons or contraband in that Dejon Pitchford’s arrest was for battery, a “violent” misdemeanor. In affirming the trial court’s suppression of evidence, the COA cited the controlling precedent of Edwards v. State, 759 N.E.2d 626 (Ind. 2001). In Edwards the SCOTSI held that routine, warrantless strip searches of misdemeanor arrestees are not reasonable under Article 1, Section 11 of the Indiana Constitution or the Fourth Amendment to the U.S. Constitution. In Pitchford the State cited Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510 (2012) wherein the SCOTUS held that the Fourth Amendment protection against unreasonable searches and seizures does not prohibit warrantless strip searches of arrestees (even those charged with minor offenses) before entering a jail’s general population. The COA correctly recognized that the SCOTUS is not the arbiter of the Indiana Constitution, to the effect that Edwards remains good law to the extent that its holding is based upon the Indiana Constitution. For detainees charged with misdemeanors an Indiana jailor needs a warrant or “reasonable suspicion” (of weapons or contraband) based on a “totality of circumstances” in order to lawfully perform a strip search.

A nugget for appellate procedure nerds. You probably noticed already the relatively rare appeal (in this case) by the State of an order of suppression that is not a “final judgment” from which an appeal may be taken as a matter of right under Indiana Rules of Appellate Procedure. Look at IC 35-38-4-2(5) for a statutory authorization for an appeal by the State of an adverse suppression order where the ultimate effect of the order is to preclude further prosecution as to at least one charge…Case Note by Dave Allen.

Seatbelts and Searches

The case is Harris v. State, a 2/1 decision of the COA dated July 27, 2016. Lisa Harris was driving a car. Neither she nor her front seat passenger wore a seatbelt; an alert police officer noticed the seatbelt violation and initiated a traffic stop. The officer recognized the name of Lisa Harris from the “National Precursor Log Exchange.” Each time you buy Actifed or something similar for a cold or seasonal allergies, your pharmacist dutifully reports you so you can be deemed a likely drug offender by your local police. Naturally, the officer here asked for consent to search the vehicle. Lisa gave her consent, and you know that the resulting baggie of white powder tested positive for methamphetamine. Lisa moved to suppress fruits of the search. She lost in the trial court but won (so far) on appeal.

A good place to begin the legal analysis is with Knowles v. Iowa, 119 S.Ct. 484, 525 U.S. 113 (1998), holding that a routine traffic stop is not the occasion for a vehicle search as in the case of a search incident to arrest. The next leg of the legal analysis resides in Indiana’s Seatbelt Enforcement Act. IC 9-19-10-3.1(a) provides that a seatbelt violation traffic stop does not authorize any search or additional detention of people or property. While the driver’s nervous demeanor and inconsistent answers as to her route and destination aroused the officer’s suspicion, it is questionable whether he had authority to interrogate the driver. It seems to be the theory of the COA majority that the officer overstepped his authority by even asking for consent to search the vehicle, such that the resulting grant of consent was of no consequence.

I will be looking for a grant of Transfer in this case. My feeling is that the COA Opinion was decided correctly but that it would meet with some opposition in the SCOTSI…Case Note by Dave Allen

Good Cop, Dog Cop

Doctor v. State decided July 26, 2016 in the COA may not have everything, but it has a lot of law pertaining to auto stops and searches. Start with a GPS tracker authorized in Federal District Court. Add a pretextual stop for tinted windows. See use of what I’ll call the two-car protocol. With traffic stop drug searches being subjected to durational scrutiny (where the traffic stop is prolonged awaiting arrival of a drug-sniffing dog), here the traffic cop and dog handler worked in tandem. In this way the “dog sniff” around the vehicle’s exterior (not a search per case law) can be conducted without prolonging the “seizure” consisting of the traffic stop. Did you know that on appeal (as here) of a denial of suppression the COA will consider uncontested evidence in a light most favorable to the appellant? I’ll bet you knew but forgot that the COA employs de novo review of a trial court’s determination of reasonable suspicion to merit a warrantless search…Case Note by Dave Allen.

How to Sell More Than You Own

The case is Wilson v. Huff decided in the COA on July 22, 2016. The Huffs held themselves out to be owners of a lot in the Wildridge RV Resort. Bonnie Huff drafted a “Property Contract” in the nature of a conditional land sale contract to sell the lot to the Wilsons. The “Property Contract” apparently failed to describe what sort of instrument of conveyance was anticipated after all the contract installments were paid.

Matters became adversarial when the Wilsons missed some monthly installments and the Huffs sued to “cancel” the contract and to evict the Wilsons. After learning of the suit, Hollie Wilson made a title search on the property and discovered that the Huffs were not the owners but rather tenants with a leasehold interest for 70-some years remaining on a 99 year lease. The Wilsons responded with a counterclaim alleging fraud. The competing claims were tried to the bench.

The trial court found that the 99 year lease and its assignment from another lessee to the Huffs were all duly recorded and that the Wilsons thereby had constructive knowledge that the Huffs’ interest was a mere leasehold. The trial court further reasoned that a lease assignment (after the last contract payment) would have satisfied the Huffs’ contractual duty to the Wilsons.

Given the “Property Contract” and its language of “sell” and “buy,” and further given the document’s preparation by Bonnie Huff, I would say that the instrument was for the conveyance of land with marketable title. The fact that the Huffs did not own fee simple title to the land did not mean that they could not acquire marketable title during the contract term and then complete the contract with a conveyance of marketable title to the Wilsons. Constructive knowledge from the mentioned recorded instruments is intended to protect innocent third parties (such as the holder of a judgment lien) rather than to protect a “seller” from the consequences of his misrepresentations or from compliance with a contract that he drafted. If the rationale of the COA is correct, then a warranty of title means nothing where the relevant cloud or adverse interest is of record. The decision of the COA is dangerously flawed…Case Note by Dave Allen.

Another Predicted Transfer

The case is Roar v. State decided April 21, 2016 by a split COA panel. My case note and Transfer prediction can be found below under the title “More on Intimidation and Conditional Threats.” Today (7/12/16) the SCOTSI handed down a per curiam Order affirming the conviction for Intimidation and approving the analysis of the COA majority. No mention is made of Causey v. State, 45 N.E.3d 1239 (Ind.Ct.App. 2015) which was the subject here of a case note from 11/2015 titled “When is a Threat to Shoot Not Intimidation?” It may be that the per curiam Order in Roar leaves the “conditional threat” doctrine somewhat intact in finding the evidence sufficient to put the victim in fear of retaliation for a prior lawful act…Case Note by Dave Allen.

No Apparent Authority to Consent

The topic here is the “consent” exception to the warrant requirement as applied to search of a residence. The case at hand is Bradley v. State, a 5-0 (interlocutory) reversal of a suppression denial handed down by the SCOTSI on July 7, 2016. Some consent cases turn on voluntariness. In the case of Timmie Bradley the relevant aspect of consent is whether a visitor had apparent authority to consent to police entry into a private residence. Notably, the police saw the visitor gaining entry by knocking and then waiting for someone to open the door. Held: there was no apparent authority on the part of the visitor to consent to the police entry; the evidence of criminal activity found inside must be excluded. Other Indiana cases on actual or apparent authority to consent to a building search involve landlords, girlfriends, and parents (for a minor’s bedroom)…Case note by Dave Allen

Limitations Tolling for the Local Legal Malpractice Suit

The case is Chenore v. Plantz decided June 28, 2016 by a unanimous COA panel reversing the trial court’s TR 12(B)(6) limitations-based dismissal of Elaine Chenore’s legal malpractice suit against Merrillville attorney Robert Plantz. Chenore hired Plantz in 2005 to file a civil collection suit against one William Knight. Suit was filed. Judgment was entered by default. Proceedings Supplemental were initiated. And Mr. Knight filed for Chapter 13 Bankruptcy, staying the collection efforts. It seems that notice of the Bankruptcy was directed to attorney Plantz rather than to judgment creditor Chenore.

Chenore alleged (in her Complaint) that Plantz advised her of the Chapter 13 Bankruptcy but told her to wait for notice from the Bankruptcy Court while assuring her that he “was going to appear at the Bankruptcy Court.” Chenore waited while Bankruptcy Court notices continued going to Plantz. No claim¹ was ever filed on behalf of Chenore in the Chapter 13 proceedings, although the Plan called for 100% payment to creditors. Meanwhile, deadlines passed.

A TR 12(B)(6) motion to dismiss is a challenge to the facial adequacy of the complaint. A limitations defense may be asserted in a TR 12(B)(6) motion to dismiss where the limitations issue appears on the face of the complaint. The addition of any affidavit, testimony, or exhibit will convert a TR 12(B)(6) motion to dismiss into a motion for summary judgment.

Elaine Chenore filed her malpractice suit against attorney Robert Plantz more than two years after William Knight’s bankruptcy discharge but less than two years after she learned of the discharge. Nonetheless, Special Judge Kathleen Belzeski dismissed the Complaint on the limitations defense. The COA reiterated the familiar rule that the two year limitations period for a legal malpractice suit begins to run when the plaintiff knows of or should have known of (through ordinary diligence) the tortious conduct. Here the Complaint asserted facts in support of equitable tolling of the limitations period. Accordingly, the Complaint was sufficient to withstand the TR 12(B)(6) challenge…Case Note by Dave Allen
¹The filing of a creditor’s claim in a Chapter 13 Bankruptcy is not a complex task, particularly where the claim is liquidated and reduced to judgment.

Now Count Backward from 21

No, this isn’t a roadside sobriety test. See the COA Opinion of June 14, 2016 in Schafer v. Borchert, a tax sale/quiet title case applying the time computation methodology of Trial Rule 6(A) to tax sale notice legislation. Although TR 6(A) declares its applicability to “any period of time prescribed or allowed by these rules” (emphasis added), I have seen other instances of applying this trial rule methodology to statutory time periods. I note the incongruity of statutory construction by trial rule. I hope I am not alone in that regard.

Say there is a court order requiring me to serve a witness list, for example, 10 days before a hearing. I tend toward not counting the day of service or the hearing date. If my method included both the day of service and the hearing date, the former would be day “one” and the latter day “twelve.” The approach of the COA is to start with the latter event (the hearing or, as here, a tax sale) and begin counting backward with day “one” being the day immediately preceding that “latter event.” If your service was made on day “twenty-one,” then you have satisfied the requirement of twenty-one days notice of the latter event. The use of this counting methodology allowed the COA to avoid reliance on the theory (adopted by the trial court) that the Auditor was in “substantial compliance” with a twenty-one day notice requirement when he mailed notice on September 12, 1988 of a tax sale conducted October 3, 1988…Case Note by Dave Allen

An Academic Limit to “Postsecondary Educational Expenses”

Welcome back to the SCOTSI, all four of them rendering a 4-0 decision on June 1, 2016 in the case of David P. Allen (not me/no relation) v. Kimberly W. Allen, the parents of a bright college student daughter looking to enter dental school at IU. David had agreed to pay for his daughter’s undergrad expenses. Then she neared graduation, and David petitioned the divorce court for a modification of his obligation, to the effect of allocating some portion of dental school expenses to Kimberly (the former wife). The trial court left intact the prior (agreed) arrangement under which David paid the educational expenses while Kimberly paid only for the daughter’s health insurance. While David’s appeal to the COA requested apportionment of dental school expenses, Kimberly’s cross-appeal argued that the trial court lacked authority to impose graduate school expenses. David got his wish (for apportionment) in the COA in an unpublished decision of July 24, 2015. The SCOTSI granted Kimberly’s Transfer Petition and (remarkably) adopted her position limiting judicial authority to the imposition of undergraduate college expenses. The SCOTSI has essentially defined “postsecondary education” as undergraduate education to the exclusion of “graduate or professional school.” See IC 31-16-6-2 for judicial authority to impose on parents the costs incurred at “postsecondary educational institutions.” The General Assembly did not, however, define “postsecondary” in Title 31. Still, the SCOTSI found a persuasive but non-binding definition in Title 21 of the Indiana Code seeming to define “postsecondary” as excluding graduate studies and professional studies.

The holding here is that “postsecondary” education as referenced in Title 31 educational support does not include graduate or professional school. I am glad to see a limit to judicial authority to order “educational support” for an otherwise emancipated (adult) child of divorced parents. I still have reservations about the scope of educational support for an otherwise emancipated child. Caselaw has approved the imposition of rent, utilities, and renter’s insurance as part of the educational expenses imposed on divorced parents of an otherwise emancipated (adult) child of divorced parents. The Calumet Law Blog would like to see confirmation from the General Assembly of what expenses (if any) other than tuition, books, and class fees are allocable “educational” expenses.

While it is clear that law students, dental students, med students, and masters program students will be adversely affected by the SCOTSI ruling in Allen, there will be a less apparent impact on, for instance, a five-year pharmacy school program. Is the training “professional?” Yes. On the other hand, pharmacy school also involves much of the same curriculum designed for undergrads in the liberal arts and sciences. A SCOTSI Opinion footnote inexplicably exempts trade and vocational schooling from the generally applicable definition of “postsecondary.” The benefit of this suspect holding is to continue the authority of trial courts to order educational support for courses of study that cannot conclude with a bachelor’s degree…Case Note by Dave Allen

A Hollow HICA Victory

“HICA” is Indiana’s Home Improvement Contract Act codified at IC 24-5-11. The Act requires certain content in most contracts for home improvements (including repairs). The subject case is Warfield v. Dorey decided May 31, 2016 in the Court of Appeals. There a contractor was very sloppy with his contract practices in dealing with residents of a home damaged by hail. The contractor’s own contract form was defective for want of his address. The document was signed before the contractor was fully licensed. The document lacked the requisite start and completion dates. And the homeowner never signed the contract.

Here the contractor replaced a roof (including “decking”) and rebuilt a fireplace. Then the homeowner and her resident daughter declined to pay (by signing over insurance checks). After the contractor sued for payment, the owner and her daughter countered with the claim that the “contract” was void for its HICA deficiencies.

HICA creates a cause of action for “uncured or incurable” deceptive acts, and one possible remedy is voiding the contract. The rare result of voiding the contract was reached here when the COA reversed the trial court judgment upholding the contract. So does the homeowner get a free roof? No. The COA applied quantum meruit and made findings (on appeal!) as to the value of the work. The COA instructed the trial court, on remand, to award prejudgment interest at 8% per annum. The homeowner proved her point about the HICA deficiencies but was not allowed to escape payment for the work. The case is remarkable in part for how the COA made findings (of the value of work) normally reserved to a trial court.

My favorite example of a remedy for a HICA violation is found in First Response Services v. Cullers, 7 N.E.3d 1016 (Ind.Ct.App. 2014) where the trial court and COA approved the denial of contractual attorney fees to contractor in his collection suit against an unhappy customer…Case Note by Dave Allen

HOA Showdown in Castlewood

See the May 13, 2016 NFP decision of the COA in Castlewood Property Owners Association, Inc. v. Leticia Guerra-Dunko, an appeal from the Lake Superior Court Room Five (Judge Davis). The COA affirmed the trial court’s bench trial ruling for a homeowner who dared to replace her termite-infested cedar siding with vinyl siding without approval of the Architectural Review Committee (ARC) of the Property Owners Association, which then sued for declaratory and injunctive relief.

Even though the subject covenant prohibited any unapproved exterior “alteration” of a building, Judge Davis and the COA found ambiguity to be construed against the plaintiff Owners Association. As a matter of first impression (in Indiana), the COA adopted a “reasonableness” standard in review of an ARC decision disapproving a member’s request. Relevant to that consideration was the absence of any written prohibition of vinyl siding. In partial dissent, Judge May argued that the homeowner should have prevailed at the summary judgment stage.

Why this decision was NFP is puzzling in that it includes an important holding of first impression. The Appellate Rule 65(A) criteria for publication include decisions which establish a rule of law. The CLB recommends a motion to publish per App. Rule 65(B)…Case Note by Dave Allen

Of Fences and Bad Neighbors

Suppose you own some acreage in a rural area beyond any municipal jurisdiction and suppose that you share a lengthy border with a farmer. Suppose further that: the border line is marked but unfenced; the border line is generally respected on both sides; and you don’t farm. Can your farming neighbor compel you (through the Township Trustee) to construct or pay for fencing across one-half the length of the shared border? See the May 5, 2016 2/1 Opinion of the COA (reversing itself on Rehearing) in Belork v. Latimer construing Indiana’s partition fence statutes found at IC 32-26-9.

Cattle farmer John Belork had difficulty keeping his cows from straying onto his neighbors’ grain fields. The reward for their complaints was a mandate action against the Trustee (with one neighbor intervening) to compel the Trustee to compel the neighbors to construct or pay for one-half the fencing to keep the Belork cattle in their own pasture. Although the partition fence law dates back to (at least) 1915, the General Assembly passed amendments in 2002 and 2003. It helps to have lobbying power in this “right to farm” state. The trial court held against farmer Belork, reasoning that the grain farming neighbors should not be required to construct or pay for fencing that would benefit only Belork.

The COA majority reversed itself and the trial court’s TR 50 grant of judgment on the evidence against Belork. I found no mention in the majority Opinion or in the Dissent of the “taking without compensation” due process theme underlying this controversy. I look forward to an acceptance of Transfer by the SCOTSI.

A SCOTSI April in Review
(Farewell, Justice Dickson)

The month of April, 2016 in the Supreme Court of the State of Indiana (“SCOTSI” in the CLB) was remarkable in that 17 cases were decided (excluding disciplinary cases and including two per curiams) and in that there was a total of one (partial) dissent of one justice and one separate concurring Opinion of two justices. No greater unanimity could be expected. As for the volume of decisions, my count for the entire first quarter of 2016 is 25 decisions, still a productive pace for the SCOTSI.

The Calumet Law Blog previously reviewed the Opinion of April 5, 2016 in City of Beech Grove v. Beloat. Then the demands of practice and the pace of decisions got in the way of the timely reporting of interesting cases. So here is April in review minus the previously posted commentary on City of Beech Grove v. Beloat.

4/05/16 Ackerman v. State.

Ackerman is in the category of cold case homicide. In 1977 Michael Ackerman babysat his girlfriend’s toddler while she went to work. The child died in Ackerman’s care. An autopsy showed 35 separate injuries and concluded that the death was a homicide. Inexplicably, no charges were filed. The deceased toddler’s sister contacted police some 36 years later to share her recollection of the day her brother died. The cold case thawed with the sister’s account implicating Ackerman in the death. It seems that cold cases are often regenerated by scientific advances. See the Appellate Case Note on Cold Case DNA Evidence in the case of Quinn v. State (Ind.Ct.App. 2015) decided October 8, 2015.

Critical to the prosecution of Ackerman was the 1977 autopsy report authored by a doctor who later died. Two police officers involved in the case had also died. The autopsy report was admitted over objection, and Ackerman was convicted of Second Degree Murder. His primary issue on appeal was the admission of the autopsy report when he could not confront and cross-examine the doctor who made the report. The sad trend of dismissing 6th Amendment confrontation claims is traceable to Crawford v. Washington, 541 U.S. 36 (2004) and the distinction therein between “testimonial” hearsay and “nontestimonial” hearsay. Crawford is cited when a domestic violence victim is absent from the trial of her intimate partner while her accusations shared with first responders are nonetheless admitted into evidence as “nontestimonial” hearsay. My observation is that if a statement is “nontestimonial,” then it isn’t evidence.

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) were cited as SCOTUS precedent holding that certain forensic lab reports are “testimonial” such that the confrontation right applies. Nonetheless, the Ackerman Opinion parses the law and the facts to conclude that the 1977 autopsy report was “nontestimonial” and thus admissible without the presence of the author.

Ackerman’s secondary issue was that his due process rights were infringed by the delay of 36 years. Despite the intervening death of witnesses and the loss of a confrontation opportunity, the SCOTSI held that Ackerman suffered “no prejudice” from the delay. If you are a filer of PCR petitions, you may want to cite Ackerman in response to laches arguments.

Comment: While I have no sympathy for Michael Ackerman, I see the decision as bad law and bad precedent for the future.

4/05/16 Ammons v. State (per curiam)

Kevin Ammons was convicted of child molesting in Indiana in 1988, prior to enactment of Indiana’s SORA. Most convicts in this class would thereby escape the requirement of registering as sex offenders. But Kevin Ammons made a post-conviction move to Iowa and then returned to Indiana. On these facts, Kevin Ammons was obliged to register in Indiana as a sex offender.

4/11/16 Whistle Stop Inn v. City of Indianapolis

Featured here is the Equal Privileges and Immunities Clause of Article 1, Section 23 of the Indiana Constitution versus a discriminating municipal smoking ordinance. Until 2012 Indianapolis bars and taverns enjoyed an exemption from the ordinance banning smoking in public businesses. Bar and tavern owners complained that it was unfair to impose the smoking ban on them while “satellite gambling facilities” were still exempt. Held: such disparate treatment withstands the (Indiana) constitutional challenge even though the legislative purpose is purely economic.

4/12/16 Custody of M.B.

The paternal aunt and uncle of a minor filed an action for custody (as nonparents) under IC 31-17-2-3(2). The trial court dismissed for a lack of standing (of Aunt & Uncle) and for want of jurisdiction due to a pending CHINS case concerning the same child. Held: Aunt & Uncle had standing. Trial court had jurisdiction but was obliged to stay (not dismiss) proceedings while the CHINS case pended.

4/12/16 Gibson v. State

William Clyde Gibson III pleaded guilty to murder. The trial court sentenced him to death. Gibson appealed his sentence. While I have serious reservations about imposition of the death penalty, I will not mourn the execution of Mr. Gibson. Affirmed 5-0.

4/12/16 Hitch v. State

Scott Hitch appealed the trial court’s determination (after a jury trial and conviction of simple misdemeanor battery) that he had committed a crime of domestic violence. The trial court’s determination was important to Hitch in that it rendered him ineligible to possess a firearm. Relevant to Hitch’s entitlement to a jury determination is the question of whether the firearms ban constitutes punishment as opposed to a non-punitive sanction. Held: Hitch was not entitled to a jury determination of the “crime of domestic violence” issue. Justices Massa and Dickson concurred with the view that the majority was too solicitous in considering the propriety of forfeiture of constitutional rights secondary to a criminal conviction.

Comment: A bad day for the Second Amendment.

4/19/16 Citizens Action Coalition v. Koch

Compared to the great anticipation which preceded this Opinion, the result struck me as anticlimactic though not trivial. Here a public interest group made APRA (Access to Public Records Act) demands upon a Republican Representative in the General Assembly. The requests sought copies of correspondence from Rep. Koch and his staff with “various business organizations” relative to specific legislation. Each request was denied on grounds that APRA is inapplicable to the General Assembly and that it is “House tradition” to keep all correspondence confidential. The public interest group complained to the Public Access Counselor whose Advisory Opinion concluded that APRA does not apply to the General Assembly but most of what was requested would still be exempt under the “legislative work product” exception (presumably) applicable to inferior legislative bodies. After a second complaint to the PAC and the same result, the plaintiffs filed suit requesting declaratory relief against Rep. Koch and his Republican Caucus. The suit also sought an Order compelling APRA compliance. The defendants responded (predictably) with a TR 12(B) Motion to Dismiss for lack of justiciability and for failure to state a claim. The TR 12(B)(1) (lack of jurisdiction over subject matter) motion asserted non-justiciability on grounds that Plaintiffs’ requests would “interfere with the internal workings of a legislature.” The trial court ordered dismissal on the TR 12(B)(1) grounds without addressing the TR 12(B)(6) issues.

The SCOTSI held that it has subject matter jurisdiction to hear the case while distinguishing that point from the point of justiciability under the separation of powers. The SCOTSI decided that the contested applicability of APRA to the General Assembly was justiciable and that the legislature (including its Members) were not exempt from APRA. Still, the question of whether the APRA requests in the case at bar were exempt as “legislative work product” was not justiciable.

Comment: The General Assembly should (and probably will) take better care to exempt itself from government transparency statutes. While the result in the SCOTSI seemed inevitable, it is noteworthy that the Opinion made no concessions to the legislative branch pertaining to subject matter jurisdiction.

4/21/16 Horton v. State

Adam Horton waived jury trial. Or did he? After a jury found Horton guilty of domestic battery, there was the (bifurcated) enhancement phase requiring proof of a prior conviction and enhancement of the misdemeanor conviction to a Class D Felony. Horton’s lawyer asked for a bench determination of the enhancement while Horton stood mute. Held: Horton’s silence and the lawyer’s words did not constitute a valid waiver. This is already well-settled law. The real holding in this case is on the flip side.

The result of the SCOTSI holding above was that the enhancement would be reversed and remanded for a new hearing unless the evidence below had been insufficient to prove the prior conviction. Thus, the sufficiency of the evidence (of a prior conviction) was considered. It seems that proof of the prior conviction consisted largely of judicial notice. Noted here is the 2010 amendment to ER 201(b)(5) expanding a trial court’s authority to take judicial notice of “records of a court of this state.” But must such judicially noticed records be entered into the record? If not, how does a reviewing court determine sufficiency of the evidence? Here the SCOTSI took the extraordinary step of gathering the noticed records from the trial court clerk and found the evidence sufficient.

Comment: By not requiring inclusion in the record of judicially noticed documents from other cases, the SCOTSI welcomes chaos.

4/22/16 Gaff v. Indiana-Purdue University of Fort Wayne

If you file a federal cause of action in state court (assuming concurrent jurisdiction) and it is not removed to federal court, you and your adversary will surely cite federal case law, probably dealing in substantial part with summary judgment. But can you trust the federal authority? Yes, of course…and no.

Adam Gaff sued his former employer under Title VII for retaliation. The trial court entered summary judgment against the plaintiff. Noted here is the operational disparity (albeit similar language) between Rule 56 of the FRCP and Indiana Trial Rule 56. On the federal side a summary judgment may be entered against a plaintiff for a lack of evidence supporting an essential element of his claim. In state court a movant for summary judgment must negate some essential element of a plaintiff’s case to win summary judgment. Even with a federal cause of action, Indiana procedure will apply in state court actions. On the other hand, the elements to be proven by a plaintiff and the standard of proof are determined by federal law.

Comment: A very helpful Opinion for civil litigators.

4/26/16 Bowman v. State

William Bowman appealed his conviction of Class A Felony Dealing a Narcotic Drug within 1,000 feet of school property. Among other grounds he claimed “sentencing factor manipulation” (as to the school proximity of a controlled buy) and the potential for a lack of jury unanimity in that two baggies (one untested) were entered into evidence on a single charge of dealing heroin. Moreover, Bowman challenged the admission of redacted letters written by him from jail to a pair of potential witnesses. The SCOTSI affirmed the conviction in all respects. The challenge of “sentencing factor manipulation” was rejected on the evidence without deciding whether the argument should be recognized as a defense to enhancement. Bowman was held to have waived his unanimity challenge. The SCOTSI concluded that there was no abuse of discretion in the admission of Bowman’s letters from jail.

4/26/16 In Re N.G.

Under Chief Justice Rush, the SCOTSI has shown a willingness to reverse terminations of parental rights, but not in this case. Only the mother appealed the termination as to three of her four children. Notably, the COA had reversed as to two of the three children involved and Transfer was sought by the DCS. See In Re N.G., 45 N.E.3d 379 (Ind.Ct.App. 2015). The SCOTSI affirmed the trial court’s termination.

4/26/16 Sanford v. State (per curiam)

Ronald Sanford was 13 years old in 1987 when he and a friend broke into the home of some elderly neighbors and stabbed them to death. He was waived into adult court where he pled guilty to two counts of murder and other felonies. Sanford was sentenced to a term of 170 years but was not advised by the trial court of his right to appeal his sentence. Ultimately he requested permission to file a belated appeal under PCR 2. The trial court denied the petition. The SCOTSI reversed with instructions to grant the request for a belated appeal.

4/28/16 Siner v. Kindred Hospital

Remarkably, this medical malpractice summary judgment case features pro se plaintiffs against two big name law firms familiar to Calumet Region Practitioners. I noticed the COA Opinion of May 27, 2015 (prior to launch of the CLB) and found myself in agreement with the dissent of Judge Kirsch criticizing the use of an affidavit from one medical review panelist to impeach the brief, ambiguous but unanimous opinion of the Medical Review panel which had concluded a breach of the applicable standard of care in the treatment of the elderly, demented Geraldine Singer “may have been a factor of some resultant damages, but not the death of the patient.” The (vacated) COA Opinion affirmed the trial court’s summary judgment in favor of a Dr. Majid but reversed the summary judgment against the “kindred defendants.” The SCOTSI reversed the trial court’s award of summary judgment as to all defendants without the condemnation of the panelist’s affidavit that I would have preferred to see. Notably, the SCOTSI viewed the proximate cause ambiguity of the Panel Opinion as rendering it insufficient to support a verdict but not insufficient to create an issue of fact to withstand an adverse summary judgment.

Comment: I typically tell folks who want to file a pro se appeal that it’s too complicated and that they need a lawyer. Now I have to re-examine that boilerplate advice.

4/28/16 Allen v. State

This may be my favorite of the April SCOTSI Opinions, mostly because I can document my position that was adopted by the SCOTSI. If you scroll down this list of Appellate Case Notes to October 14, 2015 you will find my response to the COA Opinion (now vacated) holding against Travis Allen on his CR 4(C) discharge for delay argument. Though I did not predict Transfer, I did use the word “absurd” to describe the panel majority’s reasoning and gave praise to the dissent of Judge Barnes.

Travis Allen had pending charges for drunk driving and for driving without a license. At a pretrial conference Travis appeared (in custody?) and gave notice of his guilty plea and 10-year sentence from the previous day in another court. He was then awaiting transport to an IDOC facility. There was a comment on the record (by the court reporter!) of the need of a transport order to arrange the defendant’s presence for a bench trial. No transport order was issued, and Travis did not appear for trial. He was eventually tried (over objection) more than 1,000 days after his arrest while the CR 4(C) limit (subject to exceptions) is one year. After the missed trial date, 518 days passed with no action by the trial court or the prosecutor. That delay sealed the result, which was a reversal and remand with instruction to grant the CR 4(C) motion.

4/28/16 Suggs v. State

This is a reversal of a battery enhancement based on the alleged “family or household member” status of the victim. See IC 35-42-2-1(b)(c) and (d)(6). The enhancement based on the familial connection was from misdemeanor to Level 6 felony battery. Here the familial connection was extenuated, to say the least. Ronald Suggs battered a woman whom he called “auntie” but who was not his aunt. Rather “auntie’s” brother had previously been married to Suggs’ actual aunt. See the definition of “family” at IC 35-31.5-2-128.

Comment: Justice Rucker was far too patient with the State’s request for a wildly broad construction of “related by blood or affinity.” But that patience produced a couple of scholarly pages of legal writing on the issue that could constitute valuable precedent in civil matters.

4/28/16 Town of Fortville v. Certain Landowners

The trial court denied an involuntary annexation after finding that a statutory element of the annexation was unmet on the evidence. The element in question was whether the annexation territory of 644 acres “is needed and can be used for economic development in the reasonably near future.” Notably, the COA had reversed. The SCOTSI affirmed the trial court. COA Opinion is at 36 N.E.3d 1176 (Ind.Ct.App. 2015) vacated.

Case Notes by Dave Allen

Refusal to Identify

It seems to me in my practice that the misdemeanor offense of refusal to identify per IC 34-28-5-3.5 is misapplied in the majority of cases, as though no police officer nor any prosecutor had ever read the statute. Here is the narrowly applicable statute:

IC 34-28-5-3.5
Refusal to identify self
Sec. 3.5. A person who knowingly or intentionally refuses to provide either the person’s:
(1) name, address, and date of birth; or
(2) driver’s license, if in the person’s possession;
to a law enforcement officer who has stopped the person for an infraction or ordinance violation commits a Class C misdemeanor.

The statute is applicable only after a person (not necessarily a motorist) is stopped by an officer for an infraction or ordinance violation. If a car is stopped for an infraction, the statute may apply to the driver but not his passenger. Police encounters other than a stop for an infraction or ordinance violation do not trigger the duty to identify one’s self under this statute.

See the April 28, 2016 COA Opinion (2/1) in Weaver v. State reversing a conviction for refusal to identify. To my surprise, I found myself in full agreement with the police, prosecutor, the trial court, and the dissent of Judge Altice. Here the defendant was stopped (while driving) due to an inoperable plate light, a common infraction. Accordingly, Corey Weaver had a duty to identify himself. He could not produce a license or vehicle registration. He began by giving an address of “Indy” and the name “Mr. Weaver.” He finally disclosed a date of birth 16 minutes after the stop. Though “Mr. Weaver” belatedly shared his name and date of birth it seems, he never gave up his address. He was arrested for DWS and for refusal to identify.

Looking again at Sec. 3.5(1) it seems that the COA majority took the clause “(1) name, address, and date of birth” as three conjunctive elements of the offense such that an offense occurs only when all three are violated; in contrast, I view the clause as stating three conjunctive elements of the duty to identify, such that a refusal on any one of the three amounts to a violation. Concluding that Weaver waited too long to give his name and date of birth but only evaded the inquiry into his address without refusing to answer, the COA Panel majority reversed the conviction for insufficiency of evidence.

Comment: Is this case too trivial for Transfer?…Case Note by Dave Allen

Pro Se Lawyer Can’t Win APRA Fees

Since the beginning of Indiana’s Access to Public Records Act (APRA) I have taken care (where appropriate) that my written requests are on behalf of a named client and on my own behalf. By naming myself on the request I have the option of enforcing the request in my own name (by complaint to the PAC or otherwise) without the client’s permission. By naming the client on the request I preserve the possibility of recovering attorney fees against the government agency in the event of APRA litigation. The general rule, of course, is that (where there is a fee-shifting statute such as APRA) a pro se lawyer plaintiff cannot recover attorney fees.

See the April 26, 2016 Opinion in Marion County Election Board v. Bowes (et al.) (Ind.Ct.App. 2016). Lawyer Bowes delivered a challenging APRA request for voter information in electronic format. The administrative deficiency of having no “uniform policy” for release of voter registrations left the government agency unable to comply. Bowes obtained a favorable ruling from the Public Access Counselor (“PAC”) and then filed suit on behalf of himself and on behalf of several other plaintiffs. Bowes and his other plaintiffs prevailed in the trial court except that Bowes’ claim for APRA attorney fees of about $47,000.00 was denied (due to his self-representation) while the trial court awarded nearly $7,500.00 as “reasonable litigation expenses” exceeding the actual expenses. The COA references an apparent concession from Bowes that his co-plaintiffs were “coat-tailing along” with his primary case. If real, that concession was a mistake. Resolving cross-appeals over Bowes’ attorney fees (or other compensation) the COA affirmed the denial of designated attorney fees and took away the $7,500.00 as well. Lawyer Bowes’ probably reasoned that having co-plaintiffs (whom he represented) would enable his claim for attorney fees. He was wrong, at least for now…Case Note by Dave Allen

More on Intimidation and Conditional Threats

I previously wrote about the 11/20/15 unanimous COA Opinion in Causey v. State reversing an Intimidation conviction for insufficient evidence despite the defendant’s conditional threat to shoot at officers if they came any closer. On April 21, 2016 a different COA panel held (2/1) in Roar v. State on similar facts that the evidence was sufficient to support a conviction for Intimidation. In each case cited the condition of the threat involved future activity of the threat target, i.e.: I’ll kill you if you return here. A threat linked to future elective conduct can hardly be said to be made with the intent to place the target “in fear of retaliation for a prior lawful act” as set out in the Intimidation statutes IC 35-45-2-1(a)(2).

Despite the State’s apparent opposition to the “conditional threat” doctrine, there was no Transfer Petition filed in Causey. Now there is a clear split within the COA such that Transfer in Roar should be requested and granted…Case Note by Dave Allen

Transfer Update: On July 12, 2016 the SCOTSI entered a per curiam Order affirming the conviction for Intimidation.

Streets, Sidewalks, and Discretionary Function Immunity

April 5, 2016 was a busy day for the SCOTSI in that one civil case and two criminal cases were decided. On the criminal side I note only that the ex post facto protection, the right of confrontation, and due process took a beating. The civil case of City of Beech Grove v. Beloat (Ind.Ct.App. 2016) is much less depressing and merits this brief case note. The Opinion is a “must read” for any Hoosier lawyer who handles sidewalk or crosswalk slip & fall cases.

Cathy Beloat (as a pedestrian) was attempting to cross Beech Grove’s Main Street at a crosswalk when she stepped slightly outside the crosswalk to avoid a pickup truck that had stopped so as to block a portion of the crosswalk. Then Cathy fell into a pothole. She suffered a broken leg. Cathy sued the City of Beech Grove for its negligent maintenance of Main Street. The City claimed discretionary function immunity per IC 34-13-3-3 (Indiana Tort Claims Act). The trial court denied the City’s Motion for Summary Judgment, and the City’s interlocutory appeal followed. A divided COA panel held for the City. Then the unanimous SCOTSI vacated the COA decision and affirmed the trial court’s denial of SJ to the City.

The City’s defense to Cathy’s claim of negligent street maintenance was the theory that Main Street was neglected intentionally under some sort of political decision or plan to reconstruct the street. Beech Grove lost its appeal not from the absurdity of the discretionary function defense but because their its TR 56(C) evidence was found insufficient to prove the grand reconstruction plan. A nice nugget of evidence law (not be found in the Rules of Evidence) is that a governmental board or commission speaks only through its minutes or other record created at a duly organized meeting. Here the mayor’s affidavit (though not challenged below by a motion to strike) was found to be incompetent to establish a qualifying reconstruction plan that would excuse the intentional interim neglect of Main Street…Case Note by Dave Allen

Another Transfer Prediction is Fulfilled

I previously reviewed the COA Opinion of December 14, 2015 in Rogers v. Martin. The defendant homeowner had won SJ in the trial court against a cause of action for “failure to render aid” to an intoxicated, injured guest. The COA reversed. I titled the case note “Duty to Render Aid, Transfer Bait from the COA.” My prediction of a grant of Transfer came true March 20, 2016 in case no. 02S05-1603-CT-114…Case Note by Dave Allen

SCOTUS Stands Up for Lawyers (And Their Fees)

See the March 30, 2016 Opinion in Luis v. United States (U.S. 2016) decided by a 5/3 split with the Chief Justice and Thomas, J. siding with the liberal Justices, except for Kagan, J. who joined Justices Kennedy and Alito in dissent. The case involves civil forfeiture under 18 U.S.C. § 1345 allowing a pretrial “freeze” of certain assets of a defendant accused of violating health care (as here) or banking laws. The statute allows the pretrial seizure of assets: obtained as a result of the crime; otherwise traceable to the crime; and other (untainted) assets of equivalent value (where, for instance, tainted money had been spent). Below the Government obtained a pretrial order freezing the untainted funds of the defendant (as well as the tainted funds) such that she was left without the means to hire counsel of her choice. The defendant appealed the freeze order to the 11th Circuit and lost. She appealed to the SCOTUS and won her 5/3 reversal of the order freezing her untainted funds.

Here the SCOTUS did not reverse on Due Process or Double Jeopardy concerns. Rather, the reversal arose from the impairment of a defendant’s Sixth Amendment right to counsel (of your choice if you can pay). Where the government and a private lawyer both have eyes on the defendant’s “untainted” funds, for once the private lawyer wins (along with the defendant). It strikes me as suspicious that I found no mention of the atrocity of “disgorgement” where a lawyer’s honest fee is cruelly and forcibly retrieved. When next I have occasion to make a Sixth Amendment argument, I will look to this case, particularly the concurring opinion of Justice Thomas…Case Note by Dave Allen

“No Batson Issue for Hispanics?”

As it turns out, the judge (presiding over the criminal trial of an Hispanic defendant) who declared the inapplicability of Batson to Hispanics was wrong, at least according to the March 24, 2016 COA Opinion in Villaruel v. State (Ind.Ct.App. 2016). Batson v. Kentucky, 476 U.S. 79 (1986) held against race-based peremptory challenges of black prospective jurors in the trial of a black defendant. Since Batson, prosecutors challenging black prospective jurors must offer some plausible race-neutral explanation, even if the defendant is white. In the case on appeal the state used a peremptory challenge against the only apparently Hispanic prospective juror. The defendant objected on Batson grounds. The trial court judge overruled the objection, limiting the rule of Batson to black, white, male, and female. The holding on appeal is that Batson does apply to Hispanics and that reversal and remand are required. Note the extension of Batson to civil cases and Indiana Jury Rule 18(d) pertaining to the suspected use of a peremptory challenge “in a constitutionally impermissible manner.”…Case Note by Dave Allen.

When Tenants in Common Aren’t

See the March 23, 2016 Opinion of the COA in Underwood v. Bunger. The controversy of the case was forged in 2002 when an unidentified author (likely a careless lawyer) drafted a warranty deed (to property in Bloomington) from one grantor to three grantees, two of whom were husband and wife. The deed was self-contradicting in that it described the two married grantees as “husband and wife” and then stated (of the three grantees) “all as Tenants-in-Common.” The reference to the married grantees as “husband and wife” was sufficient to create the presumption of entireties ownership between the two of them. Was the reference to “Tenants-in-Common” enough to rebut the entireties presumption? The unanimous COA panel affirmed the trial court ruling that the married grantees owned their interest by the entireties, such that a money judgment against husband (but not wife) did not amount to a lien against the entireties interest, and wife became the sole owner (of the married grantees) on husband’s death.

The Opinion contains educational discussion of tenancy in common, joint tenancy, and tenancy by the entireties. There are some nuances. For instance, a deed to three unrelated tenants in common creates a presumption of three undivided one-third shares. A deed to a married couple (identified as “H & W”) and to their partner presumptively creates two undivided one-half shares. Another counter-intuitive nuance can be found in the case (cited in Underwood) of Ramer v. Smith, 896 N.E.2d 563 (Ind.Ct.App. 2008) wherein two married couples (“A & B” and “C & D”) were grantees as joint tenants such that when husband “A” died, his interest passed (by survivorship) in equal shares to the three survivors and not exclusively to his widow. The parties’ intent may never be known. The point is that there is danger in the careless drafting of deeds, and some lawyers should refrain from deeds altogether…Case Note by Dave Allen.

Dave’s Transfer Prediction Comes to Pass in Child Custody Case

See the SCOTSI Transfer Opinion of March 15, 2016 in Steele-Giri v. Steele (Ind. 2016), an appeal from an order of the Lake Superior Court (Judge Tavitas) denying a mother’s post-decree petition to modify physical custody of her daughter. The very first appellate case note in this Blog reviewed the COA’s July 29, 2015 split (2/1) Opinion reversing Judge Tavitas. Since the COA majority clearly reweighed evidence, I described the Opinion as “rogue” and predicted Transfer. Today a unanimous SCOTSI proved me right by affirming the trial court ruling in accord with the “deferential standard of review” afforded to trial court rulings in family law matters…Case Note by Dave Allen

The Hospital Lien Act and “Reasonable” Medical Charges

See the COA Opinion of March 14, 2016 in Parkview Hospital v. Frost. The subject matter is the propriety or reasonableness of medical expenses. In Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009) the SCOTSI wisely held that initial hospital billings and the discounted payments (negotiated by insurance) were both relevant to determining the reasonable value of medical services incurred by a personal injury plaintiff. Then in Allen v. Clarian Health Partners, 980 N.E.2d 306 (Ind. 2012) the SCOTSI held against uninsured patients who challenged the reasonableness of the (undiscounted) charges for medical services. See also my Appellate Case Note (11/19/15) in Patchett v. Lee, ___ N.E.3d ___ (Ind.Ct.App. 2015), as to which there is a pending Transfer Petition.

Here the context of the “reasonableness” dispute centers around the Hospital Lien Act (IC 32-33-4-1, et seq.) which allows a challenge to the reasonableness of charges constituting the lien. The COA majority held that the discounts offered to insurance companies and governmental payors is relevant to reasonableness under the HLA. The dissent asserted that Allen v. Clarian Health Partners, supra, foreclosed the argument that common discounts (to the insured) are relevant to determining the reasonableness of an undiscounted medical bill. Look for a Transfer Petition…Case Note by Dave Allen

E-Filing Follies: Installment One

See the unpublished COA decision of March 11, 2016 in AFSCME v. Gary Police Civil Service Commission. Angela Brown served as administrator of the Gary Police Civil Service Commission. A dispute arose with the police union (AFSCME) as to whether Brown’s job was covered by union rules. The Commission and Brown sued the union and “the Executive Branch of the City of Gary” to settle the dispute. Following some judicial recusals, Lake Superior Court (County Division) Magistrate Michael Pagano became special judge and held a status conference that was not attended by the union’s lawyer. Judge Pagano made a bench order (later mailed but not necessarily delivered) that documents be e-filed. The union lawyer was not registered with the Clerk to participate in e-filing. When the Commission lawyer e-filed a Motion for Summary Judgment, he apparently relied on the e-filing system to give notice to the opposing counsel. That did not occur, and a default summary judgment was entered without service of the motion upon union counsel. Nonetheless, the trial court denied the union’s eventual TR 60(B) motion, and the COA affirmed.

The troubling aspect of this decision is the COA’s failure to appreciate the difference between filing and service of a motion. To my mind, an order to file electronically does not excuse the filer from using an alternative service method to a party of record who has not registered for electronic filing and electronic service. The warning of this decision is that e-filing rules and e-filing orders may be used (as here) to obscure or excuse a fundamental absence of service…Case Note by Dave Allen

Can’t Fight The IHSAA

See the March 11, 2016 COA Opinion in IHSAA v. Cade. Calumet Region residents will recall the background circumstances from just over a year ago when a high school basketball game between Hammond High and Griffith ended in an ugly brawl on the hardwood. The IHSAA (through Commissioner Bobby Cox) quickly met with officials of both schools and then assessed harsh penalties against both, including disqualification from the 2016 State Tournament. The schools and the “individual team members” appealed the penalties to the IHSAA Review Committee, which conducted separate hearings and affirmed the penalties.

Then came the lawsuit as the State Tournament was only days away. A preliminary injunction on the eve of the Tournament required the IHSAA to allow Hammond High and Griffith to participate. Citing SCOTSI precedent, the COA held that the IHSAA is a “voluntary association” whose rules are viewed as a contract with its members. Absent “fraud, illegality, or abuse of civil or property rights,” Indiana courts will not interfere with the internal affairs of a voluntary association. While holding that the Lake Superior Court had improperly issued the preliminary injunction, the COA declared that the individual team members lacked “a legally cognizable interest” warranting their participation. I regard the rejection of student athlete standing as less defensible than the reversal of the Preliminary Injunction.

If it wasn’t clear before, it is clear now that “abuse of discretion,” “arbitrary and capricious” actions, inconsistency in assessment of penalties, and general unfairness are no longer available as defenses against the IHSAA. I do not suggest here any opinion that the IHSAA went too far in the penalties against Griffith and Hammond High. I do mean to suggest my opinion that the IHSAA is a bully, particularly in the area of a student athlete’s eligibility following a school transfer. Maybe your State Legislators can find a solution…Case Note by Dave Allen.

Crime and Free Speech

The case is Holloway v. State decided February 18, 2016 in the COA. The intersection between the criminal code and First Amendment freedom of speech seems mostly occupied by Disorderly Conduct cases. See, for instance, Price v. State, 622 N.E.2d 954 (Ind. 1993). On February 18, 2016 the COA handed down a split (2/1) decision on an Intimidation case entailing free speech issues. It is ironic that cursing or threatening the police, as opposed to a neighbor or a girlfriend, is more likely to come under First Amendment protection as (favored) “political” speech. The type of speech afforded this highest legal protection is also the type of speech most likely to result in the speaker’s arrest. The COA majority affirmed the Intimidation conviction of an agitated DUI detainee who threatened an officer with some unspecified harm while handcuffed and otherwise impaired. I was delighted with the dissent of Judge Bailey who exposed the case as a criminalization of speech and further reasoned the absence of any genuine threat in the detainee’s profane, combative words…Case note by Dave Allen

Adverse Possessors vs. Tax Sale Purchaser

On February 16, 2016 the SCOTSI handed down its first transfer opinion since January 28, 2016. The case of Bonnell v. Cotner, 35 N.E.3d 275 (Ind.Ct.App. 2015) was wrongly decided in the COA last year. The controversy is at the intersection of adverse possession and tax sales. As the topic suggests, there was a narrow strip of land that became adversely possessed by owners of adjacent lots. When the narrow strip came up for tax sale, there was no notice to the adverse possessors who probably thought they were paying the taxes. It is clear from the SCOTSI Opinion that an adverse possessor’s reasonable (but mistaken) belief that he has been paying all the real estate tax on the subject land may be availing against the owner of the land (during the period of adverse possession) but not against a subsequent tax sale purchaser. Likewise, any prescriptive easement claims of the adverse possessor are extinguished by the tax sale…Case note by Dave Allen.

Give Me A Sign

See the COA Opinion of January 19, 2016 in Coleman v. State, a successful appeal of a speeding conviction. For the rural road in question, there is a “default” speed limit of 55 mph according to IC 9-21-5-2. A local government may then modify that “default” speed limit by ordinance according to IC 9-21-5-6. Here a Lawrence County Ordinance had changed all the 55 mph zones to 35 mph unless posted otherwise. According to the County, it did not need to post signage of the modified speed limit. According to the COA and IC 9-21-5-6(c), the County was obliged to post signs of the 35 mph speed limit. For lack of appropriate signage the speeding conviction below was reversed. Nice dicta here about a sign for southbound motorists not constituting notice to northbound motorists and the tangent notion that a motorist’s applicable speed limit may depend on his direction of travel as opposed to his general location…Case Note by Dave Allen

How to Sue Yourself

The January 19, 2016 published Opinion of the COA pertaining to the priorities of liens against real estate will forever be cited as Amici Resources, LLC v. The Alan D. Nelson Living Trust. The twist is that principal appellant Amici Resources, LLC is also the second named party on the other side of the “v” such that the case could be cited as Amici Resources, LLC v. Amici Resources, LLC. The awkwardness of the caption results from a multiplicity of parties and claims and the apparent inability of the caption’s author to express the affiliations in a more rational fashion. Do not fret…Amici Resources, LLC did not sue itself; nor did the COA give tacit approval to a legal entity suing itself.

As for substance, the Opinion parses the real estate lien priorities among a judgment creditor followed by a purchase of real estate and “simultaneous” purchase money mortgage followed by a second mortgage. Per IC 32-29-1-4 and case law and the Restatement, a purchase money mortgage has priority over a prior judgement lien against the purchaser. You probably knew the point of law but not the statutory citation.

Another palatable morsel of law from the Opinion is the reference to the “stranger to the contract rule” as an exception to the rule against parol evidence to explain terms of a written instrument that are clear and unambiguous. Here a party to the contract in question offered parol evidence against a litigant who had not been a party to the contract…Case Note by Dave Allen