2019 Appellate Case Notes
The Blue Eraser and Practice Tips for
Drafting your Overreaching Noncompete Agreements
The case is Heraeus Medical, LLC v. Zimmer, Inc., et al, decided (5/0) December 3, 2019 in the SCOTSI. The general subject of this Opinion on Transfer is the typical “noncompete” agreement of high-value workers effective upon a separation from employment. A similar “noncompete” agreement may be found in contracts for the sale of a business. Each form of a “noncompete” agreement attempts to prevent unwelcome competition from a former employee or former owner of a business.
By definition, a “noncompete” agreement is in restraint of trade and (thereby) disfavored in the law. Such an agreement will be enforced judicially only if it is reasonable in its terms, which often include durational and geographical bounds. Moreover, there must be a genuine protectable interest.
In the case at bar Zimmer employed Robert Kolbe. Kolbe’s contract contained a “nonsolicitation” covenant intended (by Zimmer) to prevent Kolbe (after departure from Zimmer) from the recruitment of Zimmer employees to work for any competitor. Kolbe left Zimmer and joined Heraeus, a competitor. Kolbe hired sales agents including some who had previously worked for Zimmer.
Zimmer sued for injunctive relief and damages respecting the alleged breach of the nonsolicitation covenant. Heraeus appealed the trial court’s preliminary injunction against violation of the nonsolicitation covenant. The Court of Appeals found that the nonsolicitation covenant was overbroad in that it applied to all Zimmer employees. On the other hand, the COA held that a “reformation” clause in the agreement between Zimmer and Kolbe permitted the judicial modification of terms otherwise invalid by reason of overbreadth. Accordingly, the COA salvaged the overbroad nonsolicitation covenant by declaring it applicable to only those Zimmer employees “in which the company has a legitimate protectable interest.”
Chief Justice Rush authored the SCOTSI Opinion rejecting the COA rationale and reversing the trial court’s grant of a preliminary injunction in favor of Zimmer. The SCOTSI held that a reformation clause permitting or inviting a trial court to re-write an overbroad restriction from a noncompete agreement should not prompt a trial court to actually re-write an overbroad restriction. In other words, a contractual reformation clause in the context of a noncompete agreement must be ignored. In still other words, the judiciary should honor the intent of parties to a contract by ignoring a reformation clause that is not inherently contrary to law or public policy.
The SCOTSI’s explanation for its anti-reformation clause rule is that the implementation of such a clause runs counter to Indiana’s “blue pencil” doctrine which is more of a “blue eraser” doctrine. Generally, the blue pencil doctrine allows a trial court to edit (by deletion and/or by addition) a noncompete agreement that is overbroad (and thereby not reasonable) into an agreement with reasonable terms. In Indiana the eraser end of the blue pencil prevails over the graphite such that a court may erase or remove an unreasonable term only if doing so requires no new text. In its vacated Opinion the COA reduced the classes of Zimmer employees that Kolbe was forbidden to solicit but did so by reforming the anti-solicitation clause with new words. Had the anti-solicitation clause been written with an itemization of all protected classes of Zimmer employees, the COA could have reached its (vacated) result by using only the eraser end of its blue pencil and thereby not triggering the hard scrutiny of the SCOTSI.
So here’s the practice tip. If you spend a few thousand hours training your executive employee and share your trade secrets with him, then you don’t want to have him leave for work with a nearby competitor, at least not immediately upon leaving your employ. You have an interest in time and distance. If you want your departing executive to be barred from your trade for 10 years, do not write “10 years” in the noncompete agreement. Instead, write that the bar applies to the following (concurrent) time periods: 1 year; 2 years; and so on to 10 years. By utilizing such counter-intuitive drafting, you allow a court to trim overbreadth into reasonableness with only the eraser end of its blue pencil.
As for geographic limits of the noncompete agreement, list each state of the union or express the geographic bounds as that area: within a 10-mile radius of the principal office; within a fifty-mile radius; and so forth until the radius is hundreds of miles. By adopting eraser-friendly overbreadth you preserve the chance of saving the most meaningful parts of your noncompete agreement. Then again, you could simply draft your noncompete agreements without overbreadth.
The CLB views as silliness an inflexible blue pencil rule intended to allow the judicial trimming of overbreadth in a noncompete agreement but solely through the deletion of words and never by means of added words which would trim the targeted overbreadth. For instance, the COA in its vacated Heraeus Opinion added words to the effect of reducing the scope of the subject nonsolicitation covenant. Accordingly, the COA Opinion was vacated in that it had reached an allowable result (trimming an overbroad term of the nonsolicitation covenant) though the disallowed use of the wrong end of the blue pencil. . . . Case Note by Dave Allen
Deception and CR 4
In two cases from opposite ends of the State prosecutors pull the same lame trick (which the trial courts embrace) until the COA sets things straight according to law (but not necessarily according to justice). The first of the two cases was Dilley v. State, decided October 23, 2019 in the COA. You can find the CLB’s review of the Opinion in a 2019 case note titled “Two Opinions of Interest.” In this appeal by Kyle Scott Dilley of multiple drug-related convictions the COA reversed for error in the trial court’s grant of a postponement of trial (on the State’s motion) based upon the supposed unavailability of laboratory testing results of suspected drugs.
The tension between the postponement of trial and the substantial rights of the defendant arose from the circumstances that Mr. Dilley was in custody as a pretrial detainee and that he had filed a motion for a speedy trial under Indiana Criminal Rule 4(B)(1), entitling him to be tried within 70 days of his motion, subject to very few exemptions.
One of the exceptions to giving a detainee the speedy trial that he requests resides in CR 4(D). When there is a showing that evidence for the State cannot be had in time for the speedy trial despite “reasonable effort to procure the same,” the trial court may extend the 70-day speedy trial period by as much as 90 days. In the case of Kyle Scott Dilley the suspected drug samples were not conveyed to the ISP Lab for testing until after the State’s motion for postponement of trial had been filed. Prior to conveying suspected drugs to the ISP Lab the State had been in possession of the suspected drugs for nearly two full months. The State’s Motion and argument thereon were crafted to create the false impression that the State had exercised diligence with respect to drug testing. That deception was laid bare in the COA.
While Mr. Dilley was prosecuted in LaPorte County, Jarvis Peele was prosecuted in Clark County for offenses including possession of methamphetamine as a Level 6 felony. The appeal in Peele v. State was decided November 20, 2019 with a COA reversal of the convictions. The decisive error was that trial court’s grant of the State’s Motion to postpone Peele’s trial to a date outside the presumptive deadline arising from his speedy trial request.
As in Dilley, Jarvis Peele was a pretrial detainee who demanded a speedy trial. Also as in Dilley, the State requested a postponement of trial on the true (but deceptive) assertion that it had not yet received results from the ISP Lab. As in Dilley, the State had been in possession of the suspected contraband for a couple of months¹ before conveying the substance to the ISP Lab. As in Dilley, the State’s Motion was crafted to conceal its own lack of diligence. As in Dilley, the trial court granted the postponement of the trial which resulted in the appealed convictions. As in Dilley, the Peele COA panel reversed on grounds that the State had compromised a defendant’s speedy trial rights under CR 4(B) without having made reasonable (timely) efforts to obtain essential lab results.
Both cases involve deceit perpetrated by the State. An open question is whether there will be disciplinary consequences. The CLB (which has no vote in the matter) favors disciplinary scrutiny of prosecutorial deceit in these two cases. As a citizen, I don’t want to see Kyle Scott Dilley and Jarvis Peele going free after committing felonies. All the State had to do was either exercise diligence in submitting samples for lab testing or move to release the defendants on their recognizance before their speedy trial rights were violated. There is no need of Transfer in these cases. If Transfer is requested (by the State) and accepted, the two cases seem to be a perfect match for consolidated consideration . . . Case Note by Dave Allen
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¹ The Opinion mentions the month of arrest but not the day of arrest such that the precise period of the State’s delay is not discernible.
No Due Process for PTD Revocation
The case under review is Schenke v. State decided November 13, 2019 in the COA. James Schenke had been arrested on a charge of battering his wife. On his release from jail Schenke signed a 10-day no-contact order. The next day he committed a technical violation of the no-contact order by being within sight of the marital home (where his wife resided) while dispatching a friend to the residence to pick up some personal effects. Schenke was arrested and charged with Class A Misdemeanor Invasion of Privacy per IC 35-46-1-15.1
In the course of the prosecution for Invasion of Privacy Schenke and the prosecutor entered into a one-year Pretrial Diversion (PTD) Agreement. One requirement or condition of the Agreement (designed to result in dismissal of the charge after a year of compliant behavior) was that Schenke attend, complete, and pay for a “Character Restoration Program” within 6 months. He failed to do so, and the State “petitioned” to revoke the PTD Agreement and proceed to trial. The trial court accommodated the State by granting its “petition” without a hearing. Schenke was tried (to the court) and convicted without being afforded counsel.
Schenke appealed on grounds including the revocation without hearing and deprivation of his right to counsel at trial. He won a reversal/new trial for the latter error. The problem which prompts this case review is that the COA also held (erroneously, in the opinion of the CLB) that the trial court need not have afforded Schenke a hearing on the revocation of the PTD Agreement.
Here’s “lesson one” on procedural due process. Prior to deprivation (by State action) of life, liberty, or property, there should be notice and a hearing (before a neutral magistrate), or at least the opportunity for a hearing, preferably (but not always) a pre-deprivation hearing. What constitutes a “due process hearing” is variable with the circumstances and is not so well-settled (in the opinion of the CLB) as it should be.¹ In the case of James Schenke a due process hearing would probably have included the aid of a public defender and the opportunity to explain his reasons, if any, for failing to complete the “Character Restoration Program” within the time allowed. It seems to the CLB (on the hypothetical level) that Schenke could have had rational, or even compelling cause for his noncompliance.
To the CLB it is intuitive that procedural due process rights are implicated in a prosecutor’s election to revoke or to declare a fatal breach of a pretrial diversion agreement. Such intuition is not necessarily universal within the legal community. The question reached the COA in 1998 on “first impression.” The case was Deurloo v. State, 690 N.E.2d 1210 (Ind. Ct. App. 1998) wherein the COA split 2/1 as to the due process issue. The majority held that there was “no liberty interest” at stake in the prosecutor’s unilateral, unscrutinized decision to void the pretrial diversion agreement. The COA majority approved the prosecutor’s election without a hearing or opportunity to explain or contest the prosecutor’s asserted grounds. While concurring in result (on waiver grounds) Judge Sullivan opined that Debra Deurloo, at a minimum, deserved “notice and an opportunity to be heard” on the allegation that she had breached her PTD treatment. Sullivan was right, but the holding of Deurloo has not been overturned. The essential false premise of the error in Deurloo and Schenke is that the status of a “pretrial divertee” is so distinct (constitutionally) from that of a probationer, parolee, or participant in a drug treatment program that the due process entitlements of the such individuals are inapplicable to the “divertee,” even though (and perhaps because) the “divertee” has not yet sustained a conviction. In short, the COA position is that the not-yet-convicted defendant has less due process protection than a convict.
From an alternate perspective, one can examine the PTD Agreement as a contract. If you and I enter into a contract, and if you then claim revocation due to my alleged breach, I am entitled to some measure of due process (in court should either of us sue) in light of my property interest in the contract. Where a PTD Agreement requires law-abiding behavior, then every day that the defendant refrains from the commission of new offenses is consideration for the contract and evidence of his property interest in the contract intended to result in a dismissal of criminal charges. The property interest aspect of a PTD Agreement received no attention in the Deurloo or Schenke Opinions.
While there should be a Transfer Petition from the Schenke defense, it is unlikely that one is forthcoming. After the AG confessed error (in the Appellee’s Brief) as to deprivation of (indigent) counsel at Schenke’s bench trial, Appellate counsel for Schenke declined to file a Reply Brief. It seems that remand for a new trial was victory enough though it should not have been.
Given the improbability of the judiciary correcting the error of Deurloo and Schenke, it would be gracious of our General Assembly to amend IC 33-39-1-8 by adding thereto the requirement of an opportunity for a due process hearing upon the prosecutor’s election to revoke a PTD Agreement . . . Case Note by Dave Allen
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¹ See, for instance, Morrissey v. Brewer, 408 U.S. 471 (1972) respecting the due process elements of probation and parole revocation hearings.
The Parolee and the Fourth Amendment
I do not like the COA Opinion of October 30, 2019 in State v. Harper, a reversal of the trial court order suppressing evidence from a warrantless search of the home and rented storage unit of parolee Tyree Harper. Mr. Harper was on parole from the Indiana Department of Correction following his conviction for possession of a firearm by a “serious violent felon” (SVF). This means he had at least one “violent” felony conviction before the conviction related to his parole. Harper signed a “parole agreement” by way of which he consented to the “reasonable search” of his person, residence, and other property under his control upon “reasonable cause to believe” that Harper was violating or “in imminent danger of violating” a condition of parole. While this consent, without which there would have been no parole, is a substantial waiver of Fourth Amendment rights, the intrusion (twice) of the term “reasonable” declares that the waiver is not a total abandonment of rights.
Harper’s parole officer called Harper in for a parole meeting after receiving an anonymous report that Harper was traveling to New York without permission and dealing narcotics in Indianapolis, both activities being parole violations. The anonymous informant also reported that Harper rented a storage unit on Mitthoeffer Road.
In the course of the parole meeting Harper tested positive for cocaine and admitted interstate travel without permission. He was arrested for these two parole violations and taken into custody at the parole office.
Even though Harper was in custody for parole violations the parole officer wasn’t done. He went to Harper’s home with Harper in tow to conduct a warrantless search. Please note that there was absolutely no emergency in that Harper was already in custody for parole violations. It is unlikely that there was evidence of interstate travel at Harper’s home. There could have been evidence there of cocaine use or possession though none was found. What the parole officer did find (and seized) was a simple receipt that would not typically be incriminating. The receipt was for a storage unit on Mitthoeffer Road. Again, there was no emergency in that Harper was in custody and also in possession of the storage unit key. Still, the parole officer proceeded to the storage unit (with Harper in tow) for a second warrantless search. Please note that the anonymous snitch had not reported that any contraband or evidence of a crime was located in the storage unit. If the parole officer had reason to believe or even to suspect illegality in the contents of the storage unit there was no articulation of that in the COA Opinion.
The parole officer unlocked the storage unit to find a handgun and drugs. Then he turned the search over to an IMPD officer who (by chance?) just happened to be there. Remarkably, the COA described the firearm and drugs as being “in plain view,” oblivious to the circumstance that they were behind a locked door that was opened without a warrant. Whenever there is such a description you can expect that the Fourth Amendment is about to take a beating.
The IMPD then abated the search while obtaining a warrant and then seized the gun and drugs, including about 29 ounces of cocaine plus some oxycodone pills laced with heroin. Harper was sent back to the DOC. His parole violation was not part of the reviewed appeal. The appeal (by the State) was of the trial court’s suppression of evidence from the storage unit which involved a warrant only after the evidence was found. The trial court had found that the pre-warrant search of the storage was violative of the Fourth Amendment and Article 1 Sec. 11 of the Indiana Constitution despite Harper’s diminished privacy rights as a parolee.
Now back to those diminished privacy rights. Harper’s parole agreement (set out in part above) conceded only to his parole officer and DOC officials the right to conduct a “reasonable search” on “reasonable cause to believe.” Harper’s agreement applied to “parole searches” as opposed to “investigatory searches” (conducted most often by police) to uncover evidence of new criminal activity. The trial court agreed, as does the CLB.
There is value in the COA Opinion’s listing and analysis of case authority on the diminished privacy rights of probationers and parolees. One relevant holding of the case law is that an alleged “probation search” cannot be a mere subterfuge enabling police to avoid the warrant requirement. The position of the CLB is that there was subterfuge at Harper’s storage unit and that the trial court suppression ruling was correct. It is also the position of the CLB that a “reasonable search” of a parolee or of property under his control may (but not presumptively) require a warrant when there is no demonstrable emergency . . . Case Note by Dave Allen
Two Opinions of Interest
The Law, or a law practice, can be a demanding mistress. Lately while tending to the demands of my practice I seem to have neglected the CLB, even though I have been working intermittently on my “Odds & Ends” conclusion to the “Odd Cops” series of featured articles. To atone, here are a couple of opinions of interest from the COA.
The first of the two Opinions is Madison Consolidated Schools v. Thurston, decided October 23, 2019. Trisha Thurston was a school bus passenger injured in a collision. School District insurer Liberty Mutual contacted Trisha’s mother (Trisha being a minor) and recommended waiting until Trisha’s medical treatment was complete before talking settlement. They mentioned the two-year period generally applicable to personal injury claims and mentioned how the limitations period could be extended to two years beyond Trisha’s 18th birthday. However, Liberty Mutual stayed mum about the 180-day deadline for the timely filing of a notice of tort claim pursuant to IC 34-13-3-8. When Trisha filed suit before her 20th birthday but without having served a timely notice of tort claim, the School District moved for summary judgment. The trial court denied summary judgment, holding the School District liable for the deceptions of its insurer and declaring the District “estopped” from asserting the defense of the absence of a timely notice of tort claim. The COA affirmed. Expect a Transfer Petition.
The second opinion of interest is on the criminal side, Dilley v. State. The Dilley COA panel reversed Kyle Scott Dilley’s convictions for multiple drug offenses (dealing and possession). The COA described the issue on appeal as whether the trial court erred in continuing a trial date (on the state’s motion) due to unavailability of lab test results. That description of the issue is inadequate in that it fails to mention the Criminal Rule 4 background. The reversal was not simply for the granting of a continuance but rather for the consequent violation of Dilley’s right to a speedy trial within 70 days of his motion for such under CR 4(B). The State responded that discharge for delay should be refused under CR 4(D), which may authorize an additional 90 days of incarceration without trial or discharge for delay.
To grant a CR 4(D) continuance, the court must be satisfied that the state made a “reasonable effort” to procure the absent evidence. The problem here was that the State had wasted nearly two months post-arrest without delivering suspected drugs to the ISP Lab and did not do so until after it filed its motion to continue trial . . . Case Note by Dave Allen
“Virtually Present?” on Transfer
In the CLB’s 2018 Appellate Case Notes there is an account of the COA Opinion in C.S., Jr. v. State from September 19, 2018. The issue of note was the propriety of conducting a juvenile disposition modification hearing (for a delinquent) where the child appeared remotely by video conferencing. The COA affirmed the disposition decree committing C.S., Jr. to the Department of Corrections. The CLB case note ended with the observation that “the case begs for consideration on Transfer” while not actually predicting a grant of Transfer.
Transfer was granted to C.S., Jr. and to another juvenile (Z.T.). The cases were consolidated, and a slightly divided SCOTSI (David, J. dissenting in part) upheld the DOC commitments. In so doing the SCOTSI held that Administrative Rule 14(B) applies to remote appearances of a delinquent juvenile for a disposition-modification hearing. The Rule requires consent or a finding of good cause before use of the video conferencing. Below the trial judge had no consent and made no findings of good cause, thereby proceeding in violation of Rule 14(B). However, the juveniles and their public defender failed to object, leaving the question on appeal whether the error below was fundamental error that survives a waiver or common error that does not survive the waiver of silence. A majority of four Justices held the error to be less than fundamental.
No right of an accused (adult or juvenile) bestowed solely by a procedural rule will be deemed fundamental. For there to be fundamental error there must be a violation of due process. The CLB agrees with Justice David’s lone dissent asserting that the error below was fundamental.¹ This case appears to the CLB as a great candidate for Certiorari . . . Case Note by Dave Allen
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¹ Though asserting fundamental error, Justice David (oddly) described the error as merely a violation of Administrative Rule 14(B) and not as a due process violation.
What’s an MCS-90¹ Endorsement?
The case is Prime Insurance Co. v. Wright, decided September 26, 2019 in the COA. While the case concerns intervention (by an insurer) there is no mention of TR 24. While the case has the feel of a “standing” dispute, there is no mention of standing. A Motor Carrier driver allegedly caused personal injury. The Motor Carrier failed to cooperate with its liability insurer, Prime, which filed a declaratory action to obtain relief from duties to defend and to indemnify under its conventional liability policy. Meanwhile the injured man sued Motor Carrier and others. Motor Carrier ignored the lawsuit and was defaulted. Prime was allowed to intervene though the trial court denied Prime’s motion to set aside the default (for $400,000.00) against Motor Carrier. Obviously, Prime had no interest in protecting its liability coverage after obtaining declaratory relief absolving it of responsibility on its liability coverage. Still, Prime remained in jeopardy on the “MCS-90″ endorsement with Motor Carrier, a form of surety in addition to the liability insurance required of a motor carrier. It seems that the MCS-90 endorsement liability cannot be cast off by the insurer (as in the case of motor vehicle liability insurance) by raising a “policy defense” (such as noncooperation).
The appeal by Prime asserted abuse of discretion in the trial court’s denial of Prime’s motion to set aside the default against Motor Carrier. Since Prime won a judicial release from responsibility on its liability policy, its remaining interest was one of its apparent jeopardy on the MCS-90 endorsement. But Prime indicated its plans to contest applicability of the MCS-90 endorsement under the facts of the case.
The COA responded with the holding that Prime’s intended contest of responsibility under the MCS-90 endorsement rendered its interest in the case below “contingent,” as opposed to “cognizant.” Prime’s positions of contesting responsibility on the MCS-90 endorsement while attempting to (re)litigate issues of liability and/or damages in the injury suit were held incompatible. The COA applied the rule applicable to an insurer under a conventional liability policy in holding that the trial court did not err in denying Prime’s motion to set aside the default against Motor Carrier . . . Case Note by Dave Allen
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¹ See Carolina Cas. Ins. Co. v. Yates, 584 F.3d 868 (10th Cir. 2009) for a better explanation than provided in the text of this appellate case note.
The Intersection of Outage Immunity and the Intersection
A tree branch fell to the storm. A power line fell to the branch. A traffic light fell dark and stayed dark for eight hours when a horrible motor vehicle collision took place between two vehicles on perpendicular paths. During the power outage there were multiple calls to Indianapolis Power & Light (IPL) which both supplied the electricity and “operated” the traffic signals. The case is Tyus v. Indianapolis Power & Light decided September 16, 2019 in the COA.
The case reached the COA by way of discretionary interlocutory appeal after the trial court awarded partial judgment on the pleadings to IPL to the effect of dismissing the Tyus family claim based on negligence while leaving intact the claim of gross negligence or reckless conduct. The COA restored the simple negligence claim and affirmed as to the gross negligence reckless conduct claim.
IPL lost on two damnable theories of defense, the first being that it owed no common law duty to the Tyus family (who, incidentally, were not IPL customers). The second damnable theory rejected by the COA was that IPL had applicable immunity by way of a “release” clause in the IURC’s “2016 Tariff,” being administrative regulations that set rates and rules for the supply of electricity to customers. The “release” clause declared the following:
24.2 [IPL] shall not be liable for damages resulting to the Customer or to third persons, from the use of electricity, interruption of service or supply, or the presence of the [IPL]’s property on the Customer’s premises, unless due to willful default or neglect on the part of [IPL]. ¹
Clearly the “release” clause purported to modify the rights of both customers and “third persons” claiming damages from a service outage. The Indiana Utility Regulatory Commission (IURC) has statutory authority to set rates and to issue regulations. The COA held that the immunity of the “release” clause, as applied in the trial court to noncustomers, was beyond the delegated authority of the IURC. A more narrow question would arise if members of a customer family were injured at a dark intersection far from the home where they received IPL services.
There will be a Transfer Petition. For good or ill, Transfer will be granted . . . Case Note by Dave Allen
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¹ A public utility may contract with favored customers (usually industries) for an electricity supply that is uninterrupted or subject to only brief interruptions. As for the rest of us, there is no real recourse against the utility company for an outage.
Rent-to-Buy is Renting
The case is Rainbow Realty v. Carter, decided unanimously in the SCOTSI September 13, 2019. An Indianapolis real estate management company entered into a “rent-to-buy” agreement with Carter for premises that were not habitable. The agreement left Carter responsible for extensive repairs to achieve habitability. The “rent-to-buy” agreement was somewhat ambiguous in terms suggesting it was a lease amid terms suggesting a land sale contract. The trial court held that agreement was a lease and that Rainbow (as “Lessor”) had breached the statutory duty of habitability under IC 32-31-8. The case came to court when Carter fell behind on “rent” and was sued (for the 3rd time) for eviction. Rainbow wanted Carter gone plus nearly $20,000.00 in attorney fees and damages. Carter counterclaimed on the habitability issue and was awarded damages with (contractual) attorney fees. The trial court also awarded deceptive practices damages that were reversed on transfer after the COA reversed the trial court and held for Rainbow.
On Transfer, the unanimous SCOTSI held that Carter was a renter of a residential dwelling and that Rainbow had breached a non-waivable duty to deliver the premises in habitable condition. See IC 32-31-8-4 and IC 32-31-8-5.
Advice to Landlords: If you have a unit that is not habitable and a prospective tenant who is willing to take the place “as is” and to do the rehab himself, then purge such terms as “rent,” “tenant,” and “lease” from your written agreement. At Article 1 Sec. 24 of the Indiana Constitution there is the declaration that “No . . . law impairing the obligation of contracts shall ever be passed.” The CLB found no mention of this freedom-of-contract provision in the SCOTSI Opinion . . . Case Note by Dave Allen
Death & Divorce
The case is Hamilton v. (Estate of) Hamilton, decided August 16, 2019 in the COA. In 2017 Donna Hamilton filed a petition to dissolve her 1986-vintage marriage to Robert Hamilton. There were no children of the marriage, but Robert had adult daughters. After Donna’s filing Robert visited his financial planner, Thomas Rillo, to inquire about changing his designated IRA beneficiary from his wife to his daughters. Rillo advised Robert to bring a copy of his dissolution decree to accomplish the change¹.
Donna and Robert reached an Agreement incorporated into their October 2, 2017 dissolution decree. It provided for the 50/50 division of an IRA balance of nearly $390,000.00. The Agreement required that Robert “take all necessary steps” to partition Donna’s IRA share within 30 days of the decree. One week post-decree Robert went to Rillo’s office, which was closed for a holiday. He returned the next day and left his dissolution decree with office personnel while Rillo was away on vacation.
Robert then sustained critical injuries in an auto accident and died on the 10th post-decree day without having completed the 50/50 division of his IRA or the change of his designated beneficiary. In other words, Donna was still Robert’s designated survivor beneficiary on Robert’s death. Did the Agreement change that status? Did the divorce change that status?
Many divorced men are too lazy to change their life insurance beneficiary from the ex-wife to some more favored relative. Divorce does not, as a matter of law, alter a life insurance beneficiary clause. What about a will that leaves property to the wife who then divorces the testator? Absent a clear showing of contrary intent, divorce takes your spouse out of your will. What about real estate? If husband and wife own real estate (by the entireties) with rights of survivorship, divorce ends the “unity” of marriage, leaving the parties as tenants in common, unless the decree provided otherwise.
The lesson here is that family lawyers and their clients need to be careful about beneficiary designations and survivorship property. Robert Hamilton was exercising reasonable diligence until he died at a most inconvenient time. Robert’s death set the stage for battle between natural enemies: the second wife; and the adult children of the first wife. True to form for a second wife (divorced or not), Donna claimed all of the IRA under the divorce cause number while an Estate for Robert was pending under the direction of the daughters.
The trial court entered summary judgment (favoring the Estate) to the effect that Donna would receive her 50% of the IRA in accordance with the martial property settlement but nothing by way of the beneficiary designation that seemed valid as of Robert’s death.
The COA affirmed on alternate theories, the first of which is waiver, to the effect that Donna waived her contingent interest under the beneficiary designation by agreeing in the marital property settlement to a vested 50% share. This is a rational theory favored by the CLB. The second theory is that there was “substantial compliance” on Robert’s part to change the beneficiary designation and, accordingly, that the change should be deemed complete. This second theory invites pure chaos and should be disapproved . . . Case Note by Dave Allen
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¹ The financial planner’s demand for a dissolution decree seems inexplicable. The CLB knows of no statutory bar to changing an IRA beneficiary where a divorce is pending. There is no mention of an injunction against such a change.
A Warrantless Opening of the Sock
The 15th day of August may be remembered by Judge Bradley Jacobs of the Clark Circuit Court. He was reversed twice on the same day with both reversals in “for publication” Opinions. The first reversal was from Laboa v. State, wherein Judge Jacobs erroneously denied a PCR Petition without ordering Affidavits or granting a hearing. Laboa does not inspire the interest of the CLB.
The more interesting reversal of the day for Judge Jacobs is in the case of Peele v. State. Peele had been a front seat passenger in a vehicle stopped for a traffic violation. On scene of the traffic stop Jeffersonville PD Officer Bauer “interacted” with the driver and ultimately arrested him on an open warrant. Meanwhile, Officer James “interacted” with passenger Peele and noted visible signs of Peele’s anxiety, including the avoidance of eye contact, a throbbing carotid artery, and “furtive” hand movement. Officer James was concerned that Peele might be armed and (reasonably) asked him to step outside the vehicle for an “officer safety” weapons patdown. Such patdowns for “weapons” are too often the means for the “plain feel” discovery of that little bag of cannabis in a pants pocket.
Here Officer James detected (by feel) a “large object” in the front of Peele’s waistband and suspected that it was a weapon or drugs. Peele was already in handcuffs when Officer James escorted him to the trunk of the vehicle. It was then that a “potato-shaped” sock was seen to have rolled out from a leg of Peele’s pants. The sock and its contents may have been the previously detected waistband mass. Of course, Officer James retrieved the sock and searched its contents to find methamphetamine, marijuana, and illicit pills.
Officer James had a right to pat down Peele for weapons on his person that might be used against an Officer. But Peele was handcuffed, and the sock was not on his person when Officer James conducted his warrantless search of it. He testified that he thought the sock held “possibly a weapon.” The COA rightly held that Officer James’ afterthought of “possibly a weapon” of unknown genre stuffed into a “potato shaped” sock was insufficient as “plain feel” discovery to authorize an additional warrantless search. Officer James further seemed not to appreciate the circumstance that the hypothetical weapon of his imagination was not within the reach or use of the handcuffed Peele.
Trial Court Judge Jacobs overruled Peele’s motion to suppress. The COA rightly reversed. A transfer Petition by the AG would come as no surprise . . . Case Note by Dave Allen
Barely Buried
No, this note is not about a body in a shallow grave. Rather, it is about the fate of a NIPSCO gas supply line, of which one section was covered with only an approximate two inches of soil. The case is Northern Indiana Public Service Company v. Josh’s Lawn & Snow, LLC decided August 14, 2019 in the COA.
The case presents two important statutes. One is the so-called Underground Plant Protection Act (UPPA) found at IC 8-1-26. The other is the Comparative Fault Act found at IC 34-51-2. The UPPA is the statute under which NIPSCO will sue you when your backyard excavation ruptures a gas supply line. The UPPA does not apply to damage wrought by a homeowner wielding a hand tool to a depth not more than 12 inches. In the case on appeal the depth of the excavation was merely an inch or two but was performed by machine operated by a person other than the homeowner.
The scene of origin for the NIPSCO claim was a subdivision under construction in Schererville. After a gas supply line had been installed at a residential site, the builder hired Ziese & Sons Excavating, Inc. (Ziese) to grade the soil around the home and to create a drainage swale. In other words, Ziese was engaged to create a slope in the lot to promote surface water drainage to an area away from the residential structure. Accordingly, Ziese moved a lot of soil. In doing so, Ziese left the gas supply barely buried under maybe two inches of soil.
Because Ziese did not actually puncture or otherwise damage the gas supply line, NIPSCO had no statutory cause of action against Ziese under the UPPA. NIPSCO went further to argue that Ziese owed no legal duty of care to NIPSCO to maintain any certain depth of soil cover over the gas line. The CLB holds that a common law duty of care could be imposed upon Ziese to maintain safe soil cover during excavations or to warn about unsafe soil coverage when it knows or ought to know of such.
After Ziese finished there came Josh’s Lawn & Snow, LLC (Josh’s) to handle the landscaping. A Josh’s employee used a Bobcat-style pulverizing machine to loosen or aerate the soil in preparation for sod or grass seed. The device featured one-inch spikes that entered the soil with force. The gas line was punctured, and NIPSCO incurred expenses for which it sought recovery (with costs and attorney fees) in Small Claims Court before Magistrate Michael N. Pagano.
Notably, NIPSCO sued only Josh’s and did so under the UPPA. Josh’s filed an Answer (generally not required in Small Claims) to assert the “nonparty defense” that Ziese had partially or fully caused the damages complained of by NIPSCO. It is noteworthy that Josh’s failed to notify NIPSCO in advance of its intent to “excavate” the surface of the soil so that NIPSCO could mark the location of its underground utilities. IC 8-1-26-16 seems to impose a duty upon excavators of advance notification of such work. Moreover the term “excavation,” as defined in the UPPA, does not exclude surface work.
After a trial Magistrate Pagano found for NIPSCO against Josh’s but attributed 90% of the (comparative) fault to Ziese, leaving Josh’s responsible for a paltry 10%. NIPSCO appealed that attribution of fault and lost in the COA. Nipsco’s theory was that no fault could be attributed to Ziese in that Ziese owed no legal duty to NIPSCO. As mentioned above, the CLB holds that a legal duty could be imposed.
The COA dodged the issue of whether Ziese owed a common law duty to NIPSCO by citing an amended definition of “nonparty” to include a person who causes or contributes to a loss without regard to the presence or absence of a legal duty to the plaintiff . . . Case Note by Dave Allen
Comment: It appears to the CLB that Magistrate Pagano has once again demonstrated his qualification and readiness for elevation to the bench of the Civil Division of the Superior Court.
They’re Back!
After a July break the SCOTSI returned with a bang, handing down four (unanimous) Opinions on August 7 and 8, 2019. Of those four two have caught the interest of the CLB and are discussed below.
Testimonial or Not
The first case of interest is Cardosi v. State, the unsuccessful appeal of Derrick Cardosi’s conviction of murder and his “LWOP” sentence. The interesting part of the SCOTSI Opinion (Massa, J.) is the analysis of that thorny confrontation clause issue from a trial court’s admission of statements of a witness who does not appear at trial. See the foundational case law at Crawford v. Washington, 541 U.S. 36 (2004).
A frequent context for the issue is the too-familiar domestic battery case wherein the complaining witness has made initial statements (to a friend, a 911 operator, or to a police officer) but declines to attend the trial of the accused. The prosecution may claim that all or some of such statements are “nontestimonial” to the effect that their admission (in the absence of the complaining witness) does not offend the confrontation clause. I have read Indiana Appellate Opinions wherein it seems that the exception (for “nontestimonial” statements) all but consumes the rule of adherence to the right of confrontation.
In Cardosi, the statements (of an absent witness) were the post-crime text messages from Cardosi’s accomplice. The SCOTSI affirmed the trial court’s admission (over objection) of the “nontestimonial” messages.
According to the Crawford ruling, a non-exclusive list of “core” types of “testimonial” statements includes: ex parte testimony; extra-judicial “formalized” statements such as affidavits, depositions, or confessions; and other statements made under circumstances suggesting later availability for use at trial.
Case law since Crawford has held the following:
(a) Nontestimonial: call to 911 shortly after an attack;
(b) Testimonial: attack victim’s statement to responding officer after isolation from her abuser;
(c) Nontestimonial: dying victim’s identification of his assailant;
(d) Nontestimonial: battery victim’s identification of her boyfriend/ attacker to both a paramedic and later to a hospital nurse; and
(e) Nontestimonial: three-year-old boy’s statement to teachers identifying mother’s boyfriend as source of his injuries.
In determining whether the text messages from the accomplice were “testimonial” or not the SCOTSI Opinion considered the general issue of whether the “statements” were made with the primary purpose to create “an out-of-court substitute for trial testimony” and the more specific factors of whether the statements were made:
(a) with the primary purpose of ending an ongoing emergency;
(b) in a formal setting; or
(c) to law enforcement personnel.
The SCOTSI concluded that the messages were nontestimonial and thus admissible (in the absence of the sender) without a Sixth Amendment violation.
The Doomed Truant
The second Opinion of interest was handed down August 8, 2019 in the case of Murray v. Indianapolis Public Schools. Suit had been brought by the Co-Personal Representatives of the Estate of the late teenager Jaylan T.R. Murray who was murdered after leaving Arlington Community High School early by way of an unmonitored exit. Jaylan had robbed a pharmacy the night before the day of his murder. Though there was conflicting evidence, it seems that he left school early on the day of his murder either to make a firearms deal or to buy marijuana. The Estate claimed that the School was negligent in failing to properly supervise and monitor students during school hours.
The defense naturally filed for summary judgment arguing ITCA immunity and contributory negligence on Jaylan’s part. The defense could have argued as well that its supervisory duty is limited to students on school grounds or otherwise under the authority of school personnel.
For those who may have forgotten, contributory negligence is not the same as comparative fault. Common law contributory negligence persists as a total defense in claims against governmental entities under the Indiana Tort Claims Act (ITCA). The trial court awarded summary judgment to the defense. A divided COA panel imagined issues of material fact respecting the contributory negligence claim and reversed at 116 N.E.3d 525 (Ind. Ct. App 2018).
The SCOTSI first vacated the COA ruling by granting Transfer and then affirmed the trial court’s grant of summary judgement to the defense. Noted: a child of at least 14 years of age will be held (absent special circumstances) to the standard of care of an adult for purposes of assessing contributory negligence . . . Case Notes by Dave Allen
Rodney the Stalker
The case is Falls v. State, decided July 25, 2019 in the COA. Rodney Falls’ unsuccessful appeal of his conviction of Level 6 Felony Stalking was the subject of a local news story that carried a photo of Rodney. The photo image was just as creepy as the account of Rodney’s stalking of the victim identified only as A.G.
A.G. was motoring East on U.S. 30 near I-65 when she stopped for a red light and saw Rodney Falls driving a car in an adjacent lane. He gave A.G. a friendly wave which she ignored. A.G. proceeded East at the green light. Rodney followed and followed and followed through 5 counties in all to the Warsaw Police Department where Rodney followed, waving again at A.G. as she scurried from her parking space in the visitors’ lot toward the front door of the Police Department. Rodney remained at the scene and was arrested there. It seems likely that Rodney was convinced he had done nothing wrong. Then again, Rodney’s stupidity may exceed his visual creepiness. For instance, he had a bag of marijuana in his vehicle. Provoking a police confrontation when you’re holding a bag of marijuana is fittingly moronic. And Rodney earned himself a vehicle tow by parking in a handicapped space in the PD parking lot.
Rodney’s trial lawyer was considerably smarter but to no avail. Here’s the case for Rodney’s defense. He did not stray from public rights of way where he had a clear right to drive. He brandished no weapon. The only gesture he offered was a wave. Moreover, Rodney’s interaction with A.G. was limited to a single episode rather than repeated episodes.
Rodney’s trial counsel offered a “right to travel” jury instruction which the trial court denied. The COA affirmed the denial of Rodney’s tendered instruction, declaring it erroneous (as a statement of law) by reason of being incomplete. Notably, the definition of “stalk” expressly excludes constitutionally protected activity.
Rodney argued that there was insufficient evidence that he had committed the offense of Level 6 Felony Stalking as set out at IC 35-45-10-1, -5(a). An element of the offense is the knowing or intentional “repeated or continuing harassment” of another. “Harassment” includes the knowing or intentional following or pursuit of another.
Rodney argued rightly that his activity was not “repeated.” The COA missed an opportunity to analyze the alternate “continuing” aspect of stalking behavior. Admitting that “repeated” means “more than once,” the COA confirmed sufficient evidence of guilt under a “totality of circumstances.” Moreover, the COA denied the existence of a “bright-line test” for determining when otherwise legal behavior becomes criminal stalking.
The COA description of the totality of circumstances is seen here as an unintended declaration that the stalking statute is void for vagueness. A criminal prohibition is impermissibly vague when reasonable people can differ as to its meaning.
Not surprisingly, Rodney had a robust criminal history of prior felonies. He was sentenced to 30 months (to serve) on the stalking conviction. The sentence of 6 months for the marijuana possession was suspended to probation. The COA affirmed the propriety of Rodney’s 30-month sentence.
Should A.G. have returned Rodney’s initial wave? I think not. But she needed to find the refuge of a Police Station (as she could have) in much less than 100 miles from the beginning of Rodney’s pursuit . . . Case Note by Dave Allen
The Equine Ambiguity
“A horse is a horse, of course, of course . . .” from the “Mr. Ed” theme song. The COA begs to differ with the “Mr. Ed” truism by holding that not every horse is a “horse.” The case is Paternity of T.M.B featuring Father Robert E. Bush and Mother Julie Mapletoff, as decided June 28, 2019 in the COA. The “Equine Ambiguity” is the most entertaining but only the third most important holding in this appeal from the Lake Juvenile Court and will be discussed below in that order.
Father unsuccessfully appealed the trial court’s decision to include his gambling income (calculated at more than $3,000.00 a week) for purposes of the guidelines calculation of child support for the one child of the parties. Father’s “day job” of sorts was to sit back and collect $423,000.00 per year in Illinois lottery winnings. In the compare/contrast analysis of gambling income versus the oft-excluded “irregular” overtime, the Opinion author uttered the slipshod argument that “overtime earnings depend on the whim [emphasis added] of the employer” . . . spoken like someone who never was or can’t recall ever having been an employer scheduling overtime based on objective need and economic good sense. Given the COA Opinion, Father will be paying child support from gambling income whether he earns it or not. From the tone of the Opinion it seems likely the author would deem father “voluntarily unemployed” if he ever elected to stop gambling. If you (as a lawyer) would like to reduce a parent’s “available” income by the sum of gambling losses, you should cite this case.
The second most important holding of the Opinion pertains to Mother’s CSW credit for her payment of healthcare premiums. At the time of hearing Mother paid an undivided health insurance premium to “Ambetter.” She claimed it was impossible to discover how the monthly cost was allocated between her and the child. Mother claimed one-half the total premium was the child’s portion. She prevailed on that point in the trial court and on appeal. The position of the CLB is that Mother needed to produce evidence of what the insurance cost would be for her as a sole-insured. Subtracting that sum from the gross premium for joint mother/child coverage yields the child’s share. Sometimes an insurance plan will afford dependent coverage (for children) at a flat cost for a sole child or for multiple children. In such cases the dependent coverage expense should be divided by the number of children covered to calculate the expense share of a particular child. Where the addition of a child to dependent coverage increases the premium, that increase is the share of the added child. In the case at bar Mother’s request for CSW credit for the child’s share of her health insurance cost should have been denied or deferred until she provided a proper factual basis.
Now for the third most important holding. Are you ready? Here it is . . . In order to be a “horse” an equine has to cost at least $3,000.00. The foundational holding is that the term “horse” (as in father’s stipulated obligation to buy child a “horse” and a saddle and to pay for riding lessons) was ambiguous. Because Father’s stipulated obligation included the cost of a saddle and riding lessons the term “horse” unambiguously meant a horse that can be ridden by a child.¹ Mother enrolled child not in simple riding classes but rather in classes for the upscale “hunter-jumper” style of riding demanding an upscale horse with special training. Mother wanted Father to foot the entire bill, including a horse exceeding $10,000.00 in cost. She won in the trial court except for the provision that Father could satisfy the “horse” purchase obligation with as little as $3,000.00. The COA rejected Father’s argument that the trial court had modified (rather than merely clarified) the parties’ written stipulation related to Father’s equine duties.
The CLB recommends a grant of Transfer (if requested) in this case . . . Case Note by Dave Allen.
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¹ If necessary to lend meaning to the term “horse,” the trial court was entitled to look within the “four corners” of the parties’ written stipulation. Instead, it seems that the trial court erroneously considered such parol evidence as the account of the girl’s “passion” for riding and the self-interested “expert” opinion of the riding instructor selected by Mother.
No Nonmarital Entireties
In 1985 an aging married couple deeded 46 acres of Rush county real estate to their son Morris and to their granddaughter Tonia as joint tenants with rights of survivorship. The case in the COA is Flatrock River Lodge v. Stout, decided June 14, 2019. It seems that Morris Stout incurred a debt to (healthcare provider) Flatrock and sustained a judgment on that debt (in Rush County) in 2016. With entry of that judgment in the RJO by the Rush County Clerk a judgment lien was created against Morris’ interest in the 46 acres.
In 2018 Flatrock moved (in its collection case against Morris) for foreclosure on its judgment lien, and Morris died. Tonia was a party to the suit by way of intervention in 2016 and contested the foreclosure. It was clear that Tonia received Morris’ interest in the 46 acres by survivorship upon the death of Morris. The disputed issue was whether the judgment lien survived the death of Morris, assuming that it had attached earlier to his interest in the 46 acres. Tonia argued for the application of IC 34-55-10-2(c)(5) which exempts from claims of creditors the interest of a debtor in real estate owned “by the entireties” so long as only one spouse is liable on the debt. If the indebted spouse dies first, the surviving spouse becomes owner of the whole with no lien from the decedent’s debt.
While the trial court was taken in by Tonia’s argument and denied foreclosure, the COA held that the entireties exemption statute would not applied to nonspousal “concurrent owners” of real estate. There is a good review here of the distinctions between joint tenancy and tenancy by the entireties . . . Case Note by Dave Allen
Bad Time to Arrive Home
The case is Hardin v. State, decided May 29, 2019 in the COA. The split (2/1) COA decision affirmed Brian Hardin’s conviction for dealing methamphetamine and the trial court’s denial of Hardin’s motion to suppress evidence. While a residence (described as Hardin’s) was being searched pursuant to a warrant, Hardin arrived in a pickup truck on his way home from McDonald’s.
After parking in his driveway, Hardin exited the pickup with two McDonald’s cups in hand without having noticed the police presence. Then it was too late. Though lacking an arrest warrant for Hardin, the on-scene police had found drugs, $327,000.00 in cash, and other incriminating evidence in the residence so as to permit a felony arrest on probable cause.
The on-scene police had drugs, cash, and the purported dealer all wrapped up, but that wasn’t enough. Detective Joshua Allen (no relation) searched the pickup truck and recovered from under the driver’s seat a bag of more than 100 grams of methamphetamine.
Hardin’s pretrial motion to suppress was denied. His objection at trial was denied. The challenged admission of evidence from his pickup was Hardin’s sole assignment of error in his appeal. Notably, the search warrant for the premises listed the house, a front porch, and the attached garage as the “particular” places to be searched, as required by the “particularity” clauses of both the Fourth Amendment and Art. 1 Sec. 11 of the Indiana Constitution. Hardin made the rational argument that his pickup truck should not be searched pursuant to a warrant that did not mention the pickup truck.
Did the “automotive” exception apply? It was May 29, 2018 when the SCOTUS handed down Collins v. Virginia,¹ 138 S.Ct. 1663 (2018) with its holding that a vehicle on the curtilage of a home is not subject to the automotive exception for other vehicles, for instance, parked on a public street.
But for Hardin the curtilage location of his pickup truck was paradoxical in that a warrant to search a home is said to include the curtilage around the home, whether or not such curtilage is “particularly” mentioned. The ironic result (so far) for Hardin is that his pickup truck had less protection (from search) parked in his driveway than it would have had parked at the curb of a public street.
The CLB sides with the spirited dissent of Judge Mathias arguing the impropriety of the vehicle search under both the Fourth Amendment and Indiana’s Art. 1 Sec. 11. Transfer is merited . . . Case Note by Dave Allen
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¹ You can read about the Collins decision in the CLB’s 2018 Appellate Case note for 5/29/18.
“Anything you don’t say may be used against you”
The case is Kelly v. State, decided on Transfer by the Indiana Supreme Court on May 22, 2019. Delmar Kelly had been convicted below (by way of jury trial) of offenses including dealing drugs.
It seems that Kelly elected to remain silent during the interval between his arrest and the subsequent advisement of Miranda rights. At trial the State offered evidence of Kelly’s post-arrest/pre-Miranda silence as substantive evidence. Kelly failed to object on the correct grounds that admission of evidence of his silence would violate his right to remain silent. The want of a proper contemporaneous objection at trial transformed the case from an appeal of error to an appeal of fundamental error with its much higher threshold.
Moreover, there was the issue that Kelly’s counsel “opened the door” to evidence of Kelly’s silence by way of argument within his opening statement to the jury. Thus, the admission of controversial evidence that should have been an appeal of simple error was transformed into an appeal of invited fundamental error. There was virtually no chance of a reversal for Kelly.
The COA unanimously affirmed in a not-for-publication decision. Then the SCOTSI inexplicably granted Transfer (thereby vacating the COA decision) before affirming Kelly’s conviction of drug dealing. Why did the SCOTSI bother with Transfer when there was neither an opportunity to correct an injustice in the subject case nor an opportunity to clarify a point of law for other cases? The interesting, transfer-worthy subject of post-arrest silence as substantive evidence was obscured in this case by defense counsel’s invitation (of error) and the absence of a proper objection. Perhaps the case was selected for Transfer as the medium for SCOTSI dicta on the described subject.
Writing for the Unanimous SCOTSI Justice David included a useful summary of silence-as-evidence case law. For instance, the prosecution may not use post-arrest/post Miranda silence against a defendant for impeachment or as substantive evidence in its case-in-chief. Doyle v. Ohio, 426 U.S. 610, 618 (1976). A defendant’s post-arrest/pre–Miranda silence can be used by the prosecution for impeachment purposes. Fletcher v. Weir, 455 U.S. 603, 607 (1982). The question of whether the prosecution can use post-arrest/ pre–Miranda silence as substantive evidence in its case-in-chief remains open, according to Justice David.
The SCOTSI has a talent for picking the wrong side of federal constitutional controversies headed for the SCOTUS. For instance: the incorporation of the 8th Amendment “excessive fines” clause into the 14th amendment and the expectation of privacy (for 4th Amendment purposes) respecting one’s cell phone location information. The relevant cases can be located here in the CLB. If the SCOTSI truly respects the 5th Amendment privilege and wishes to join the correct (ultimately prevailing) faction, it should hold at the next opportunity that post-arrest/pre-Miranda silence of a suspect is not admissible as substantive evidence in the prosecution’s case-in-chief. To hold otherwise would be to approve the legal absurdity that an in-custody suspect who has not received an advisement of 5th Amendment rights thereby has fewer of those rights . . . Case Note by Dave Allen
An Unrecorded Deed
The case is Robinson v. Robinson, decided May 13, 2019 in the COA. For the quick, cheap, and efficient transfer of real estate upon the owner’s death, the transfer on death (TOD) deed is the best thing since sliced bread. One aspect of the TOD deed (other than creating no present interest) that sets it apart from most traditional deeds is that a TOD deed must be recorded prior to the grantor’s death. Similarly, a revocation of a TOD deed must be recorded prior to the grantor’s death. By contrast, a common quitclaim deed may be stored in a drawer somewhere for recording after the grantor’s death. Relevant statutory law on the TOD deed can be found in and around IC 32-17-4-11. The law of the quitclaim deed is found at IC 32-21-1-15.
Miriana Robinson of Munster executed and recorded a TOD deed to her residence in favor of her adult children Radley and Rea, as tenants in common. Nearly two years later, Miriana executed a quitclaim deed transferring her interest to Rea. A TOD deed conveys only that interest owned by the grantor at grantor’s death. If effective, the quitclaim deed¹ immediately conveyed all of Miriana’s interest to Rea leaving nothing for transfer on Miriana’s death. Radley prevailed in the trial court (Lake Superior Court Room Two) on the theory that the quitclaim deed was simply an ineffective, unrecorded revocation of the precedent TOD deed. On Rea’s appeal, the COA reversed, holding that the quitclaim deed was effective to convey all of Miriana’s interest to Rea despite the absence of recording during Miriana’s lifetime.
It may be ironic that Miriana was the fee simple owner of her residence upon her death (such that the TOD deed would be effective) . . . until the postmortem recording of the quitclaim deed to Rea. Then Miriana was (retroactively) not the owner of an interest in the residence upon her death, and the TOD deed was retroactively rendered a nullity.
Below and on appeal Radley offered as authority the Affidavit of Region lawyer James W. Martin, who appears to have been the author of TOD legislation. The Affidavit was offered as evidence of legislative intent. Radley’s lawyers should not have offered the Affidavit (but did). Attorney Martin should not have agreed to sign (but did). Rea’s lawyers should have howled in objection (but didn’t). At the COA’s footnote 1 you may read the declaration that the Affidavit was disregarded (but not stricken) for its impropriety.
Though it may be worth consideration on Transfer whether an unrecorded quitclaim deed binds a nonparty (such as Radley) to the deed, the CLB supports the COA holding in favor of Rea and of the effectiveness of that unrecorded quitclaim . . . Case Note by Dave Allen
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¹ According to the document as appearing in the Appellant’s Appendix the quitclaim deed bears the name of a preparer who is neither a party to the conveyance nor an attorney licensed in Indiana. This may help to explain the inattention to the matter of recording. Moreover, it is worth noting that Miriana still owned a conveyable interest at the time of the quitclaim in that the earlier TOD deed did not convey title or incidents of title, such as the right to convey.
APRA and the Law Enforcement Exception
The case is Scales v. Warrick County Sheriff’s Department, decided April 17, 2019 in the COA. It was mid-August of 2014 when Kristyn¹ Kelley of Boonville went missing. She was the adult daughter of appellant Kenneth Scales and lived in her parents’ home with two children from her dissolved marriage to Clay Kelley. A “missing person’s investigation” was opened by the Warrick County Sheriff’s Department where Kenneth and Clay’s father were employed. A month after her disappearance Kristyn’s body was found in the back seat of her car at the bottom of a lake. The car keys were on Kristyn’s person rather than in the ignition. Though there were (allegedly) “no signs of foul play” there were circumstances sufficient to cast suspicion on ex-husband Clay Kelley, whose relationship with Kristyn had been contentious. The coroner was quick to declare the death an accidental drowning. The Sheriff’s Department closed its “missing person’s investigation.”
Three years later Kenneth Scales filed in the Warrick Superior Court an APRA petition for information (from the Sheriff) related to the “missing person’s investigation” of his daughter’s disappearance, discovery, and “accidental” death. He followed up with a subpoena duces tecum to the same effect. Warrick County Sheriff Brett Kruse responded to Kenneth’s petition with an affidavit asserting (without citation to statute) an APRA exception for “certain law enforcement investigatory records” and a grant of discretion as to the release of such records. The Sheriff’s “discretion” left him to deny release of the records.
The case exhibits some procedural peculiarity that seems to have gone unnoticed by the COA. It seemed odd to me that there was no recited history of the case wending its way through the Office of the Public Access Counselor pursuant to a denied pre-litigation APRA request. Then I bothered to read IC 5-14-3-4.4(a) providing that a person denied access to certain law enforcement investigatory records may appeal to the Public Access Counselor and subsection 4.4(e) allowing such person (following an agency refusal to admit or deny the existence of a record) to file a judicial action, as was done here. Still, the COA Opinion and Kenneth’s petition (viewed from the online docket) leave the reader wondering whether the pre-conditions to the judicial action were met and (accordingly) whether the trial court had jurisdiction.
In any event, the trial court held against Kenneth, and the COA reversed. The key to the reversal resides in the definition of “investigatory records” at IC 5-14-3-2(i) as “information compiled in the course of the investigation of a crime.” Despite Kenneth’s apparent suspicion that his daughter had been murdered, the Sheriff held to the contrary and committed his records to a “missing person’s investigation.” While the COA decided the case correctly, review on Transfer would not be a surprise . . . Case Note by Dave Allen
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¹ In the Petition filed below, Ms. Kelley was described as “Kristyn” but the COA Opinion refers to her as “Kristy.”
Liars and TR56(C)
The case is Alicea v. Brown, decided April 3, 2019 in the COA. The civil tort claim arose when Ronald Brown drank (by his account) two and one-half 12 oz. beers while driving his truck from Hobart to Valparaiso. Mr. Brown rear-ended a vehicle driven by Ismael Alicea and then fled the scene in his truck without speaking to Mr. Alicea.
There had to have been some identification of Brown’s truck in that he was visited later that day by a Porter County Sheriff’s deputy. The deputy viewed the damaged truck and spoke with Brown, who lied in denying that he had driven the truck that day. The deputy administered a pbt which indicated a BAC of “.02 or .03.” Brown declined field sobriety testing, citing a “bad knee.”
Alicea sued Brown, who admitted in the course of a deposition that he had been drinking and driving at the time of the collision. Alicea then amended his complaint to request punitive damages. Brown moved for (partial) summary judgment on the claim for punitive damages. Porter Superior Court Judge Roger Bradford awarded the SJ. Alicea’s appeal ensued. The COA panel reversed.
For his TR56(C) Designation of evidentiary material Brown selected only “several pages” from the transcript of his deposition wherein he claimed: to have consumed only two and one-half beers; to being unimpaired; and to have been driving in a safe manner before the collision. In other words, Brown cited his own self-serving deposition testimony as evidence that his drinking was not a contributing cause of the collision.
Considering the facts that Brown fled the scene of the collision and lied to the deputy later that day, a jury would very likely exercise its right to disbelieve Brown’s claims of unimpaired, safe driving. But Alicea needed to get his punitive damages claim past the summary judgment stage, at which there is no weighing of evidence. It seems that Alicea could not contradict (with admissible evidence) the assertions of Mr. Brown adverse to the punitive damages claim. Hence the trial court’s holding for Brown.
The CLB frames the question (on appeal) as whether an award of summary judgment may properly rest on the testimony of a liar, particularly when that testimony concerns matters that “are peculiarly within the knowledge” of the witness (and thereby not readily amenable to contradiction). Here the COA got it absolutely right in reversing and reminding us that it is erroneous to base SJ solely on a party’s self-serving affidavit when evidence raises a genuine issue as to credibility. Moreover, when the facts within a TR56(C) Designation are peculiarly withing the knowledge of the witness, there should be an opportunity to impeach at trial, even if only by demeanor . . . Case Note by Dave Allen
The Breakable Squeeze
While the titular words above are relevant to the subject case and to this review, they make no sense. This is by intent in that the COA’s Majority Opinion of March 21, 2019 in Hooker v. State makes no sense. Indiana does not allow an “Alford” plea whereby a criminal defendant may plead guilty while maintaining his innocence. There is no plea of “no contest” allowed in Indiana. Indiana courts may accept only “reliable” guilty pleas supported by a defendant’s recital or admission to facts constituting the offense. A bare plea of “guilty, your honor” will not suffice.
Criminal defendant David Hooker was charged with “B” felony burglary and the redundant offense of “D” felony theft. He accepted a deal to plead to a reduced charge of “C” felony burglary while the redundant theft charge would be dismissed. We define the offense of burglary at IC 35-43-2-1. The levels of seriousness formerly designated by letters are now numbers. Elements of the basic offense remain the same as when David Hooker was charged in 2001, to-wit:”breaking and entering” into someone else’s building with intent to commit a felony therein. According to our case law the “breaking” element requires no actual breaking (as the word is commonly understood) of a lock, door, window, or any other such means of entry. Opening a closed (unlocked) door is enough for “breaking” (according to our courts) while walking through an open doorway is not. The distinction is that the “slightest use of force” (like turning a door knob) is sufficient for “breaking” though nothing is broken.
The occupant was moving out of the residence entered by Mr. Hooker. He testified at his plea hearing that he entered by way of a door that was propped open with a box and that he “squeezed through” the opening. He did not admit to the application of any force other than the propulsion of his own body.
Around sixteen years after his guilty plea was accepted, Hooker filed a petition to withdraw his guilty plea. The PCR court denied the petition. The COA affirmed (2/1) with Judge Bailey dissenting.
Regardless of what evidence at trial could have shown about the door being open or closed, the standard for evaluating the reliability of a guilty plea involves what the defendant admits. When David Hooker pled guilty in 2001 he admitted no “breaking.” His guilty plea should have been rejected then. The COA erred in affirming the lower court’s refusal to vacate the plea. The SCOTSI should accept Transfer in order to maintain the integrity of guilty pleas in Indiana and to confirm that “squeezing” one’s own body through an open door (a portal mostly for the law abiding) without the exertion of force upon the door or structure is not “breaking” while “squeezing” one’s self through an open window (a portal mostly for the lawless) would constitute “breaking”. . . Case Note by Dave Allen
Peeping Tom with a Badge
The case is Zachary Taylor v. State decided March 22, 2019 in the COA. Zachary Taylor (not the 12th President, I think) was convicted of two felony drug offenses and appealed unsuccessfully, challenging the admission of evidence collected from his residence pursuant to a search warrant. Zachary challenged the search on Fourth Amendment and Article 1, Section 11 (Ind. Constitution) grounds. Despite the search warrant Zachary asserted that the search products were “fruit of the poisonous tree” in that the evidentiary basis (probable cause) for the warrant came from Rockport PD Officer Shon Shourds’ earlier unauthorized peek into the residence from the outside.
After receiving anonymous telephonic tips of drug activity at Zachary’s apartment, Officer Shourds and his Police Chief went to the location for a “knock and talk,” the theory of which is that a police officer needs no warrant to walk up to the front door of a residence along the path provided for visitors and knock on the door. Zachary’s front door featured a window. The window featured blinds that covered most of the window excepting a gap of a few inches at the lower edge of the window. Officer Shourds “adjusted his body” to peek through the gap and spied Zachary with a woman who held a glass dope pipe. Officer Shourds and his Chief retreated to the parking lot to apply for a search warrant without having knocked on Zachary’s door. See IC 35-33-5-8 allowing a judge to issue a search warrant upon probable cause “testimony” (as opposed to the traditional Affidavit) submitted by telephone, by police radio, or by email. The resulting warrant may likewise be emailed or faxed to the Officer.
A search warrant was issued and served, resulting in the collection of incriminating evidence. Zachary preserved his claim of error by filing a pretrial motion to suppress (which was overruled) and by continuing through trial with (overruled) objections to the admission of evidence from his apartment. Zachary’s theory for suppression began with the assertion that Officer Shourds’ peek through the gap in his door window (beneath the blinds) was an illegal search.
What is a “search” for Fourth Amendment purposes depends in large part on whether the activity offends a person’s “reasonable expectation of privacy.” If an Officer spots a marijuana plant growing in someone’s front yard in “plain view,” there is no “search” for Fourth Amendment purposes.
Here are some practical rules relative to “knock and talk” police activity. Bringing a drug-sniffing dog makes it a “search.” While a “knock and talk” at the front door is generally not a search, lurking about elsewhere within the “curtilage” of the home is a search. The window in Zachary Taylor’s front door was fair game for peeking in that it was in the front door. Peeking through other windows constitutes a search.
Zachary’s apartment most likely did not feature the curtilage surrounding a typical single-family home. Insufficient attention is given to warrantless police activity that is outside the home but within the curtilage . . . Case Note by Dave Allen
How Many Hours in a Day?
Chad Adams pled guilty to a felony weapons charge and received an executed sentence of four years. The relevant part of his appeal is his claim that the trial court “improperly calculated his accrued time.” The case is Adams v. State, decided March 15, 2019, wherein the COA agreed with Chad and reversed (in part) to correct the calculation of “accrued time” to be credited against Chad’s executed sentence.
The unanimous COA Opinion (by Sr. Judge Barteau) nicely clarifies that pre-sentence jail time credit is a matter of statutory right rather than a matter subject to trial court discretion. This distinction defines the standard of review. And look no further than the Opinion to understand the distinctions between “accrued time,” “good time,” and “credit time.”
Chad’s appeal arises from the period of six to eight hours he spent in post-arrest custody before bailing out and the trial court’s refusal at sentencing to credit him with a “day” of “accrued” (actual) time served. Notably, the governing statute is IC 35-50-6-0.5 which refers to the amount of “time” (rather than days) of confinement. Moreover, “time” is not defined at Article 50 of Title 35. Finding ambiguity and applying the rule of lenity, the COA held that Chad’s partial day in post-arrest custody amounts to a “day” of accrued time. This is a good rule for everyone . . . Case Note by Dave Allen
Zanders Post-Remand
On May 4, 2017 the divided (3/2) Indiana Supreme Court held that the warrantless acquisition of cell-site location information (CSLI) from a service provider (a/k/a “third party”) was not violative of the Fourth Amendment or Article 1 Section 11 of the Indiana Constitution. The two dissenters differed with the majority only as to Article 1 Section 11 and not as to the Fourth Amendment.
Ohio Resident Marcus Zanders was convicted of four counts related to the armed robberies of two Indiana liquor stores near the Ohio line. An employee of one robbed store recalled a pre-robbery phone call (requesting closing time information) and retrieved the caller’s number from the store phone’s caller ID.
Police used a Facebook search to link the retrieved phone number to Marcus, whose own Facebook posts showed images of him posing with wads of cash and liquor bottles matching the description of what was taken at gunpoint in the robberies.
Despite having what looked like probable cause for a search warrant of Zanders’ cell phone location records, police then sent an “Emergency Request Form” to cell provider Sprint asking for cell phone location information. There was absolutely no showing of a true emergency or insufficient time to apply for a warrant. Sprint provided CSLI placing Zanders’ cell phone near the robbed stores at relevant times. That information was used for an Ohio warrant to search Zanders’ residence, where evidence of the crimes was recovered.
Zanders’ Petition for Certiorari to the SCOTUS resulted in remand to the SCOTSI when the high court decided in Carpenter v. United States, 585 U.S. _, 138 S. Ct. 2206 (2018) that state acquisition of CSLI for a period of seven days (and possibly less) constitutes a search for Fourth Amendment purposes.
On remand the now-unanimous SCOTSI affirmed Zanders’ convictions on “harmless error” grounds and dismissed the fruit-of-the-poisonous-tree-argument¹ on grounds that the intervening warrant itself triggered the “good faith exception” to the Exclusionary Rule. The CLB position is that police had lied about an “emergency” for the warrantless acquisition of the CSLI, thereby forfeiting any claim of reasonableness or good faith on their part. . . Case Note by Dave Allen
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¹ The wrongly acquired CSLI was used to obtain the Ohio search warrant for Zanders’ residence where substantial evidence was obtained.
Graveyard Follies II
The November 23, 2016 COA decision in Salyer v. Washington Regular Baptist Church Cemetery, 63 N.E.3d 1091 (Ind. Ct. App. 2016) was the subject of an Appellate Case Note titled “Graveyard Follies.” On March 8, 2019 the COA “decided” (or avoided deciding) a similar dispute in Mullett v. Baker and the City of Butler. In Salyer the remains of a stranger were buried in a (twice sold) family plot. In Mullett there was a dispute between descendants of the “record owner” of a 5-space “family burial plot” over who should or should not be buried therein.
The statutory provisions respecting the establishment and use of a “family burial plot” are found at IC 23-14-41. If a “record owner” of multiple adjacent grave spaces is buried in one, it seems that the spaces become (by operation of law) a “family burial plot” available first to the surviving spouse, parents, and children of the deceased record owner and then the heirs at law of the deceased record owner or the spouses of those heirs.
Joyce Mullett married and then divorced Keith Mullett, grandson of record owner Everett Mullett. Keith and Joyce had several children, including Deborah. Joyce divorced Keith and remarried. Hal Mullett was another grandson of Everett and a cousin to Keith.
Everett and his widow Elizabeth were buried in two of the five grave spaces. Remarkably, some 20 years after divorcing Keith Mullett, Joyce Mullett (n/k/a Joyce Mink) arranged to have her own mother buried in one of the remaining grave spaces. Joyce’s mother was not among those heirs at law who could claim a right to burial in the family plot; nor was Joyce among those listed heirs at law who could claim a space and then cede the burial right to another relative; nor was Joyce (after 20 years of divorce) entitled to claim any space in the Mullett family plot when she misappropriated a space for her own mother, leaving a mere two spaces. When Joyce died in 2013 her daughter Deborah (a cousin once-removed to Hal) arranged her burial in one of the two remaining burial spaces, to the effect that only one space remained while two spaces were occupied by trespassers (of a sort) lacking any right to burial there.
Hal Mullett filed suit the following year against Deborah and the City of Butler, as owner and operator of the cemetery. Hal alleged that Joyce was wrongfully buried in the Mullett family plot and that the remedy was disinterment. It is clear to the CLB that both Joyce and her mother, Eula Champion, were wrongfully buried in the Mullett family plot, but that circumstance does not necessarily compel the remedy of disinterment.
Some statutory law of disinterment is found at IC 23-14-57. Section 1(b) of Chapter 57 describes the general prohibition that “remains. . . shall not be removed from a cemetery without: [followed by the exceptions].” In the case below Hal Mullett did not sue to have Joyce’s remains removed from the entire cemetery. The presumption of the trial court and the COA of the applicability of IC 23-14-57-1 is erroneous. Where that section is applicable, a disinterment (removal from cemetery) must be preceded by familial consent or a court order waiving the consent requirement.
After the city of Butler garnered summary judgment¹ the case below went to trial between Hal and Deborah, who prevailed on the issue of disinterment of her mother’s body. Hal appealed. For Hal’s alleged failure to make sufficiently precise legal argument below, the COA declared a waiver and affirmed. The waiver is seen here as inappropriate² and the result is seen here as unjust . . . Case Note by Dave Allen
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¹ The SJ in favor of the municipality seems unfortunate given IC 23-14-59-2 and the duty imposed therein upon a cemetery to correct a “wrongful burial” by disinterment or similar means.
² Deborah filed no Appellee’s Brief. The holding of waiver necessarily came from the COA panel at it overreached on behalf of a nonparticipating party.
Denial of Cert for Long Beach Property Owners
After losing in the trial court, in the Court of Appeals and in the Indiana Supreme Court, the litigating lake-adjacent homeowners in Laporte County’s affluent Long Beach have been given the cold shoulder by the Supreme Court of the United States. On February 19, 2019 the SCOTUS denied Certiorari (discretionary review) of the case in which the plaintiffs had sought to establish ownership of the Lake Michigan beach all the way to the water’s edge, thus keeping the lower classes (like me and maybe you) from defiling their idyllic view. The CLB holds that public right of way is one of the several pillars of democracy. Let’s all go to Long Beach (in a few months) and parade up and down the shore like the uncivilized proletariat that we are. You can read about the Long Beach Opinions from Indiana in CLB Case Notes from December of 2016 and February 13, 2018 . . . Case Note by Dave Allen
The “Value” of Worthlessness
According to IC 35-41-1-23 “property” (for criminal code purposes) is “anything of value.” There is no Title 35 definition of “value.” According to IC 35-43-4-2(a) the crime of theft is committed when a person knowingly or intentionally exerts unauthorized control over “property of another person” with intent to deprive the other person of any part of its “value or use.”
The subject case is Smith v. State, decided February 11, 2019 wherein the COA panel issued an Opinion (authored by Judge Tavitas) affirming the theft conviction of Crystal Smith. The location of Crystal’s “offense” was a Chevrolet Dealership West of Indianapolis in Hendricks County.
The Dealership sold new tires. Old tires removed from customers’ wheels were stored in a fenced dumpster area that was customarily locked. There was also a surveillance camera and a sign advising “You’re being watched.” The CLB regards such signage as being less than a “no trespassing” declaration.
Crystal and her accomplice happened by one evening when the tire enclosure was left unlocked. They removed several tires to their car and drove off only to be apprehended by police. Crystal was charged with theft and convicted following a jury trial.
The subject tires were not stored for resale or for any other profitable purpose. Rather, they were stored awaiting collection by a contractor for disposal or recycling. The Dealership received no compensation for the tires and professed a concern that they were a potential liability on the wheels of a secondary user.
Were the purloined tires of “value” to the Dealership? Here is the rationale of the COA:
“The fact that these used tires could be sold by an unauthorized seller and that they were taken without permission, points to the logical inference that the tires retain some value after they are removed from vehicles.”
What?! . . . Permission or the absence of permission is not logically (or otherwise) connected to the question of value. While there may be “value” in the avoidance of hypothetical liability, that “value” does not reside in the used tires which (to the Dealership) are worthless at best. Rather, the “value” to the dealer resides in the safe handling of used tired to the end of avoiding liability. The circumstance that Crystal took some used tires suggests that they were of value to her. By contrast, the tires were not of value to the Dealership, and Crystal’s removal of the tires was no deprivation of use or value to the Dealership.
A minor disappointment within the larger disappointment of this COA ruling is the absence of any mention of the principle that penal statutes should construed against the State. Another minor disappointment is the lack of examination of the foundational issue of whether the Dealership owned the subject used tires, as opposed to being the bailee of tires (pending recycling) still owned by the original owners. The next time I buy tires I will read the fine print to see whether the tire dealer has purchased my old tires from me. I doubt that is the case. . . Case Note by Dave Allen
Too Much Immunity
The case is Nicholson v. Lee, decided February 14, 2019 in the COA. The topic is statutory civil immunity afforded to a gun owner whose weapon is used to commit harm after a theft from the owner. Here is the statute as found at IC 34-30-20-1:
A person is immune from civil liability based on an act or omission related to the use of a firearm or ammunition for a firearm by another person if the other person directly or indirectly obtained the firearm or ammunition for a firearm through the commission of the following:
(1) Burglary (IC 35-43-2-1).
(2) Robbery (IC 35-42-5-1).
(3) Theft (IC 35-43-4-2).
(4) Receiving stolen property (IC 35-43-4-2) (before its amendment on July 1, 2018).
(5) Criminal conversion (IC 35-43-4-3).
In the case at bar Christopher Lee had left a loaded handgun in plain sight on the seat of his unlocked truck parked outdoors and unattended in a public area. A minor walking on a public way saw the truck and the handgun. The minor took the handgun and killed his friend Kendall while “showing” the handgun to him.¹
Kendall’s mother Shelly Nicholson sued Lee for negligence. The trial court granted Lee’s motion for judgment on the pleadings concluding that the cited statute immunizes Lee from liability after the theft of the subject handgun. The COA panel unanimously affirmed the judgment on the pleadings in favor of the exceedingly careless gun owner.
Shelly Nicholson argued, to no avail, the common law duty to exercise “reasonable care” respecting the storage and safekeeping of firearms and articulated a distinction between the minor’s act of theft and Lee’s precipitating act of negligence.
The COA Opinion viewed IC 34-30-20-1 as a legislative reversal of the SCOTSI holding in Estate of Heck, 786 N.E.2d 265 (Ind. 2003). In Heck the SCOTSI reversed an award of summary judgment against the estate of a police officer shot by a man using a handgun casually stored in a bedroom of his parents’ lake house. The estate had sued the shooter’s parents.
While the CLB supports responsible gun ownership, Christopher Lee behaved irresponsibly. The statute conferring immunity to Lee goes too far . . . Case Note by Dave Allen
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¹ The CLB declares a nearly unrebuttable presumption against claims of “accidental” shooting by adults or teens.
P.O. Scrutiny in the Court of Appeals
The best thing about the Civil Protection Order Act is how it works best (at the beginning, at least) without the participation of lawyers. While (as attorney of record for a P.O. petitioner) I would have a duty to give notice to the target of a Restraining Order per TR 65(B) and (E), a prospective client can simply fill out the form in the Clerk’s Office (without notice to the alleged abuser) and most often obtain a Protective Order the same day. The worst thing about the Civil Protection Order Act is how ex parte Protective Orders are handed out (in some venues) like Halloween candy. Some judges and magistrates will readily confess their inclination to “err on the side of caution” (for the P.O. petitioner) in doubtful cases. My observation is that to “err on the side of caution” is still error and still generally prejudicial to the overlooked rights of the respondent.¹
The case inspiring this note is C.S. v. T.K., a January 29, 2019 reversal from the COA of a Protective Order granted in the trial court in favor of T.K. (Let’s call her “Theresa”) against C.S. (Let’s call him “Charles”). Theresa is a Kokomo police officer. Charles has a towing and vehicle repair business in Kokomo. It seems likely that the two were sexual partners at some point, though the COA Opinion does not share details of the relationship. Theresa was already the complaining witness against Charles in a criminal prosecution for the offense of stalking when she began collecting “incidents” to support an action for a Civil Protective Order. It is unclear why Theresa (apparently) lacked an adequate “No Contact Order” as a condition of bail in the pending criminal case.
Having collected three incidents of alleged stalking. Theresa filed her Petition and obtained an ex parte Order of Protection. Charles moved to dismiss the ex parte Order, and the trial court affirmed that Order after a hearing on the merits. Charles appealed and won an unlikely reversal from the COA. The victory was made somewhat more likely when Theresa failed to submit an Appellee’s Brief.
Theresa’s three incidents involved no actual violence or direct threat of violence on the part of Charles. The three incidents took place over a period or three or four months. Each incident was at a public location where Theresa and Charles happened to be present at the same time. The first incident was at a restaurant where Theresa was dining with her mother when Charles walked in to order carry-out food. The second incident was in the parking lot of a U-Haul business where Theresa (departing from a nearby business) imagined that she was being stalked and photographed. There was evidence that Charles was at the U-Haul business by invitation to view (and photograph) some vehicle damage. Charles did not approach Theresa in the first or second incident.
The third incident took place at a post office, where Theresa went to mail a package and where Charles maintained a P.O. Box. Theresa testified that Charles “rushed up behind” her in a fashion seen by her as aggressive and followed her out of the Post Office. The third incident, as opposed to the first and second, was viewed in the COA as adequate to support a finding of harassment.
Militating against the trial court’s finding of stalking were the circumstances that a single incident (as opposed to a continuing course of conduct) cannot amount to stalking and that “constitutionally protected activity” (such as travel to a public place) is excluded from the applicable definition of stalking. See IC 35-45-10-1. The SCOTUS has long held for a constitutional right to travel interstate. Shapiro v. Thompson, 394 U.S. 618 (1969). The right to travel within the state of Indiana may reside in the “equal privileges” clause of the Indiana constitution at Art. 1§ 23.
While the CLB would like to see SCOTSI review of this Opinion on Transfer, no party will be requesting transfer. There is still, I believe, the (very rare) option for sua sponte Transfer. . . Case Note by David Allen
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¹ For instance, the citizen who has an active Protective Order against him will likely lose the right to keep and bear arms for the duration of the Order.
Repudiation Paradox
The topic is repudiation of a parent by a college-age child sufficient to relieve the divorced parent of any responsibility for the child’s post-secondary educational expenses. The case is Messner v. Messner, decided January 25, 2019 in the COA. The trial court had relieved noncustodial Mother Dawn Marie Messner of responsibility for the college expenses of daughter Riley Messner, who was found to have repudiated her mother. Riley’s father Thomas Messner appealed the trial court order and lost in the COA.
In June of 2014, Thomas received proof of Dawn’s marital infidelity. The two separated, and Thomas filed for dissolution of marriage around 12 weeks prior to Riley’s 16th birthday. Thomas and the children (Riley and a sibling) met Dawn in a restaurant sometime (probably post-separation) in 2014 to demand that Dawn split with her paramour in order to maintain a relationship with the children. Dawn declined the deal. Riley found it “disgusting” that her mother’s paramour was “significantly younger.” To Riley, the paramour was a continuing issue of discomfort with her mother. Riley cut off contact with her mother. The trial court found that Riley had repudiated the relationship with her mother and held against Thomas on his petition for college expense contribution by Dawn.
Father’s unsuccessful appeal raised the rational notion that a parent whose bad conduct alienates a child should not benefit financially from a consequent repudiation of the parent by that child. The COA would have none of Thomas’ idea to modify the law of parental repudiation. The paradox at work here is that a divorced (generally noncustodial) parent facing the prospect of an expensive college expense contribution may be able to avoid that liability just by behaving horribly. This would be a good case for transfer. . . Case note by David Allen
Nursing Home Medicaid Benefits by Way of Byzantium
The case is Indiana Family and Social Services Admin v. Lance Patterson, decided January 17, 2019 in the COA. Lance is described therein as a nursing home resident (at the tender age of 62) suffering from disabling conditions including chronic heart failure and diabetes. Lance’s sole income was a Social Security Disability Insurance benefit of $1,236.00 per month, of which $730.80 was deducted by garnishment for payment toward a substantial child support arrearage from Minnesota. The subject matter of the appeal is whether the garnished portion of Lance’s monthly income should be considered as “income received” in the calculation of Lance’s “Medicaid liability,” or that portion of monthly nursing home costs to be paid by (or on behalf of) the patient rather than by Medicaid.
COA Judge Mathias begins the Opinion with the observation of the “Byzantine” structure of the Medicaid system and follows with a professorial simplification of those Medicaid rules applicable to the case on Appeal. The Opinion contains a treasure trove of citations to relevant case law, federal statutes, and both state and federal administrative regulations.
The Indiana FSSA prevailed on appeal on its position that the garnished portion of Lance’s SSDI benefit (which was never “received” by Lance) should be included in the calculation of his “total income received” for determining Lance’s share of his monthly nursing home expenses. Beyond the apparent contradiction of including income not received as having been received, the COA is correct under C.F.R. § 416.1110.
The practical consequence of the COA holding is that Lance is liable for a portion of his nursing home expenses in the sum of $1,181.00 per month even though he actually “receives” only $502.60. Lance’s shortfall in available income could result in his ejectment from the nursing home. COA Judge Bailey concurred separately to alternately apologize for and defend the harshness of the holding as applied to Lance. . . Case Note by Dave Allen