Appellate Case Notes

“Constitutional Avoidance”

By one description or another all students of the law have read of that conservative doctrine of appellate jurisprudence favoring the deferral of constitutional issues when an appeal can be decided on other grounds. According to the doctrine a court of appellate jurisdiction should “avoid” not the Constitution but rather the practice of unnecessarily deciding constitutional questions.

Jean Baptiste v. State, 71 N.E.3d 406 (Ind.Ct.App. 2017) resulted in the COA’s reversal of a “resisting” conviction (following bench trial) on grounds of insufficient evidence and also (unnecessarily) for the denial of a jury trial to a misdemeanor defendant who demanded jury trial only after the jury demand deadline (for misdemeanor cases) set by Criminal Rule 22. The SCOTSI accepted Transfer but not for the purpose of deciding whether a procedural rule of the Indiana Supreme Court can trump a defendant’s exercise of a fundamental Sixth Amendment right. By (conveniently) concurring with the COA’s reversal for insufficient evidence, the SCOTSI rendered superfluous the COA’s jury trial holding. On October 3, 2017 the SCOTSI (per curiam) confirmed the vacation of that part of the COA decision reaching the constitutional issue. In essence, the SCOTSI decided not to decide…Case Note by Dave Allen.

Thakar on Transfer

On February 15, 2017 I posted a Featured Article discussing the COA’s Opinion from one day prior in State v. Thakar, 71 N.E.3d 27 (Ind.Ct.App. 2017). The COA had affirmed the trial court’s dismissal of the charge of “dissemination of matter harmful to minors” contrary to IC 35-49-3-3(a)(1). The SCOTSI subsequently vacated the COA decision by way of granting Transfer and, on October 2, 2017, reversed the trial court’s dismissal. Since the trial court and the COA had followed the precedent set in Salter v. State, 906 N.E.2d 212 (Ind.Ct.App. 2009), the SCOTSI expressly overruled Salter.

As in Thakar, Salter involved an adult man in Indiana transmitting a penis “selfie” to an out-of-state teen who was of the age of consent (16 years) under Indiana law but not under the law of her state of residence. The COA majority in Salter reasoned that there must be a common-sense exception to the “dissemination” statute for teens above the (Indiana) age of consent such that sending a dirty picture couldn’t be “harmful” to a minor (anyone under the age of 18) with whom consensual intercourse would be perfectly legal and during which she would likely see an actual penis. The SCOTSI rejected that premise of Salter as followed by the COA Opinion in Thakar.

One interesting aspect of the SCOTSI Opinion is the observation that a picture of an erect penis is not “patently offensive” (for obscenity purposes) as a matter of law. Rather, the offensive nature of such a photo must be proven beyond reasonable doubt by the State.

Another takeaway begs the question of whether a man (preferably a young man) with a 17-year-old girlfriend may legally transmit intimate photos of himself to her after the two have had legal consensual intercourse…Case Note by Dave Allen.

First Impression on Nuance of UM Coverage

The case is Indiana Insurance Guaranty Association v. Smith, decided September 25, 2017 in the COA. Most of us who own a motor vehicle carry uninsured motorist coverage to protect ourselves against that uninsured moron who crashes into you. In that case your UM coverage is there. But what if the other driver (the moron) had insurance at the time of the collision but then lost it due to a failure to cooperate with his insurer? Where would that leave you and your UM coverage?

Martin Torres (insured with ACCC Ins. Co.) allegedly was at fault for an accident with Carlos Smith, who carried UM coverage on his Affirmative Casualty Ins. Co. policy. Affirmative went into liquidation, and the Indiana Insurance Guaranty Association (IIGA) became its successor for purposes of the litigation initiated by Mr. Smith.

Prior to Smith filing suit ACCC, as insurer of Martin Torres, denied coverage due to the (alleged) lack of cooperation of the insured. So Smith’s suit was brought against Torres and Smith’s own UM insurer. As successor to the UM insurer, IIGA filed a motion to dismiss the UM claim arguing that ACCC’s denial of coverage did not render Torres uninsured under Indiana law or under Smith’s UM policy. The trial court denied the motion to dismiss, and IIGA appealed. The COA affirmed with one concurrence in the result.

The COA majority considered the statutory definition of “uninsured motorist vehicle” at IC 27-7-5-4(a) and concluded that the Torres vehicle fell within that definition once liability coverage was denied due to noncooperation. The concurring judge reached a similar conclusion by considering the policy language in Carlos Smith’s UM coverage clause. While the CLB likes the result here, it also predicts SCOTSI consideration on Transfer…Case Note by Dave Allen.

The COA Buys a Quadro Tracker

The initial Featured Article of the Calumet Law Blog was posted August 10, 2015 and told the cautionary tale of the Quadro Tracker, a scam device sold to numerous law enforcement departments and school districts in the 1990’s. The fraud enveloping the Quadro Tracker was obvious to anyone of average intelligence, average skepticism, and average willingness to question authority. Nonetheless, public agencies intoxicated with public funds purchased the Quadro Tracker.

The virtual equivalent of the Quadro Tracker was bought by the COA on September 20, 2017 in the case of Hope Source v. B.T., an interlocutory appeal of a trial court’s order for the conditional admissibility of “facilitated communication” from B.T., a severely autistic, nonverbal teen.

“Facilitated communication” in this context involves a keyboard and a “facilitator” holding or supporting the hand, wrist, elbow or arm of the impaired “witness” who then magically types cogent sentences despite a lack of training in spelling, writing, or keyboarding and despite the absence of any history of cogent communication without the “facilitator.”

The first con in “facilitated communication” is in persuading parents (and later, medical insurers) to pay for the training. The second con is in persuading those parents that their profoundly disabled child is actually communicating adult thoughts. Somewhere down the line there comes the consequential, collateral damage of a brazen con artist or sincere but duped parent offering “facilitated communication” as evidence in court.

A supreme irony (unmentioned by the COA) is that defendant Hope Source (being sued for the alleged mistreatment of B.T.) was both the provider of B.T.’s “facilitated communication” training and a proponent of declaring such communication inadmissible in judicial proceedings. Despite its hip-deep hypocrisy, Hope Source should have prevailed on that point.

There are at least two big questions in a case like the one at bar. The first is whether the “witness” is competent to testify. The second big question is who is communicating when the assisted typing involves two people. As for competence, it seems to the CLB that the diagnosis of “severely autistic” should constitute prima facie evidence of incompetence and (thereby) shift the burden of proof to proponents of the witness. Here the COA seems to dance around the issue of the competence or incompetence of a nonverbal, autistic witness.

The trial court by order established a protocol for evaluating competence and the question of a facilitator’s influence. For B.T. the facilitator would hold or support only “the shoulder of the shirt” on B.T.’s right side. If B.T. requires so little physical assistance to use a keyboard, then wouldn’t some inert strap or other device work as well? The COA affirmed the trial court’s protocol for allowing the human facilitator but limiting (ear plugs, etc.) that person’s ability to influence the result. While the testing protocol ordered by the trial court judge should produce evidence that “facilitated communication” is a total deception, experience teaches us that con artists are clever and resourceful. The ill-advised decision below and on appeal to grant the con artists a demonstration puts the trial court, and perhaps the whole state, just one persuasive con away from open floodgates allowing imaginary testimony to rule the outcome of serious litigation.

The CLB likens “facilitated communication” to the discredited practice of prepping a witness by hypnotic trance. See Strong v. State, 435 N.E.2d 969 (Ind. 1982) for the holding that evidence derived from a hypnotized witness is inherently unreliable and should be excluded as having no probative value. A similar rule should prevail as to “facilitated communication.” I hope for Transfer…Case Note by Dave Allen.

The Trust, the Widow, and the Elective Share

The title of the case on review is annoyingly long and awkward. I will shorten it to Sarkar v. Sarkar, decided September 20, 2017 in the COA.

It happens mostly when the old widowed patriarch marries a younger gold-digging shrew. Ere long the patriarch wishes he had not remarried. Of course, the old man didn’t consider a prenup to protect himself from a costly divorce or to safeguard the inheritance awaiting his adult children from the widow’s legal share.¹ So the old man may get some too-little and too-late legal advice on how to sabotage his own probate estate to thereby disadvantage his wife while benefitting his children of the prior marriage.

The case at bar is a bit atypical in background. Two pathologists were married more than 50 years before husband died. Still, husband had children of a prior marriage and established and funded a Trust to benefit them to the detriment of his widow.

Husband used the tool (or ploy) of a revocable inter vivos trust favorable to his children to shrink the probate estate from which the widow could claim her intestate share (taking against the Will) when, as here, husband’s will was less than generous to her.

The helpful point of law addressed by the COA is that a trust settlor may not devise a means to defeat his spouse’s elective share in contemplation of his death. In other words, an invalid inter vivos trust, such as one that is testamentary in effect, will not withstand a widow’s election to take against the will. The question of whether a testator has established a trust in contemplation of death with the intent of depriving the widow of her statutory share is a fact-sensitive matter requiring remand…Case Note by Dave Allen.
¹A surviving spouse may elect to “take against the Will” of the testator spouse to thereby afford the survivor that share of property that she would have received had the spouse died intestate. The right to take against the will may be waived by contract. See IC 29-1-3-1 and IC 29-1-3-6.

Two Views of Probable Cause by Group

On September 7th and 8th, respectively, the SCOTSI and the COA each decided a search and seizure case involving what I will call probable cause by group or by location. The SCOTSI case is Thomas v. State. The COA case is K.C. & K.C. v. State. The SCOTSI case began with a report from a trusted confidential informant about illegal drug activity. The informant described a vehicle which police located. Police made a traffic stop when they observed a traffic infraction. Their drug-sniffing dog arrived soon and alerted near the driver’s door of the vehicle, which was then occupied by the driver and by Will Thomas. The occupants were directed to leave the vehicle while it was searched. No drugs were found in the vehicle, so suspicion naturally fell upon the occupants. The occupants were asked whether they would consent to a strip search in lieu of being held while a warrant was procured. The driver consented. Will Thomas refused consent to a strip search. He was taken to the police department and placed alone in a monitored interrogation room. Police entered and intervened when it was seen that Thomas removed something from a pocket and placed in his mouth. The object in question turned out to be a baggie of heroin. Ruling solely on Fourth Amendment grounds, the SCOTSI held that the detention and relocation to the police department interrogation room were justified by probable cause which may attach to all occupants of a vehicle in such a case.

In the COA it was an appeal in a juvenile delinquency case, K.C. & K.C. v. State. The COA affirmed the delinquency findings from below against twin brothers who resisted police officers in their Indianapolis (“Tech”) classroom. There was a complaint of the theft of a cell phone. No one had entered or left the classroom since the phone was last seen in the possession of its owner. It made sense to the police (and to me) to frisk everyone in the room until the phone was found. Then Ki. C. refused to be searched and began to resist and fight. His twin, Ke. C., joined in the fray. Ultimately they were both charged with delinquent acts involving the resisting as opposed to the theft of a cell phone. Appellate counsel for the brothers seems to have conceded the Fourth Amendment argument and instead asserted on appeal that the police conduct (searching everyone in a classroom without individual probable cause) was violative of the “reasonableness” standard of Article 1 Section 11 of the Indiana Constitution. The COA deflected the Section 11 challenge by focusing on the unsettled “new crimes” exception to the exclusionary rule. Here the resisting-related offenses were “new and distinct crimes” (as compared to the phone theft) independent (in the COA view) of any illegality in the pat-down searches…Case Note by Dave Allen.

Judicial Estoppel: How the Tail Wags the Dog

The case is Ellis v. Keystone Construction Corporation, decided September 5, 2017 in the COA. Alternate titles to the case note include: Inequitable Estoppel; and Caveat Divorce Lawyer.

Most litigators know the perils of a lawsuit (over a pre-petition claim) following the plaintiff’s bankruptcy. Was the claim listed as an asset? Was it abandoned by the trustee? Who is the real party in interest?

There was no bankruptcy preceding the suit between Jason Ellis and the company in which he claimed to be a partner or shareholder. Rather, there was a divorce. Jason and Brooke Ellis filed a settlement agreement with the divorce court. The settlement agreement purported to include a complete disclosure of assets but made no mention of Jason’s claim to an interest in Keystone. Yet both Jason and Brooke later filed Affidavits declaring their mutual awareness of Jason’s claimed interest when they submitted the settlement agreement.

Jason had been Keystone’s construction manager for years. There was evidence that he joined the company as a “partner” with the company founder, who referred to him as such and paid out stock dividends to Jason. Still, the paperwork was never made complete. Despite considerable evidence of his status as a partner or shareholder, the trial court and the COA approved summary judgment against him in Keystone’s declaratory action to settle ownership. The theory below and above was judicial estoppel or that Jason was estopped by his divorce settlement agreement from claiming an ownership interest in Keystone. Obviously, Keystone was not a party to the divorce. Jason’s wife was not defrauded by the omission of Keystone in the asset disclosure.

Say, for instance, that you owned a priceless Rembrandt painting while you divorced. And say that your settlement agreement lacked mention of the painting. Could I then steal the Rembrandt from you and plead “judicial estoppel” to deflect your replevin suit? If the COA ruling in the Keystone case is correct, then the answer is “Yes.” Yes, I could get away with theft due to a defect in your divorce settlement agreement.

How would you like to be the lawyer who drafted the settlement agreement for Jason and Brooke Ellis? Do divorce lawyers need to give formal warning about the necessity of full disclosure? The CLB hopes for Transfer but doubts that Transfer will be granted…Case Note by Dave Allen.

Impermissibly Vague Yet Commonly Used

The topic is terms of probation. The case is Clemons v. State decided August 30, 2017 in the COA. Vicki Jo Clemons beat a neighbor with some sort of metal rod or tube. She appealed her conviction and terms of probation. The COA affirmed the conviction but reversed in part due to a condition of probation prohibiting Vicki Jo from “associating with people of bad character or reputation or with people likely to influence her to commit a crime.” The COA recited the legal principle that probation terms should be sufficiently clear to inform the probationer of prohibited conduct. The COA then held the cited term impermissibly vague. While the holding is simple and obvious, it is likely that there will be pushback for this voiding of a widely popular stock term of prohibition. There is a 50/50 chance of Transfer…Case Note by Dave Allen.

Excessive Force Cop Firing v. Excessive Force Tort Claim

The case is Gray v. County of Starke decided August 29, 2017 in the COA. Robert Gray, Jr. was a Deputy of the Starke County Sheriff’s Department. While on jail duty, he slapped a female pretrial detainee who allegedly was about to spit on him. The mentally ill detainee was partially restrained at the time. There was no mention of any injury to the detainee.

Deputy Gray was fired from the Sheriff’s Department (after a Board hearing) for violation of a Rule that officers use no more force than necessary under the circumstances. The Merit Board seemed to conclude that Gray struck the detainee more out of anger than protecting himself from battery by bodily waste.

Gray “appealed” or sued in the Circuit Court for judicial review per IC 36-8-10-11(d). The Circuit Court affirmed the Merit Board’s firing. The COA affirmed.

Gray argued on appeal that his use of force should have been weighed under the standard of Graham v. Connor, 490 U.S. 386 (1989) and Prymer v. Ogden, 29 F.3d 1208 (7th Cir. 1994), both of which were tort claims against a government unit. Prymer was factually similar in that it involved a blow to the head of a person in custody to prevent an accurate sputum launch. The mentioned cases established an “objectively reasonable” standard for considering excessive force claims upon the “facts and circumstances” but not upon the supposed intent or motivation of police. The Merit Board countered that the caselaw from tort claims was inapplicable to considering Gray’s breach of a departmental rule.

The COA seems to conclude that Graham and its progeny may be “instructive” in a case of police firing for excessive force but will not prevail over an internal use of force rule. In other words, the COA will not scrutinize a policy of firing deputies for physical contact that would not support a tort claim…Case Note by Dave Allen.
¹The CLB sympathizes with Gray and with jailers everywhere who are subjected to assaults by bodily waste. A slap does not seem excessive.

An Invasive Roadside Search

The case is Porter v. State decided August 22, 2017 in the COA. Taccasia Porter was a passenger in a car that was pulled over on a “routine traffic stop” by IMPD Officer Tiffany Wren. Tiffany claimed to smell a strong odor of “raw” (as opposed to “burnt”) marijuana from the car. She summoned backup. Taccasia and the driver were ordered from the car. Tiffany performed an initial search on Taccasia (more than a weapons frisk) but found nothing. Tiffany searched the car and found nothing. Tiffany decided to conduct a more thorough search of Taccasia at the roadside. She: pulled Taccasia’s jeans away from her body; inserted her hand inside the jeans; felt something inside Taccasia’s underwear; inserted her hand inside the underwear in the “crotch area;” and retrieved one marijuana “blunt,” all without a warrant or evidence of exigent circumstances.

The COA considered the appeal of Taccasia’s conviction (for misdemeanor possession) after denial of her motion to suppress. In reversing that conviction, the COA held the roadside search to be violative of both the Fourth Amendment and Article 1 Section 11 of the Indiana Constitution. The Opinion includes instructive comparisons of other “underwear” searches…Case Note by Dave Allen.

Speedy Trial (Constitutionally Speaking)

The case is Johnson v. State decided August 18, 2017 in the COA. Rodrigues Lamar Johnson appealed his conviction of arson following a jury trial that commenced 52 months after his arrest. Johnson asserted on appeal the violation of his constitutional right to a speedy trial without mention of the equally familiar Criminal Rule 4(B) or (C). The constitutional right to a speedy trial resides in the 6th Amendment to the U.S. Constitution and in Article 1 Sec. 12 of the Indiana Constitution. Johnson asserted both, though it makes little difference when the analysis of a speedy trial issue is the same under the Indiana Constitution as under the 6th Amendment.¹ The seminal federal case is Barker v. Wingo, 407 U.S. 514 (1972), which (unsurprisingly) proclaims a “balancing test” to weigh the conduct of both the prosecution and the defendant. The four Barker factors are: the length of delay; the reason for delay; the defendant’s assertion of his speedy trial right; and prejudice to the defendant. A delay of more than a year is “presumptively prejudicial” and triggers the Barker analysis.

Rodrigues Lamar Johnson lost his appeal for having caused most of the delay below, failing to assert (below) his right to a speedy trial, and failing to demonstrate prejudice.

Practice Tip.  Since the Barker analysis is triggered by a delay exceeding one year, it seems that the constitutional speedy trial argument should be included in any Criminal Rule 4(C) motion for discharge for delay (of a year or more)…Case Note by Dave Allen.
¹By contrast, the Indiana Supreme Court has deliberately chosen an independent path for analysis of search and seizure under the Indiana Constitution.

Civil Forfeiture Fail

The CLB HATES civil forfeiture. The CLB celebrates those rare victories of individuals over a government bent on confiscation of private property. One of those cases is Bowman v. State, decided August 16, 2017 in the COA.

The scene was a “local shipping company” in Indianapolis where police are allowed to examine packages. Detective Thoria noticed two packages en route from Illinois to one individual in California. Both packages were also heavily taped and “paid for priority overnight.” The Detective conducted a dog sniff of the parcels. The (alleged) drug sniffing hound “alerted” on both parcels. Detective Thoria then obtained search warrants for both parcels. The warrants authorized a search within the parcels for drugs, records of drug trafficking, and “proceeds of drug trafficking.” No drugs were found. No records of drug trafficking were found. But there was cash in each parcel with a combined total exceeding $30,000.00. Naturally, police seized the cash and planned to turn that sum over to our federal friends who would then return a generous share to the locals who had seized it.

The parties in the civil forfeiture action below were the State versus the three men whose names appeared (as sender or recipient) on the two subject parcels. Counsel for the men argued unsuccessfully below but successfully in the COA that the cash had been unlawfully seized to the effect that it should be returned to his clients (who were not charged with any crime). The only cash mentioned in the warrants was “proceeds” of drug trafficking. The cash seized from the two parcels came without sufficient evidence of such an illicit source. A lawful seizure is required for the forfeiture. The warrants authorized seizure of “drug money” but not of currency in general.

Notably, there was no mention in the COA Opinion of the qualifications or reliability of the dog to establish probable cause for a search warrant.¹ The dog gave a drug alert; yet there were no drugs. Or were there? Opinion footnote 3 explains how the weight of a positive K-9 alert is diluted by the circumstance (taken as accepted fact) that most currency in circulation is contaminated with drug residue.

The AG shouldn’t request Transfer in this case but probably will, and the SCOTSI may well accept Transfer…Case Note by Dave Allen.
¹See Florida v. Harris, 133 S.Ct. 1050 (U.S. 2013).

Parking Lot Assaults and Premises Liability

On August 15, 2017 the COA affirmed the trial court’s award of summary judgment to a pro wrestling promoter who presented an “event” in a County Fairgrounds building. The case is Jones v. Wilson. Around 11:00 p.m. event patron Crystal Jones exited the building to fetch “medication” from her car in the parking area. She claims that lighting was poor and security absent. She was attacked and injured by an unknown assailant. Crystal sued the Fairgrounds (with whom she settled) and the event promoter/temporary lessee of a Fairgrounds building. The key issue below and on appeal was whether the promoter owed a duty (of protection from assault) after the patron had left the building rented by the promoter. The promoter’s lawyers did well in producing (designated) evidence of the absence of any similar attack in recent decades. Without deciding whether the promoter owed any duty to Jones in the parking area, the COA held that he owed no duty to protect her from an unforeseeable attack…Case Note by Dave Allen.

Ownership Without Title

On August 11, 2017 the COA handed down an Opinion at the junction of zoning law and the land sale contract doctrine of Skendzel v. Marshall, 301 N.E.2d 641 (Ind. 1973). Skendzel proclaimed the equitable doctrine generally forbidding¹ the remedy of forfeiture (in favor of foreclosure) against a contract purchaser of land who defaults after having acquired “substantial equity” in the property. It is a fundamental feature of the conditional land sale contract that the vendor continues to hold “title” (at least record title) until the contract price is fully paid. But who is the “owner” of the property during the installment period?

The case of Metropolitan BZA v. Traders Point Association (decided 8/11/17 in the COA) arose in the context of a permit application to build a gas station before the imposition of a “moratorium” on new gas stations in the subject zoning classification. Ostensibly the application for an Improvement Location Permit (ILP) preceded the moratorium. Those who opposed the planned gas station hoped to alter that essential chronology by finding fault with the application sufficient for it to be deemed incomplete as of the moratorium date.

The principal attack on the permit application arose from the circumstances that the land was being purchased by contract and that the application listed as “owner” an agent of the contract vendee while record “title” remained with the contract vendor. That theory of attack lost in the BZA, won in the trial court, and lost (again) in the COA. The theory adopted by the COA is that a contract vendee in possession is, for all practical purposes, the property “owner.”

The most promising application of this Opinion lies outside of zoning law. I have seen many instances of contract sellers of land (mostly residences) being harassed by local code enforcement for the trash, weeds, or other code violations allowed by a contract purchaser. The local code enforcement pursues contract sellers on the theory that they are “owners” of the property and thereby liable for its condition. The subject COA Opinion provides a contract seller with a sound argument that he is not the “owner” regardless of his record title…Case Note by Dave Allen.
¹Exceptions to the general rule include the case of an absconding vendee or one who jeopardizes the vendor’s interest.

ER 617 and a Place of Detention

See Fansler v. State decided August 3, 2017 in the COA. Police set up a drug sting at a local hotel. The dealer was lured there by promises of sex and a drug sale. After his arrest, he was interrogated inside the hotel room without the benefit of the electronic recording required (as a condition of admissibility) when there is a “custodial interrogation” of a suspect in a “place of detention” and there is a felony prosecution. Held: the hotel room was a “place of detention” for purposes of the recording requirement. Held: the “booking exception” to the recording requirement was inapplicable. Held: the error in admitting evidence of Fansler’s incriminating statements contrary to ER 617 was harmless in this case. It’s nice to know that there can be an ER 617 “place of detention” that is not a police department building or vehicle…Case Note by Dave Allen.

Bad Warrants, Good Faith, Thermal Imaging, and the Household “Grow Room”

A second Fourth Amendment Opinion (see K.G. v. State below for the other) from the COA on July 31, 2017 is McGrath v. State, another reversal. The Opinion features a nice review of the law of thermal imaging of a private place. The law became settled by the SCOTUS in Kyllo v. U.S., 553 U.S. 27 (2001) with the holding that thermal imaging of a home is presumptively unreasonable without a warrant. The holding means that thermal imaging was deemed to be a “search” in breach of a person’s reasonable expectation of privacy in his home.

We find cases of thermal imaging being authorized by an initial warrant and the scanning results being used to authorize a second warrant for a conventional physical search of the premises. The focus in McGrath is on the initial warrant. The investigation began following a tip from “Crimestoppers.” The tip was apparently anonymous but included enough detailed knowledge of the house and its inhabitants to suggest familiarity. Surveillance of the premises followed and resulted in the observation of suspiciously intense lighting from an upstairs window but no detectable odor of marijuana.

Suspecting a marijuana “grow room” in the house, police applied for a search warrant to employ an airborne thermal imaging system. The Affidavit cited the confirmed details of the anonymous tip and the officer’s observations of suspicious window air-conditioning and lights that appeared more intense in one room than elsewhere in the house. The warrant was issued, and the positive thermal imaging scan was used for a second warrant which resulted in the expected discovery of an indoor “marijuana grow operation.”

Brandon McGrath’s motion to suppress was denied. Seized evidence was admitted over objection at trial. McGrath appealed his conviction, which now stands reversed for want of probable cause for the initial Warrant for the thermal scan. The featured flaw was the lack of corroboration of hearsay from the unidentified tipster.

Judge Bradford of the COA dissented, citing the “good faith exception” to the exclusionary rule in light of an actual warrant and a probable cause affidavit sufficient for police to reasonably rely upon the validity of the resulting warrant. The CLB guarantees a Transfer Petition from the State (with or without a prior Petition for Rehearing). The odds strongly favor an acceptance of Transfer and review by the SCOTSI. You heard it here…Case Note by Dave Allen.

Splitting the Weapons Frisk from the Terry Stop

See the COA’s July 31, 2017 Opinion in K.G. v. State for an example of the distinction in justification for a Terry stop and the weapons frisk that so often accompanies a Terry stop. From another perspective the COA Opinion exemplifies the erosion of the familiar “officer safety” excuse for a weapons frisk of anyone an officer chooses to approach. The brief detention of a Terry stop is permissible when an officer has “a reasonable and articulable suspicion that criminal activity may be afoot.”

In the case at bar the COA was satisfied that the officer had reasonable suspicion to briefly detain a teen, possibly a runaway, who had been asking Kroger shoppers for the use of their cell phones. To employ a post-stop weapons frisk the officer needed “reason to believe” (per the “reasonably prudent man” standard) that he was dealing with an armed and dangerous individual or (stated otherwise) that his safety was in danger. Here the officer lacked a “particularized reasonable suspicion” that the teen posed a threat. The ammunition and firearm revealed by the weapons frisk should have been suppressed…Case Note by Dave Allen.

Lake County Government and The ADEA

The Seventh Circuit Court of Appeals issued its decision on July 26, 2017 in the case of Carson v. Lake County, Indiana, an ADEA case prosecuted by a group of former employees of the County. You might describe the plaintiffs as collateral damage to governmental incompetence. It’s possible that some (as government employees) contributed to that incompetence.

The background is that Lake County Government was having trouble living within its means. A fair number of its employees were 65 or older and drawing “full benefits” (part of the fiscal problem then and now). To reduce overall costs the County offered “retirement incentives” to those retirement-aged employees, offering some five years of health insurance (supplemental to Medicare) through insurer Aetna. Retirees who accepted the deal were permitted to return to work on a part-time, “at-will” basis.

One problem was that (apparently) no one had checked with Aetna about the re-hiring. It turns out that the “retirees” who took the Aetna insurance became ineligible upon re-hire.1 The County’s solution was to discharge all the retired/re-hired employees covered by both Medicare and the Aetna Medicare Supplement. One disturbing aspect to the termination of these employees is that they were all 65 years old or older. There was enough semblance of age discrimination to fuel an ADEA (Age Discrimination in Employment Act) suit filed in U.S. District Court.2

According to the County there were four criteria for selecting the employees for termination, to-wit:

(1) they had retired from County service and were later rehired part-time; (2) they were age 65 or older; (3) they were receiving Medicare as their primary insurance; and (4) they were enrolled in the Aetna supplement.

Twenty-eight County employees met all four criteria and were terminated. Most County employees of retirement age met fewer than all four criteria and remained employed.

The District Court (Paul R. Cherry, Magistrate Judge) received cross-motions for summary judgment and denied the plaintiffs’ motion while granting the County’s motion. The Seventh Circuit affirmed, thereby saving Lake County a bundle.

Proving an ADEA claims is similar to but not exactly the same as proving a Title VII (of the 1964 Civil Rights Act) claim. The notable difference is that age must be the “but-for cause” of the adverse employment action in an ADEA case while Title VII protects against “mixed motive” discrimination. Despite this difference in the ADEA plaintiff’s burden of proof, the manner of proof is the same as in Title VII cases, including the burden-shifting framework from McDonnell Douglas v. Green, 411 U.S. 792 (1973). The Seventh Circuit held that the Carson plaintiffs failed to make a prima facie case as required to engage burden-shifting, despite the County’s mass termination of employees having a disproportionate impact on their protected age group.

The CLB is unaware of any Lake County official taking responsibility for the incompetence that preceded the firings in this matter. It is unlikely that any Lake County official has or ever will take responsibility, apologize, and accept consequences.

In ADEA cases attorney fees are generally recoverable by the victor. Will the County pursue its former employees for reimbursement? The County should but will not so long as it can charge the defense costs to the innocent you and the innocent me…Case Note by Dave Allen.

¹The plan in question was of the “retiree-only” category and could not accommodate current employees.

²There is also concurrent state court jurisdiction in ADEA cases, though suing Lake County in a Lake County Court would constitute questionable strategy.

Truancy After Hours

The split decision of the COA in Jacobs v. State, 62 N.E.3d 1253 (Ind.Ct.App. 2016) was published November 7, 2016 and was reviewed in the CLB with two other Fourth Amendment cases from the COA’s November output. Jordan Jacobs was convicted below of misdemeanor possession of a handgun after losing the suppression fight. Then he lost again in the COA. On June 29, 2017 the four-justice SCOTSI (doing some housecleaning as it awaits a fifth member) reversed Jacobs’ conviction on grounds that the investigatory stop that led to his arrest was violative of the Fourth Amendment and Article 1 Section 11 of the Indiana Constitution.

On August 31, 2015 there were reports of young males donned in (gang color) red firing shots near an apartment complex and park in a “high crime” neighborhood of Indianapolis. Two days later around 2:00 p.m. Officer Smith spied on youths in the park from an unmarked car. He opined that some of those youths ought to have been in school. Some of the youths wore red. While he did not wear red, Jordan Jacobs had a red t-shirt slung over his shoulder for a time. The surveillance continued well beyond school hours. Jacobs was observed walking away when a “park ranger” approached in a marked vehicle. He was seen returning after the marked patrol vehicle had left. Officers Smith and Casavan had witnessed all the non-criminal behavior they could stomach and decided that Jacobs must be stopped. The two officers approached Jacobs, who was already walking away from marked police cars that had arrived. Jacobs ignored Officer Smith’s order to stop. When Officer Casavan joined in the order to stop, Jacobs complied. While handcuffed on the ground, Jacobs was assured by Officer Casavan that he was “not under arrest.” What Officer Casavan had was all the elements of an arrest (the forced detention, for example) except for a warrant or probable cause. The police doublespeak continued when Officer Smith claimed that he forced the encounter upon his own “reasonable belief” that Jacobs was a truant. Jacobs was 18 years old at the time. The officers failed to testify how old he appeared to be. I would wager that no young man in the park was spared from the “truancy” roundup by reason of an apparent age of 18 years or older. I would wager that the two officers had seldom or never before made a truancy detention without some evidence of criminal conduct. I would wager that no question was put to the handcuffed Jacobs about his age or school status. Smith’s rationale that the encounter was a truancy intervention is as genuine as Casavan’s assurance to Jacobs that he was not under arrest.

While Jacobs (still cuffed) was being herded to a central detention location, the outline of a handgun in his pocket was visible. There followed: the weapons charge; suppression denial; conviction by bench trial; a lost appeal to the COA; and (finally) the reversal by a four-member SCOTSI with Justice David concurring only in the result.

While it is commendable that the SCOTSI reversed over the suppression issue, the CLB is uncomfortable with the Opinion that would have approved the sham “truancy” intervention but for the time of day (after schools were closed). The Opinion could be read to give police officers carte blanche to temporarily detain anyone with a youthful face encountered during school hours. See IC 20-33-2-23 for the authority of law enforcement officers to take truants into custody (when found during school hours in a public place) for delivery to a school principal.

Apart from the unsettling language (holding or dicta?) opening the floodgates for school hours investigatory stops of every young person, the Opinion of Justice Massa provides some helpful clarification of other aspects of the law of investigatory stops. Held: Jacobs’ departure from the park when a marked patrol car appeared and his subsequent return (after the patrol car left) do not amount to reasonable suspicion of criminal activity.

Held: Jacobs’ temporary display of a red t-shirt among others wearing red may support an inference of “gang association” but does not constitute grounds for a Terry stop or arrest. To link Jacobs’ temporary display of a red shirt to the report of “shots fired” (by red-shirted youths) from two days prior would require “one inferential leap too far.” Noted: that gang membership is not an offense…Case Note by Dave Allen.
¹Footnote 1. to the Opinion rightly addresses the distinction between walking away from approaching police and outright flight. Absent cause for an arrest or Terry stop, a person may ignore the police by walking away. Running away, however, creates grounds for a stop.
²See the case note below from this May entitled “Decreasing Probability in Sequential Inferences” for the CLB’s concurrence.

A Transfer Wish is Granted

It was February 9, 2017 when the COA reversed the bestiality conviction of Andy Shinnock for a supposed deficit in the corpus delicti required for admissibility of his confession to police. The CLB disagreed, listed the evidence for a sufficient showing of corpus delicti, and finished the case note with these words:

“Andy Shinnock deserves prison for a very, very long while. Let’s hope that our new AG sees the merit in a Transfer Petition.”

The Transfer Petition was filed and granted, vacating the COA’s reversal of February 9, 2017. One nice point of law in the SCOTSI Opinion of June 27, 2017 in Shinnock v. State is that the corpus delicti required for admission of a confession is different and less onerous than the corpus delicti required to sustain a conviction. The SCOTSI also seems not to have considered a partial confession to the roommate as part of the corpus delicti evidence for admission of the full confession to police…Case Note by Dave Allen.

An Unpredicted Transfer

In November of 2016 the CLB combined three “Recent Fourth Amendment Cases in the COA” for review. One was McNeal v. State, 62 N.E.3d 1275 (Ind.Ct.App. 2016) in which the COA held that the “community caretaking” exception to the warrant requirement (previously applied in Indiana to impounded motor vehicles) should be extended to allow the warrantless searching of distressed people. Mr. McNeal’s distress was that he was falling-down drunk. During a search of his person before medical transport, baggies of cocaine were found in a pants pocket. McNeal was convicted on a drug charge and appealed the trial court’s admission (over objection) of the fruits of the warrantless search.

On June 20, 2017 the SCOTSI handed down a Per Curiam Transfer decision affirming McNeal’s conviction while vacating that part of the COA Opinion declaring an expansion of the “community caretaking” function to allow the warrantless search of distressed people. The SCOTSI still approved the search as being incident to arrest for public intoxication.

McNeal’s (public defender) counsel scored something of a moral/legal victory on Transfer but without the least benefit to McNeal. It is unlikely that a fee-paying client of an attorney in private practice would ever put his own money into such a Transfer.

What is the future (in Indiana) of expansion of the “community caretaking” warrant exception? The Per Curiam SCOTSI decision could be taken as an exercise of judicial economy, deferring complex or novel resolutions when a simpler one is available. On the other hand, some may read the decision as a holding that the “community caretaking” warrant exception does not and shall not extend to searches of distressed people in Indiana…Case Note by Dave Allen.

Naegleria Fowleri

Naegleria Fowleri is an amoeba which is common in soil and in warm freshwater, more so in southern parts of the United States. If the amoeba reaches the olfactory nerve at the top of the nasal canal through the forceful entry of infected water into the nose, the result may be a fatal brain infection. Such was the case with Waylon Abel when he swam in a Southwest Indiana lake and became the first known victim of Naegleria Fowleri in the “recorded history of Indiana.” The case of Daviess-Martin County v. Estate of Abel was decided June 19, 2017 in the COA. The Estate sued a two-county Parks and Recreation Department and other government entities linked to the West Boggs Park and its 622-acre lake.

The trial court denied a motion for summary judgment filed by the two-county Parks and Recreation Department. This interlocutory appeal followed.

The COA was unanimous in holding that the two-county Parks Board and Health Departments were entitled to summary judgment; however, the COA was split 2/1 as to whether the defendants owed a duty to the decedent. The majority held that no duty was owed while the concurrence (in result) favored the recognition of a duty that was not breached.

The absence of foreseeability of harm weighed heavily in the COA holding against the existence of a duty to the decedent. But does this case prospectively modify the law by altering the factor of foreseeability? When the unforeseeable occurs, doesn’t it tend toward the rare but foreseeable?…Case Note by Dave Allen.

More on the Non-Physician Medical Expert

COA opinions of May 30, 2017 resulted in two appellate case notes on ER 702 qualifications of nurses, one of whom was a nurse practitioner. This note concerns the tender of “expert” opinion from chiropractors in the context of a medical malpractice action against another chiropractor. The case is Totton v. Bukofchan, decided June 14, 2017 in the COA.

Craig Totton pursued a malpractice claim against chiropractor Daniel Bukofchan for the (alleged) infliction of a cervical disc injury in the course of chiropractic treatment. The medical review panel consisted of three chiropractors who decided unanimously in favor of chiropractor Bukofchan on the standard issues of treatment meeting the applicable standard of care and of causation of Totton’s injuries.

Mr. Totton pursued his claim further by filing suit. The defense (per usual) moved for summary judgment and designated the review panel opinion as supporting evidence. Mr. Totton responded with the opinion of another chiropractor contradicting the medical review panel opinion. Totton’s “expert opinion” chiropractor offered his opinions that Bukofchan failed to meet the applicable standard of care and caused Totton’s injuries.

The trial court awarded summary judgment to the defense, essentially conferring expert status on the review panel of chiropractors but not to the one engaged by Totton. The COA held that all mentioned chiropractors could give opinion evidence as to the applicable standard of care and whether it was met. Moreover, a chiropractor may give opinion evidence as to the cause of an injury so long as the causation issue is “not complex.” The complexity of causation (of Totton’s injury) was determined herein by the COA upon written argument. Accordingly, no opinion from a chiropractor was competent to prove causation. Most remarkably, the COA carved out an exception (for a panel of chiropractors) to the general rule that the opinion of a medical review panel is admissible for summary judgment purposes as evidence of causation of harm.

Notably, IC 34-18-10-23 provides that the “report of the expert opinion reached by the medical review panel” is admissible in subsequent proceedings in a judicial action brought by the claimant. The COA found this statute to be at odds (in the case at bar) with ER 702. Following precedent, the COA held that ER 702 “prevails” over the statute. Because the medical review panel opinion was not admissible in court on the issue of causation, the defendant chiropractor failed to meet his initial burden (on that issue) to show with admissible evidence the absence of a genuine issue of material fact.

While the COA Opinion here was clear and rational, it would have been more helpful had it addressed the issue of a chiropractor’s opinion of a diagnosis…Case Note by Dave Allen.

The Cell Tower Heist

There are occasions when tax sale appeals can be positively entertaining. My favorite is City of Gary v. Belovich, 504 N.E.2d 286 (Ind.Ct.App 1987). The City of Gary acquired a parcel of land by deed but neglected for 15 years to record it. The City built a fire station on the parcel while real estate taxes accrued in light of the unrecorded deed (from private owners) to the City. There was a tax deed to the County Commissioners and then a Commissioner’s Deed to Joseph and Bernice Belovich, whose ownership withstood the City’s appeals.

I was reminded of Belovich by the COA’s June 12, 2017 opinion in Jenner v. Bloomington Cellular Services, Inc. Instead of buying a fire station, David and Vickie Jenner bought a cell tower (all 228 feet) and a parcel of land beneath it at a Monroe County tax sale. Unfortunately for David and Vickie, their tax deed was set aside for lack of statutory compliance. In a bizarre split (1/1/1) opinion the “holding” of the COA respecting notice to holders of an interest outside the chain of title is supported by only one judge. How’s that for legal clarity?

It seems that Bloomington Cellular became the owner of the real estate in 1988 and had its interest recorded. Then it merged with Westel without any change to ownership records. Then Westel leased “maintenance and operation” of the cell tower to Crown Castle and followed with a supplemental lease in the tax year 2000 that was recorded but not in the chain of title. Then Crown Castle sublet to T-Mobile, and the sublease agreement was recorded but not placed in the chain of title, which seems to have shown Bloomington Cellular as the (sole) owner.

Taxes went unpaid. There was a tax sale. The Jenners purchased the tax sale certificate and followed up with a title search that listed only Bloomington Cellular as an interest holder in the chain of title. Accordingly, the Jenners gave notice of the tax sale purchase to Bloomington Cellular and to no one else. There was apparently a sign at the property bearing the name of Crown Castle and contact information. The Jenners contacted Crown Castle after their tax sale purchase. Jenners and Crown Castle couldn’t reach an agreement for the release of Jenner’s claim (a/k/a cell tower ransom), and Crown Castle intervened in the tax sale proceedings. Since a tax deed had been issued, Crown Castle filed a TR 60(B) motion to set it aside as void.

Crown Castle’s better theory was that it had two recorded leases in evidence of its interest in the property. A problem was that those recorded leases did not appear in the chain of title and would thereby be missed in a typical title search. Crown Castle’s lesser argument was that signage on the property gave actual notice of its interests.

The trial court and the COA (by a “majority of one”) agreed that the Jenners failed to comply with IC 6-1.1-25-4.5 respecting notice prior to issuance of a tax deed. The Jenners were obligated to give notice to any holder of “a substantial property interest of public record,” not limited to such interests appearing in a chain of title.

Noting the difficulty of complying with the tax sale notice requirement, the COA aptly observed that “a tax-sale purchase is a gamble.” That seems to be the case now more than ever before. The COA dispensed with Crown Castle’s alternate argument that notice of its interest existed in signage on the property. Since the sign was not recorded or otherwise entered into public record, it was held to be of no consequence.

For the tax sale practitioner the question becomes what sort of title search is adequate to identify every holder of a substantial interest of public record. A criticism here of the COA holding is that the remedy of voiding the tax deed exceeded that harm of failing to notify a party to a lease. Perhaps the interest of Crown Castle per the recorded leases should have been protected while otherwise preserving the tax deed. An additional criticism is that this fractured, chaotic ruling which settles nothing should have been dispatched to the realm of NFP’s. Given the danger of the “majority of one” holding on notice being used as precedent, it would be a mercy for the SCOTSI to take Transfer…Case note by Dave Allen.

ITCA Notice of Claim and Legal Malpractice

The case is Mundia v. Drendall Law Office, P.C., decided May 31, 2017 in the COA. When a plaintiff’s lawyer misses a jurisdictional deadline and the client sues for malpractice, that erring lawyer may seek to defend, or to mitigate, by trashing the merits of the principal case. That is what happened here when attorney Stephen Drendall signed up a tort claim client at least a month and one-half prior to the deadline for serving a notice of tort claim on the prospective defendants. Then Mr. Drendall neglected to serve the notice. See IC 34-13-3-8.

Lucy Mundia’s estranged husband had been arrested and was in custody for invasion of privacy for violating a protective order. Lucy Mundia had obtained a protective order for herself and for her six-year-old daughter Shirley. The police report mentioned only the protective order in favor of the child. The Prosecutor’s office performed a superficial search under the husband’s (probably misspelled) name only and failed to perform a “protected person” search using the name of Lucy or daughter Shirley. The search produced no evidence of an active protective order, and the Prosecutor’s Office released the husband from jail. Within 72 hours the husband returned to Lucy’s house and killed Shirley while inflicting severe injuries on Lucy, who blamed the police and Prosecutor. Even if the police and Prosecutor had been less incompetent, the husband might have been released from jail on bond or otherwise after being charged. Against the police and Prosecutor Lucy bore the burdens of proving duty (to her), breach of duty, and proximate cause while overcoming the broad immunity afforded to Prosecutors and to police. See, for instance, IC 34-13-3-3(7) and (8).

Lucy’s narrow chance of prevailing was dashed when her attorney failed to serve a Notice of Tort Claim. His defense to Lucy’s malpractice suit was to admit his breach of duty while asserting that Lucy’s claim was doomed from the beginning. The trial court agreed and awarded summary judgment to attorney Drendall. Here is a cited rule:

“To establish causation and the extent of harm in a legal malpractice case the client must show that the outcome of the underlying litigation would have been more favorable but for the attorney’s negligence.”

The significant distinction is that the malpractice plaintiff’s burden as described is her burden at trial and not her burden in response to a summary judgment motion. Accordingly, the COA reversed and remanded…Case note by Dave Allen.

May 30, 2017 in the COA

As the SCOTSI takes a break (or at least a partial break awaiting restoration to its full complement of five Justices), the COA has the appellate opinion stage all to itself. May 30, 2017 was a big day for published opinions of interest or consequence. Here are some summaries and comments.

The “Expert” Nurse Practitioner

The case is Aillones v. Minton, an interlocutory appeal of an evidentiary ruling. After being rear-ended in an automobile accident, Charles Aillones was treated by a nurse practitioner for typical cervical/lumbar symptoms. The nurse was deposed. Objections were raised against opinion testimony as to causation of his patient’s condition. Aillones (by counsel) asked that the trial court qualify the nurse practitioner as an expert (for purposes of expert medical opinion testimony). The trial court declined, and this appeal followed.

Confirming dicta from prior opinions, the COA held that there is no per se rule (under ER 702) against a nurse practitioner being qualified as an expert. Caveat: there is probably still a different rule applicable to causation opinions in medical malpractice cases. Noted: a medical expert who is not a witness to an auto accident may not opine as to absolute causation of subsequently observed injuries but may testify that such injuries are consistent with injuries from an auto accident. Criticism: the COA failed to mention (in its historical review) the case of Swoaks v. State, 519 N.E.2d 149 (Ind. 1988) wherein the SCOTSI approved the testimony of a mere licensed practical nurse against a mere criminal defendant as to the cause of certain flesh wounds. Query: will the present ruling be applied generally to registered nurses who are not nurse practitioners?…Case note by Dave Allen.

The Not-So-Expert Registered Nurse

On the same day as Aillones (above) a separate COA panel (without mention of Aillones) reached an opposite conclusion in the matter of the contested ER 702 “expert” qualifications of a registered nurse (with a Master’s degree in molecular biology). The case was Duby v. Woolf. Myra Duby is the grandmother/Guardian of a young, autistic child born to a drug-abusing mother. In the course of the child’s medical attention, tests uncovered an elevated level of lead in the child’s blood. Myra sued her landlord for the child’s toxic exposure and asserted that lead paint/dust in her rented home caused the child’s autism.

As one might expect, the landlord obtained the expert opinion (of a neurologist) that the child’s autism was congenital and due to genetic factors and/or mother’s drug abuse while pregnant. The landlord designated this expert opinion in support of a motion for summary judgment. Myra attempted to rebut (and thereby avoid summary judgment) with the “expert” opinion of R.N. Boyd, who had experience in the field of lead poisoning. Nurse Boyd offered the opinion that lead toxicity causes autism but lacked the ability to explain the scientific basis of her opinion. The trial court excluded Nurse Boyd’s opinion and awarded summary judgment to the landlord. The COA affirmed.

The Duby Opinion is a useful source of law for the method of proof in a toxic exposure case. It should be noted that Duby was deemed to have waived her argument (on appeal) that the landlord should be denied summary judgment on her new alternate theory of breach of federal requirements for lead paint disclosure…Case note by Dave Allen.

The Illusory ROFR?

B&R Oil Company v. Stoler is a rare right-of-first-refusal case. The Stolers leased several parcels of land from B&R Oil. The parcels were used as gas stations. There was apparently a lease for each of the several locations, and each lease had a right of first refusal to purchase “the leased premises” in the event of a bona fide offer (to lessor) to purchase the “the leased premises.” In the midst of this contractual context there came “Empire” offering to buy (as a package deal) substantially all of B&R Oil’s assets, including the several parcels leased to the Stolers and about 16 other locations. B&R Oil submitted to the Stolers (for exercise of the right of refusal) this package offer ($80,000,000.00) rather than some pro-rated offer for each of Stoler’s several locations. The Stolers responded with a declaration of intent to exercise the ROFR on each of their several locations and requested from B&R the respective purchased prices and other terms (from Empire’s offer) as to those locations. B&R answered that it was a package deal: $80,000,000.00 for all its assets or nothing. The Stolers sued for breach of the ROFR when B&R refused to sell each leased location to the Stolers before the bulk sale to Empire. The Stolers won summary judgment as to the breach, and B&R took this interlocutory appeal.

The majority of the split COA panel agreed with the trial court that B&R’s interpretation ($80,000,000.00 or nothing) would nullify the Stolers’ right of first refusal. Under the Hamlin doctrine an owner may not circumvent or sabotage a contractual ROFR by presenting to the right-holder a third-party offer that includes another unrelated property…Case note by Dave Allen.

Domesticated No More

Sekerez v. Grund & Leavitt is a Lake County case of some procedural interest though it could be over-simplified as merely a (rare) TR 12(B)(8) dismissal (“same action pending in another state court of this State”). Darlene Sekerez, an Indiana resident, hired Chicago lawyers to represent her in an Indiana custody dispute with her former husband. The custody case was resolved with a negotiated settlement. Having paid $50,000.00 to her Chicago lawyers, Sekerez was told she owed an additional $62,439.00. She declined to pay. The attorney employment contract had an ADR/arbitration clause. The lawyers sued Sekerez in Illinois to establish their unpaid fees. She filed a “special appearance” and objected to personal jurisdiction. The Illinois court ordered the parties to arbitrate, and they did so in Indiana. The lawyers claimed their unpaid fees while Sekerez countered with claims for fraud and legal malpractice. The arbitrator ruled substantially in favor of the Chicago lawyers on their claim for fees and declared the counterclaims for fraud and malpractice to be nonarbitrable.

Back in the Illinois court, the lawyers moved to confirm the arbitration award and reduce it to judgment. Despite a continuing (personal) jurisdiction objection from Sekerez, the Illinois court entered judgment on the arbitration award.

Meanwhile, in Crown Point Darlene Sekerez, pro se, filed a Circuit Court motion to vacate the arbitration award pursuant to terms of the Indiana Uniform Arbitration Act and later added her “nonarbitrable” claims for fraud and legal malpractice. After the Chicago lawyers unsuccessfully moved to dismiss the Circuit Court case, they filed a new action in the Lake Superior Court to “domesticate” the Illinois judgment. Sekerez noted that the Circuit Court case contested the arbitration award upon which the Illinois judgment was based. Nonetheless, the Lake Superior Court “entered the Illinois judgment as a final judgment.” This appeal was from that Superior Court action. Remarkably, Ms. Sekerez proceeded pro se in the appeal and the Chicago lawyers filed no appellees’ brief.

The COA found that Sekerez met her burden of prima facie error and reversed the Superior Court judgment which was based on the Illinois judgment which, in turn, was based upon the arbitration award under challenge in the Circuit Court. In the view of the COA, the Chicago lawyers should have filed their domestication request as a counterclaim in the Circuit Court where a challenge to the predicate arbitration award was pending.

Comment: I found no mention in the COA Opinion of IC 34-54-11, the Uniform Enforcement of Foreign Judgments Act. This is the Act for the domestication of certain judgment of foreign states (as opposed to foreign countries). The holding in Sekerez supports the argument for a broad array of defenses to an action to domesticate a foreign judgment…Case note by Dave Allen.

“Man with a Gun” Revisited

It was May 9, 2017 when the departing SCOTSI Justice Robert Rucker wrote for a unanimous Court in Pinner v. State. The CLB case note came under the caption “Careless Carry” and expressed surprise at the SCOTSI’s willingness to follow federal precedent to hold that the mere possession of a handgun (as seen in a public place) is not sufficient evidence of criminal activity to justify an investigatory stop.

On May 30, 2017 the COA expressed its own surprise with Pinner by distinguishing it from a remarkably similar police encounter so as to approve the admission below of a handgun seized from the defendant. The newer case is Redfield v. State.

In the early morning hours of June 15, 2014 the Anderson Police Department received a report (as in Pinner) of a man with a gun in a public place. The tip included scant (but sufficient) descriptive details of the suspect. Officer Bailey arrived quickly to the “Birdhouse” bar and spotted outside a man, Deshawn Redfield, matching the description of the man with a gun. So far the relevant circumstances run parallel to those in Pinner.

As Redfield spoke with another man, Officer Bailey (then without backup) approached, speaking to and performing a weapons frisk on the non-suspect individual before announcing the report of a man with a gun. That was when, according to Officer Bailey, Redfield began to move away from Officer Bailey in a suspicious fashion as though Redfield was preparing to draw a weapon. Up to that point there was no investigatory stop. In other words, Redfield was entitled to move away when he began to do so. Then came the predictable sequence of: Officer Bailey ordering Redfield to halt; Redfield ignoring the order and continuing to walk away; Officer Bailey tasing Redfield (twice); and Officer Bailey recovering a handgun and drugs from Redfield. Naturally, Redfield had a felony record and (necessarily) no carry permit. The handgun and drugs recovered from Redfield were admitted at trial, and Redfield was convicted on multiple counts.

The best part of the COA affirmance is the helpful reminder that determinations of reasonable suspicion and probable cause are reviewed de novo while “findings of historical fact” are reviewed only for clear error. These standards apply equally to Fourth Amendment challenges and to those under Article 1 Section 11 of the Indiana Constitution.

The worst part of the COA affirmance is everything else. The COA seems to reason that by moving away from an ostensibly consensual encounter with Officer Bailey, Redfield thereby conferred upon this nervous lone Officer legal grounds for an investigatory stop. The distinctions between Redfield and Pinner are paper thin. If the post-Rucker SCOTSI is serious about the holding in Pinner, it should take Redfield on Transfer to disapprove the investigatory stop and the admission below of the recovered handgun and drugs…Case note by Dave Allen.

Long Beach Update

From the trove of case law handed down on May 30, 2017 the least significant may be Osborne v. Town of Long Beach, the unsuccessful appeal of beach front lot owners against the denial of Town permission to build “sea walls” to prevent further lake erosion of their septic fields. The suit below (by plaintiff owners) was filed as an action for declaratory and injunctive relief rather than for judicial review. The COA agreed with the Town that owners had failed to exhaust administrative remedies and that the trial court thereby lacked subject matter jurisdiction.

The interesting part of the case is that Gunderson v. State (decided 12/7/2016 in the COA) is now facing vacation by way of Transfer to the SCOTSI, all as predicted by the CLB case note captioned “Long Walks on Long Beach.” Given the unsettled state of affairs, determination of an owner’s lake-side lot line is an impossibility, raising the question of whether the proposed sea walls were intended for public or private property…Case note by Dave Allen.

Decreasing Probability in Sequential Inferences

You might say that the COA’s partial reversal of May 11, 2017 in Perry v. State has more to do with wife beating than with the chosen title of this note. Still, the nuances of evidence review in this “sufficiency” case are more informative than the disconcerting details of domestic battery. Hence this note is about evidence and inference in the context of a prosecution for domestic battery and a present but recanting victim.1

A nice reminder from Perry is that the trial court standard of “proof beyond a reasonable doubt” extends to every element of the offense, as required by the Due Process Clause of the Fourteenth Amendment. Is there a parallel requirement of proof beyond reasonable doubt in the Indiana Constitution?2

The trial court standard of proof beyond reasonable doubt is diminished on appellate review where the tribunal will neither reweigh the evidence nor assess the credibility of witnesses. Where evidence conflicts, the appellate tribunal will consider only that evidence most favorable to the jury’s verdict.

More bad news for defendants is that a conviction may rest solely on circumstantial evidence which need not counter every reasonable hypothesis of innocence. The COA panel in Perry turns to Black’s Law Dictionary for the definition of “circumstantial evidence” as that based on inference as opposed to personal knowledge or observation.

To its substantial credit the COA panel in Perry made the observation (based in reason and arithmetic) that “the probability of a given inference being accurate decreases with each [sequential] inferential building block.” Accordingly, there is an under-appreciated exception to the rule of sufficiency of circumstantial evidence. The exception is that a conviction cannot be sustained when the proof of an essential element of the offense is an inference based solely upon another inference.3  Here is an example of sequential inference. John has a red convertible in a town where there are very few red convertibles. A red convertible was observed near an arson fire. One might infer that the red convertible was John’s. The sequential inference that John drove his red convertible to the crime scene would be less probable and less reliable.

You will also find in Perry a useful review of the venue requirement. While venue is not an element of the offense, it must still be proved by a preponderance standard…Case note by Dave Allen.


¹Anyone whose life or practice is touched by domestic violence should know the doctrine of Crawford v. Washington, 541 U.S. 36 (2004) respecting limits to a defendant’s confrontation rights when a complaining witness is absent from trial after having made “nontestimonial” excited utterances near the time of the offense. Young v. State, 980 N.E.2d 412 (Ind.Ct.App. 2012) is a fair example of the Crawford doctrine.

²See the statutory standard of proof beyond reasonable doubt at IC 35-41-4-1(a) for criminal cases and IC 31-37-14-1 for juvenile delinquency adjudications.

³Poor editing of a source quote makes for a disappointing description in Perry of the sequential inference exception. A far better description is found at Landress v. State, 600 N.E.2d 938, 942 (Ind. 1992).

Careless Carry

The case is Pinner v. State, an interlocutory appeal of the trial court’s denial of Thomas Pinner’s motion to suppress evidence of the handgun found in his waistband when he was confronted by police. On May 9, 2017 the SCOTSI handed down its unanimous reversal. The SCOTSI reversed on Fourth Amendment grounds and declined to make a parallel analysis under Article 1 Section 11 of the Indiana Constitution.

An Indianapolis cab driver reported to police that a black male wearing a blue jacket and in the company of a blonde black woman dropped a handgun, thereby causing the cabbie to fear a robbery which did not follow. Police reported to the Studio Movie Grill where Thomas Pinner was seen seated on a bench with a wall behind him. Thomas was black, wearing a blue jacket, in the company of a blonde black woman, and in the establishment named by the alarmed cabbie.

Two police officers approached, and one announced the report of a handgun possessed by a man of Pinner’s description. Pinner denied having a handgun while fidgeting in a typically nervous manner. When he obeyed a police directive to stand up (with hands raised), the handgun in his waistband was visible. You know that Mr. Pinner lacked a carry permit. Otherwise, there would be no case. In defense of the weapons charges that followed, Mr. Pinner filed a motion to suppress the evidence from the described police encounter.

While the CLB supports the right of (legal) concealed carry, a concurrent obligation of the carrier is to keep the gun concealed. Flashing a deadly weapon in public is dangerous, rude, anti-social behavior that should be condemned. When someone drops his handgun in a cab and then enters a public establishment, what should the police do? According to the SCOTSI, the police did exactly the right thing for public safety purposes but still violated the Fourth Amendment rights of Mr. Pinner.

The SCOTSI reasonably decided that the encounter began as or became an investigatory stop (a/k/a “stop & frisk”) as opposed to a consensual encounter. The investigatory stop (a seizure) required a predicate of specific, articulable facts supporting a “reasonable suspicion” that the subject was (or was about to be) engaged in criminal activity. Here the deficit in the “reasonable suspicion” recipe was the handgun itself. Held: that possession of a handgun (as seen in a public place) is not sufficient evidence of criminal activity to justify an investigative stop. While based upon federal precedent, this holding by our SCOTSI was unexpected.

An afterthought is that the SCOTSI recognized here that reasonable police behavior may still violate Fourth Amendment protections in such a way that the “good faith exception” to the exclusionary rule is unavailable…Case note by Dave Allen

Indisputable Contradiction: Still Another Transfer Prediction Fulfilled

The case is Love v. State decided May 11, 2017 in the SCOTSI. The case involved: a motorist stopped by police after a pursuit; allegations of post-stop resisting; and a police car dash cam video that seemed to contradict some critical police testimony at trial. The COA panel majority reversed on sufficiency grounds. See the CLB Featured Article of September 12, 2016.

The CLB predicted Transfer for the SCOTSI to announce a rule for the appellate review of video evidence (admitted at trial) that may be at odds with other evidence supporting a conviction. The announced rule is that video evidence will be reviewed on appeal like any other evidence (meaning that it will not be reweighed) unless the video “indisputably contradicts the trial court’s findings.” The “indisputable” standard is met only when no reasonable person can view the video and come to a different conclusion.

While the COA majority had applied virtually the same standard of appellate review in order to reverse Royce Love’s conviction, the SCOTSI reached the opposite conclusion and affirmed the conviction below. The SCOTSI clearly rejected (as had the COA) the notion that video evidence may be reviewed de novo…Case note by Dave Allen

Another Transfer Prediction Fulfilled

The case of Zanders v. State decided in the SCOTSI on May 4, 2017 was previously reviewed in the CLB at the COA level. The CLB review of the COA’s August 4, 2016 2/1 decision was titled “Transfer Bait from the COA.” Transfer was predicted, and Transfer was granted. It came as no shock to the CLB that the SCOTSI disagreed with the COA panel majority respecting cell phone privacy and the warrant requirement. The COA majority reversed Marcus Zanders’ robbery and weapons convictions due (in part) to the warrantless acquisition by police of “CSLI” or cell-site location information which placed Zanders in the vicinity of two liquor stores soon after they were robbed. That evidence was used to obtain a search warrant leading to other evidence that was more directly incriminating.

As explained in Chief Justice Rush’s majority opinion, there are multiple versions of cell phone tracking. The version used by police in the Zanders investigation is described as network-based, historical, active CSLI, and the SCOTSI holding is limited to that tracking format. Cell phone tracking may also be “real time” (as opposed to historical), passive (as opposed to active), hand set based (involving GPS data), or network-based enhanced by pinging or triangulation. CJ Rush deferred “to another day” the evaluation of such alternate forms of cell phone tracking.

Zanders appealed on grounds including the admission below of the cell phone location evidence over his Fourth Amendment objection and corresponding objection based on Article 1 Section 11 of the Indiana Constitution. The Fourth Amendment challenge was decided 5/0 against Zanders. Under the “third party doctrine” one has no reasonable expectation of privacy (for Fourth Amendment purposes) in information that is already in the hands of a third party (here Sprint).

In partial dissent Justices David and Rucker adopted the position that the warrantless acquisition of historical CSLI data was not shown to be reasonable under Article 1 Section 11 of the Indiana Constitution. Note the three factors balanced in a Section 11 analysis. Here the SCOTSI majority and the dissenters declined to consider the (federal) “third party doctrine” in a Section 11 dispute. Rather, the two sides dispute the level of intrusion in the (warrantless) acquisition of cell phone location information and whether law enforcement needs were sufficiently urgent and acute to act without a search warrant. Notably, the initial police request for service provider tracking information alleged a nonexistent “emergency.” Police activity beginning with a lie should be deemed unreasonable by reason of the lie…Case Note by David Allen

Specific Performance, Lis Pendens,

Statute of Frauds, and a Grand Family Fight

The case is Knapp v. Wright decided May 4, 2017 in the COA. The Wrights owned and lived upon 56 acres in Elkhart County. The acreage included a private lake. To their daughter Rosalea and her husband William Knapp the Wrights leased an acre of that land, including a residence. Later there was a land sale contract for the Knapps to purchase the previously leased one acre (according to the Wrights) or that one-acre parcels plus two adjoining acres (according to the Knapps). As with many land sale contracts, the agreement here referenced a “commonly known as” address in its text while deferring a boundary description to the familiar attached Exhibit “A.” A critical problem is that no Exhibit “A” was attached. The Knapps paid contract installments for a number of years (while failing to pay for taxes and insurance as required) and then sought a deed to three acres, thereby sparking a grand family battle waged in the theater of the judiciary.

The Statute of Frauds (making enforcement of an agreement dependent upon a signed writing) applicable to land sale contracts is found at IC 32-21-1-1. While there was a writing in this case, the absence of a useful property description called into question the sufficiency of the writing. Even though it was the Wrights’ lawyer who prepared the land sale contract, they were able to persuade the trial court that the omission of a property description rendered the contract unenforceable. Thus, the Knapps’ claim for specific performance was tossed without regard to whether the intent had been to transfer one acre or three. Likewise, the lis pendens notice filed by the Knapps to inhibit any sale of the contested property was discharged. The COA affirmed.

The CLB finds it ironic that the Wrights were allowed to exploit their own negligence (the absent property description) to scrap the land sale contract, particularly after having accepted contract installments for a period of years. Moreover, it seems that the Knapps should have had a residual equitable claim against (at least) one acre to the extent that they reduced the contract balance and gained equity in the real estate. Forfeiture of such vendee’s equity is disfavored. See Skendzel v. Marshall, 301 N.E.2d 641 (Ind. 1973)…Case note by Dave Allen.

Case of the Underemployed Nurse Practitioner

It would be prudent to maintain a Transfer watch on the 2/1 COA decision of April 26, 2017 in Salser v. Salser. The dispute involved child support for a child of thirteen and educational support for her older brother, a Purdue student with a Navy ROTC scholarship. Father is a fully employed pharmaceutical salesman while Mother is a nurse practitioner who elected part-time employment over available full-time work. If she worked full-time, Mother’s income would roughly equal Father’s income. Both parties could earn bonuses.

Notably, the trial court made findings, including a finding that Mother was voluntarily underemployed (for purposes of imputation of income for child support purposes) and that the bonuses which might be earned were “uncertain and not predictable” and (thus) excluded from the parties’ Weekly Gross Income. Upon these findings (and an award of 50/50 shared physical custody of the daughter) the trial court allocated some expenses of the daughter (like private school) 50/50 and some of the son’s college expenses 50/50 without either parent paying periodic child support to the other.

It seems that there was sufficient evidence below to support the trial court’s findings regarding the inclusion of Mother’s imputed income and the exclusion of possible bonus income from the child support/education support calculations. Nonetheless, the COA majority declared both findings “clearly erroneous” and reversed. Mother had cited her “passion to be a mom” as her “just cause” for not working full-time. Yet parenting time was split 50/50, and the thirteen-year-old was engaged in several out-of-home activities. Is there a hint here of gender bias in the COA in this indulgence of an underemployed Mother? As for the reversal over the exclusion of bonus income, the COA suggested a “percentage to be paid on a periodic, predetermined basis.”

In dissent, Judge Bradford cited evidence supporting the trial court’s findings and the doctrine of deference to trial court judges in family law matters…Case note by Dave Allen.

A Mountain Bike Wipeout and (ITCA) Premises Liability

The case is Hoosier Mountain Bike Association, Inc. and City of Indianapolis v. Kaler decided March 23, 2017 in the COA. Richard Kaler made two runs on a municipal mountain bike trail. On his second, ill-fated run he elected to take a challenging path (but not beyond his level of skill and experience) at an optional “technical feature” of the trail described as a banked wooden turn or berm. Taking the berm’s “high line” on his second run, Kaler wiped out and suffered internal injuries.

Kaler then filed suit against the City and against the Mountain Bike Association which maintained the trail. He settled with the Association. Kaler’s Complaint against the City sounded in premises liability. Pursuant to the Indiana Tort Claims Act the City was entitled to a contributory negligence defense (as opposed to comparative fault) that could totally bar recovery. The City predictably filed its Motion for Summary Judgment which the trial court denied before certifying the matter for interlocutory appeal.

Kaler was an invitee participating in a sport activity. The City’s duty to him was tempered by his own duty to take precautions against these common risks that he appreciated or should have appreciated. The City’s duty would be enhanced if a condition of the land were held to present an “unreasonable risk of harm” of a nature that invitees might reasonably fail to appreciate. Finding the risk of the berm’s high line not to be unreasonably dangerous and noting Kaler’s skill and experience, the COA held that the City was entitled to summary judgment based on contributory negligence.

Some analysis. The holding here should be limited to cases of an experienced, adult rider on a government-sponsored trail. For private enterprise bike trails comparative fault would supplant the ITCA contributory negligence defense seen here.

COA footnote #4. The COA’s footnote #4 cautions that the SCOTSI “redrew the premises liability landscape” in Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) distinguishing between injury from a condition of the land and injury from activities on the land. The COA then elected to analyze the Kaler case as an injury from the condition of the land (the berm) as opposed to the activity (biking) upon it…Case Note by Dave Allen.

Time to Lead on Criminal Discovery

The case is Beville v. State, a 5/0 decision handed down March 17, 2017 by the SCOTSI. Marvin Beville’s interlocutory appeal pertained to his unsuccessful efforts below to obtain a personal viewing of a video recording of a “controlled” drug transaction between him and a purchasing confidential informant. Beville was not satisfied that his public defender was allowed to view the video and was undeterred when the prosecution claimed the “informer’s privilege.” The defense alleged that the State intended to use the video at trial and that Beville’s personal viewing was “fundamental” to preparing a defense. The CLB is more familiar with cases of informer’s privilege being used (rather than at trial) to conceal the identity of an informant referenced in a search warrant affidavit where the informant would not be a trial witness.

The SCOTSI cited the venerable case of Dillard v. State, 274 N.E.2d 387 (Ind. 1971) on criminal case discovery and viewed the case at bar as the collision of the informer’s privilege and the rule of Dillard. The Dillard rule (in short) is that the defense’s sufficiently designated discovery request for items material to the defense should be granted absent a showing by the State of a “paramount interest” in nondisclosure. The informer’s privilege allows the withholding of an informer’s identity except when a defendant can show that disclosure is “relevant and helpful” or “necessary for a fair trial.” Schlomer v. State, 580 N.E.2d 950 (Ind. 1991). If the defendant meets his burden, the State may still demonstrate in rebuttal that disclosure is not necessary to the defense’s case or that disclosure would threaten its future ability to recruit and use confidential informants. Then the trial court must weigh/balance the public interest against that of the defense.

Here the SCOTSI holds that the Dillard rule is inapplicable where the State has properly asserted the informer’s privilege. In other words, Dillard is held to apply only to nonprivileged evidence. Still, the burden of establishing privilege is with the State. Here that would require a showing (never made by the State) that Beville’s personal viewing of the video would reveal the informant’s identity. Notably, the State failed to request an in camera viewing by the trial court.

After holding that the State missed its chance to prove privilege, the SCOTSI declared that Beville should have prevailed anyway (had privilege been proved) in that the video was “likely a key piece of evidence for the State.”…Case Note by Dave Allen

Afterthoughts. The SCOTSI cited the Trial Rules generally with respect to discovery and TR 26(B)(5) specifically as to resolution of a privilege claim. The citation to rules of civil procedure in criminal cases tends to amuse and confound the CLB.

Here’s a pop quiz: How many of the SCOTSI’s 26 Rules of Criminal Procedure pertain to discovery?…NONE! Can a criminal defendant take witness depositions per TR 30?…Yes. Can a criminal defendant propound interrogatories to the State?…Apparently Not. Can a criminal defendant serve TR 36 Requests for Admission?…Apparently not. According to TR 1, what is the applicability of the Trial Rules?…To all suits of a civil nature. So how is it that trial rules on civil discovery are cited in criminal cases?…See the first question and answer in this pop quiz.

It is the official view of the CLB that criminal rules of discovery are overdue by several decades. The CLB urges the SCOTSI to remedy this oversight.


¹If the profit in drug dealing is proportionate to the risk, then why do so few drug case defendants have the money (cash) for private counsel?

A Failed Gift Causa Mortis

Former Chief Justice (now Senior Judge) Shepard authored this March 9, 2017 COA Opinion in the case of Garrison v. Garrison. The late Thomas Garrison lived only two weeks after his diagnosis/prognosis of terminal lung cancer. During that time he transferred title to a late model Corvette and another vehicle to his son Jay. Thomas was then married to Pamela Thomas, stepmother to Jay. Nine days after Thomas died Pamela opened an estate and filed a petition to recover the vehicles from her stepson for the benefit of the estate.

Pamela’s theory in the trial court was that the gift was inter vivos (as opposed to causa mortis) and that it was invalid due to Thomas’ incompetence. After conducting a hearing and finding the (conflicting) evidence pertaining to competence to be in equipoise, the trial court ordered Jay to turn over the vehicles and certified its order for interlocutory appeal. Accordingly, the trial court implicitly imposed a presumption of incompetence such that Jay would lose by failing to prove competency by a preponderance. The COA disapproved the trial court’s reasoning explaining that Pamela was the party whose burden was unmet for purposes of the “straight claim of incompetence” that was her theory of the case below. Still, the trial court’s order that Jay return the vehicles was affirmed, on grounds other than those considered in the trial court.

Without really deciding the obvious point that Thomas had made a gift causa mortis (as opposed to inter vivos) the COA introduced the issue of undue influence and the consequent presumption of constructive fraud inherent in the relationship (father to son) between donor and donee. In this context the donee takes on a burden of proving competence of the donor. Since the trial court had found the evidence pertaining to competence to be in equipoise, Jay loses on this alternate theory not tried below.

While the CLB hates appellate decisions (other than remands) made on grounds not considered below, it regards Senior Judge Shepard’s Opinion as a treasure of gift law. For instance, a gift causa mortis must be established by clear and convincing evidence including evidence other than the sole uncorroborated testimony of the donee…Case Note by Dave Allen.

Husband, Wives, and Tenants in Common

I don’t think I predicted Transfer but there was some criticism in my review of the COA Opinion of March 23, 2016 in Underwood v. Bunger, 52 N.E.3d 829 (Ind.Ct.App. 2016) vacated on transfer. At a minimum there was sarcasm in the case note title “When Tenants in Common Aren’t.” See now the SCOTSI Transfer Opinion (5/0) of March 6, 2017 reversing the trial court holding (affirmed by the COA) that a self-contradicting deed failed to rebut the presumption of joint tenancy (between husband & wife) by describing them plus one unrelated individual “all as Tenants-in-Common.” The context of the dispute involved a judgment creditor of husband (but not Wife) and husband’s death. At issue was whether the judgment creditor had a judgment lien against that undivided portion of the real estate owned by husband as a tenant in common. If husband’s sole interest was an entireties interest with his wife, then husband’s creditor would have no lien.

On Transfer the SCOTSI began with acknowledgment of the presumption of joint tenancy (entireties) when husband and wife share ownership of an interest in real estate. The deed in question referred to husband and wife as such but then added (after mention of a 3rd grantee) “all as tenants-in-common.” The SCOTSI held that the latter phrase was sufficient to rebut the presumption of joint tenancy between husband and wife…Case Note by Dave Allen

“What Do You Mean Line-Up…?”

Albee v. State is the case decided February 28, 2017 in the COA. The category of the appeal is pretrial identification/show-up. The result was the unanimous reversal of Neil Albee’s convictions for felony voyeurism and misdemeanor residential entry at a Purdue sorority house. Co-ed Margaret was in the shower when she saw a tall, dressed figure through the obscured glass door of the shower stall. She did not get a good look at the figure while she showered. At one point during her shower she found the (magnetically) latched door inexplicably opened about an inch. She finished her shower and returned to her bedroom where she sat on her bed texting a friend. She heard the bedroom door open. (No, this is not my screenplay for a slasher flick.) Looking into a full length mirror, she saw the reflection of a man not known to her. Margaret and the man “made eye contact” (by way of the mirror) for a few seconds. Then the man left.

Officers of the Purdue University Police Department arrived and searched the area. Around an hour and three-quarters after Margaret’s encounter, the officers found Neil Albee in a nearby parking lot. Officers escorted Margaret to the parking lot to view “the suspect.” There were police cars and multiple officers. The suspect was handcuffed. In the darkness of night his face was illuminated by the glare of a squad car spotlight. Margaret viewed Albee from a distance of about 30 yards. Her identification of Albee was much less than certain and based in part on the observation that Albee was too old to be hanging out on sorority row.

To “facilitate a more certain identification” Margaret was taken to the campus police station to view Albee in better lighting (via cctv). Officers also showed digital photos of Albee to Margaret. Ultimately Margaret identified Albee as the man in her sorority house.

Albee was charged. He filed an unsuccessful motion to suppress Margaret’s pretrial identification. At trial (following an initial hung jury mistrial) Albee objected to the pretrial and in-court identification. He was convicted of voyeurism and unlawful entry.

The relevant point of law is that due process requires the suppression of evidence of an impermissibly suggestive pretrial identification. A “show-up” identification of a detained suspect is inherently suggestive and may result in the suppression of a resulting in-court identification. Still, there is no per se exclusionary rule for a suggestive pretrial identification. If a witness had a good opportunity to view a suspect from a reasonably close distance in good light, then the pretrial identification by the witness may be sufficiently reliable to overcome the “corrupting influence” of a one-on-one “show-up” or similarly suggestive procedure.

In the subject case there was the one-on-one show-up in the campus parking lot resulting in less than a certain identification. Then Margaret viewed the lone suspect on cctv and sorted through digital images of him alone before she concluded he was the man she had seen inside her sorority house. There was no effort to create a line-up or even a simple photo array of different men.

Purdue police officer Jared Baer testified as follows when asked about the possibility of arranging a line-up:

“What do you mean line-up…We don’t do that and I’ve never heard that.”

This testimony from a trained police officer is equally hilarious and sad while confirming unflattering stereotyped opinion of campus cops. Given the absence of evidence of the reliability of Margaret’s identification the COA unanimously reversed, subject to an unlikely retrial…Case Note by David Allen

Spoiler Alert: This case note is a prelude to a Featured Article Series that will probably be named “Odd Cops” and commence with an analysis of college campus cops in Indiana.

Total Loss Damages for the Leased Car

Magistrate Michael Pagano of the Lake Superior Court County Division has once more stirred the pot of “totaled” vehicle measure of damages. Many of us lawyers have relied upon Persinger v. Lucas, 512 N.E.2d 865 (Ind.Ct.App. 1987) to claim “loss of use” damages for a reasonable time pending replacement of a totaled vehicle. In Persinger the COA allowed 30 days of lost use and storage damages. The COA affirmed a loss of use compensation of $20.00 per day for a 9-year-old Chevrolet Vega. I saw no expansion of Persinger until the 2013 appeal in Jasinski v. Brown, 3 N.E.3d 976 (Ind.Ct.App. 2013). In that case Magistrate Pagano had awarded lost use damages (for a $2,000.00 vehicle) of about $52.00 per day for 84 days. Now when I draft a complaint for loss of use of a vehicle, I ask for 84 days of damages (unless there was an earlier repair or replacement).

The case at hand is Bokori v. Martinoski decided February 15, 2017 in the COA. Magistrate Pagano presided over the small claims trial of Jasmina Martinoski against Jason Bokori. It seems that Jason drove negligently, crashing into and totaling Jasmina’s leased Toyota Corolla. Jasmina owed more than $22,000.00 on her lease while the Corolla was worth around $5,000.00 less, according to the settlement accepted by the vehicle lessor from Jason’s insurer. The lessor (Toyota Financial) demanded that Jasmina pay the difference between the lease balance and the sum that it had accepted from Jason’s insurer.

Notably, Jasmina did not own the damaged Corolla. Rather, she had a leasehold interest in the vehicle that was more liability than asset. It appears that Jasmina sued on the small claims docket to recover a sort of consequential damage (generally not recoverable in tort) occasioned by the depreciation on her nearly new Toyota exceeding the balance reduction on her lease. Judge Pagano, however, seems to have couched his ruling in favor of Jasmina in terms of fair market value and his weighing of conflicting evidence on that issue.

A split COA panel affirmed, even though the pro se Jasmina filed no Appellee’s Brief. If Jason Bokori had not totaled Jasmina’s Corolla, she would have paid (over the remaining term of the lease) a sum exceeding $22,000.00 on a vehicle worth thousands less just before it was totaled. But because the $5,000.00 deficiency became due all at once, Jasmina was somewhat disadvantaged. I tend toward agreeing with the dissent that Jasmina’s consequential financial disadvantage was not compensable. I will look for a Transfer Petition in this case…Case Note by Dave Allen.

Corpus Delicti and the Defiled Doggy

Corpus delicti may be described as the physical evidence of a crime, such as the bullet-riddled corpse of a shooting victim. The concept is relevant where (as in Indiana) an out-of-court confession to a crime is insufficient by itself to sustain a conviction. Sometimes the rule of corpus delicti is misdescribed as a rule of evidence requiring physical evidence of a crime as a precondition to admission of a confession. The order of evidence is not critical. A confession may be admitted first so long as there is subsequent evidence of corpus delicti. Accordingly, the CLB describes corpus delicti as a rule of substantive due process.

Corpus delicti may be proved circumstantially and need not be proved beyond reasonable doubt. The “physical” evidence of the offense is not always tangible. See Swafford v. State, 421 N.E.2d 596 (Ind. 1981) for the (controversial) holding that one confession may serve as the corpus delicti for another. The purported purpose of the rule is to prevent a confession-based conviction for a crime that never took place.

The case at hand is Andy A. Shinnock v. State, decided February 9, 2017 in the COA. It seems that Paul Moore shared a residence with his two dogs and with parolee Andy Shinnock. Paul arrived home from work to the absence of any canine greeting. He called his dogs, and neither responded. He called a second time, and only the male dog responded. He noticed the unusual circumstances of dog feces on the floor and dog food scattered about. He opened the door of Shinnock’s bedroom to find his female dog running out the door to safety under the couch. Shinnock was seen to be sporting boxer shorts and an erection. Shinnock admitted (to the house mate) an attempt to have intercourse with the dog. When police arrived, Shinnock admitted to having sex with the dog.

A bench trial ensued on a charge of bestiality, a Level 6 Felony, contrary to the prohibition of IC 35-46-3-14. Shinnock’s defense counsel made unsuccessful corpus delicti objections to admission of the two confessions, and the Court found Shinnock guilty but mentally ill.

Given the absence of rape kit evidence or vaginal exam evidence on the dog, the COA found an absence of the requisite corpus delicti to support the confession. The view of the CLB is that the (first) confession (to the attempt) plus the collateral evidence of the dog’s distress and Shinnock’s arousal constitute sufficient evidence of corpus delicti. Andy Shinnock deserves prison for a very, very long while. Let’s hope that our new AG sees the merit in a Transfer Petition…Case Note by Dave Allen

Limits to Dram Shop and Respondeat Superior Liability

Two COA Opinions in the past few days serve to limit liability in causes of action for dram shop liability and for respondeat superior liability. The earlier of the two cases is Harrison County Sheriff’s Dept. v. Ayers decided January 31, 2017 in the COA. The Sheriff’s Dept. waged a successful appeal after being handed an adverse jury verdict. Suit was filed against the Sheriff after an off-duty deputy argued with the deputy’s suicidal wife and then left a gun with her. The wife shot (and killed) herself, and her estate sued the Sheriff. Held: there was insufficient nexus between the deputy’s job and the facts of the case. It would be good to remember the general rule against respondeat superior in § 1983 suits against law enforcement officers. The present case alleged state law torts.

The second case of the pair is Neal v. IAB Financial Bank (an unlikely dram shop defendant) decided February 2, 2017 in the COA. A motorist who was likely under the influence pulled into a bank parking lot to attend to a flat tire. The motorist received some assistance from bank employees, who began to suspect intoxication only after the tire was changed. The motorist left, and the bank employees called 911 to report their suspicions of a drunk driver (whom they had aided). The motorist was then involved in a traffic accident that injured Rachel Neal, who sued the bank. Not surprisingly, the bank won SJ from the trial court. Held: the bank owed no requisite duty to Rachel to support her negligence claim; nor did the bank assume such a duty when its employees assisted the tire-changer. Though deserving of greater mention, Opinion footnote 4 dispenses with the dram shop issue (IC 7.1-5-10-15.5) with the observation that no bank employees “furnished” alcohol to the impaired driver they assisted…Case Notes by Dave Allen.

No “Alford Plea” for Hoosiers

This is right out of “Guilty Pleas 101.” The case is Demajio Ellis v. State decided January 26, 2016 in the SCOTSI. The result is a rare reversal of a denial of post-conviction relief. The COA had affirmed that denial by way of NFP decision.

Amid evidence that he and another had robbed and slashed the throats of two other men (who survived) Mr. Ellis made a deal for some measure of leniency in exchange for his guilty plea and agreement to testify against the co-defendant. The problem is that Mr. Ellis maintained his (unlikely) innocence both at his change of plea and at the subsequent sentencing. The SCOTSI (Rucker, J.) distinguished the case at bar from cases in which a defendant is inconsistent in maintaining his innocence while pleading guilty. Mr. Ellis also had tried to rescind his guilty plea prior to sentencing.

There must be, of course, a factual basis for a guilty plea before a court may accept the plea. See footnote 5 of this Rucker Opinion for a description of four recognized methods for eliciting evidence to prove a factual basis, one of which requires no admission from the defendant other than the plea itself.

The “Alford” referenced in the title of this case note is from North Carolina v. Alford, 400 U.S. 25 (1970) wherein the SCOTUS held there was no federal constitutional barrier against acceptance of a guilty plea from a defendant who maintains his innocence at least where there is a strong factual basis for the plea. The SCOTSI continues adhering to its view that no “Alford” plea is valid in Indiana…Case Note by Dave Allen.

Priority of a Defective Lien and the “BFP” Defense

Here is a case that is relatively interesting within the generally dull genre of mortgage foreclosure. The case is U.S. Bank, National Association v. Jewell Investments, Inc. decided January 26, 2017 in the COA. The dispute was between a “first-in-time” mortgagee (which recorded a defective mortgage missing a legal description) and the “second-in-time” mortgagee which recorded a compliant mortgage. The trial court denied the subsequent recorder’s motion for SJ, and the COA reversed on interlocutory appeal.

Given the absence of a legal description from the first-in-time mortgage, there was no constructive notice to the second-in-time mortgagee, which claimed the status of bona fide purchaser without notice of the earlier defective mortgage. Such notice may be actual or constructive. Constructive notice may be provided by the recording of a mortgage in the proper county and with an accurate legal description. The result here is that the second-in-time mortgagee (lacking actual or constructive notice of the prior, defective lien) was entitled to lien priority despite the chronology. See IC 32-21-4-1(b) for the general rule favoring liens by the chronology of their recording…Case Note by Dave Allen.

The Gun in the Car

One car, one handgun, and multiple occupants are the foundational circumstances of this appeal (Ericksen v. State decided 1/18/2017 in the COA) from a conviction of “carrying” a handgun without a license in violation of IC 35-47-2-1. By way of undercover operation, arrangements were made for the purchase of a Taurus .45 handgun from Jeremiah Ericksen. On the way to the transaction rendezvous Ericksen’s car (owned and driven by his wife) was stopped and then searched (pursuant to a warrant). A Taurus .45 handgun was found under the driver’s seat. Ericksen had been a backseat passenger while his wife drove and his son occupied the front passenger seat.

There was sufficient collateral evidence that Ericksen exerted control over the weapon so as to have “constructive possession” of it. The question on appeal was whether Ericksen could “carry” the handgun without having it on his person or otherwise carrying it. While Ericksen’s appellate counsel made an excellent point, it was to no avail in light of Henderson v. State, 715 N.E.2d 833 (Ind. 1999) wherein the SCOTSI held that mere “constructive possession” equals “carrying.” How can this be given the rule of narrow construction of criminal statutes? The answer to my rhetorical question is “because the SCOTSI said so.” Henderson was wrongly decided and should be overturned. No Justice on the unanimous Henderson Court remains on the SCOTSI.

Counting the Days (Again)

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

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

Long Walks on Long Beach

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

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

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

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

Father by Estoppel

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

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

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

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

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

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

Recent Fourth Amendment Cases in the COA

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

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

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

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

Of these three cases, the CLB does not expect any grant of Transfer but supports Transfer in Jacobs to address Judge Crone’s dissent…Case Notes by Dave Allen

Civil Forfeiture and the 8th Amendment

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

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

Deadlines, Hard and Soft

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

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

The case that provoked my query is Allen County Plan Commission v. Olde Canal Place Association (OCPA), decided October 11, 2016 by a unanimous COA panel. The “OCPA” had appeared in opposition when the Plan Commission granted a zoning change and design waivers to accommodate the construction of multiple family housing in a formerly commercial zone.

The once-extended deadline for filing the administrative record was not met. The defendant developer moved to dismiss. Ultimately, the trial court set aside its dismissal under TR 60(B)(1). The defendant developer and the Plan Commission appealed with the assertion that OCPA could never establish the meritorious claim required for TR 60(B)(1) relief in that it would be impossible to file an administrative record after the missed deadline. The COA agreed and reversed and remanded with instructions to restore the dismissal of OCPA’s petition for judicial review.

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

The key difference between the Allen County Plan Commission case and Adoption of O.R., may be the difference between a statutory deadline and a deadline established by judicial rule. If my intuition is accurate, the SCOTSI will defer more to filing deadlines established by legislation…Case Note by Dave Allen.

¹The standing of the OCPA as an “aggrieved” party was not explained and should not be presumed. See, for instance, Robertson v. BZA, 669 N.E.2d 310 (Ind.Ct.App. 1988).

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

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

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

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

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

With judgment entered Julie was finally able to appeal as a matter of right. If Julie expected to find sympathy in the COA, she was misinformed. The COA affirmed the discovery order as to the file of the divorce lawyer, reasoning that “a party may not place an issue before the trier of fact and then assert a privilege to prohibit the introduction of evidence regarding that issue.” Judge Riley put it rather succinctly with this observation: “By having chosen the sword [suing her “ex”], Julie must now relinquish the shield [of privilege].” The COA affirmed the trial court as to each appealed ruling. While this case note is about attorney/client privilege and its waiver, there is much more in the COA Opinion. Good reading for a slow afternoon…Case Note by Dave Allen


¹While the CLB has no sympathy for Julie, it’s fair to mention that Ind. Appellate Rule 14(A) respecting interlocutory appeals as a matter of right does not allow such an appeal from a challenged discovery ruling until a sanction is entered for the payment of money. Accordingly, defiance of an order compelling discovery is a legitimate (though risky and controversial) strategy.

The “Shall” in TR 8(C)

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

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

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

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

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

Another Transfer Wish Granted

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

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

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

A Caveat for Cohabitants

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

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

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

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

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

Not Too Trivial for Transfer

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

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

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

Transfer Bait from the COA

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

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

Waiving the Nonexistent Remedy

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

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

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

TR 41(E) Dismissal of a PCR Petition

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

Arrestee Strip Searches

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

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

Seatbelts and Searches

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

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

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

Good Cop, Dog Cop

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

How to Sell More Than You Own

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

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

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

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

Another Predicted Transfer

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

No Apparent Authority to Consent

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

Limitations Tolling for the Local Legal Malpractice Suit

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

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

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

Elaine Chenore filed her malpractice suit against attorney Robert Plantz more than two years after William Knight’s bankruptcy discharge but less than two years after she learned of the discharge. Nonetheless, Special Judge Kathleen Belzeski dismissed the Complaint on the limitations defense. The COA reiterated the familiar rule that the two year limitations period for a legal malpractice suit begins to run when the plaintiff knows of or should have known of (through ordinary diligence) the tortious conduct. Here the Complaint asserted facts in support of equitable tolling of the limitations period. Accordingly, the Complaint was sufficient to withstand the TR 12(B)(6) challenge…Case Note by Dave Allen


¹The filing of a creditor’s claim in a Chapter 13 Bankruptcy is not a complex task, particularly where the claim is liquidated and reduced to judgment.

The New Quintet

I’m told that Justice Slaughter was sworn in on June 13, 2016, restoring the Indiana Supreme Court (“SCOTSI” to the CLB) to the full complement of Five. I wondered when Justice Slaughter would begin participating in Opinions. To my considerable surprise, the new era began June 16, 2016 in the case of Hale v. State, wherein Justice Slaughter concurred in Justice Massa’s Opinion for the unanimous Court. Is it possible that Justice Slaughter participated in the deliberations preceding the Opinion? He certainly was not on the bench on March 2, 2016 for the scheduled oral argument.1 If it would be too early for Justice Slaughter to author an Opinion or a dissent, is there a purpose in his concurrence in what would otherwise be a 4-0 decision? Still, Justice Slaughter’s apparent enthusiasm for an early start in the assumption of judicial duties must be applauded.

As for the case on appeal, it is an interesting reversal of the conviction of an indigent defendant represented in the trial court by pauper counsel. After two codefendants took a plea and appeared ready to testify against Thomas Hale, his public defender requested public funds to depose them (in advance of trial). The trial court denied the motion the same day it was filed without a hearing or findings in support of the denial. The codefendants testified at trial (without objection) and were cross-examined vigorously but without the benefit (to defense counsel) of that preparation and planning likely to arise from a pretrial deposition.

Justice Massa’s Opinion treated the legal community to a nice review of case law on the topic of criminal discovery (not limited to indigent cases). Notably, there was no mention of State ex rel. Keller (a/k/a Kelly) v. Criminal Court of Marion County, 317 N.E.2d 433 (Ind. 1974), which I regard as the most useful and most enlightened authority on criminal discovery in Indiana.

Mr. Hale’s conviction was reversed (based on SCOTSI precedent) despite the absence of an objection at trial and despite the absence of a showing of specific harm from the denial of pretrial depositions at public expense. Moreover, trial courts were instructed to commence making findings to support the denial of public expense depositions.

Here is the view of the CLB. We now have 25 Rules of Criminal Procedure. Not one deals with discovery. While Justice Massa mentioned Indiana Trial Rules, Rules 26 through 37 (the discovery rules) have limited applicability to criminal proceedings. Hence, the role of case law in searching for criminal discovery authority. The time has come for discovery to be added to the Indiana Rules of Criminal Procedure.

¹The online Appellate Docket shows a scheduling of oral argument and no order to cancel oral argument. Still, the Opinion lacks the customary footnote referencing oral argument. Assuming that oral argument was held, I am reminded of that unwritten rule of the SCOTUS that a Justice absent from oral argument will not participate in the decision.

Now Count Backward from 21

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

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

An Academic Limit to “Postsecondary Educational Expenses”

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

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

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

A Hollow HICA Victory

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

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

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

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

HOA Showdown in Castlewood

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

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

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

Of Fences and Bad Neighbors

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

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

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

A SCOTSI April in Review

(Farewell, Justice Dickson)

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

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

4/05/16 Ackerman v. State.

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

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

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

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

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

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

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

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

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

4/12/16 Custody of M.B.

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

4/12/16 Gibson v. State

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

4/12/16 Hitch v. State

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

Comment: A bad day for the Second Amendment.

4/19/16 Citizens Action Coalition v. Koch

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

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

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

4/21/16 Horton v. State

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

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

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

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

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

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

Comment: A very helpful Opinion for civil litigators.

4/26/16 Bowman v. State

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

4/26/16 In Re N.G.

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

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

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

4/28/16 Siner v. Kindred Hospital

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

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

4/28/16 Allen v. State

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

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

4/28/16 Suggs v. State

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

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

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

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

Case Notes by Dave Allen

Refusal to Identify

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

IC 34-28-5-3.5

Refusal to identify self

Sec. 3.5. A person who knowingly or intentionally refuses to provide either the person’s:

(1) name, address, and date of birth; or

(2) driver’s license, if in the person’s possession;

to a law enforcement officer who has stopped the person for an infraction or ordinance violation commits a Class C misdemeanor.

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

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

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

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

Pro Se Lawyer Can’t Win APRA Fees

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

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

More on Intimidation and Conditional Threats

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

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

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

Streets, Sidewalks, and Discretionary Function Immunity

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

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

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

Another Transfer Prediction is Fulfilled

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

SCOTUS Stands Up for Lawyers (And Their Fees)

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

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

“No Batson  Issue for Hispanics?”

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

When Tenants in Common Aren’t

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

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

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

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

The Hospital Lien Act and “Reasonable” Medical Charges

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

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

E-Filing Follies: Installment 1

See the unpublished COA decision of March 11, 2016 in AFSCME v. Gary Police Civil Service Commission. Angela Brown served as administrator of the Gary Police Civil Service Commission. A dispute arose with the police union (AFSCME) as to whether Brown’s job was covered by union rules. The Commission and Brown sued the union and “the Executive Branch of the City of Gary” 1 to settle the dispute. Following some judicial recusals, Lake Superior Court (County Division) Magistrate Michael Pagano became special judge and held a status conference that was not attended by the union’s lawyer. Judge Pagano made a bench order (later mailed but not necessarily delivered) that documents be e-filed. The union lawyer was not registered with the Clerk to participate in e-filing. When the Commission lawyer e-filed a Motion for Summary Judgment, he apparently relied on the e-filing system to give notice to the opposing counsel. That did not occur, and a default summary judgment was entered without service of the motion upon union counsel. Nonetheless, the trial court denied the union’s eventual TR 60(B) motion, and the COA affirmed.

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

1This appears to be another instance of a government entity essentially suing itself.

Can’t Fight the IHSAA

See the March 11, 2016 COA Opinion in IHSAA v. Cade. Calumet Region residents will recall the background circumstances from just over a year ago when a high school basketball game between Hammond High and Griffith ended in an ugly brawl on the hardwood. The IHSAA (through Commissioner Bobby Cox) quickly met with officials of both schools and then assessed harsh penalties against both, including disqualification from the 2015 State Tournament. The schools and the “individual team members” appealed the penalties to the IHSAA Review Committee, which conducted separate hearings and affirmed the penalties.

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

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

Crime and Free Speech

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

Adverse Possessors vs. Tax Sale Purchaser

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

Give Me A Sign

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

How to Sue Yourself

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

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

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

Pay the Lady, Counselor

See the December 23, 2015 COA Opinion in Topolski v. Egan. It seems that Elkhart attorney Eugene Topolski hired Bonnie Egan as his legal assistant. Bonnie started in 2005 at $520.00 per week and began earning $600.00 per week in 2010. From the beginning of 2010 through her April 10, 2012 resignation Bonnie went uncompensated for 36 weeks! Following her resignation Bonnie filed suit under IC 22-2-5-2 (the wage payment statute) for back pay of $21,600.00 plus liquidated damages and attorney fees as provided in the statute. The trial court entered judgment against Topolski in the composite sum of $85,104.14. The COA affirmed unanimously. To me the most remarkable aspect of the case is that a legal assistant out there in the real world worked for weeks on end without being paid…Case Note by Dave Allen

Duty to Render Aid, Transfer Bait from the COA

The homeowner co-host of (live-in) boyfriend’s birthday party is sued by the Personal Representative of a deceased party guest and the bankruptcy estate of an injured guest on theories of dram shop and “failure to render aid” to an injured guest who died of his injuries. See Rogers v. Martin decided December 14, 2015 in the COA. This post concerns only the latter cause of action. Trial court awarded SJ to the homeowner. COA now reverses on theory that there was a cause of action against a party host for failure to render aid to an injured or intoxicated guest. Expect Transfer…Case Note by Dave Allen

The Rogue Guard and Respondeat Superior

The case is Knighten v. East Chicago Housing Authority, et al. decided December 8, 2015 in the SCOTSI (5/0). The trial court had awarded SJ in favor of the Agency which employed the Guard who argued with his Housing Authority resident girlfriend and then shot her while on duty for the Agency which had contracted with the Housing Authority. The conundrum in such respondeat superior cases is that, the more outrageous the employee conduct is, the less likely that it will be held to be within the scope of employment. The firearm belonged to the Guard. There was conflicting evidence as to whether the firearm was permitted or required for the job. I see the outcome here as inconsistent with Garnett v. Clark, 889 N.E.2d 281 (Ind. 2008)…Case Note by Dave Allen

The Big Repo Fail

See the COA Opinion of December 10, 2015 in Auto Liquidation Center, Inc. v. Chiqui Chaca. The defendant is a used car dealership that financed a purchase by plaintiff Jorge Chiqui Chaca. Within 90 days of the purchase about 40% of the purchase price had been paid. Though the customer did not owe any past-due installments, dealership’s sloppy records (on computer) indicated an arrearage. The vehicle was repossessed. The dealer declined to return the vehicle when shown that payments were current. The dealer also arranged for a false notarization on a Power of Attorney in order to sell the wrongly repossessed vehicle. It appears that the (former) office manager of the dealer testified for the plaintiff before a jury awarded damages (including exemplary damages for conversion) of $121,069.66. Affirmed on appeal but remanded for a determination of appellate attorney fees against the dealer. See general criticism here of the self-help repo…Case note by Dave Allen

The Collateral Source Statute and HIP Payments

The Opinion is from Patchett v. Lee decided in the COA November 19, 2015. Legal points of reference include the Collateral Source Statute at IC 34-44-1-2 and Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009). In Stanley the SCOTSI held that (in a personal injury trial) plaintiff’s original hospital bills and the discount obtained by plaintiff’s insurer were both admissible under the Collateral Source Statute. Here the insurance was the HIP plan sponsored by the State of Indiana. Moreover, the “discount” between the original hospital billing and the amount paid was nearly 86%. Citing IC 34-44-1-2(1)(c)(ii) the COA held that HIP collateral source payments (being paid by a state agency) are not admissible. Moreover, the COA concluded that the heavily discounted HIP net payment was not probative of the reasonable value of medical expenses.

I have to mention my angst over the underlying problem that hospital billing tends to be ridiculously high, particularly for the “self-paying” individuals who cannot negotiate a lower (reasonable) charge. In Allen v. Clarian Health Partners, 980 N.E.2d 306 (Ind. 2012) the SCOTSI unanimously held that a patient’s suit against a hospital disputing (allegedly) unreasonably high charges fails to state a cause of action. Wouldn’t it be nice to see some help from the General Assembly?…Case Note by Dave Allen

When Is A Threat to Shoot Not Intimidation?

“If you come any closer, I’ll shoot.” This was the threat against police officers from an agitated resident in the doorway of his home as recited in the November 20, 2015 COA in Causey v. State. Remarkably, the COA panel unanimously reversed the intimidation conviction of the agitated resident. The context was police at the door following an anonymous report of a domestic dispute. The resident was alone in the house when police arrived. He assured them that there was no one inside requiring assistance, declined to allow police entry, and clearly demanded that the police leave his property. Instead, the police stayed and called for SWAT team reinforcements. The conviction was reversed because the threat to shoot was neither retaliation for a prior lawful act nor compulsion for the police to engage in conduct against their will. See IC 35-45-2-1 for the Intimidation Statute…Case Note by Dave Allen

“Income” for Child Support Purposes and Dissipation Under a Prenup

Carmer v. Carmer is a most interesting 2-0-1 COA opinion of October 30, 2015 dealing with a structured settlement injury annuity as income for Child Support Guidelines purposes and the impact of dissipation on the property division provisions of a valid prenuptial agreement. Here the father of two minor children had a structured settlement annuity (from his prior estate) which was not “income” for federal income tax purposes. Trial court determined child support without reference to that revenue. Held: that annuity revenue should either be included in the support calculation or the trial court should “provide justification” for deviating from the Guidelines. The concurrence (in part) of Judge Robb recommends the discernment of “those portions” of the injury settlement meant to compensate for past or future loss of income.

The panel was unanimous in affirming the trial court’s consideration of Wife’s dissipation to reduce her presumptive property share under a prenuptial agreement. The theory was that a prenup that is silent as to dissipation is not erroneously modified by a trial court’s consideration of dissipation…Case note by Dave Allen

PC Affidavit “Boilerplate” Held 

Insufficient for Issuance of Blood Draw Warrant

Another rare case of an insufficient PC Affidavit for issuance of a search warrant. See Herron v. State decided October 14, 2015 in the COA. Context was a traffic stop and driver’s refusal of a “chemical test.” The officer used a form Affidavit for a blood draw warrant. However, the Affidavit (as filled out) omitted the circumstances of erratic or unlawful driving that justified the stop and the circumstances causing the officer to believe that his suspect was the vehicle’s driver. Nonetheless: a blood draw warrant was issued; the driver was charged; and the trial court overruled the motion to suppress but certified his order for interlocutory appeal. Held: the use of “boilerplate” language in a warrant affidavit is valid “as long as the affidavit contains sufficient facts specific to the search at issue to establish probable cause…” The COA reverses…Case note by Dave Allen


CR 4(C) (Discharge for Delay) Takes a Beating in the COA

The case of Allen v. State was decided (2-1) in the COA on October 14, 2015. The defendant was charged with traffic-related offenses from two Class “A” misdemeanors to one Class “C” felony. Then there was an intervening “B” felony charge that resulted to a 10-year prison term while the traffic related cases remained pending. Prior to transport to a state facility the defendant appeared in the traffic-case trial court and gave notice of his “B” felony sentence. Oddly, the court reporter advised defense counsel that he would have to “file a transport order” for his client to be present at the scheduled bench trial. No transportation order was filed, the defendant did not appear for trial, and the trial court issued an arrest warrant for the defendant who was in DOC custody. The COA majority holds the defense (attorney and client) responsible for not tendering a transport order. No mention by the Majority of the State’s responsibility to bring a defendant to trial within one year pursuant to CR 4(C). Criticism: when the State has custody of a man, it is absurd to shift to the defense the responsibility of producing that man for trial. I agree mostly with the dissent of Judge Barnes…Case Note by Dave Allen.

Cold Case DNA, Due Diligence, & Limitations

Here’s the opinion you need to cite the next time you’re accused of not exercising due diligence. The case is Quinn v. State decided October 8, 2015 in the COA. Mr. Quinn was convicted of rape, child molesting, and criminal confinement committed (in a single episode) more than 20 years before he was charged. As for the “B” felony child molesting and “B” felony criminal confinement, there were (period of) limitations issues. Quinn was identified more than 20 years after his crime through a DNA profile gleaned from long ignored evidence stored in the Indiana State Police Lab. When finally developed, the DNA profile matched Quinn’s CODIS system DNA profile.

The five-year limitations period for a “B” felony under IC 35-41-4-2 (2009) was subject to an exception for prosecutions filed later than five years (from the crime date) but within a year of the discovery of “evidence sufficient to charge” through DNA analysis. This exception was, in turn, limited to one year after the state could have discovered “evidence sufficient to charge” through DNA analysis by the exercise of due diligence.

Here Quinn had been charged within a year of the DNA match. The question was whether the DNA match could or would have been discovered earlier by way of exercise of due diligence. The State Police Lab had possession of its trace evidence since 1988 (prior to modern DNA analysis). The state had collected (for other investigations) buccal swabs from Quinn in 2001 and 2003. Indiana began submitting DNA profiles to CODIS in 2000. Then in 2012 there came the DNA match. The holding against Quinn on the limitations issue is that doing nothing for twelve years after the State Police Lab had begun doing DNA analysis is still due diligence if you happen to be the State Police Lab and if the guy complaining happens to be a brutal child molester.

There was evidence here of a huge backlog of unanalyzed cold case DNA trace evidence at the State Police Lab. There was no evidence of any definable program to eliminate or reduce that backlog by testing the samples and checking for matches. Rather, the State Police Lab made no effort to test a sample until there was a law enforcement request. In every other context I have found, “due diligence” requires some positive effort and some concern for time. Those principles stand abandoned by the COA in Quinn…Case note by Dave Allen

Privacy and Paranoia

The 2-0-1 COA decision came October 2, 2015 in Robbins v. Trustees of Indiana University, a case similar to Walgreen Co. v. Hinchy, 21 N.E.3d 99 (Ind.Ct.App. 2014) Reh. at 25 N.E.3d 748 but with an opposite outcome as to the essential issue of vicarious employer liability for an employee’s mishandling of confidential medical information. In Robbins a newly hired LPN was granted access to a large patient database and used it to obtain records of a romantic rival and the rival’s children, which records were than posted on an internet blog. You will find in Robbins a useful definition of “joint venture” and the standard for employer negligent hiring/retention liability when an employee inflicts harm by way of acts outside the scope of employment. Still, the two most interesting aspects of the case are (1) the handling of the respondeat superior claim (in favor of employer) and (2) the discussion of whether “public disclosure of private facts” is even a recognized tort in Indiana. Hope for Transfer. While I would not impose strict liability on medical service providers for the unauthorized disclosure of patient information, it seems (to me) that there should be some enhanced duty of care that is not met by collecting each employee’s promise to refrain from misuse of access to huge databases. If Robbins is good law, then medical service providers are immune when their wayward employees predictably abuse the trust of access to confidential information…Case note by Dave Allen

Sixth Amendment Outrage Fizzles in the COA

See the September 30, 2015 3-0 Opinion of the COA in Larkin v. State. LaPorte County suspect’s wife was found shot to death. He agreed to talk to investigators if charged with voluntary manslaughter rather than murder. The suspect, his attorneys, an investigator, the County Prosecutor, and the Chief Deputy Prosecutor were present during the videotaped interview. During a break in the interview the suspect and his attorneys had what they thought was a private conversation, except that the video recorder was still operating. As expected, the suspect was charged with voluntary manslaughter. A transcriptionist notified the Chief Deputy Prosecutor of the privileged content of the videotape, but it appears that there was no immediate notice to the defense. The Chief Deputy Prosecutor later viewed the privileged portion of the tape. After receiving a copy of the tape by way of pretrial discovery, the defense filed unsuccessful motions to dismiss and to disqualify the LaPorte County Prosecutor and all his deputies. There was a successful motion to exclude the privileged conversation from evidence. In denying the defense motion to disqualify the entire County Prosecutor’s office, the trial court accepted the prosecution’s claim that it learned nothing new from the privileged tape footage (no harm/no foul). The suspect was, after all, providing a statement relative to the shooting death of his wife.

The COA Opinion reminds us that prosecutorial disqualification flows downhill (from an elected Prosecutor to his deputies) but not uphill (from a deputy to the elected Prosecutor). Here the County Prosecutor lost an election and was no longer available for disqualification. The COA declined to rule on the issue of whether the Chief Deputy Prosecutor (who knowingly viewed the privileged footage) should be disqualified, to the end that this interlocutory appeal was dismissed as moot. Criminal defense lawyers should be left feeling paranoid and angry. I looked and found no pending disciplinary complaint from the prosecutorial misconduct in this case…Case note by Dave Allen.

Addendum. I have read a news account that John Larkin has brought a civil suit against Chief Deputy Prosecutor Robert Neary and others. In a similar case the same Robert Neary and some police officers were said to have eavesdropped (from an adjacent space) on an attorney/client discussion in a “private” room at a police building. Robert Neary was “cleared” of criminal wrongdoing by a special prosecutor in that case of murder suspect Brian J. Taylor. See the COA 2-1 decision of June 10, 2015 affirming the trial court’s pretrial sanctions entered after the police officers “took the 5th.” The SCOTSI has accepted Transfer in the Taylor case. According to the online Roll of Attorneys Robert Neary is still with the LaPorte County Prosecutor’s Office. How can this be?

When “Yes” Means “No” and When a Holding is Not a Holding

This 1/1/1 decision in Burnell v. State was handed down September 24, 2015 by the COA. Following a traffic stop and failed field sobriety and PBT testing, a driver was asked whether she would take a “chemical” test. Though she responded in the affirmative, she also wanted to first call her police officer uncle. At one point she took a step away from the officer. The trial court agreed with the officer that the driver refused a chemical test, and that was the issue on appeal. The Opinion of the Court (Pyle, Judge) claimed to hold (on first impression) that “any answer short of an unqualified, unequivocal assent…constitutes a refusal.” The “holding” was supported only by the Judge who wrote it. So what is the legal standard on refusals? Hope for Transfer…Case note by Dave Allen

Public Policy vs. Contractual Freedom in Auto Liability Insurance

The case is Founders Insurance Co. v. May decided September 18, 2015 in the COA by a split (2/1) vote. A vehicle owner allowed his unlicensed girlfriend to drive the vehicle on occasion, but not on the day that she drove and injured a bicyclist who later died. The bicyclist owned no automobile and lacked uninsured motorist coverage. Owner’s liability policy excluded coverage during the unauthorized use of the vehicle and during use (regardless of consent) by most unlicensed drivers. Founders sued the bicyclist’s estate and others for declaratory judgment as to coverage/duty to defend and appealed trial court’s denial of SJ as to the estate. Reversed (2/1). Both majority and dissenting opinions cite Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664 (Ind. 1997). Look for Transfer.

In terms of public policy limits to auto liability policy exclusions, I tend to agree with the exclusion for a vehicle driven without the owner’s consent. I would deem invalid any exclusion based on an undisclosed loss of a bailee’s driving privileges when there was no actual notice to the bailor/owner. In the latter case (as opposed to the former) the bailor/owner would have civil liability for damages caused by the unlicensed bailee if the entrustment was determined to be negligent. Wouldn’t it be nice for the General Assembly to take charge?…Case note by Dave Allen

Dependent Health Insurance Costs in a Child Support Worksheet

The case is Mitten v. Mitten decided September 14, 2015 in the COA. There a divorced father appealed portions of the trial court’s judgment. This Note pertains solely to his complaint that too high a sum was included in the CSW for his child’s health insurance costs paid by the (custodial) mother. Father complained that the sum of $88.52 per week was unreasonably high. Given the (apparently) higher income of the father, his child support obligation included most of the weekly health insurance costs paid initially by the mother. See Guideline 7 defining “reasonable cost” as anything less than 5% of the gross income of the parent ordered to provide medical support and possibly anything less than 50% of that parent’s gross income. This rule is flawed well beyond that portion dictated by the federal mandate. To begin, the 50% hard cap is insanely high (for the average case). Second, the 5% soft cap may be too low where (as here) the premiums are paid initially by a custodial parent whose income is substantially less than that of the noncustodial parent. In such a case where mother elects to pay a high health insurance premium from modest income, father’s higher income merits consideration in the “reasonableness” calculation. Though the cost of dependent health insurance through the ACA exchanges was not mentioned here in Mitten, I favor consideration of comparative costs in the determination of the reasonableness of the cost of a particular plan…Case note by Dave Allen


I ran two CSW’s for comparison. Each featured one child, no overnites, no sitter expense, (custodial) mother’s income of $600.00, and father’s income of $1,500.00. The swing factor was a dependent health insurance cost of $1.00/week versus a cost of $100.00/week paid by mother. The difference in father’s support obligation was $70.00, demonstrating a cost-shifting of the insurance expense from mother to father.

SCOTSI On Home Rule

For those attorneys representing local government there was a treat of sorts from the SCOTSI on September 1, 2015 in Anderson v. Gaudin, the most recent chapter of an internal fight in Brown County over its Fire Protection District. Though the vote was split 3-1-1, it seems that four justices took a liberal view of “home rule” powers. The application here of “home rule” policies was whether the County Board of Commissioners (after having created a county-wide Fire Protection District) could thereafter amend its own ordinance to emasculate (but not quite dissolve) that Fire Protection District. In the contextual background was the Fire Protection Act and its petition-based procedure for dissolving a Fire Protection District. While the COA’s (vacated) opinion at 24 N.E.3d 479 cited the local precedent of Town of Cedar Lake v. Alessia, 985 N.E.2d 55 (App. 2013) the SCOTSI decision on Transfer did not mention Alessia, even though its holding seems consistent with the SCOTSI holding in Gaudin…Case Note by Dave Allen.


An Insufficient Rule to Show Cause

I know there’s an old appellate case holding that a Rule to Show Cause (for indirect civil contempt) may incorporate the factual allegations of an attached Petition. My (rare) Rules to Show Cause typically include “See attached Petition” for the particulars. On August 31, 2015 in Stanke v. Swickard the COA reversed contempt findings (re visitation and support) against a father for the insufficiency of the Rule to Show Cause. See IC 34-47-3-5 for the general Rule to Show Cause requirements and IC 31-16-12-6 for the requirements for child support cases. The latter statute requires that the Rule to Show Cause include (among other circumstances) a history of support payments along with the date of the Order and a statement of the arrearage. I cannot remember ever having read a Rule to Show Cause for child support (including my own) which included a “history” of child support payments. We’ve all been warned…Case Note by Dave Allen

Tough Trial Rule Decision

It makes sense for any successful Appellant to move for a change of judge after reversal and remand. In Lanni v. NCAA decided August 26, 2015 in the COA there had been an earlier reversal/remand for the trial court’s erroneous grant of summary judgment (for one of three defendants) while discovery was ongoing. See Lanni v. NCAA, 989 N.E.2d 791 (Ind.Ct.App. 2013). The plaintiff/appellant moved for a change of judge per TR 76(C)(3). The trial court denied the motion and subsequently entered summary judgment for two of the three defendants. On appeal (again) the COA held there was no error in the denial in that there had been no “trial” preceding the earlier appeal. Analysis: While the COA holding is certainly defensible on a narrow reading of TR 76(C)(3) it exposes a gaping deficiency in this Rule (promulgated by the Indiana Supreme Court) and deprives many successful Appellants of a change of judge following an erroneous judicial ruling and an appellate reversal. Let’s hope that the SCOTSI has a fresh look at TR 76(C)(3)…Case Note by Dave Allen

Epilogue: In keeping with my view that the SCOTSI should take a fresh look at TR 76(C)(3), I have sent a Proposed Amendment to the Indiana Supreme Court Division of State Court Administration for presentation to the Committee on Rules of Practice and Procedure. Here is the proposal in the required lined out/underlined format.

TR 76(C)

(3) if the trial court or a court on appeal orders a new trial, or if a court on appeal otherwise remands a case such that a further hearing and receipt of evidence are required to reconsider all or some of the issues heard during the earlier trial,there may be further proceedings other than the mere entry of a judgment or order expressly required by the court on appeal, the parties thereto shall have ten [10] days from the date the order of the trial court is entered or the order of the court on appeal is certified;

The goal of the Proposed Amendment is to assure litigants and lawyers of judicial impartiality on remand, whether or not the successful appeal was preceded by a trial.

TR 60(B)(1) and (8) in Foreclosure Priority Fights

(Caveat: this case note begins and ends with editorial opinion.)

There is a disturbing practice evident in many Foreclosure Complaints of a junior lienholder plaintiff demanding priority over obviously senior liens. The absence of judicial condemnation of this practice is equally unsettling. Here junior lienholder Car-X sued for foreclosure. The true senior lienholder, Huntington National Bank, mishandled or ignored its service and was defaulted. The default declared the (false) priority of the Car-X lien over that of mortgage lender Huntington National Bank. Naturally, the Bank filed a TR 60(B) Motion for relief from the default. The trial court found neglect, but not “excusable” neglect per TR 60(B)(1) and denied relief. A divided COA panel held that the trial court had abused its discretion in denying the motion for relief. See COA’s (vacated) opinion at 22 N.E.3d 687 (Ind.Ct.App. 2014). On Transfer the SCOTSI held (4-0-1) with Justice Rucker concurring only in result, that the trial court had not abused its discretion in denying TR 60(B)(1) relief. But while the COA had not mentioned TR 60(B)(8) and its “any [other] reason” basis for relief, the SCOTSI remanded to the trial court to “reevaluate” the request for relief under TR 60(B)(8). The last two paragraphs of Justice David’s Opinion (preceding the Conclusion) teem with quotable dicta fit for any motion for TR 60(B) relief. This SCOTSI opinion was handed down August 21, 2015 in The Huntington National Bank v. Car-X Assoc. Corp.

The underlying, unaddressed problem here is the deplorable practice of a demand for relief to which a plaintiff is clearly not entitled (on the face of the Complaint) and the related use of procedural default to obtain such relief. Another example of this practice is the August 18, 2015 NFP COA decision in Horizon Bank v. Centier Bank. There the unanimous COA panel awarded TR 60(B)(1) relief to a neglectful, defaulted, (former) senior lienholder in another foreclosure action by a junior lienholder with aspirations toward higher priority…Case note by Dave Allen.

Tier I Railroad Retirement

“Tier I” Railroad Retirement benefits are analogous to Social Security Retirement Benefits while “Tier II” is analogous to a pension. The latter may be divisible in a divorce case as a marital asset while the former is neither property nor a marital asset. This black letter law was lost on the Marion Superior Court in Harris v. Harris decided August 24, 2015 in the COA. There the Railroad employee husband was erroneously ordered to pay wife (by check upon receipt) one-half his future Tier I payments. The COA rightly reversed, citing well-settled caselaw. The interesting aspect of the case (other than the inexplicable clear error from an experienced magistrate) is the admonition that husband’s future Tier I benefits may not be considered by the trial court as grounds for deviating from the “50/50” presumption.

Practice Tip: Check the Railroad Retirement Board online for the form of QDRO it requires for division of Tier II benefits…Case Note by Dave Allen.

Contagion of Child Custody Reversals?

I commented recently on the remarkable COA reversal in Marriage of Steele-Giri and Steele, an appeal from the Lake Superior Court decided July 27, 2015. Now a separate COA panel has issued a reversal in a (procedurally) similar case (from the Marion Superior Court) wherein a petition to modify physical custody was denied by the trial court (with findings), and then the “negative judgment” was successfully appealed. In Marriage of Maddux decided August 11, 2015 the appellant/moving party below was the Father. A custody evaluator and GAL both recommended a change of physical custody in favor of Father. The trial court found: that Mother regularly denied parenting time without cause; that Mother made repeated “unsubstantiated” allegations of abuse against Father; that Mother caused “irreparable” harm to the children’s relationship with Father; that Mother was indifferent to the suicidal thoughts of one child; that Mother was in contempt for denial of parenting time; and that there had been substantial changes of circumstances. Still, the trial court found that Father failed to prove that custody modification was in the children’s best interests. The COA panel treated the finding of “failure to prove” as a conclusion of law subject to de novo review, thus avoiding the thorny issue of challenging the factual findings of the trial court. The Maddux panel thus accepted the trial court’s factual findings while rejecting (rightly, I think) its conclusion…Case Note by Dave Allen

 Lack of Probable Cause for Search Warrant?

The case is Buford v. State decided July 24, 2015 in the Indiana Court of Appeals.  The COA reversed convictions for dealing and other crimes on grounds that trial court evidence resulting from a search warrant should have been suppressed for a lack of probable cause (in the Affidavit) to support the warrant.  The particular problem with the Affidavit was the unnecessary inclusion of uncorroborated hearsay (from an anonymous tip) claiming that drugs were being dealt from a residence.

Police took note of the tip and learned that two residents at the suspect address had warrants.  Officers smelled burnt marijuana from outside the house and, after entering to execute the warrants, saw apparent marijuana residue on a table.  The officers then assembled an Affidavit for Search Warrant citing the anonymous tip and their own perceptions from within and without the residence.  Being uncorroborated, the hearsay should have been omitted.  Remarkably, the COA declined to discuss whether the nonhearsay evidence in the Affidavit amounted to probable cause.  There is no mention in this case of “Constitution” (State or Federal).  There is prominent mention of IC 35-33-5-2(b) relative to the requisite corroboration of hearsay in a warrant Affidavit.  Don’t be surprised if the AG requests Transfer…Case Note by Dave Allen

Weighing the Evidence in Child Custody Appeals

Family Law practitioners should have a look at Marriage of Steele-Giri and Steele decided by a divided Indiana Court of Appeals panel on July 29, 2015.  The trial court (Hon. Elizabeth F. Tavitas of the Lake Superior Court Room Three) had denied a divorced mother’s petition to modify the physical custody of her daughter.  There was some evidence that the 10-year-old daughter was unhappy living with her Father, Father’s girlfriend, and girlfriend’s two children.  Mother had married a doctor, moved to Oregon, and gave birth to the daughter’s half-sibling.  While it seems that there was evidence of changed circumstances and best interests to support an award of custody to Mother, the trial court ruled against modification.

Mother’s appeal of a “negative judgment” defied the odds (at least for now) and prevailed.  Not only did the COA find errors in several of the trial court’s sua sponte findings (so as to warrant a remand) the COA majority held that the evidence (per the cold transcript) compelled an award of physical custody to Mother.  Best v. Best, 941 N.E.2d 499 (Ind. 2011) is the Opinion wherein the SCOTSI unanimously shut (slammed) the door on the appellant reweighing of evidence in custody disputes.  Judge Barnes, dissenting in Steele, cited Best while the majority did not.  While it is easy to applaud Mother’s victory here, there is the appearance that the COA has gone rogue.  Look for Transfer…Case note by Dave Allen.


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