Indiana Court Decisions – Sept. 3 to 16, 2014

7th Circuit Court of Appeals

Sept. 4

Civil – Same-Sex Marriage/Constitutionality

Marilyn Rae Baskin v. Penny Bogan; Midori Fujii v. Commissioner of the Indiana State Department of Health; Pamela Lee v. Brian Abbott

14-2386, 14-2387, 14-2388

Indiana’s assertion that preventing same-sex marriage encourages responsible procreation among heterosexuals was unequivocally rejected in a blistering opinion from the 7th Circuit Court of Appeals, which said the state’s argument could not be taken seriously.

Nine days after oral arguments were held in three same-sex marriage lawsuits from Indiana and one from Wisconsin, the appellate court issued a unanimous opinion that found the states’ prohibitions on marriage of gay or lesbian couples violated the Equal Protection Clause of the 14th Amendment.

“The challenged law discriminates against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended – is so full of holes that it cannot be taken seriously,” Judge Richard Posner wrote for the panel.  

The 7th Circuit wrote one opinion for those three Indiana challenges and the single marriage lawsuit from Wisconsin, Virginia Wolf, et al. v. Scott Walker, et al., 14-2526.  The judges focused solely on equal protection and did not address the due process argument the plaintiffs made. Posner wrote the equal protection issue provided compelling grounds to explore so that the court did not have to consider the plaintiffs’ argument that marriage is a fundamental right.

“The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases,” Posner wrote.

Considering the Indiana cases, Posner’s opinion reflected his questions to the state’s attorney during oral arguments about why Indiana saw fit to allow same-sex couples to adopt children but did not allow these couples the benefit of marriage. He characterized gays and lesbians as the “most stigmatized, misunderstood, and discriminated-against minorities in the history of the world,” and said the harm they and their children experience by being denied the right to marry is considerable.

Posner dismissed Indiana’s responsible procreation reasoning, finding the argument falters because the state does allow infertile couples and first cousins to marry. In addition, the judge ripped the state’s stance that opposite-sex couples give very little thought during intimacy as to whether a baby will be created.

“In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really – so have no need for marriage,” Posner wrote. “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Civil – Social Security Disability Benefits

Heather Browning v. Carolyn W. Colvin, acting commissioner of Social Security

13-3836

Finding repeated fault with the administrative law judge who denied a Chandler woman Social Security disability payments, the 7th Circuit Court of Appeals reversed and remanded the case back to the Social Security Administration.

Heather Browning claimed she was intellectually and physically disabled. She has an IQ of 68 and suffers from a disease that limits the movement of her left leg.

The 7th Circuit faulted the administrative law judge for concluding Browning’s IQ score was invalid and that she actually had higher mental faculties because she was assessed as being sarcastic.

“The administrative law judge thought the fact that the plaintiff goes to ‘bars and clubs,’ does some cooking and shopping, helps care for a pet, watches television, and ‘only takes over-the-counter pain medications,’ showed that she can do at least sedentary work,” Judge Richard Posner wrote.

“He suggested (probably on the basis of her not using prescription painkillers) that she had outgrown the effects of the Legg-Calve-Perthes disease that she had had as a child and that her current problems with her left leg were the result of her obesity. (But so what? The issue is the disabling effect of those problems.)”

The appellate court asserted the administrative law judge committed an error by instructing the vocation expert to assume Browning could perform sedentary work. Pointing to O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010), Posner wrote the vocational expert could not determine Browning’s ability to work because the judge would not let her consider several of the claimant’s limitations.

Also, the 7th Circuit questioned how many jobs would be available in Chandler for Browning and noted the judge’s conclusion that Browning could work as a “hand packer” is not a job that exists in the U.S. Department of Labor’s Dictionary of Occupational Titles.

Indiana Supreme Court

Sept. 3

Criminal – Weapons Enhancement/Sentence

Christopher Cross v. State of Indiana

73S01-1401-CR-29

Because a man’s firearm enhancement is based on the same behavior used to convict and sentence him for carrying a handgun without a permit, the Indiana Supreme Court vacated the conviction and five-year enhancement.

Christopher Cross was charged with several felony drug and weapon offenses and two misdemeanor offenses based on a drug transaction at a Shelbyville hotel in 2006. He later sought post-conviction relief and was resentenced in 2013. He received an aggregate 38-year sentence, which included a one-year sentence for the misdemeanor offense of carrying a handgun without a permit, a six-year sentence for carrying a handgun without a permit after a prior felony conviction, and a five-year sentence for a firearm enhancement.

Cross claimed that the post-conviction court violated Indiana double jeopardy principles by entering convictions and imposing a sentence for both carrying a handgun without a permit and an enhancement based on the same handgun. He argued the firearm enhancement and carrying a handgun conviction were based on the same behavior and cannot stand.

The state claimed that while the charging information for the firearm enhancement count alleged Cross possessed the gun in violation of the law when he committed the offense, the prosecutor consistently argued that his use of the weapon during the crime was what warranted enhancement. But the justices pointed out the state actually argued the use justified an overall sentence of 75 years, not specifically the firearm enhancement.

Also, at the time Cross committed the crime, the statute made clear a sentence may be enhanced based on an accused person’s use or possession of a firearm.

“… it appears to the Court that on its face, the charging information for the handgun enhancement count seeks a conviction for ‘the very same behavior or harm’ alleged in the controlled substance count,” Justice Robert Rucker wrote. And since the evidence presented at trial did not demonstrate separate and distinct acts of possession upon which each count is based, the conviction of carrying a handgun and the five-year firearm enhancement must be vacated.

Miscellaneous – Privileged Information/Disclosure

TP Orthodontics, Inc., Christopher Kesling, DDS, MS, Adam Kesling, and Emily Kesling, et al. v. Andrew Kesling, Individually and as Trustee of the Andrew C. Kesling Trust Dated March 28, 2001, et al.

46S03-1405-MI-337

The Indiana Supreme Court tackled two issues of first impression in a dispute involving a family business and claims the company president caused a significant decrease in shareholder value.

Sibling minority shareholders in TP Orthodontics – Christopher, Adam and Emily Kesling – filed the complaint against their brother and president of the company, Andrew Kesling. A special litigation committee was formed to investigate the derivative claims. The SLC ultimately recommended only some of the claims be pursued and refused to hand over its full, unredacted report to the siblings. In the 140-page report, only 20 pages were unredacted based on TPO’s claim of attorney-client privilege and work-product privilege. The siblings sought the full report in order to try to show the SLC’s determination was not made after an investigation conducted in good faith based on I.C. 23-1-32-4(c).  This is an issue of first impression before the Supreme Court.

The trial court ordered the full report filed under seal and the Court of Appeals affirmed on interlocutory appeal.  And the justices agreed in part, holding that absent derivative claims of attorney-client privilege or work-product privilege, SLC reports are to be presumptively disclosed.  

“Here, there is no question that the full, unredacted SLC report is relevant at this stage of discovery proceedings, as the content of the report will provide the sibling shareholders with the information necessary to either prove or disprove the issue of whether the SLC conducted a good faith investigation into the derivative claims,” Justice Steven David wrote.

But TPO claimed there is information in the report that must be redacted due to attorney-client privilege. The siblings argued that TPO implicitly waived any privileged information in the report by putting the SLC’s good faith at issue. The waiver of privilege in this context is also an issue of first impression for the justices.

The court decided that TPO met its burden of establishing the presence of confidential attorney-client communications within the SLC report.

“Although the sibling shareholders desire access to the full SLC report in order to meet their statutory burden of establishing the SLC’s lack of a good faith investigation, their wish for access cannot come at the expense of TPO’s desire to protect the privileged attorney-client communications and attorney work product contained within the report,” David wrote. “We therefore remand this case to the trial court and direct (1) TPO to specifically identify privileged attorney-client communications and attorney work product contained within the SLC report; (2) the trial court to review in camera the revised redacted SLC report and privilege designations to determine whether the designated material is in fact privileged; (3) the trial court to then order the release of the revised SLC report not protected by privilege to the sibling shareholders; and (4) the trial court to issue a protective order preventing any party from disclosing the report’s (unredacted) contents.”
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Sept. 9

Domestic Relation – Maintenance Agreement/Revision

Barbara J. Pohl v. Michael G. Pohl

32S04-1404-DR-245

If divorcing parties want to make judicial modification available for the maintenance agreements, they must say so in their contract, the Indiana Supreme Court pointed out. Because a divorced couple’s maintenance agreement allowed for court intervention, the justices ordered the trial court to consider the wife’s request for modification.

Barbara and Michael Pohl divorced in 2009 after 18 years of marriage. After they entered into a settlement agreement, they filed an addendum calling for Barbara Pohl to pay her ex-husband monthly maintenance of $4,000 beginning in June 2013. Since injuring his back in 1996, Michael Pohl has been receiving Social Security Disability payments, which are his sole income.

Just a few months prior to the first payment being due, Barbara Pohl sought modification, citing Michael Pohl’s changed circumstances. He was now receiving higher SSDI payments and he moved in with his fiancée, who paid the mortgage and made more than $100,000 a month. Barbara Pohl earned around $182,000 a year in 2012. She wanted the amount reduced to $1,000 monthly.

The trial court denied the motion, finding the agreement was not intended to be modifiable and she must show fraud, duress or mistake, which she had not done.

She appealed, citing Voigt v. Voigt, 670 N.E.2d 1271. The Court of Appeals affirmed.

In Voigt, the Supreme Court held that “a court has no statutory authority to grant a contested petition to modify a maintenance obligation that arises under a previously approved settlement agreement if the court alone could not initially have imposed an identical obligation had the parties never voluntarily agreed to it.” The courts, under statute, have discretion to impose maintenance only in the areas of incapacity, caregiver and rehabilitative.

The Supreme Court in that case concluded that agreements for non-statutory forms of maintenance may be modified only by agreement because modifications should not be used to expand the courts’ statutorily limited authority for ordering maintenance; and the parties’ freedom of contract requires enforcing the contract they freely made because involuntarily changing one provision could unravel the consent that made the agreement possible, Chief Justice Loretta Rush wrote.

The Court of Appeals has wrestled with this issue since Voight and has been divided. As such, Rush wrote, “it is time to settle the issue.”

“If we presume the agreement to be non-modifiable unless it specifies otherwise, parties may be deprived of relief in the face of unforeseen changes (for recipients, a deterioration of their condition or increased expenses; for payors, lost income or other financial catastrophe). But the alternative risks pulling the rug out from under parties who legitimately thought their negotiations had brought finality and predictability during the tumultuous time of a divorce,” she wrote.

Citing Chief Justice Randall Shepard’s freedom-of-contract concerns expressed in Haville v. Haville, 825 N.E.2d 375, 378 (Ind. 2005), the justices decided presuming the contract to be modifiable would “defy grownups’ freedom of contract more frequently than it would save disabled spouses from being stuck with an inadequate award or able-bodied spouses from an award that had become oppressive.”

“We therefore hold that even when a court could have unilaterally ordered an identical maintenance award, we will presume the parties intended their agreement to be final and non-modifiable unless they specifically provided otherwise,” Rush wrote.

The addendum does contain such a provision in this case, calling for Barbara Pohl’s payments to continue “until further order of the court or agreement of the parties.” And when an agreed maintenance award provides for modification, the “substantial and continuing change in circumstances” standard governs such requests, the justices held.

As such, the trial court erred when it denied her modification petition for failure to prove “fraud, duress, or mistake.” On remand, the court should consider the evidence under this standard found in the incapacity maintenance statute to determine whether the agreement originally made has become unreasonable.

Indiana Court of Appeals

Sept. 3

Miscellaneous – Sale of Property at Auction

Mobile Home Management Indiana, LLC v. Avon Village MHP, LLC, State of Indiana Bureau of Motor Vehicles, Treasurer of Hendricks County Indiana

32A04-1401-MI-6

The Indiana Court of Appeals reversed the sale of several mobile homes through an auction in Hendricks County after finding the buyer did not comply with statutory requirements regarding timelines for conducting an auction.

Avon Village MHP, referred to as “New Avon” in the court opinion, purchased real estate in Hendricks County that was recently sold in a sheriff’s sale. The land contained a mobile home park, and there were several homes on the property at the time. New Avon signed leases with the tenants in some of the mobile homes. It then sought ownership of the homes and sent a notice through the mail to Avon Leasing, the recorded owner of the disputed mobile homes. It later sent a second notice notifying Avon Leasing that the homes would be sold at a public auction if not removed by a certain date.

Avon Leasing never responded and the mobile homes were acquired by New Avon through the auction. A week later, Mobile Home Management Indiana LLC purchased the disputed mobile homes from Avon Leasing. The county treasurer refused to issue new titles due to the disputed ownership.

The two sides asked the court to declare it the rightful owner of the mobile homes. The trial court ruled in favor of New Avon.

The dispute brings up an issue of first impression, as it appears no other court has interpreted the provisions at issue in I.C. 9-22-1.5-1, et seq., the Abandoned Mobile Homes chapter, Judge Margret Robb noted.

The COA ruled New Avon failed to comply with the chapter’s statutory requirements.

“(New Avon) sent the First Notice dated May 29, postmarked May 30, and then sent the Second Notice only two weeks later. It did not meet the thirty day mandate of Indiana Code section 9-22-1.5-3. Additionally, the auction was held less than thirty days after the Second Notice was sent, as evidenced by the date of the letter, June 13, and the date of the auction, July 9. This did not meet the mandate of Indiana Code section 9-22-1.5-4. The entire sale process, from the sending of the First Notice to the auction took only forty-two days, whereas the statute contemplates at least a sixty-day period. For these reasons, the auction must be set aside. New Avon therefore has no ownership interests in the disputed mobile homes, and MHMI’s purchase of the mobile homes from Avon Leasing is valid,” she wrote.
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Sept. 4

Criminal – Child Molesting/Evidence

Marq Hall v. State of Indiana

49A05-1312-CR-614

A panel on the Indiana Court of Appeals was divided over whether a man’s Class A felony child molesting conviction should be overturned. The dissenting judge believed any error by the trial court was harmless, so the conviction should stand.

Marq Hall was convicted of molesting M.T, the 12-year-old daughter of his girlfriend, A.D. M.T. claimed Hall forced her to have sex, although an exam did not find any evidence of his DNA except for on shorts M.T. wore over her underwear and was inconclusive as to whether genital tears were caused by sex.

Hall claimed the trial court abused its discretion when it excluded a phone call between himself and A.D. discussing how to impeach M.T. A.D. told Hall several things, including about an incident in Kentucky in which M.T. claimed a boy had “did something to her” and tried to get him locked up. But A.D. said it turned out they were mutually experimenting on each other and it was the “same situation” as with M.T. and Hall.

The phone call was excluded by the trial court’s order in limine prohibiting questioning, testimony or evidence concerning specific acts of dishonesty by any state witness, but Hall argued that the state opened the door to that evidence through its questioning of himself and A.D.

“We agree with Hall that the State opened the door to the admissibility of the phone call. The State’s cross-examination of Hall insinuated that he had no basis for asking A.D. questions about M.T.’s credibility, that he had a bad motive in asking those questions, and that his request for information was for naught, all of which was untrue. When the trial court ruled that A.D.’s statements made during the phone call were inadmissible, Hall was denied the opportunity to demonstrate to the jury that A.D. had, in fact, given Hall information relevant to A.D.’s credibility,” Judge Edward Najam wrote.

“In essence, the State used the phone call as a sword to attack Hall’s credibility, while it simultaneously used the motion in limine as a shield to immunize A.D. from cross-examination, to bolster A.D.’s false testimony, which went to her credibility, and to keep Hall from answering questions to rebut the State’s attack. The State cannot have it four ways. The trial court abused its discretion when it excluded the proffered evidence.”

This was not a harmless error, so the majority ordered Hall be retried.

Chief Judge Nancy Vaidik dissented, finding the entire contents of the phone call should not be admitted. She also believed any error by the trial court in excluding the call was harmless.

“Reading between the lines here, this reversal is not about whether a false impression was created concerning whether Hall in his phone call for the first time or second time asked A.D. about M.T.’s past. The State did not make any argument about the phone call during its closing argument. Instead, this reversal is about smoke with no fire in the midst of overwhelming evidence of Hall’s guilt. If there is fire, our criminal-justice system provides a remedy through post-conviction relief,” she wrote.

Civil Tort – Uninsured Motorist Insurance

Progressive Paloverde Insurance v. Jacob P. Arnold

49A02-1402-CT-62

A man injured in an accident while riding a motorcycle cannot collect under his insurance policy’s uninsured motorist coverage, the Indiana Court of Appeals ruled. The judges rejected his claim that the exclusion of motorcycles violates public policy.

Jacob Arnold was riding his Yamaha motorcycle when he was involved in an accident allegedly caused by another driver, who was uninsured. Arnold had just purchased the motorcycle a week earlier and it was not on his auto policy with Progressive Paloverde Insurance at the time of the incident.

Arnold filed a complaint for personal injuries and uninsured motorist proceeds; Progressive sought partial summary judgment on the grounds that the motorcycle is not covered under the policy. The trial court denied the insurer’s motion for summary judgment and certified its order for interlocutory appeal.

Arnold’s policy has uninsured motorist coverage, but it has an exclusion when the bodily injury is sustained while using or occupying a motor vehicle owned by Arnold, other than a covered auto. And the policy’s definitions of auto and covered auto make clear that a motorcycle is excluded from the coverage.

Arnold doesn’t dispute this interpretation of the policy, but claimed the exclusion of motorcycles from his uninsured motorist coverage is contrary to Indiana law and public policy. He cited Veness v. Midland Risk Ins. Co., 732 N.E.2d 209 (Ind. Ct. App. 2000), in support. There, the COA held it was against public policy for an insurance company to exclude an underinsured motorist coverage simply because the insured was occupying a motorcycle where an insured person is legally entitled to recover damages from the owner or operator of an underinsured motorcycle.

“The exclusion in Veness worked to limit coverage based on the type of motor vehicle operated by the negligent party, while the exclusion in this case depends on the insured person’s operation of a vehicle he owns but has not insured,” Judge Margret Robb wrote.  

“Simply stated, Arnold did not qualify as insured under this policy for liability purposes while operating a motorcycle he owned but did not insure through Progressive. Therefore, his policy’s uninsured motorist coverage exclusion regarding use of an owned, uninsured auto is not contrary to public policy.”

Criminal – Fraud/Theft/Evidence

Lawrence Gyamfi v. State of Indiana

30A01-1311-CR-487

The Indiana Court of Appeals unanimously reversed a man’s convictions stemming from his alleged use of a stolen credit card at a gas station in Hancock County. But the judges on the panel didn’t agree whether the state’s argument of inevitable discovery is allowed under the Indiana Constitution.

Whitestown Police responded to a call about two individuals using a stolen credit card to try to purchase electronic tablets at a truck stop. While searching Lawrence Gyamfi’s car, police found a receipt showing a transaction at a gas station in Greenfield. An officer called the gas station in Hancock County to let it know the transaction may have been made with a stolen credit card.

The credit card used at the gas station was indeed stolen and belonged to a woman in Pennsylvania.

Gyamfi and the other man were arrested and charged in Boone County and investigators later charged Gyamfi with fraud, theft and forgery in connection to the use of the stolen credit card in Hancock County.

But the Boone County charges were later dismissed after the trial court granted Gyamfi’s motion to suppress all evidence taken from him or his car. He sought to have the Hancock County charges dismissed since all of the evidence was derivatively gained as a result of the suppressed search. The Hancock County court only granted his motion to suppress the evidence specifically suppressed by the Boone Superior Court.

The Court of Appeals found this was an error, as any of the remaining evidence admitted at trial was a result of the information the Boone County officer learned during the illegal search. If not for finding the receipt in the car, Boone County officials likely would not have been tipped off at that time that the transaction at the gas station involved a stolen credit card.

The judges also rejected the state’s claims that the theories of attenuation or inevitable discovery would allow the evidence to survive Gyamfi’s motion.

The majority opinion, authored by Judge Patricia Riley, pointed out that those alternative theories have no place in the jurisprudence of Article 1, Section 11 of the Indiana Constitution.

Judge Cale Bradford wrote separately that while he agreed that the trial court should not have admitted the contested evidence, he believes the inevitable discovery rule could apply both under the Fourth Amendment of the U.S. Constitution and Article 1, Section 11 of the state constitution.

It could be allowed if the state could demonstrate by a preponderance of the evidence that the challenged evidence would have been discovered but for the unlawful search. But the state failed to do that in this case, he wrote.

Judge Margret Robb concurred with both the majority opinion and with Bradford’s separate opinion.
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Sept. 5

Juvenile – Guardianship

In the Matter of B.W. and A.K., Alleged to be Children in Need of Services, A.C. (Mother) v. Indiana Department of Child Services

27A05-1401-JC-29

A Grant County trial court abused its discretion in ordering the appointment of guardians for two children, the Indiana Court of Appeals ruled, reversing a guardianship order and instructing the trial court to reunite the children with their mother.

The Department of Child Services “has not presented clear and convincing evidence that Mother is currently unable to provide a safe home for the children or that the guardianships are in the children’s best interests,” Judge Edward Najam wrote for the panel.

“We hold that the trial court abused its discretion when it appointed guardians for the children. We reverse the trial court’s judgment and remand with instructions that the court reunite the children with Mother.”

The department intervened after B.W., then less than 9 months old, was taken to a pediatrician in 2011 with a swollen arm. B.W. was diagnosed with four fractures that doctors said were the result of child abuse. No one was ever charged, and the record reveals that because mother refused to take a polygraph test, the trial court had concerns that she may have been protecting an abuser.

But the record also shows mother successfully completed every requirement of the 22-part parental participation plan ordered by the trial court more than two years ago.   

“We agree with Mother that the trial court’s conclusion, that the appointment of guardians over the children is in the children’s best interests, is clearly erroneous. First, it is well settled that polygraph examinations are notoriously unreliable,” Najam wrote. “… DCS’s assertion that Mother’s refusal to take a polygraph demonstrates that she is incapable of providing a safe home for the children is unfounded.

“Second, while Mother challenges the trial court’s order on permanency and not the underlying CHINS determination, we find the following appropriate to the issue on appeal: It is well established that ‘a CHINS adjudication may not be based solely on conditions that no longer exist. The trial court should also consider the parents’ situation at the time the case is heard,’” the panel held, citing In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013).

“Here, as the CASA’s testimony illustrates clearly, DCS has been focused solely on understanding how B.W. was injured and the conditions that existed at the time of the children’s removal from Mother’s custody. DCS presented no evidence to demonstrate any conditions existing at the time of the final permanency hearing to justify the permanent removal of the children.

“… In sum, there is simply no clear and convincing evidence that the children would be in any danger if they are reunited with Mother.

“Mother’s failure to explain the cause of B.W.’s injuries is not evidence of a present inability to provide a safe home for the children,” the panel held.

Agency Action – Discrimination/Student Athlete

Cardinal Ritter High School, Inc. v. Aleesha Bullock

93A02-1401-EX-47

The Indiana Civil Rights Commission has jurisdiction in a racial discrimination claim brought by a former basketball player against Cardinal Ritter High School, but the ICRC dropped the ball in the case, the Court of Appeals ruled.

Aleesha Bullock, who had been Ritter’s leading scorer on the basketball team in the 2006-2007 academic year, was cut from the team the next year. She filed a racial discrimination complaint, but coaches said she showed a lack of commitment because she chose to play soccer rather than attend basketball conditioning.

The school denied the discrimination complaint and further argued the ICRC had no jurisdiction because the school is a private, religious institution. The panel disagreed.

“The legislature chose to exempt private, religious institutions from the ICRC’s jurisdiction with regard to employment discrimination complaints; they did not choose to provide the same exemption for discrimination ‘relating to . . . education,’” Judge John Baker wrote. “Therefore, we find that membership on the girls’ varsity basketball team at Ritter relates to education under the statute and Bullock’s complaint comes within the jurisdiction of the ICRC.”

However, the panel vacated the ICRC’s judgment that included a $25,000 award in favor of Bullock for emotional damages.

“We find that when, as here, a case hinges entirely on credibility, the issuance of an order by an (administrative law judge) who did not hear the evidence or observe the witnesses is not in accordance with law, is contrary to the constitutional rights of the parties, and is without observance of procedures required by law,” Baker wrote.

“Therefore, we vacate the order of the ICRC and remand with instructions to conduct a new hearing and issue a timely ruling.”

Bullock went on to play collegiate basketball at Trine University in Angola, where she graduated last year.
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Sept. 8

 Miscellaneous – Professional License/Convicted Felon

Department of Financial Institutions, State of Indiana v. Michael Massey

49A02-1401-MI-16

The Indiana Court of Appeals found the Indiana Department of Financial Institutions had the authority to deny a mortgage lender originator’s license to an applicant who has a criminal record.  

Michael Massey sought a judicial review after the Department of Financial Institutions turned him down for a license on the grounds that he did not meet the character and fitness requirements. Massey served a total of 10 years in prison for convictions of armed robbery, possession of marijuana with intent to deliver, and possession of a firearm by a felon.

The trial court concluded that the state department exceeded its statutory authority when it denied Massey a state license. The court found the National Mortgage Licensing System and Registry has the sole authority to issue MLO licenses, and it had already issued Massey a federal license.  

The Court of Appeals reversed the trial court’s ruling.

The COA held the express language of the federal Secure and Fair Enforcement for Mortgage Licensing Act gives states the power to issue mortgage licenses. Further, the court found the Department of Financial Institutions acted within its discretion when it determined Massey’s criminal convictions prevented him from meeting the mortgage license’s character and fitness requirements.
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Sept. 10

Civil Plenary – Annexation

Town of Lapel, Indiana v. City of Anderson, Indiana

48A02-1403-PL-142
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Sept. 11

Civil Plenary – Time-Barred Claim/Notice of Dissolution

Lewis Oil, Inc. v. Bourbon Mini-Mart, Inc. and Robert E. Wanamacher

50A03-1311-CP-441

Failure in a notice of dissolution to describe information that must be included in a claim filed against the company does not make the notice invalid, the Indiana Court of Appeals ruled. Since the notice was valid, a convenience store owner’s lawsuit is time-barred.  

In 1991 the Indiana Department of Environmental Management filed a complaint against Robert Wanamacher and his Bourbon Mini-Mart Inc. seeking reimbursement for the cleanup of contaminants from the store property and the adjoining property that once housed a gas station. In 2003, Wanamacher and his company sued Lewis Oil Inc., claiming it owned and operated underground storage tanks on the gas station property that leaked and caused the contamination.

Both parties sought summary judgment. Lewis Oil argued that since it voluntarily dissolved in 1997, any claims against it had to be brought within two years after it published notice of the dissolution.

Wanamacher and Bourbon Mini-Mart argued that the notice didn’t comply with I.C. 23-1-45-7 because it did not contain a description of “the information that must be included in a claim” as required by the statute, so their complaint is not time-barred.

The trial court denied both parties’ motions for summary judgment. On interlocutory appeal, the Court of Appeals ordered the court to grant Lewis Oil’s motion.  

“The requirement that a notice of dissolution describe ‘the information that must be included in a claim’ is clearly intended for the benefit and protection of the dissolved corporation, which could deny a claim on the basis that it does not include the information described in the notice.  Indiana Code Section 23-1-45-7(b)(2) allows a dissolved corporation to establish the parameters for claims made against it, much as the notice provisions of the Indiana Tort Claims Act allow the State to ‘prescribe for itself the terms and conditions upon which it consents to be sued,’” Judge Terry Crone wrote.

“… a reasonable person/claimant would not be misled by the omission because he or she would have firsthand knowledge of the claim. The question then becomes whether Lewis Oil’s notice was ‘in substantial compliance with the time and publication requirements applicable under’ Indiana Code Section 23-1-45-7. The ‘time’ requirement is not at issue, and the notice was published in a newspaper of general circulation in Kosciusko County, where Lewis Oil’s principal office was last located, in full compliance with the requirements of Indiana Code Section 23-1-45-7.”
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Sept. 12

Criminal – Murder/Sentence

Anthony P. Sharp, Jr. v. State of Indiana

20A04-1310-CR-501

Blake Layman v. State of Indiana; Levi Sparks v. State of Indiana

20A04-1310-CR-518
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Sept. 16

Domestic Relation – Contempt Hearing

Willie Jenkins v. Mary Jenkins

49A02-1403-DR-132

A Marion Superior Court erred when it granted a woman’s motion to vacate a hearing on contempt charges against her without giving her ex-husband 15 days to file a response, as permitted under local rules, the Indiana Court of Appeals ruled.

Willie Jenkins appealed Marion Superior Commissioner Jeffrey Marchal’s grant of Mary Jenkins’ motion to vacate a contempt hearing. The Jenkinses divorced in 2012 and Mary Jenkins was required to secure any of her ex-husband’s belongings and return them to him within 30 days of the finalization of the divorce. But more than a year later, Willie Jenkins still didn’t have his belongings, so he filed a petition for contempt.

Mary Jenkins filed her motion to vacate the hearing, saying she delivered the property to her ex-husband, all pending matters had been resolved, and she had contacted opposing counsel, but counsel had not responded prior to filing. The trial court granted the motion the day after she filed it. Marchal also denied Willie Jenkins’ objection, in which he argued he had 15 days to respond pursuant to local court rule.

The Court of Appeals agreed with Willie Jenkins and remanded the matter for further proceedings.

It appears that under LR49-TR5-203(B), a 15-day response period is mandatory should there be any indication that an objection to the granting of a motion by opposing party may ensue, Judge Terry Crone wrote. There is no indication in Mary Jenkins’ motion that her ex-husband approved of or agreed with granting the motion. Based on her statement, in fact, it would be likely that he would choose to object.

“This is not one of those rare cases where the trial court’s adherence to its own procedural rule would defeat justice instead of serving as a means of obtaining orderly and speedy justice. Therefore, the trial court should have followed its own rule, and its failure to do so was error as a matter of law,” Crone wrote.•