Indiana Court Decisions – Oct. 24–Nov. 6, 2019

7th Circuit Court of Appeals

Oct. 24

Criminal — Habeas/Post-Conviction Relief Reversal

John W. Kimbrough v. Ron Neal

18-3145, -3153

A convicted child molester’s 80-year sentence has once again been reinstated after the 7th Circuit Court of Appeals overturned the grant of a habeas petition.

The appellate panel reversed John W. Kimbrough’s habeas relief in John W. Kimbrough v. Ron Neal, 18-3145, -3153.

Kimbrough was convicted of molesting his girlfriend’s 5- and 7-year old daughters over the course of two years and received a concurrent term of 80 years. Though a divided panel of the Indiana Court of Appeals sue sponte cut his sentence in half in 2012, the Indiana Supreme Court later reinstated the full 80 years.

Kimbrough then sought post-conviction relief in state court, arguing his appellate counsel was ineffective for failing to challenge his sentence under Indiana Appellate Rule 7(B), but this time the COA rejected his argument. Specifically, the state appellate panel said, “Kimbrough has not established that there is a reasonable probability that, if appellate counsel had made a Rule 7(B) challenge, the result of the proceeding would have been different.”

The Supreme Court denied transfer, so Kimbrough next filed for habeas relief in the Indianapolis division of the Indiana Southern District Court. There, he raised an ineffective assistance of counsel argument under Strickland v. Washington, and the federal court determined he had satisfied the prejudice prong.

In overturning that ruling, 7th Circuit Judge Michael Brennan noted the Indiana Court of Appeals’ denial of Kimbrough’s PCR petition was not based on federal law.

“It rests on the conclusion that, as a matter of state law, it would have been futile to contest the sentence’s length on appeal because the 80-year sentence is not ‘inappropriate in light of the nature of the offense and the character of the offender,’” Brennan wrote. “… For federal habeas relief here under (28 U.S.C. § 2254(d)(1)), the state court’s decision must be an unreasonable application of federal law — not a state court’s resolution of a state law issue.”

The 7th Circuit further declined Kimbrough’s request to overrule Miller v. Zatecky, 820 F.3d 275 (7th Cir. 2016), which Brennan called “nearly identical” to the instant case.

“The Indiana Court of Appeals’ conclusion that appellate review of Kimbrough’s sentence would not have helped him as a matter of state law is ‘the sort of decision § 2254 leaves to the state judiciary,’” the judge wrote, quoting Miller. “Miller controls, and Kimbrough has not provided a compelling reason to overrule it.”

In a footnote, Brennan wrote that on cross-appeal, Kimbrough challenged whether the federal court “properly granted habeas relief by issuing a conditional order requiring the State of Indiana to either release Kimbrough or grant him a new appeal.” But because he is not entitled to habeas relief, the appellate panel declined to address that argument.
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Oct. 30

Civil Plenary — Abortion/‘Mature Minors’ Parental Notification Law

Planned Parenthood of Indiana and Kentucky, Inc. v. Kristina Box, et al.

17-2428

The 7th Circuit Court of Appeals will not revisit a prior ruling that upheld an injunction on an Indiana law requiring “mature minors” to notify their parents before they have an abortion, setting the case up for a possible trip to the United States Supreme Court.

A divided 7th Circuit denied panel rehearing and rehearing en banc to the case of Planned Parenthood of Indiana and Kentucky, Inc. v. Kristina Box, et al., 17-2428.

In August, a panel majority including judges David Hamilton and Ilana Rovner upheld an injunction against Senate Enrolled Act 404, a 2017 law that would have required parental notification for mature minors seeking an abortion.

Senate Enrolled Act 404, had it taken effect, would have amended Indiana Code § 16-34-2-4(d) to require minors to notify their parents of their abortion plans “unless the juvenile court finds that it is in the best interest of an unemancipated pregnant minor to obtain an abortion without parental notification following a hearing on a petition … .” Parental consent could still be waived, but the notice would come after a judicial bypass hearing and before an abortion is performed when a judge has authorized it.

Planned Parenthood of Indiana and Kentucky fought the legislation in court soon after it was passed in 2017, and after hearing arguments, Indiana Southern District Senior Judge Sarah Evans Barker granted PPINK’s request for an injunction.

The 7th Circuit upheld the injunction in August “(i)n light of the lopsided factual record, the deferential standard of review, and the preliminary status of the findings of fact and conclusions of law … .”

Judge Michael Kanne dissented from the August appellate decision, and Indiana Attorney General Curtis Hill sought rehearing in September. Kanne again dissented in an opinion joined by judges Joel Flaum and three appointees of President Donald Trump — Amy Coney Barrett, Michael Brennan and Michael Scudder.

“This case implicates an important and recurring issue of federalism: Under what circumstances, and with what evidence, may a state be prevented from enforcing its law before it goes into effect?” Kanne wrote, echoing his earlier dissent. “Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.”

Though Judge Frank Easterbrook concurred with the denial of rehearing en banc, he wrote a concurrence that tracked with Kanne’s dissent.

“Talk is cheap, which makes it easy for the plaintiffs in a pre-enforcement suit to predict the worst and demand that an injunction issue before the disaster come to pass,” Easterbrook wrote, joined by Judge Diane Sykes. “… Unless a baleful outcome is either highly likely or ruinous even if less likely, a federal court should allow a state law (on the subject of abortion or anything else) to go into force; otherwise the prediction cannot be evaluated properly. And principles of federalism should allow states that much leeway.”

To support his position, Easterbrook pointed to the case of June Medical Services L.L.C. v. Gee, 18-1323 (Oct. 4, 2019), which is currently before the U.S. Supreme Court. In that case, SCOTUS must decide whether a Louisiana admitting-privileges statute is an undue burden on abortion clinics, but “the pre-enforcement injunction has made that difficult.”

“How much burden is ‘undue’ is a matter of judgment, which depends on what the burden would be (something the injunction prevents us from knowing) and whether that burden is excessive (a matter of weighing costs against benefits, which one judge is apt to do differently from another, and which judges as a group are apt to do differently from state legislators),” Easterbrook wrote. “Only the Justices, the proprietors of the undue-burden standard, can apply it to a new category of statute, such as the one Indiana has enacted.

“Three circuit judges already have guessed how that inquiry would come out; they did not agree,” he continued. “The quality of our work cannot be improved by having eight more circuit judges try the same exercise. It is better to send this dispute on its way to the only institution that can give an authoritative answer.”

Asked if it would appeal the case to the Supreme Court, the Indiana Office of the Attorney General said it is considering “all options for continuing our defense of this statute.”

“We continue to believe that requiring notice to parents before a minor has an abortion – even where the abortion is permitted by a court based on the minor’s maturity – reasonably safeguards the rights and interests of both the parents and the minor,” the OAG said in an emailed statement to Indiana Lawyer. “While we are encouraged that five of the eleven Seventh Circuit judges voted to rehear the case, we are deeply disappointed that the court denied the petition.

“But as Judge Easterbrook’s separate opinion indicates, the Supreme Court’s most recent decisions regarding abortion are exceedingly difficult to apply,” the office continued. “When two federal judges as distinguished as Judges Easterbrook and Sykes cannot make heads or tails of Supreme Court doctrine, something is very wrong.”

But the American Civil Liberties Union of Indiana, which represents PPINK in the case, celebrated the 7th Circuit’s denial of the rehearing petition. Ken Falk, legal director for the ACLU of Indiana, also said the Supreme Court has a “long history of allowing pre-enforcement challenges when there is good reason to believe allowing the law to go into effect would cause a great deal of harm.”

“I think we’ve established a lot of evidence to demonstrate what harm this law would cause,” Falk told IL, adding that the state failed to prevent evidence to the contrary.

Indiana Supreme Court

Oct. 28

Miscellaneous — Civil Forfeiture/Remand from US Supreme Court

State of Indiana v. Tyson Timbs

27S04-1702-MI-70

An Indiana civil forfeiture case that made its way to the United States Supreme Court will now return to the Grant Superior Court after the Indiana Supreme Court developed a framework for determining if the forfeiture of property is excessive under the Eighth Amendment.

Justices revisited State of Indiana v. Tyson Timbs, 27S04-1702-MI-70, in June on remand from SCOTUS, which unanimously ruled in February that the Eighth Amendment’s Excessive Fines Clause applies to the states through the 14th Amendment, reversing the Indiana Supreme Court’s prior ruling.

In its first Timbs decision, the state Supreme Court allowed the state to move forward with plans to seize Tyson Timbs’ Land Rover — worth more than $40,000 — because the federal Supreme Court had not specifically ruled that the Excessive Fines Clause had been incorporated to the states. The state justices’ November 2017 decision came after both the Grant Superior Court and a divided Indiana Court of Appeals denied the state’s forfeiture request.

Timbs’ legal troubles began after he was arrested and eventually convicted of felony dealing and conspiracy to commit theft. He had developed an addiction to heroin after being prescribed hydrocodone.

“Timbs would obtain heroin by regularly driving his Land Rover sixty to ninety miles to meet his supplier,” Chief Justice Loretta Rush wrote. “These trips accounted for most of the 16,000 miles Timbs put on the vehicle over four months.

“Eventually, a confidential informant told police officers on a drug task force that Timbs would possibly sell heroin,” Rush continued. “Timbs had never sold before, but the officers devised a controlled-buy plan.”

The controlled buys led to Timbs’ convictions, and after proceeding through state court, he took his case to Washington, D.C., last November, represented by the Virginia-based Institute for Justice.

As with its first Timbs ruling, the Indiana Supreme Court did not decide on remand whether the forfeiture of Timbs’ vehicle is excessive. But the court did determine that the forfeiture — pursued under Indiana Code § 34-24-1-1(a)(1)(A) — is a “fine” under the Eighth Amendment, relying on Austin v. United States, 509 U.S. 602 (1993), to reach that conclusion.

The excessiveness question was instead left to the Grant Superior Court, though the majority justices — including justices Steven David, Mark Massa and Christopher Goff — did develop a framework for trial courts to use when evaluating a forfeiture under the Eighth Amendment. In developing that framework, the majority looked to SCOTUS precedent from Austin and United States v. Bajakajian, 524 U.S. 321 (1998).

Rejecting the state’s argument that the excessiveness question turns only on whether the property was an instrumentality of the crime, the majority instead held that “the Excessive Fines Clause includes both an instrumentality limitation and a proportionality one for use-based in rem fines.” That holding is supported by precedent, history and the text of the Excessive Fines Clause, the court said.

“Specifically, to stay within the bounds of the Excessive Fines Clause, a use-based fine must meet two requirements: (1) the property must be the actual means by which an underlying offense was committed; and (2) the harshness of the forfeiture penalty must not be grossly disproportional to the gravity of the offense and the claimant’s culpability for the property’s misuse,” Rush wrote.

A use-based fine will be considered excessive if the property was not an instrumentality of the underlying crimes, the majority held. The relevant crimes “are those on which the State bases its forfeiture case.”

In this case, the court determined Timbs’ Land Rover was an instrumentality of his crimes based on the fact that he drove the vehicle to one of the controlled buys.

The majority then adopted a gross-disproportionality standard for reviewing civil forfeitures under the Eighth Amendment. That standard considers three non-exclusive factors, Rush said: the harshness of the punishment, including the property owner’s economic means; the severity of the offenses; and the claimant’s culpability.

This standard, however, is different than the gross disproportionality standard used with the Cruel and Unusual Punishment Clause, Rush added.

In remanding the case for an excessiveness analysis using this framework, the majority instructed the trial court to “determine whether Timbs has overcome his burden to establish that the harshness of the forfeiture’s punishment is not only disproportional, but grossly disproportional, to the gravity of the underlying dealing offense and his culpability for the Land Rover’s corresponding criminal use.”

But Justice Geoffrey Slaughter — the author of the first Timbs ruling — dissented, saying he would “embrace the State’s proposed rule, which asks whether the forfeited asset was the instrumentality of a crime.”

“In my view,” Slaughter wrote, “that is where the excessiveness inquiry under the Eighth Amendment begins and ends — at least until the Supreme Court tells us otherwise.”

Further, Slaughter said the majority’s ruling does not give trial court guidance on how to apply the newly created framework.

“Personally, I have no idea what today’s test means for Timbs’s excessiveness claims,” he said. “Instead of remanding for further proceedings, we should apply our test and declare a winner.

“… Applying this analysis,” Slaughter continued, “I would hold that the State’s forfeiture was not excessive under the Eight Amendment.”

In a news release, the Institute for Justice celebrated the majority’s decision as a “path-marking ruling.”

“The Indiana Supreme Court correctly recognized that the Excessive Fines Clause is a vital protection against unjust economic sanctions,” IJ attorney Sam Gedge said. “Civil forfeiture is one of the greatest threats to property rights today, and the Indiana Supreme Court’s ruling marks an important step in curbing the worst abuse in this area. We look forward to enforcing the Indiana Supreme Court’s decision in the trial court and getting Tyson’s property back.”

Timbs has previously told Indiana Lawyer that he is no longer sure where the Land Rover is being held. In a statement released through the Institute for Justice, the Marion man said the court’s decision “is important not just for me, but for thousands of people who are caught up in Indiana’s forfeiture machine.”

“To me, it doesn’t make sense; if they’re trying to rehabilitate me and help me help myself, why do you want to make things harder by taking away my vehicle I need to meet with my parole officer or go to a drug recovery program or go to work?” Timbs said. “Forfeiture only makes it more challenging for people in my position to clean up and remain a contributing member of society.”

“Tyson paid his debts to society,” Wesley Hottot, the IJ senior attorney who argued on Timbs’ behalf at SCOTUS, added. “He took responsibility for what he did. He paid fees. He is in drug treatment. He is holding down a job. He is staying clean.

“Our hope and goal now,” Hottot continued, “is to finally get back his vehicle from the police so Tyson will have an easier time getting to all the different commitments he has to stay on the straight and narrow.”

Indiana Court of Appeals

Oct. 29

Civil Tort — Medical Malpractice/Summary Judgment

Natoami Riley, et al. v. St. Mary’s Medical Center of Evansville, Inc.

19A-CT-844

A woman who suffers from nerve damage after dye was allegedly negligently injected into her arm for a medical scan has won a reversal against the southern Indiana hospital that administered the procedure.

In 2015, Nataomi Riley was scheduled to receive a CT scan at St. Mary’s Medical Center of Evansville Inc. As hospital radiologic technologist Karen Osborne injected contrast dye into Riley’s arm in preparation for the scan, Riley, who had previous experience with the procedure, began experiencing intense pain in her arm.

Riley was removed from the CT machine due to the pain, and a different RT inserted contrast dye into Riley’s other arm without any problems. Osborne determined infiltration had occurred when an egg-sized swelling formed on Riley’s arm following the first injection.

By the time she returned home, Riley’s swelling had significantly increased, and she was rushed to the emergency room for her pain. Surgery was ultimately performed on Riley’s hand where the flesh had broken open, leaving her with weeks of home health care and nerve damage to her dominant hand.

Riley then filed a medical malpractice claim alleging she had “developed compartment syndrome of the right arm requiring emergency surgery and prolonged wound care” and “suffered permanent neurological and muscular damage to [her] right arm,” among other things. However, a medical review panel found the hospital was not responsible.

The woman then proceeded in court, and in her defense, RT Barry Southers opined in an affidavit that Osborne had not followed the standard of care under the circumstances and that her conduct was a factor in Riley’s resultant injuries. Although the hospital conceded Southers’ affidavit established a genuine issue of material fact regarding a breach of the standard of care, it argued he was not qualified to render an expert opinion on causation.

The Vanderburgh Circuit Court ultimately granted the hospital’s motion for summary judgment.

But the Indiana Court of Appeals reversed that decision in Natoami Riley, et al. v. St. Mary’s Medical Center of Evansville, Inc.,19A-CT-844, agreeing with Riley that Southers was indeed qualified to render an expert opinion on whether the hospital’s breach proximately caused her injuries.

Further, the appellate court disagreed with the hospital’s assertion that some contrast medium may be introduced into the surrounding tissue without negligence, noting some contrast is different from a “significant” amount of contrast that could cause more damage.

“It was not Southers’s task to pinpoint the precise amount of contrast medium it would have taken to cause any injury to Nataomi; it was merely his task to state, based on his expertise, whether Osborne’s alleged breach of the standard of care was a proximate cause of the injuries that Nataomi actually suffered,” Judge Terry Crone wrote for the appellate panel. “The Rileys point out that Nataomi ‘faced a visible collection of caustic fluid just under her skin the same size as the fluid introduced by [RT] Osborne, within seconds of the injection.’ The causation issue here was not complex, and therefore we conclude that Southers was qualified to render an expert opinion and thus establish a genuine issue of material fact on that issue.”

The appellate court thus reversed and remanded the case for further proceedings.
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Oct. 31

Juvenile Termination of Parental Rights — Incarcerated Parent/Reversal

In Re the Termination of the Parent-Child Relationship of: T.W. (Minor Child) and T.K. (Father) v. The Indiana Department of Child Services

19A-JT-670

The Indiana Court of Appeals reversed the termination of a father’s parent-child relationship after concluding his due process rights had been violated. The Department of Child Services, the appellate court found, did not make reasonable efforts to reunify the father and child.

Before his child was born, T.K. was incarcerated but still made efforts to establish paternity when he knew the child would be born a child in need of services. His efforts to establish paternity and cooperate with the Department of Child Services continued after the child’s birth.

However, the parent-child relationship between T.K. and his child, T.W., was ultimately terminated in the Vanderburgh Superior Court. In T.K.’s appeal of the termination, In Re the Termination of the Parent-Child Relationship of: T.W. (Minor Child) and T.K. (Father) v. The Indiana Department of Child Services, 19A-JT-670, the Indiana Court of Appeals elected sua sponte to consider whether T.K.’s due process rights were protected in his case. It concluded they were not.

On the issue of establishing paternity, the appellate court found T.K. was “caught between a proverbial rock and a hard place” when he received contradictory orders from different government agencies about submitting his paternity paperwork. The panel concluded T.K. did exactly what was required of him to establish paternity, with little to no help from DCS family case manager Brandon Meredith.

“Perhaps most damning of all, it was at this extraordinarily early juncture in Father’s post-incarceration life (and in his involvement with the CHINS case) when FCM Meredith decided that Child would be better off with someone else,” Judge John Baker wrote. “Rather than offering assistance to Father, FCM Meredith wrote him off, and made only limited efforts at reunification from this point forward.”

The appellate court further found it was unreasonable for the FCM to not call T.K. regarding a referral for drug screens when T.K.’s phone number was current, active and readily available. The FCM’s act of mailing drug screen information to an address T.K. no longer resided at was “setting Father up to fail,” it concluded. The same was true, it found, when the FCM canceled T.K.’s visitation after the meeting had already been set, without informing T.K. of the cancelation. The appellate court additionally noted the FCM’s failure to make a parent aide referral to T.K. when he asked for one was a detriment to his efforts to establish paternity.

“Father was released from sixteen years of incarceration. He had no job, no housing, and no real supports. It should have been no surprise to FCM Meredith that Father would, at times, flounder. Father should have been given more assistance in this situation — especially since he explicitly asked for it,” the panel wrote. “Instead, FCM Meredith decided, almost from the outset, that Child would be better off in foster care, making no genuine efforts to provide Father with the support and services he so desperately needed.

“When stepping back and looking at this situation in its totality, we can only conclude that DCS did not make reasonable efforts to reunify Father with Child,” the panel continued. “Likewise, we can only conclude that the insufficient process employed in the CHINS case created a risk of the erroneous filing of a petition to terminate Father’s parental rights to Child, in violation of Father’s due process rights.”

Finding DCS “wholly failed to make reasonable efforts to preserve that relationship,” the appellate court therefore reversed and remanded with instructions to reopen the CHINS case, reexamine the requirements for T.K.’s reunification with his child, and enter a new dispositional order outlining the services he must comply with to effect reunification.
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Nov. 1

Guardianship — Immigration/Best Interests Determination

In the Matter of the Guardianship of: Irma Elisabeth Avila Luis, Ramiro Velasquez Avila

19A-GU-1276

The Indiana Court of Appeals has ordered a southern Indiana judge for the second time to make required findings regarding the immigration status of a teen girl originally from Guatemala, this time spelling out those findings for the jurist who refused to do so.

When she was 16, Irma Luis’ mother placed her on a bus and sent her, alone, to the United States to live with her brother. Residing in Guatemala, Luis’ mother did not have enough money to feed or provide healthcare for her daughter or send her to school, and Luis’ father died when she was a toddler.

Upon Luis’ detention at the U.S. border, the federal government released her into the custody of her brother, who lives in Seymour, Indiana. While living with her brother, Luis’ basic needs have been met and she was found to be supported financially and emotionally.

Luis’s brother petitioned the Jackson Circuit Court to appoint him as guardian of his sister and requested it make certain findings necessary for Luis to seek classification as a special immigrant juvenile. Although the court appointed him guardian, it failed to make the requested findings about Luis’ status. Specifically, Jackson Circuit Judge Richard W. Poynter stated he had a “real problem” making such findings pursuant to federal statute, saying the government “(t)hrowing it on (him) to make factual findings for them (is) irritat(ing).”

The Indiana Court of Appeals initially reversed in part, remanding with instructions for the trial court consider the SIJ factors. On remand, the trial court scheduled a hearing but later cancelled it, ultimately concluding that “Whether it is in the child’s best interests for the child to remain in the United States is impossible for this court to decide.”

The court’s failure to make a finding as to whether reunification between Luis and her parents was viable or whether it was in her best interests to remain in the U.S. prompted the appellate court to address the issue again in In the Matter of the Guardianship of: Irma Elisabeth Avila Luis, Ramiro Velasquez Avila, 19A-GU-1276.

“The trial court focused on whether there was evidence that Irma was physically removed from her residence, but this straw man of an analysis is not part of the statutory consideration of viability,” Judge John Baker wrote for the appellate court. “Both the evidence in the record and the trial court’s own findings of fact lead to one inescapable conclusion: reunification with one or both parents is not viable due to abandonment and/or neglect.”

The appellate court found that the evidence was undisputed that Luis’ needs were not being met in Guatemala but were being met in the United States. However, the panel stated confusion about the trial court’s statement as to its inability to decide what was in Luis’ best interests.

“We are, frankly, perplexed by this statement,” Baker wrote. “Trial courts make determinations regarding the best interests of children every day in this State, and they do so based on the evidence in the record before them. Nothing in an SIJ determination is any different than any other best interests determination, meaning that the determination ‘should be based on the totality of the circumstances’ before the trial court.

“While it is ultimately for the federal government to determine whether Irma may remain in the United States, it was incumbent upon the trial court to make SIJ findings, including a best interests determination. Here, it refused to do so, which was erroneous. We can only conclude, based on the evidence in the record, that it would not be in her best interest to return to Guatemala,” the court concluded.

Noting that the trial court took an inordinate amount of time to issue its order following the first appeal and its refusal to make the required findings a second time, the appellate court chose to exercise its authority pursuant to its broad discretion under Indiana Appellate Rule 66(C)(10) allowing it to grant any appropriate relief.

It therefore ordered the trial court to include verbatim the Court of Appeals’ findings within one business day of the certification of the appeal. The findings state that Luis was abandoned and neglected by both parents, reunification with either parent is not viable, it is not in Luis’ best interests to return to Guatemala, and that it is in her best interest to remain in the U.S. under the guardianship of her brother.
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Nov. 6

Civil Tort — Negligence/Motion to Reinstate

Benjamin S. Smith v. Franklin Township Community School Corporation

19A-CT-1244

The Indiana Court of Appeals has reinstated a man’s negligence claim against a school corporation after one of its school buses collided with the man’s vehicle, leaving him injured.

Benjamin Smith sustained injuries after his vehicle collided with a Franklin Township Community School Corporation school bus, prompting him to send a tort claim notice to the school district in 2016.

Two years later, the Claims Against Public Schools Act went into effect, governing all civil actions or administrative proceedings brought against public schools. Soon after CAPSA became law, Smith filed a negligence claim against the school but was met with a motion to dismiss because he had failed to provide a CAPSA notice prior to filing.

At that point, Smith’s statute of limitations had run out, preventing him from refiling. The Marion Superior Court — which had previously dismissed his suit without prejudice — also denied Smith’s motion for a reinstatement under Indiana Trial Rule 41(F), which he appealed.

On appeal, Smith contended the trial court had abused it discretion in denying the motion because CAPSA did not apply to his claim. He also argued his ITCA notice satisfied the requirements of CAPSA anyway.

Members of the appellate court agreed with Smith, finding the ITCA notice’s compliance with the notice requirements of ITCA were conclusively established and noting the school had never claimed Smith failed to provide a tort claim notice.

Smith additionally contended on appeal that applying CAPSA’s provision to his lawsuit would be an “impermissible retroactive application.” The appellate court likewise concluded that under the circumstances, Smith did more than enough to provide the trial court with an opportunity to rule on the question of retroactivity, thereby preserving it for appellate review.

“We have little trouble concluding that Smith’s retroactivity argument has merit. Applying CAPSA’s notice requirements to Smith’s claim would be to attach new legal consequences to an event that occurred before CAPSA was the law, i.e., retroactively,” Judge Cale Bradford wrote for the appellate court. The panel thus concluded the trial court never should have dismissed Smith’s claim for failing to satisfy CAPSA, also determining the trial court abused its discretion in failing to find good cause to reinstate it.

The case of Benjamin S. Smith v. Franklin Township Community School Corporation, 19A-CT-1244 was therefore reversed and remanded with instructions to reinstate Smith’s tort claim against the school.•