Indiana Court Decisions

For Publication opinions on Indiana cases released by the 7th Circuit Court of Appeals and the Indiana Supreme Court, Court of Appeals and Tax Court during this issue’s reporting period are highlighted in this section. To read the complete opinion issued in any of these cases, visit www.theindianalawyer.com and search by case name.

7th Circuit Court of Appeals

April 2

Civil – Disability Insurance Benefits/SSA

Laenise Arnett v. Michael J. Astrue, commissioner of Social Security

11-2424

The 7th Circuit Court of Appeals has found that an administrative law judge failed to properly assess a woman’s residual functional capacity in deciding whether she qualified for disability insurance benefits from the Social Security Administration. The judges ordered the case back to the agency for further proceedings.

Laenise Arnett appealed the denial of disability insurance benefits. Arnett applied for DIB in June 2004, claiming her onset date of June 14, 2002. She suffers from numerous physical and mental health issues, including obesity, peripheral vascular disease, chronic obstructive pulmonary disease, depression and anxiety. She is able to stand for less than two hours a day and has trouble walking more than a few steps at a time.

When evaluating her residual functional capacity, the administrative law judge didn’t mention several of her physical and mental impairments and found that she could perform sedentary work that was limited to carrying up to 10 pounds occasionally, and less than 10 pounds frequently; sitting for six hours of an eight-hour day; walking for two hours of the eight-hour day; and alternating between sitting and standing throughout the day.

The 7th Circuit found problematic the ALJ’s failure to incorporate adequately Arnett’s mental impairments into the RFC and that he didn’t take into account several of Arnett’s diagnosed physical impairments or her obesity. The judges agreed with Arnett that the ALJ failed to formulate a RFC that is sufficiently specific as to how often she must be able to sit and stand.

Indiana Supreme Court

March 22

Civil Tort – Construction/Safety

Hunt Construction Group, Inc., and Mezzetta Construction, Inc. v. Shannon D. Garrett

49S02-1106-CT-365

The Indiana Supreme Court has held that a construction manager on the Lucas Oil Stadium construction project didn’t have a legal duty to ensure jobsite safety to a subcontractor’s employee either by contract or individual actions, and as a result, cannot be held liable for workplace negligence.

The justices voted 4-1 to reverse a ruling by Marion Superior Judge David Shaheed that was in favor of Shannon Garrett.

Garrett was working for a concrete company when a co-worker dropped a piece of wood that struck her and injured her head and left hand. Shaheed found that the construction manager, Hunt Construction Group, could be held vicariously liable for the actions of her employer, Baker Concrete, because Hunt was in charge of the jobsite. The Court of Appeals held that Hunt was not vicariously liable to Garrett for any negligence on her employer’s part because the two didn’t have the required relationship.

The Supreme Court majority relied on Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212 (Ind. Ct. App. 1983), as a durable template for resolving these workplace safety issues. Justice Frank Sullivan wrote that for a construction manager to not otherwise be obligated by contract to provide jobsite safety but to be legally bound to provide that care and safety goes beyond what a contract dictates. In this case, Hunt did not undertake any such responsibilities for the project that Garrett was working on and can’t be held liable in that way.

Sullivan also wrote that Hunt didn’t assume by its actions on the site any legal duty for that workplace safety, unlike in Plan-Tec, where the construction manager did take on additional jobsite responsibilities beyond the contract.

Justice Brent Dickson dissented, believing that material issues of fact exist about the construction manager’s duty of care and summary judgment is precluded for both parties.

The case is remanded for proceedings consistent with the opinion.

Certified Question – Employment/Blacklisting

Loparex, LLC v. MPI Release Technologies, LLC, Gerald Kerber, and Stephen Odders

94S00-1109-CQ-546

In declaring precedent from 1904 bad law, the Indiana Supreme Court has determined that individuals who’ve voluntarily left employment can pursue a claim against their former employers under the state’s blacklisting statute.

But the justices also determined that attorney fees are not an element of compensatory damages under that same statute and that an employer’s suit against a former employee to protect trade secrets isn’t a basis for recovery under that law.

The justices addressed three certified questions from U.S. Judge Jane Magnus-Stinson in the Southern District of Indiana involving a federal case filed by Illinois-based Loparex LLC, which makes products such as nametags, window films and roofing underlayment.

The case involves two employees who were fired or who resigned in 2008 and 2009 and had non-compete agreements to not take any of their knowledge of “trade secrets” for one year. The company accused them of taking materials and knowledge and tried to stop other companies from hiring them, while the two employees filed answers and counterclaims accusing Loparex of blacklisting them in violation of Indiana law. In September 2011, Magnus-Stinson certified a trio of issues to the state justices after she denied Loparex’s motions to dismiss the counterclaims and granted summary judgment to the two employees.

Recapping the history of the Indiana Blacklisting Statute that was enacted near the start of the 20th century, Chief Justice Randall T. Shepard recounted statutory and constitutional changes as well as evolving caselaw on the blacklisting statute and also the Indiana Constitution’s requirement that laws be confined to a single subject.

When the Indiana Supreme Court decided Wabash Railroad Co. v. Young, 162 Ind. 102, 69 N.E. 1003 (1904), it held that a portion of the blacklisting statute extending to employees not discharged ran afoul of the Indiana Constitution. But Shepard wrote that Young is no longer good law because of rulings and constitutional changes to the single subject requirement through the years.

The justices also determined that nothing in the language, history or nature of the blacklisting statute points to anything but the American rule that attorney fees may not be recovered as an element of compensatory damages for a plaintiff in a blacklisting claim. On the third question, the justices determined the blacklisting statute can’t be used as a basis for recovery in an unsuccessful suit aimed at protecting alleged trade secrets relating to a non-compete agreement.

Civil Plenary – Pollution Exclusion/Insurance

State Automobile Mutual Insurance Company v. Flexdar, Inc. and RTS Realty

49S02-1104-PL-199

A divided Indiana Supreme Court has held that the pollution exclusion contained in a general commercial liability policy is ambiguous and should be construed to provide coverage.

Justices Robert Rucker and Brent Dickson affirmed a ruling by Marion Superior Judge Michael Keele in favor of Flexdar. Justice Steven David concurred in result. But Justice Frank Sullivan and Chief Justice Randall T. Shepard disagreed, writing that they think the majority’s ruling will result in higher insurance premiums.

The case involves an Indianapolis rubber stamp and printing plate facility that operated from the mid-1990s to 2003. The manufacturing process used a chemical solvent that later appeared in the soil and groundwater on and near the site. The Indiana Department of Environmental Management informed the company it would be liable for cleanup costs, and Flexdar turned to its commercial general liability and umbrella insurance policies with State Automobile Mutual Insurance for defense and indemnification. State Auto agreed to defend Flexdar against the claims under a reservation of its right to deny coverage, but it later argued that the contamination wasn’t covered because of a pollution exclusion in the policy.

The trial court agreed with Flexdar that the policy’s exclusion language was ambiguous and should be construed against State Auto, and the Court of Appeals affirmed.

Rucker wrote that Indiana applies basic contract principles to these issues and precedent has consistently held that an insurer can and should specify what falls within its pollution exclusion. In cases where the court’s found the language ambiguous, it has ruled in favor of coverage. In this case, the question is whether the policy language is sufficiently unambiguous to identify the chemical solvent as a pollutant, and this time they’ve determined it is not. Precedent dictates affirming the trial court’s decision, he wrote.

Sullivan and Shepard dissented in a two-page opinion, finding in favor of the insurer. Pointing to a 1996 decision from the state’s justices, Sullivan wrote that Indiana caselaw has never before stood for the proposition that all pollution exclusions are unenforceable but that is what this ruling now does.

Civil Plenary – FFSA/14th Amendment

Sheila Perdue, et al. v. Michael A. Gargano, et al.

49S02-1107-PL-437

The Indiana Supreme Court has held that the notices sent by the state Family and Social Services Administration to inform applicants they were denied Medicaid, food stamps or family assistance benefits are unconstitutional under the 14th Amendment’s due process clause because they do not sufficiently explain the reasons for being denied.

The justices partially reversed and affirmed the Marion Superior Court on a challenge to the agency’s automated system of processing claims for benefits.

Plaintiffs brought a class action against the FSSA seeking declaratory and injunctive relief with respect to the administration of Medicaid, Temporary Assistance to Needy Families, and Supplemental Nutrition Assistance Program benefits. Sheila Perdue also brought an individual disability discrimination claim.

The trial court granted summary judgment to FSSA on plaintiffs’ claim that their procedural due process rights were violated, but it granted summary judgment to Perdue individually and to the class of SNAP applicants/recipients whose benefits were denied or terminated for failure to cooperate. On cross-appeals, the Court of Appeals affirmed the trial court’s judgment as to Perdue and as to those whose SNAP benefits were denied or terminated for failure to cooperate, and it reversed the award of summary judgment to FSSA, holding the procedures at issue did not afford plaintiffs due process.

The Indiana justices held that the FSSA’s denial notices are insufficiently explanatory but that the agency may deny an application when that person fails to cooperate in the eligibility determination process. On that issue, this case is remanded to the trial court to adjudicate the plaintiffs’ related claims for relief.

The justices agreed with the trial court’s grant of Perdue’s summary judgment motion on the grounds that she is entitled to reasonable accommodation in applying for benefits. But that accommodation doesn’t require the FSSA to provide a caseworker or case management services.
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March 23

Criminal – Murder/Jury Instruction

Brice Webb v. State of Indiana

71S05-1106-CR-329

Three justices have tossed out a murder conviction, ordering a new trial on the grounds that the trial judge should have given the jury the option to consider a lesser offense of reckless homicide.

Two justices disagreed, believing that requiring a trial court to give a lesser-included offense jury instruction after the defendant denied his guilt under oath would create a mockery of the murder trial.

The Indiana Supreme Court reversed and remanded the case from St. Joseph Superior Judge Jerome Frese involving Brice Webb’s trial for the shooting death of his girlfriend in October 2009.

During the trial in 2010, the judge refused Webb’s request to give a reckless homicide lesser-included jury instruction because of the defendant’s testimony that denied he had committed the murder and wasn’t even present at the scene. The judge determined Webb can’t deny the act and then take advantage of the lesser-offense option. The jury found Webb guilty and determined he was a habitual offender, and the court sentenced him to 65 years for murder, enhanced by 30 years for the habitual offender adjudication. The Court of Appeals rejected each of Webb’s appellate claims and affirmed the judgment.

Justice Robert Rucker wrote the opinion, and he was joined by Justices Brent Dickson and Frank Sullivan in reversing the trial court. The majority relied on Wright v. State, 658 N.E.2d 563 (Ind. 1995), which developed a three-part test that trial courts should use when deciding whether to instruct on a lesser-included offense. Rucker wrote that the trial court didn’t go far enough in analyzing Webb’s case by that standard, and that Wright and its progeny make clear that trial courts must look at evidence presented by both parties in determining whether a serious evidentiary dispute exists.

The majority found the evidence in this case sufficient to support the jury’s guilty verdict, but the evidence also produced a serious dispute about whether Webb acted knowingly or recklessly. Depending on how the jury viewed and weighed the evidence, it could have led the jurors to return with a conviction of reckless homicide instead. The trial court’s refusal to instruct the jury was reversible error, Rucker wrote.

Justice Steven David and Chief Justice Randall T. Shepard dissented in a separate opinion.

Because Webb chose to testify and say he wasn’t present at the scene, he shouldn’t be allowed to “make a mockery out of the state’s burden of proof and argue to a jury he was not there, but if he was, he didn’t have the necessary intent,” David wrote.

“I believe to require the trial court to give the lesser included jury instruction when Webb claims under oath at trial that he was not present and therefore not the shooter would result in a farce upon the trial court,” David wrote.

Criminal – Probation Revocation

Troy R. Smith v. State of Indiana

35S02-1106-CR-369

A trial judge was correct in revoking a man’s probation based on his failure to pay weekly child support as a condition of his probation, the Indiana Supreme Court has ruled.

Troy Smith pleaded guilty in May 2007 to Class D felony non-support of a dependent child, regarding $4,671.13 that he hadn’t paid. Though Smith remained current on his payments through November 2008, he started making partial payments on his support and arrearage or stopped periodically. His probation officer filed a revocation petition in March 2010.

Concluding that Smith had violated the terms of his probation by failing to pay current support every week, the trial court revoked Smith’s probation and ordered him to serve the remainder of his three-year sentence. The Court of Appeals last year reversed, finding the state didn’t meet its burden in proving that Smith had the ability to pay and that the probation shouldn’t have been fully revoked.

The justices pointed to their decision two years ago in Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010), which answered many of the questions that Smith has raised in his arguments. The court noted in Runyon that state law allows probation to be revoked for a probation condition violation, but if that violation involves a financial obligation, then the probationer must have “recklessly, knowingly, or intentionally” failed to pay.

The justices determined that the trial judge is the fact finder who’s best able to reasonably conclude whether Smith met that standard in failing to pay current or past child support as required. Since Smith failed to carry his burden in convincing the trial judge, the justices found that the trial court didn’t abuse its discretion in revoking Smith’s probation.

Indiana Court of Appeals

March 22

Civil Plenary – Property/Historic Preservation

New Albany Historic Preservation Commission and City of New Albany v. Bradford Realty, Inc.

22A01-1108-PL-365

The Indiana Court of Appeals reversed a trial court in a property dispute, but Judge Ezra Friedlander disagreed with the majority based on his interpretation of “conspicuous change.”

The New Albany Historic Preservation Commission and City of New Albany (NAHPC) appealed the trial court’s grant of summary judgment in favor of Bradford Realty. Bradford, which has owned a building in downtown New Albany since 1966, had successfully argued at trial that it was not required to obtain permission for exterior repairs because the NAHPC had never notified Bradford that its building was in a designated historic district.

In 1999, New Albany created Ordinance Section 151.06, which established rules and procedures pertaining to external modifications of buildings within its historic district. While the city published a notice about a public meeting before adopting the ordinance, it did not notify individual property owners of the impending rule. The ordinance was adopted in 2002.

In 2008, Bradford began to renovate the exterior of its building, replacing worn clapboard with vinyl siding. The historic preservation commission sent a letter notifying Bradford that Bradford needed a certificate of appropriateness before proceeding with an exterior modification of the property. Bradford responded that because it owned the building before the historic district existed, it was not bound by provisions of the ordinance. After completing repairs to the exterior, Bradford filed for its certificate of appropriateness as a courtesy to the historic preservation commission, and the application was denied.

At trial, Bradford contended the NAHPC was obligated under the United States Constitution’s 14th Amendment to provide notice of the ordinance. But citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950), the Court of Appeals disagreed.

Applying Mullane, the appellate court held that the city ordinance was a legislative act that did not fall within the purview of due process requirements under the 14th Amendment. It therefore reversed and remanded to the trial court to enter summary judgment for NAHPC.

In his dissent, Friedlander said that the ordinance requires property owners to obtain permission before making “conspicuous changes,” and in this context, he interpreted that to mean a change in character, with respect to appearance.

Looking at before and after photos of the building, Friedlander concluded the change did not alter the character of the building, and therefore, he would affirm the trial court.

Civil – Attorney Fees

Lawane Chaney on Behalf of Himself and All Others Similarly Situated v. Clarian Health Partners, Inc.

49A05-0905-CV-263

The Indiana Court of Appeals made two minor corrections to its original opinion ordering an attorney to pay appellate fees due to his conduct in a purported class-action lawsuit against Clarian Health Partners, but upheld the order the attorney pay the fees.

Attorney Ronald Weldy, former counsel of Lawane Chaney, sought rehearing on the Court of Appeals’ September 2011 opinion granting Clarian’s request for fees and costs against Weldy. The judges found that Weldy’s arguments and his court filings were “utterly devoid of all plausibility and therefore, were pursued in bad faith.”

In the rehearing, the judges admitted that the court’s opinion was incorrect in two ways. First, the record doesn’t support the finding that Weldy did not inform the trial court of the stay in his motion to compel. Second, the record doesn’t support the statement by the COA that he persisted in the theory that Clarian had agreed to provide the discovery at issue after the trial court had vacated its motion to compel and denied the same.

Despite these errors, the judges reaffirmed their conclusion that Weldy should have to pay appellate fees and costs to Clarian. They corrected their original opinion and also denied Clarian’s request for additional fees and costs with regards to the rehearing petition.
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March 23

Civil Plenary – Environmental Coverage

City of Evansville and Evansville Water and Sewer Utility v. United States Fidelity and Guaranty Company, et al.

49A02-1104-PL-375

The Indiana Court of Appeals has determined a Marion County judge properly granted summary judgment in favor of a group of insurance companies because the city of Evansville was seeking coverage for projects aimed at preventing future sewer discharges, rather than remediating past discharges, which wouldn’t be covered by the policies.

The case involves Evansville’s century-old sewer system that partially drained into local waterways and led to pollution discharge permit disagreements in 2005 with the Environmental Protection Agency and Indiana Department of Environmental Management. The city sued in 2007 seeking declaratory judgment against some of its insurers that they must provide coverage under the policies. The trial court eventually concluded the insurance policies at issue did not provide any coverage for the plaintiffs in the alleged liability, including fines and penalties as a result of the government’s actions against the city.

In analyzing the case, the appellate judges relied on the Indiana Supreme Court’s decision in Cinergy Corp. v. Associated Elec. & Gas Ins. Services, Inc., 865 N.E.2d 571 (Ind. 2007), known as “Cinergy I”, and the line of subsequent Cinergy cases from the Court of Appeals in the years following.

Judge Michael Barnes wrote that Cinergy I governs this action and precludes the city’s claim as a matter of law. The judges rejected and found “immaterial” Evansville’s claim that Cinergy I is distinguishable from this current case.

“The holding of Cinergy I is that prevention of future environmental harm, rather than remediation of past contamination, is not an ‘occurrence’ under insurance policies, and the policies at issue here contain similar provisions,” Barnes wrote. “The differences between the instant action and Cinergy I do not impact that ultimate holding.”

Civil Plenary – Workers’ Comp

The Estate of Donald Eugene Smith v. Joshua Stutzman d/b/a Keystone Builders

43A01-1103-PL-136

The Indiana Court of Appeals has determined that the estate of an independent contractor who fell off a ladder and died was properly compensated through the state workers’ compensation act.

The case involved Eugene Smith, who worked at Keystone Builders and, in March 2010, fell 20 feet off a ladder, broke his neck and died. The man’s widow and estate later reached an agreement that Smith’s workers’ compensation claim would be settled for a lump-sum payment of $100,000. But in October 2010, the estate filed a complaint against Joshua Stutzman alleging that Smith’s death was a direct result of Stutzman’s negligence in maintaining a safe work site. Since Smith was an independent contractor and not an official employee, the estate argued that the claim was allowed.

The trial court entered a default judgment against Stutzman, but decided after a hearing to dismiss the case in Stutzman’s favor because the Worker’s Compensation Board has exclusive jurisdiction. The COA affirmed the dismissal of the estate’s lawsuit against Keystone Builders and Stutzman.

Applying its own caselaw about workers’ compensation coverage, the appellate panel also relied on Sims v. U.S. Fidelity & Guar. Co., 782 N.E.2d 345, 349-350 (Ind. 2003), where the justices noted that the act’s exclusivity provision bars a court from hearing any common law action brought by an employee for the same injury.

On the issue of whether Smith was an employee, the appellate judges noted that the parties expressly agreed to resolve those differences by entering into a settlement agreement.
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March 26

Criminal – Battery on Child

Lavern Ceaser v. State of Indiana

49A02-1106-CR-580

The Indiana Court of Appeals has held that a woman’s prior conviction for battering her daughter in a way similar to a current case is admissible pursuant to the state’s rules of evidence.

Lavern Ceaser was accused of battering her 9-year-old daughter by striking her on the arms, back, legs and bottom for as long as 15 minutes and causing the girl to cry and scream in pain. The girl showed a teacher at school the welts the following day and that teacher notified the local Department of Child Services, leading to this case. Ceaser had a previous Class A misdemeanor battery on a child conviction from 2006 involving the same child, who was then 7 years old. The daughter was removed from her mother’s care but then returned to Ceaser in 2008 just several months before this incident occurred.

After the state charged Ceaser with Class D felony battery on a child and trial began, prosecutors wanted to introduce the prior conviction. The trial court ruled that the state couldn’t use the evidence in its case-in-chief but could use the evidence for rebuttal purposes if Ceaser relied on the parental privilege defense.

The mother testified at trial that she’d tried various ways of disciplining her daughter unsuccessfully because the girl had apparently lied about homework and not keeping her bedroom clean. She said that the 2006 conduct may not have been reasonable, but she felt the 2008 discipline was reasonable. The jury convicted Ceaser, who received a 545-day sentence, with all of the time suspended to probation.

On appeal, Ceaser argued the trial court erred by allowing the prior conviction as evidence, that the court wrongly denied her motion to dismiss, and that evidence was insufficient to rebut her claim of parental privilege.

Judge Nancy Vaidik wrote the 17-page appellate opinion and acknowledged the potential for unfair prejudice was tangible, but the trial court properly limited the evidence and weighed the probative value versus the threat of prejudice.

Specifically, the judges found that the prior conviction was admissible under the intent and lack of accident or mistake exceptions to Indiana Evidence Rule 404(b).

The court also concluded that the trial court properly denied Ceaser’s motion to dismiss and that the trial evidence was sufficient to rebut her claim of parental privilege. Vaidik wrote that Ceaser’s appellate arguments attempt to minimize the harm to her daughter and insist that the mother’s behavior was not excessive but justified. The court described that as an invitation to reweigh the evidence, and it cannot do that.
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March 27

Criminal – Child Molesting/Right to Confrontation

Hane C. Harris v. State of Indiana

18A04-1108-CR-391

The Indiana Court of Appeals held that a man who repeatedly molested a young girl was not deprived of his right to cross-examine his accuser when she testified via closed-circuit television.

Hane Harris was charged with two counts of Class A felony child molesting, one count of Class C felony child molesting and Class D felony child solicitation stemming from his sexual abuse of his girlfriend’s daughter. The jury found him guilty, except for one count of Class A felony child molesting, and also found Harris to be a habitual offender.

Harris shared an apartment with his girlfriend and her daughter, T.D.S, when the child was between ages 7 and 8. He molested T.D.S. repeatedly, threatening to kill her and her mother if she told anyone. T.D.S. told her grandmother about the abuse when she was 9 years old, and a subsequent physical examination revealed evidence of her allegations.

Harris was sentenced to 81 years, with 79 years executed. On appeal, he claimed he was denied his right to confrontation because T.D.S. was allowed to testify via closed-circuit television. He also contended that the trial court erred in imposing consecutive sentences.

The appellate court held that based on the testimony of a psychiatrist and the child’s grandmother, the state was able to show that T.D.S. was a protected person who, if required to testify in person, could suffer serious psychological trauma. Although she was not present in the courtroom, the defense was still able to cross-examine her via closed-circuit television.

Harris also argued that the court failed to articulate why it was imposing consecutive sentences. The COA held that a trial court need only find one aggravating factor to impose consecutive sentences, and Harris had seven aggravators, including 10 prior felony convictions and 10 misdemeanor convictions. While the appellate court affirmed the length of his sentence, it remanded to the trial court, holding that the habitual offender finding is an enhancement to his sentence, and not a separate offense, as the trial court recorded.

Domestic Relation – Parenting Time/Child Support

Lorraine (Carpenter) Miller v. Karl Carpenter

No. 29A02-1107-DR-663

The Indiana Court of Appeals has ruled on a case involving parenting time and child support issues between a mother and father.

The COA affirmed and reversed in part a decision by Hamilton Superior Judge Daniel Pfleging and Magistrate William Greenaway.

The case involves Lorraine Miller and Karl Carpenter, a couple who divorced in 2008 and agreed that the mother would have sole legal custody and primary physical custody of the two children, ages 10 and 8. The father had visitation on alternate weekends and overnight on Wednesdays. The parents agreed to follow the Indiana Parenting Time Guidelines for holidays and special occasions. In calculating child support, they agreed the father would receive credit for 98 overnights, less than the actual 127 nights spent with the children.

Two years after the agreement, father petitioned for joint legal custody, an increase in parenting time and a decrease in child support. The trial court granted the father’s relief and the child support decrease was based on an increase in the mother’s income, a decrease in her child care costs and an increase in parenting time credit.

But on appeal, the panel reversed the grant of joint legal custody to the father because the evidence does not support a conclusion that a substantial change in circumstances had occurred to justify a modification of legal custody. The appellate judges upheld the trial court’s modification of parenting time because it’s in the children’s best interest.

On child support, the appellate judges determined the trial court did not abuse its discretion in finding the evidence of imputed income was too speculative. Because more than a year had passed since the establishment of the original support order and father’s obligation deviated from the guidelines by more than 20 percent, the appeals panel found the trial court didn’t err in reducing the amount of his obligation.

Agency Appeal – Workers’ Comp

Earl Arnold, Sr. v. Rose Acre Farms, Inc.,

93A02-1109-EX-874

The Indiana Court of Appeals has upheld a decision by the state worker’s compensation board that denied a security guard’s claim that a car accident on the way to work happened in the course of his employment and should be compensated.

Night security guard Earl Arnold in 2006 was driving from his home to his job at Rose Acre’s facility in Cortland. He was on County Road 800 North, which is a public road that intersects with a gravel road serving as the only entrance to Rose Acre’s facility. As Arnold started to make a left-hand turn onto the facility’s gravel road and crossed the center line, he was struck by a pick-up truck. The vehicles came to rest partially on the public road and partially in Rose Acre’s driveway. Arnold suffered several injuries.

He filed a claim for workers’ compensation on the grounds that the accident arose out of and in the course of his employment, but a single member denied his claim and the full board supported that conclusion.

The judges could not determine that the full board erred in concluding that the public road wasn’t part of the Rose Acre’s premises for purposes of state statute. Although Rose Acre technically owned the soil beneath the public road, the judges found that it had no control of the road’s use as a public thoroughfare. The court rejected Arnold’s argument that his left-hand turn into Rose Acre distinguished his use of the public road from the use made by the public at large.

The court also declined to apply a ruling it made more than a decade ago in Clemans v. Wishard Mem’l Hosp., 727 N.E.2d 1084 (Ind. Ct. App. 2000), which involved an employee traveling on a public road from one part of the employer’s premises to another part. That precedent does not stand for the proposition that an employee may be eligible for benefits from injuries occurring when traveling on a public road from the home to the employer’s sole piece of property, Judge Carr Darden wrote.

The court noted that Arnold failed to show the board erred in determining he wasn’t injured in the course of his employment with Rose Acre. Darden wrote in a footnote that the panel is making no determination as to whether Arnold’s injuries “arose out of” his employment.
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March 28

Agency Appeal – Workers’ Comp/Disability

Janet Stewart v. Richmond Community Schools

93A02-1108-EX-793

Because a woman failed to seek appellate review of the decision by the Worker’s Compensation Board of Indiana that she was not permanently and totally disabled, she waived any claim of error related to that decision, the Indiana Court of Appeals has ruled.

Janet Stewart, a former gym teacher, appealed the final judgment by the board that found she was not permanently and totally disabled, as a single hearing member had determined.

Stewart broke her leg while helping a student during a gymnastic maneuver. She received workers’ compensation benefits for the surgery and treatment. A year later, she fell and broke her right hip at home. She claimed the fall was caused by continuing problems with her right leg. She did not return to work.

The single hearing member determined the hip injury was related to the broken leg injury and that she was totally and permanently disabled. The board affirmed that the hip injury was a compensable claim, but reversed regarding total disability and remanded for calculation of her permanent partial impairment. Neither party appealed the board’s decision.

On remand, she argued she was permanently and totally disabled; the member concluded Stewart sustained a 39 percent permanent partial impairment. The full board affirmed this decision.

The COA determined that the full board’s original decision finding Stewart wasn’t permanently and totally disabled was a final award subject to appellate review. Since she didn’t seek appellate review then, she waived any claim of error. The judges cited Cox v. Worker’s Comp. Bd., 675 N.E.2d 1053 (Ind. 1996), in support of their decision.

Post Conviction – Ineffective Assistance of Counsel

Juan M. Garrett v. State of Indiana

49A04-1107-PC-410.

The Indiana Court of Appeals found a man’s double jeopardy claims were without merit, so his trial and direct appeal attorneys’ failure to raise these claims created no prejudice.

Juan Garrett was charged with several offenses, including two counts of rape stemming from an incident in his apartment with the victim and two other men. He was found not guilty of one count of Class A felony rape, and the jury couldn’t reach a verdict on the other Class A felony rape charge. Both charges alleged Garrett raped the victim while armed with a knife.

Garrett was retried on the second rape charge and found guilty of rape as a Class B felony because the victim testified she hadn’t seen anyone touch the knife.

Garrett appealed the conviction, which the COA affirmed. He then filed a petition for post-conviction relief, alleging that his trial and direct appeal attorneys were ineffective because they didn’t raise double jeopardy claims either by filing to dismiss the charges or arguing at retrial that the second rape charge was impermissible. The post-conviction court denied his request.

The judges looked at Garrett’s claims using the federal double jeopardy clause and the state’s constitution to find that the retrial of the second rape charge didn’t violate his Fifth Amendment protection against double jeopardy or the statutory elements test of the Indiana double jeopardy clause.

“If the jury had concluded that the State had failed to prove that neither rape occurred, then it would have acquitted Garrett of both charges of rape. Thus, a rational jury could have grounded its vote to acquit on one count of rape on issues unrelated to the second rape charge. We conclude that collateral estoppel did not bar relitigation of the second count of rape,” wrote Senior Judge Betty Barteau.
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March 29

Criminal – Burglary/Double Jeopardy

Shamir Chappell v. State of Indiana

89A01-1106-CR-265

Because some of the facts establishing the elements of a Class A felony burglary conviction also established all of the essential elements of the Class B felony burglary conviction, the Indiana Court of Appeals ordered one conviction be vacated due to double jeopardy.

Shamir Chappell helped Carlotta Wilkerson break into the home where Maurice and Heather Jones lived. Maurice Jones was in a relationship with Wilkerson despite being married. The Joneses were staying at the home in order to remove the remainder of Maurice Jones’ sister’s belongings before her eviction date. During the break-in, Wilkerson stabbed Heather Jones twice, and Chappell tried to punch Maurice Jones.

Chappell was convicted of aiding, inducing or causing: Class A felony burglary resulting in bodily injury, Class B felony burglary of a dwelling, and Class C felony battery. He was also convicted of Class D felony residential entry. He admitted to being a habitual offender and was sentenced to an aggregate term of 70 years.

The Court of Appeals found the state presented sufficient evidence to support his convictions of burglary, but that the Class B felony conviction should be vacated due to double jeopardy. He was convicted of both the Class A and Class B felonies for one act of breaking and entering into the home. In addition, the only actual evidence differentiating the two convictions was the element of bodily injury to Heather Jones, wrote Judge Paul Mathias.

The COA remanded with instructions to vacate the sentence for the Class B felony conviction, which the trial court had ordered be served concurrently with the Class A felony conviction. They also found that the aggregate sentence of 70 years is not inappropriate.

Criminal – Guilty Plea/Erroneous Sentence

Todd J. Crider v. State of Indiana

91A05-1108-CR-389

The Indiana Court of Appeals was divided over whether a man could challenge his sentence following a guilty plea. One judge maintained that the defendant did not consent to his illegal sentence.

Todd Crider, who pleaded guilty to Class D felony theft and admitted to being a habitual offender in White Superior Court, challenged the order that the sentence be served consecutively to a sentence imposed in Tippecanoe County that also included a habitual offender enhancement.

The original plea agreement in White County said that the sentence would be served concurrently with a habitual offender enhancement received in Tippecanoe County, but that line was crossed out and initialed by Crider and his attorney. The original agreement also called for a shorter sentence, but that was also crossed out and initialed. The final agreement also said that Crider waived his right to appeal and knowingly, intelligently, and voluntarily waived his right to challenge his sentence on the basis that it’s erroneous.

After sentencing, Crider challenged the legality of serving the sentence in the White County case consecutively to the sentence already imposed in Tippecanoe County.

The majority concluded that Crider waived his right to challenge his sentence as erroneous. Based on the original agreement, Crider was aware that the trial court might order the sentences to be served consecutively, wrote Judge Ezra Friedlander, yet he moved forward with the plea agreement in its current form.

Judge Melissa May dissented, pointing out that the final plea agreement didn’t contain any reference to whether the sentence would be served concurrently or consecutively with the Tippecanoe County matter. She would order the sentence be modified.

Civil Collection – Belated Response

DeLage Landen Financial Services, Inc. v. Community Mental Health Center, Inc.

5A05-1107-CC-366

The Indiana Court of Appeals has reversed the denial of summary judgment for a financial company seeking contract damages and other relief, finding the trial court should not have considered the defendant’s late-filed response on summary judgment.

DeLage Landen Financial Services filed a complaint against Community Mental Health Center Inc. for breach of contract involving copy machines. DLL filed a motion for summary judgment. CMHC, pursuant to Trial Rule 56(C), had 30 days to respond. CMHC did not respond within that time frame, but later filed a motion for enlargement of time to file response to motion for summary judgment and simultaneously filed its response to DLL’s motion for summary judgment.

The trial court eventually granted CMHC permission to file its belated response and denied DLL’s motion for summary judgment.

The judges determined that because CMHC failed to file a response or request an extension of time within the prescribed time, the trial court had no discretion to alter the time limits in Trial Rule 56. CMHC’s belated response should have been stricken, and the trial court abused its discretion when it allowed the response to be filed and considered on summary judgment.

The COA also found the trial court erred in denying summary judgment to DLL and remanded for further proceedings.

Criminal – Battery/Sentence

Buck Gleason v. State of Indiana

48A02-1106-CR-630

The Indiana Court of Appeals has reduced the sentence of a defendant who used brass knuckles to injure a couple and then struck a victim’s father with his car, finding the 11-year sentence was inappropriate in light of the offenses and the defendant’s character.

Buck Gleason appealed his convictions of and sentence for Class C felony battery with a deadly weapon; Class A misdemeanor battery resulting in bodily injury; Class D felony criminal recklessness while armed with a deadly weapon; and Class A misdemeanor failure to stop after an accident resulting in injury. Gleason went to the home of Amber Ball Kilgore and her fiancé, Mark Goodman, seeking money that Goodman’s former boss apparently owed Gleason. The couple testified they saw Gleason put on his hand what looked like brass knuckles before he struck Goodman in the back of the head. Gleason also hit Kilgore in the arm with the brass knuckles. When fleeing the home, Gleason’s car’s side-mirror struck Goodman’s father, knocking him down and injuring him.

The judges found sufficient evidence to support the convictions, but ordered that Gleason’s sentence be revised. While he has a criminal history, the judges found it was not “particularly egregious” and didn’t justify enhancing the Class D felony to the maximum of eight years. They ordered his sentence be revised to an aggregate term of six years.

Civil Plenary – Public Bid

East Porter County School Corp. v. Gough, Inc., and Travelers Casualty and Surety Co. of America

64A04-1109-PL-471

The Indiana Court of Appeals has found that a school corporation seeking bids for renovations did not acquire the right to enforce a construction company’s mistaken bid. East Porter County School Corp. sought bids for additions and renovations. Bids had to be in by 2 p.m. Feb. 5, 2008, and the bids would be opened publicly at 2 p.m. Gough Inc. submitted a bid to complete certain work with a base bid amount of $2,997,000.

Just before the bids went public, Gough realized its bid was based on mistaken information within the company and tried to have the bid pulled. The company didn’t reach anyone with the school corporation until after 2 p.m. Gough’s was the lowest bid, so the school accepted it and tried to force Gough to honor the bid. Eventually the school approved the project to the second-lowest bidder and then sought to claim the bid bond Travelers Casualty and Surety has on the Gough bid. Travelers denied the claim.

Gough filed a complaint for declaratory judgment seeking that its bid be rescinded and its bid bond released. The trial court ruled in favor of Gough, granting summary judgment for Gough and Travelers and against the school.

“Based upon the record and under the circumstances presented in this case, we conclude that it is evident that there was not a meeting of the minds regarding the bid amount and thus that the School did not acquire the right to enforce Gough’s erroneous or mistaken bid,” wrote Judge Elaine Brown.

The appellate court cited Bd. Of Sch. Commr’s of City of Indianapolis v. Bender, 36 Ind. Ap. 164, 72 N.E. 154 (1904), in its decision. The judges also agreed with the trial court that Travelers should be released from its bid bond because Gough didn’t have any liability on the underlying contract.

Criminal – Drugs/Batson Challenge

Ronyai Thompson v. State of Indiana

49A05-1106-CR-323

The Indiana Court of Appeals rejected a man’s argument that his charges should be dismissed or he deserved a mistrial, finding sufficient evidence to support his dealing in cocaine conviction.

Ronyai Thompson raised three arguments on appeal: that the trial court abused its discretion when it denied his motion to dismiss the charges against him under Indiana’s statute barring successive prosecutions; that the trial court improperly denied his Batson challenges; and that evidence was insufficient to support his Class A felony dealing in cocaine conviction.

Police had a house under surveillance, believing that drug transactions were happening there. While observing the home, police saw a man – later determined to be Thompson – driving to and from the duplex. When police decided to contact the people inside the home, they saw Thompson inside. After talking to Thompson, police determined he was the man driving the car and that his driving privileges had been suspended. After a search of the home, Thompson was charged in one case with driving while suspended; he was charged with various drug offenses and driving while suspended under another cause number.

He pleaded guilty to the driving while suspended charge in the first case and was later convicted of dealing in cocaine in the other case. At the trial under the second cause number, he tried to have the charges dismissed based on the state’s successive prosecution statute. He also challenged the state’s peremptory challenges of two African-American jurors.

The COA concluded that it may have been better for the state to join all the charges against Thompson, but that there was no evidence that the driving while suspended offense in the first case was part of a single scheme or plan with the drug offenses in the second case. With regards to the Batson challenges, other jurors who were not African-American were struck from the jury for similar reasons as the two African-American jurors. The judges found the trial court didn’t err when it allowed the state to use its peremptory challenges to strike the two African-American members of the venire.

Finally, the judges concluded sufficient evidence existed of Thompson’s constructive possession of cocaine to support the conviction.

Criminal – Public Intoxication

Michael Woodson v. State of Indiana

49A02-1106-CR-543

The Indiana Court of Appeals affirmed a man’s public intoxication conviction, finding police had reasonable suspicion the man was intoxicated, and evidence is sufficient to support the conviction.

Police were called to an Indianapolis street on the report of a man and woman fighting. When police arrived, they were directed to Michael Woodson and a woman, who were not fighting at that moment. The woman left after speaking to officer Christopher Chapman, but police noticed Woodson smelled of alcohol and his speech was slurred.

Woodson admitted drinking and wouldn’t keep his hands out of his pockets, so police put him in handcuffs and arrested him for public intoxication. Woodson filed a motion to suppress, which was denied. He was convicted of Class B misdemeanor public intoxication.

The COA affirmed, finding the initial encounter with police did not require reasonable suspicion to approach Woodson because it involved a “casual and brief inquiry of a citizen, which involves neither an arrest nor a stop.” But once police smelled alcohol on Woodson and noticed his impaired speech, the initially consensual encounter evolved into a Terry stop. This stop was justified by reasonable suspicion based on the phone call from a concerned citizen and the officer’s observations.

The judges also found sufficient evidence to support the conviction.

Juvenile Paternity – Dismissal of Petition

In the Matter of the Paternity of S.C.; K.C. v. C.C. and B.H.

30A01-1107-JP-322

The Indiana Court of Appeals affirmed a trial court in dismissing a paternity petition, but one judge dissented, saying the ruling now leaves the child with no legally recognized father.

CC. and B.H. had disputed who was father of S.C., a child born to mother K.C. in 2008. K.C. had a sexual relationship with C.C. and B.H. around the same time. She believed K.C. was the father of the baby, but knew B.H. could also be the father.

On July 29, 2008, B.H. filed a verified petition for immediate paternity order in the Fayette Circuit Court, alleging he was S.C.’s father, requesting an order that the mother and S.C. submit to a DNA test, and asking that it be performed before K.C. and S.C.’s discharge from the hospital.

K.C. and S.C. submitted to blood tests, and on Aug. 4, 2008, the DNA Diagnostic Center in Fairfield, Ohio issued a DNA test report indicating a 99.9997% probability that B.H. was S.C.’s biological father.

K.C. and B.H. received the DNA test results in October. About a week later, C.C., pro se, and on behalf of S.C., filed a verified petition to establish paternity in the Hancock Circuit Court. He alleged that he was S.C.’s father based upon a July 30 paternity affidavit he and K.C. created. On Oct. 22, the Hancock Circuit Court issued an order establishing C.C.’s paternity; the Fayette Circuit Court held a hearing on B.H.’s paternity action, ultimately dismissing it, holding that it was not a petition for paternity, but rather a petition to require DNA testing.

On June 25, 2010, B.H., by counsel, filed his verified petition for relief of judgment for fraud upon the court (the petition for relief) in the Hancock Circuit Court, alleging that C.C.’s paternity order was obtained through fraud. The Hancock Circuit Court granted B.H.’s petition, holding – among other findings – the mother had suspected the child might be B.H.’s and that her lawyer had not notified B.H. of the petition for paternity that C.C. had filed in Hancock County.

The COA affirmed the court’s decision to set aside C.C.’s paternity petition, writing, “We reiterate that this decision does not leave S.C. without a father and Mother without options. Even assuming that the July 31, 2008, DNA test was faulty or legally inadmissible, the parties are free to have another test performed and do what they will depending upon those results, including the pursuit of support proceedings against B.H. or the initiation of adoption proceedings by C.C.”

But Judge Patricia Riley dissented, writing, “All that has occurred here is the judicially imposed removal of that obligation since B.H. has not been legally recognized as S.C.’s father. This leads to an unjust result whereby B.H. is free to abandon his claim to S.C.’s paternity leaving S.C. with no one obliged to support her.”

Civil Plenary – Sex Offender Registration

Brent Myers v. Jarod Coats

49A04-1104-PL-208

The Indiana Court of Appeals has found the trial court should have granted summary judgment to a Department of Correction employee on a man’s claim that he was personally deprived a liberty interest when the DOC refused to remove his name from the sex offender registry.

Jarod Coats had tried unsuccessfully to have his name removed from Indiana’s sex offender registry. Coats pleaded guilty but mentally ill in 1999 to two counts of battery, one count of intimidation and one count of criminal confinement. Although no children were involved in any of the charges and Coats has never been convicted of a sex offense, the DOC told him he had to register as a sex offender. The DOC maintains the registry; Brent Myers is the director of registration and victim services.

Coats kept his registration current while disputing the requirement. After filing suit in federal court in 2009, Coats was removed from the registry and the case was dismissed. He then filed a complaint for declaratory relief and damages in state court against Myers under 42 U.S.C. Section 1983, alleging Myers failed to provide Coats with a procedure to challenge his erroneous listing.

The trial court concluded that Coats had a liberty interest in not being mistakenly labeled as a sex offender and that the process to challenge the erroneous listening was inadequate, which the COA affirmed. The trial court found that there was a genuine issue of material fact as to whether Myers personally deprived Coats of a constitutional right, which the judges reversed. Any policy Myers contributed to or produced was subject to input from supervisors and the DOC’s legal counsel, which undercuts Coats’ argument that Myers was the driving force behind the failure to provide a policy, ruled the COA. The judges entered summary judgment for Myers on this issue.

Civil Tort – Murder/Allocation of Fault

Mary E. Santelli, as Administrator of the Estate of James F. Santelli v. Abu M. Rahmatullah, Individually and d/b/a Super 8 Motel

49A04-1011-CT-704

The Indiana Court of Appeals affirmed the trial court in concluding a new trial is warranted to determine allocation of fault in a man’s murder. At issue is the percentage of fault to allocate to a criminal defendant and his former employer.

The estate of James F. Santelli filed a suit against Abu M. Rahmatullah, arguing he had breached his duty of care to Santelli by hiring Joseph Pryor, giving him a master keycard to the motel without running a criminal background check, and failing to provide proper security to the motel. After he left his job with the hotel, Pryor broke into the room Santelli was staying in and murdered him. Rahmatullah asserted a nonparty defense, naming Pryor as a nonparty defendant.

The jury allocated one percent fault to Santelli, two percent to Rahmatullah, and 97 percent to Pryor and entered a verdict in favor of the estate for $41,400 – the portion of the damages award for which Rahmatullah was liable. The estate filed a motion to correct error and sought a new trial, claiming the trial court erred by instructing the jury to allocate fault among Santelli, Rahmatullah and Pryor without also instructing the jury on the very duty doctrine. The trial court set aside the verdict with respect to allocation of fault.

The COA concluded that the very duty doctrine is not abrogated by the Indiana Tort Claims Act, and at trial, the judge should instruct the jury on the very duty doctrine, as set forth in Restatement (Second) of Torts, Section 449. The judges also decided to adopt Section 14 of Restatement (Third) of Torts, entitled “Tortfeasor Liable For Failure To Protect The Plaintiff From The Specific Risk Of An Intentional Tort,” holding that it would enable a jury to determine fault in a manner that will carry out the goal of adequately compensating the injured party.

The issue is remanded for further proceedings.
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March 30

Civil Plenary – Replevin

Kristine A. and Larry G. Dawson v. Fifth Third Bank

49A02-1107-PL-704

The Indiana Court of Appeals has upheld summary judgment for a bank in its attempt to repossess a motorcycle, finding that while the purchasers of the motorcycle had an interest in it, their interest was not superior to the bank’s perfect security interest.

Jacob Magish bought a Harley Davidson motorcycle, using a $15,000 loan from Fifth Third Bank. He never completed the proper title work and in fact fraudulently obtained a “clean” title. He fell behind on his loan payments and sold the motorcycle through Craigslist to Kristine and Larry Dawson. He gave them the fraudulent title.

Fifth Third attempted to repossess the bike and filed a replevin case. The Dawsons, who still have the motorcycle, filed a complaint to have the bank’s lien declared unenforceable so they can have a clear title. Fifth Third filed a counterclaim for replevin. Both filed for summary judgment, which the trial court granted for the bank.

When Magish defaulted on his loan, the bank, as the secured party, had a right to take possession of the motorcycle, the COA ruled. The judges rejected the Dawsons’ claim that their purchase and ownership of the motorcycle precludes the bank from being able to prove that the Dawsons wrongfully held possession of the motorcycle. Judge Carr Darden noted that the Dawsons didn’t verify with the Bureau of Motor Vehicles before purchasing the motorcycle that the title had no liens.

The judges also rejected the Dawsons’ argument that the trial court erred by denying their motion for summary judgment on their claim for equitable estoppel. The Dawsons cited no caselaw to support their arguments and failed to show that the bank’s acts or omissions were responsible for their loss by purchasing the motorcycle without knowledge of the lien to the extent that equity should be granted to them, Darden wrote.

Small Claim – Contract/Home Improvement Contracts Act

Imperial Insurance Restoration & Remodeling, Inc. v. James Costello

10A05-1109-SC-478

Even though a restoration company’s contract with a homeowner did not satisfy the requirements of the Home Improvement Contracts Act, that did not automatically render the contract void, the Indiana Court of Appeals ruled. The judges reversed judgment in favor of the homeowner and ordered he pay the company for the work it performed.

James Costello and his wife hired Imperial Insurance Restoration and Remodeling to repair water damage in their home following a burst pipe. The Costellos’ insurance company put them in touch with Imperial. James Costello did not read the agreements he signed, which included a work authorization and a satisfaction of work completed. The paperwork he signed did not comply with the requirements of the Home Improvement Contracts Act, which Imperial later admitted.

The Costellos received $670 from their insurer to cover the clean-up costs but did not pay Imperial for the work. Imperial took James Costello to small claims court and the court ruled in his favor. He asserted as a defense that the contracts did not comply with the HICA and were void.

The appellate judges pointed out that the HICA is silent as to whether contracts that do not meet the requirements are void or unenforceable. It declares a nonconforming contract to be a deceptive act and affords the aggrieved customer the remedies available to victims of deceptive consumer sales under the Deceptive Consumer Sales Act. The judges determined that the lack of the use of “void” or “unenforceable” in the HICA did not mean the General Assembly intended that every contract made in violation of the HICA was automatically void.

“If we were to so hold, Imperial would suffer both a serious and undeserved forfeiture outweighing the other factors,” wrote Judge L. Mark Bailey.

The COA ordered judgment be entered in favor of Imperial for $669.86 and that the small claims court determine the contractual interest due on the contract and if any costs and attorney fees should be awarded.

Civil Collections – Breach of Contract

Steinrock Roofing & Sheet Metal Inc. v. James S. McCulloch, PNC Bank, N.A.

22A05-1108-CC-457

A trial court did not err when it found in favor of a homeowner on his breach of contract claim against the contractor he hired to repair his clay tile roof following a storm, the Indiana Court of Appeals concluded.

James McCulloch hired Steinrock Roofing & Sheet Metal Inc. to repair damage to his roof for around $95,000. McCulloch withheld his final payment of $15,000 to the company after finding deficiencies in the work completed, including falling and warped tiles. Steinrock sued for the unpaid balance in the amount of $20,096; McCulloch filed a counterclaim asserting the company installed the roof in a negligent manner.

Two roofing experts testified at trial that the roof would need repairs, although their estimates differed about the extent and cost of repairs. Steinrock admitted that some of the work would need redone but that the costs would only be about $6,000. The trial court found in favor of McCulloch, awarding him damages of $54,962, the difference between one expert’s estimate of $75,059 to repair the roof, less the balance due to Steinrock under the contract in the amount of $20,096.

The COA affirmed, finding the trial court did not err in applying the rationale in Richey v. Chappel, 594 N.E.2d 443 (Ind. 1990), in these circumstances and quashing subpoenas that Steinrock had filed in an attempt to obtain the claims file information from McCulloch’s insurance carrier. The judges also affirmed the ruling in favor of McCulloch on Steinrock’s defamation claim. The company alleged McCulloch’s calling the company and asking the receptionist if the company was still in business was a defamatory statement, but no evidence was presented that anyone else had heard this inquiry, that McCulloch told anyone about his question, or that it affected business.

The judges affirmed the damage award in favor of McCulloch was proper.

Civil Plenary – Remonstrance/Road Closure

Lewis J. Richardson and Laurel Richardson v. Board of Commissioners of Owen County

60A01-1106-PL-228

The Indiana Court of Appeals ruled that a trial court properly dismissed a couple’s complaint over the closure of an access road into a cemetery where their daughter is buried.

Lewis and Laurel Richardson sought to prevent the Owen County Board of Commissioners from granting Junior Sips’ request to vacate a portion of a roadway on his property that had allowed access to the cemetery where the Richardsons’ daughter is buried and where they own several plots. The road used to be maintained by the county, but hadn’t been maintained since the 1950s. Sips installed a gate along his property line, which abutted the cemetery land.

The Richardsons asked that the gate be removed and the road be repaired so that it could be used again. The county commissioners passed the ordinance allowing the portion of the road to be vacated. The Richardsons then filed a complaint in court to set aside the ordinance. The trial court determined that the Richardsons are not aggrieved persons under the statute and not eligible to appeal.

The COA affirmed, finding the Richardsons lacked standing because they do not own land abutting the cemetery and failed to show that they’ve sustained an injury that is unique or special to them. They did not use the road in question to access the cemetery, and other roads provide access to the land. The general public’s ability to visit the cemetery is not hindered by the gate anymore than it has been for the last five decades, or more, wrote Judge John Baker.

Domestic Relation – Custody Modification/Relocation

D.C. v. J.A.C.

32A04-1106-DR-296

A trial court’s decision to grant a father’s motion to modify custody and prevent his ex-wife from relocating with their son was clearly erroneous, the Indiana Court of Appeals concluded in reversing the decision. The lower court ruling virtually ignored the immense benefit the mother’s new position in Tennessee would bring to her and her son.

Mother D.C., who had physical custody of son B.C., filed a notice of intent with the trial court to relocate to Tennessee for a better job. She would have earned about $30,000 more than if she stayed in Indiana, and the job would have been a promotion. Father J.A.C. filed for motion to modify custody and prevent relocation of their son.

The trial court noted the better paying job, but stated that the primary reason the mother was relocating was because of her relationship with her boyfriend. It awarded a change in custody to the father and granted the mother parenting time.

The appellate court found the trial court’s analysis of D.C.’s reason for relocating somewhat perplexing, wrote Judge John Baker, noting the judge focused mostly on her move as being motivated by her relationship with her boyfriend. In addition, she has been the primary caregiver. The judges remanded with instructions that the trial court be mindful of the relocation when establishing father’s parenting time.

They denied J.A.C.’s request for appellate attorney fees.

Civil Plenary – Rehearing/Surveyor Involvement

Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg

10A05-1102-PL-68

The Indiana Court of Appeals granted the former Clark County surveyor’s request for a rehearing on its decision regarding his involvement in two county projects, but found his assertions on rehearing are without merit.

In their original opinion, the judges affirmed summary judgment for Robert Isgrigg on his request that he should have been involved in a project involving Lancassange Creek, but reversed summary judgment for him regarding whether he should have been involved in a project in the Sunset Hills subdivision. Isgrigg claimed the Clark County Drainage Board didn’t follow Indiana Code with regard to his involvement in projects.

The judges found Isgrigg missed his opportunity to present on appeal his argument that the Sunset Hills project involved tile drains and that he may not do so for the first time in his petition for rehearing. They also rejected his claim that a swale is a regulated drain under Indiana Code.

The COA affirmed its original opinion in all respects.

Criminal – Dog Bite/Double Jeopardy

Carolyn Boss v. State of Indiana

49A05-1106-CR-320

A woman whose dogs attacked and injured two people failed to prove that the evidence was insufficient to support her convictions. But the Court of Appeals agreed that a portion of her overall sentence should be vacated based on double jeopardy grounds.

In 2008, three dogs escaped Carolyn Boss’ yard and attacked Carole Bales as she walked down an alley. Two of the dogs also attacked Thomas Wimberly when he tried to help Bales. After a passerby alerted Boss to the attack, she called off the dogs and returned them to her yard.

Bales and Wimberly suffered extensive injuries, including permanent nerve damage. Bales was hospitalized for two weeks, and Wimberly was hospitalized for six weeks.

Animal control officer Deborah Dobbins responded to the scene and saw large gaps in the chain link fence in Boss’ yard. A third dog was tied to a tree, but its collar was so loose that it slipped off the dog’s head. Dobbins observed blood on all three dogs.

Boss explained she was taking care of the dogs, which belonged to her incarcerated son. The dogs had no rabies tags, and Boss had no vaccination records for the animals. Boss voluntarily surrendered the animals to Animal Care & Control.

The state charged Boss with six counts of Class A misdemeanor failure to restrain a dog and six counts of Class B misdemeanor harboring a non-immunized dog. She received an aggregate sentence of two years for the Class A misdemeanors and concurrent 180-day sentences for the Class B misdemeanors — to be served concurrently with the two-year sentence. She also received 168 days of probation.

The COA held that the dilapidated fence and the ill-fitting collar indicate Boss failed to take reasonable steps to restrain the animals and that the lack of rabies tags and immunization records would allow one to reasonably infer the dogs were not immunized.

The appellate judges agreed with Boss’ assertion that she was subjected to double jeopardy when her convictions for harboring a non-immunized dog were elevated to a Class B misdemeanor on the same type of bodily injury elevating her convictions for failure to restrain a dog to a Class A misdemeanor. They remanded with directions to vacate the convictions and sentences for harboring non-immunized dogs and enter a determination that Boss committed Class C infractions, rather than Class B misdemeanors.

Boss claimed her two one-year consecutive sentences violated the 14th Amendment, but the COA noted that it can’t address a constitutional question when a decision can be based on any other statutory or common-law basis. While Boss’ failure to restrain the dogs was a single act, it resulted in separate harms to separate people. The COA could not say that Boss is entitled to a limit on her sentence pursuant to Indiana Code 35-50-1-2.
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April 3

Criminal – Sentence Reduction/Double Jeopardy

William Minnick v. State of Indiana

47A05-1108-CR-448

The Indiana Court of Appeals has ordered that a man’s robbery sentence be reduced because that conviction and sentence were not allowed due to double jeopardy. The man’s sentence for murder, robbery and rape dropped from 160 years to 130 years.

William Minnick was convicted in 1985 of murder, Class A felony robbery and Class A felony rape of Martha Payne. He was sentenced to death for the murder, but the trial court didn’t impose separate sentences for robbery or rape. His sentence was set aside in 2004 and he was found to be incompetent; the Indiana Department of Health notified the trial court in 2011 Minnick was competent.

At his new sentencing hearing, Minnick’s counsel raised concerns about Minnick’s competency, which the judge considered, but he proceeded with the hearing because he found Minnick was able to answer questions and be helpful to his attorney. He received 160 years for the three convictions.

The COA determined that double jeopardy prevented the trial court from convicting Minnick of Class A felony robbery because the stab wound in the victim’s back that caused her death was also the serious bodily injury alleged in the robbery count. The judges ordered the conviction be reduced to a Class B felony and that Minnick receive 20 years on that conviction, making his revised sentence 130 years.

The judges also held that the trial court did not err in failing to order another competency evaluation for Minnick. The trial court said it would take the attorney’s request under advisement. The court found Minnick was very clear and concise in his allocution, and his attorney did not contradict the judge in these statements or point to any indication Minnick was incompetent during the hearing.•