Indiana Court Decisions June 28 – July 11, 2012

7th Circuit Court of Appeals

June 28

Civil Plenary – Employment/FMLA

Robert Jones v. C&D Technologies

11-3400

An employer was within its rights to terminate an employee who attempted to take off work under the Family and Medical Leave Act but then sought no treatment, the 7th Circuit Court of Appeals ruled.

Judge William T. Lawrence granted summary judgment in favor of the employer in the U.S. District Court for the Southern District of Indiana.

Robert Jones appealed the finding for the employer in Attica, where he had worked for six years as a machine operator. The company had a system in which workers were assessed half-points or full points for unexcused absences longer than 30 minutes. An employee with three or more points in a four-month period was subject to termination.

On Oct. 1, 2009, Jones missed work to go to a doctor’s appointment. Jones and the company dispute whether Jones requested FMLA leave for the entire day or just for the time needed for his appointment. Jones also said he left a voice mail about missing work that day, which C&D disputes.

Jones had accumulated at least three points in the quarter, and he was suspended the day after his medical appointment and fired within a week.

The District Court held that while Jones obtained refills of prescription medication for anxiety and leg pain during his day off, he was not entitled to FMLA leave because he did not receive treatment during his absence. The 7th Circuit agreed.

“Taking prescription medicine is not indicative of whether an employee receives treatment that prevents” performing a job, Circuit Judge Michael Kanne wrote. “Many chronic conditions require a course of prescription medication, but the FMLA requires something more for an employee to become entitled to leave — inability to perform … job functions.”

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June 29

Civil – Fourth & 14th amendments

Zachary Medlock v. Trustees of Indiana University

11-3288

An Indiana University student’s federal lawsuit seeking a preliminary injunction to prevent his one-year suspension was dismissed by the 7th Circuit Court of Appeals.

The court in a brief opinion ruled that it lacked subject matter jurisdiction, and the case was moot because the student had served his suspension and therefore an injunction, even if granted, would have no force.

Zachary Medlock argued that a search of his room in the Willkie Residence Center violated his rights under the Fourth and 14th amendments.

On March 9, 2011, as part of a routine “health and safety inspection,” two university resident assistants searched Medlock’s dorm room for safety hazards. Medlock was not present at the time of the search. When the RAs entered the room, they discovered marijuana in plain sight, and they notified university police.

Medlock subsequently was suspended for a year and unsuccessfully exhausted I.U.’s appeal process before he filed suit in U.S. District Court for the Southern District of Indiana, where his request for an injunction was denied.

Judge William Bauer wrote that the court didn’t need to examine the District Court’s determination that neither of Medlock’s rights violations claims had a reasonable likelihood of success.

“We need not consider these issues; we lack subject-matter jurisdiction in this appeal and therefore must dismiss it,” Bauer wrote. “Article III of the Constitution limits federal courts’ scope of judicial review to live cases and controversies. … Even if we were to decide that Medlock’s constitutional rights had been violated, a preliminary injunction would do him no good. There is simply nothing left to enjoin.”

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July 5

Civil Plenary – Contract

Nipponkoa Insurance Company Ltd. v. Atlas Van Lines

11-3085

An insurer’s lawsuit against an Indianapolis-based shipping company involving a loss of more than $1 million has been reinstated by the 7th Circuit Court of Appeals.

Judge Diane Wood wrote in a unanimous opinion that the U.S. District Court for the Southern District of Indiana prematurely granted summary judgment for the defendant.

Nipponkoa insured Toshiba American Medical System, which in 2008 contracted with Comtrans, Ltd., and an affiliate, Alternative Carrier Source, Inc., which hired Atlas to ship a device from California to a trade show in Chicago. A serious accident left TAMS with more than $1 million in losses.

Atlas claims it had a contract with ACS and presented a bill of lading to Comtrans, each of which limited Atlas’ liability to 60 cents per pound. Atlas claims the Carmack Amendment 49 U.S.C. § 14706 limits its liability, but Nipponkoa contends neither the ACS contract or the bill of lading applied to TAMS and that if they did, they are not  Carmack-compliant.

“As is true in many contract cases that wind up in litigation, the fundamental question is who must ultimately bear the loss when multiple actors play a role in an arrangement,” Wood wrote. “While we appreciate the efforts made by both the parties and the district court to sort this out, we conclude that further proceedings are necessary. A final answer must await further development of the details of the shipping contract and the nature of the relationship among the four companies. Summary judgment was therefore inappropriate.”

The District Court initially denied Atlas’ request for summary judgment, the 7th Circuit noted, but granted it after Atlas filed a motion to reconsider.

The opinion said further development of the relationship among players in the case is necessary, as is determining whether TAMS, which suffered the loss, is bound by Atlas’ contracts or a bill of lading signed by the intermediaries.

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July 6

Criminal – Prostitution/Juveniles

U.S. v. Justin Cephus, Jovan Stewart, and Stanton L. Cephus

10-3838, 10-3840, 11-1098

Two men sentenced to life in prison on an assortment of federal charges related to a prostitution ring involving underage girls that operated in northwest Indiana failed in their appeal before the 7th Circuit Court of Appeals, but the judges asked the trial court to clarify the sentence for a third defendant.

All defendants were convicted of more than 20 counts for their roles in organizing and running a prostitution ring in which force and coercion were used to recruit dozens of underage girls, often runaways, as prostitutes. The girls sometimes were transported across state lines to Illinois.

Justin and Stanton Cephus were each sentenced to life in prison, but Jovan Stewart was sentenced to 324 months in prison. The 7th Circuit remanded to the District Court to reconcile a discrepancy in Stewart’s sentence: the judge orally said Stewart’s sentences were to be served consecutively, but the written order says the sentences are to run concurrently.

The girls worked in escort agencies in which Justin Cephus was identified as the ringleader and described as a pimp who controlled through violence and confiscated money the girls were paid for turning tricks.

The judges rejected arguments on appeal that the indictment was “duplicitous,” and that prosecutors frequently posed leading questions to witnesses.

Criminal – Drugs/Evidence

U.S. v. Armando Mota

10-1486

A man convicted of federal charges of distributing cocaine was not deprived a fair trial after a government agent failed to record or relay exculpatory evidence from a co-defendant, the 7th Circuit Court of Appeals ruled.

A jury in the U.S. District Court, Northern District of Indiana, Hammond Division convicted Armando Mota of attempting to distribute 500 grams or more of cocaine and of possessing with the intent to distribute 500 grams or more of cocaine. Mota was convicted with a co-defendant, Jorge Ponce, after an undercover government agent bought drugs from them during a sting operation.

Mota argued on appeal that Drug Enforcement Administration agent Robert Aponte interviewed Ponce after his arrest and that Ponce “assumed complete responsibility for the crime and proclaimed Mota’s innocence.” Mota said Ponce told Aponte that a man named “Teflon” had delivered the drugs that had been purchased by the undercover agent, but that Aponte neither recorded nor told supervisors about his conversation with Ponce.

“While the failure to transmit exculpatory evidence was inexcusable, Mota learned of this evidence at the start of his trial and thoroughly presented it to the jury,” Judge Daniel Manion wrote in a unanimous opinion. “Also, because Mota had the opportunity to cross-examine the negligent agent and because Ponce testified on Mota’s behalf, we cannot conclude that Mota was denied a fair trial.”

“There is more than sufficient evidence from which a rational juror could have found beyond a reasonable doubt that Mota intended to distribute one kilogram of cocaine at Ponce’s house, and that he attempted to do so,” the ruling says.

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July 11

Civil – Sentencing/Mental Illness

Michael Dean Overstreet v. Bill Wilson, superintendent, Indiana State Prison

11-2276

7th Circuit Court of Appeals Judge Diane Wood believed that Michael Dean Overstreet, who was convicted of killing Franklin College student Kelly Eckart in 1997, was prejudiced by his attorneys’ decisions at sentencing regarding which experts should testify about his mental illness.

Overstreet was sentenced to death in 2000 for the abduction, rape and murder of Eckart. The Indiana Supreme Court affirmed his convictions and sentence in 2003 and affirmed an order denying Overstreet post-conviction relief. U.S. Chief Judge Philip Simon in the Northern District of Indiana denied Overstreet’s request to be removed from death row last year.

In his collateral attack under 28 U.S.C. Section 2254, Overstreet argued his lawyers made three errors that amounted to ineffective assistance: that his attorneys didn’t ask the trial judge to require spectators to remove buttons or ribbons with Eckart’s picture on them; that his lawyers failed to effectively convey the prosecutor’s offer of a plea bargain; and that his attorneys fell short presenting mitigating evidence during the sentencing hearing.

Three mental health specialists evaluated Overstreet: Drs. Eric Engum, Robert Smith and Philip Coons. Engum testified at the sentencing hearing that Overstreet had “schizotypal personality disorder.” Smith testified only at the post-conviction hearing that Overstreet had “schizoaffective disorder.” The record doesn’t say how Coons would have diagnosed him, as he didn’t testify at the sentencing hearing. The Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association, stresses that persons suffering from schizophrenia or schizoaffective disorder have more severe and persistent psychotic symptoms than those with schizotypal personality disorder.

The majority on the 7th Circuit concluded that Overstreet believed that Smith also should have been called at the sentencing hearing to better impress on the jury Overstreet’s mental problems. The Indiana Supreme Court doubted that the jurors would have been able to see a difference between the two disorders, and the majority agreed.

Wood thought the majority mischaracterized Overstreet’s claim, finding that Overstreet was actually arguing that his attorneys didn’t understand the distinction between the two doctors’ diagnoses and how Smith’s was more serious than Engum’s.

“In the end, I see no choice but to conclude that Overstreet’s lawyers handled the expert testimony at sentencing as they did, not because they were making a strategic decision, but because they were ignorant – they simply did not understand the evidence before them,” she wrote. “Ignorance is the antithesis of strategy. We thus have no reason to defer to their actions.”

She found a reasonable probability that re-presenting the jury with Smith’s testimony that Overstreet had a severe and persistent psychotic disorder would have changed the outcome of the “life-and-death” decision it made. Wood would grant the petition for writ of habeas corpus limited to the sentence imposed.

The judges agreed regarding Overstreet’s other two arguments, finding he wasn’t prejudiced.

Indiana Supreme Court

June 29

Criminal – Criminal Trespass

Walter Lyles v. State of Indiana

49S02-1201-CR-49

The state failed to prove an essential element of criminal trespass, according to one Indiana justice, so he dissented from his colleagues’ decision to uphold a man’s conviction stemming from his refusal to leave his bank.

Walter Lyles appealed his conviction of Class A misdemeanor criminal trespass. He went to a branch of his bank to receive a free print out of his account, but the bank policy requires a $6 fee for a statement. He became “irate and disrespectful” and was asked to leave several times by bank employees. A police officer came when Lyles refused to leave and arrested him after asking him multiple times to leave.

The Court of Appeals reversed.

Lyles argued that there was insufficient evidence for the trier of fact to infer that he lacked a contractual interest in the real property of the bank. The term “contractual interest in the property” isn’t defined in the criminal trespass statute or anywhere else in Indiana Code.

“At trial, there was evidence that the defendant was neither an owner nor an employee of the bank as well as evidence that the bank manager had authority to ask customers to leave the bank premises. This evidence, taken together, refuted each of the most reasonably apparent sources from which a person in the defendant’s circumstances might have derived a contractual interest in the bank’s real property: as an owner, as an employee, and as an account holder. Thus, we hold that there was sufficient evidence from which a reasonable jury could infer that the defendant did not have a contractual interest in the bank’s real property,” wrote Chief Justice Brent Dickson for the majority.

Justice Robert Rucker dissented, citing Court of Appeals caselaw that defines “contractual interest” in the criminal trespass statute as the right to be present on another person’s property, arising out of an agreement between at least two parties that creates an obligation to do or not to do a particular thing.

Based on existing precedent, Lyles had a contractual interest in the bank’s premises and his conviction for criminal trespass can’t stand. Evidence may have supported a disorderly conduct conviction, but the state did not charge him with that, Rucker wrote.

Domestic Relation – Emancipation

Annette (Oliver) Hirsch v. Roger Lee Oliver

29S02-1109-DR-530

A 3-2 Indiana Supreme Court decision in a case involving a child’s emancipation and a father’s contribution toward her education resulted in a tough dissent from two veteran justices.

The majority ruled that father Roger Lee Oliver was not obligated to provide educational support for his daughter Courtney. Evidence in Hamilton Superior Court showed the daughter had dropped classes, and the majority of justices remanded the case for the court to determine the proper date of emancipation and accordingly calculate the amount of the father’s overpayment.

The opinion written by Justice Steven David was joined by Justice Mark Massa and Chief Justice Brent Dickson.

“We cannot conclude that the trial court abused its discretion,” David wrote in a decision that reversed a divided Court of Appeals decision that overturned the trial court’s ruling. “Although the (Court of Appeals) majority’s analysis of the evidence is intricate, we believe that the analysis is simply a reweighing of the evidence, which is not permitted under the applicable standard of review. The dissent is correct in noting the evidence supported the trial court’s decision on this issue, and we should not second-guess the trial court’s determination when it is in the best position to judge the credibility of witnesses. Accordingly, we affirm the trial court’s ruling on post-secondary educational expenses.”

At issue was the breadth of the definition of “enrolled” and whether a student who withdraws from courses still may be entitled to educational support past the age of emancipation. “When an adult child fails to pursue secondary or post-secondary education as defined in the statute and is also capable of supporting himself or herself, there is no reason for the parents to be legally required to support the adult child,” David wrote.

But Justice Frank Sullivan, in a dissent joined by Justice Robert Rucker, said “the Court has impermissibly rewritten and incorrectly interpreted Indiana Code section 31-16-6-6. …. The Court says that when the circumstances described in Indiana Code section 31-16-6-6(a)(3) exist, then a child is emancipated for purposes of Indiana law. This is not correct.”

“If the Legislature intended the circumstances of subsection (a)(3) to constitute emancipation, it would have either included those circumstances within subsection (a)(1) or defined “emancipation” in subsection (b) to include them.

“That having been said, I acknowledge that with the Legislature’s recent action reducing the age of emancipation from 21 to 19 effective July 1, 2012, … the consequences of the Court’s decision are likely to be insignificant.”

Indiana Court of Appeals

June 28

Criminal – Drugs/Evidence

Eldon E. Harmon v. State of Indiana

20A03-1110-CR-529

Elkhart County prosecutors and state witnesses used dubious methods to weigh methamphetamine during a trial, the Indiana Court of Appeals ruled. The court reversed a man’s Class A felony conviction and ordered the court to resentence him on a lesser charge.

The court ruled that imprecise measurements of “cooked” meth powder and the weight of liquid precursors to the drug were insufficient for the conviction and 40-year sentence with 30 executed.

“The sole basis for elevating (Eldon) Harmon’s offense from a Class B felony to a Class A felony was the weight of the drug. That is, to support the elevation, the State was required to prove beyond a reasonable doubt that Harmon manufactured at least three grams of methamphetamine,” Judge Paul Mathias wrote in a unanimous appeal that included a separate opinion from Judge Nancy Vaidik.

“Here, the State used an unreliable method to establish the weight element of the Class A felony offense. We acknowledge that, for reasons that are not readily apparent, the State Police Laboratory has a policy against weighing liquids. But there were other, scientific ways the State could have established the actual, measured weight of the samples of liquid methamphetamine base,” Mathias wrote.

The techniques involved a state trooper weighing meth against packets of artificial sweetener, and what Harmon in his appeal referred to as jurors permitted to act as “human scales.”

“This evidence was inadequate to establish the ‘actual, measured weight,’” the ruling said.

Vaidik wrote in a concurring opinion that more clarity is needed with determining the weight of meth and its precursors for charging purposes.

Measuring the final product is clear-cut, she wrote, but “issues arise, however, when the manufacturing process has not been completed and the methamphetamine is still mixed in with liquid ingredients. Varying methods have been used to determine the actual weight of the methamphetamine produced in this situation.

“I find the method of measuring the weight of the methamphetamine and the liquid together to be inherently problematic and to require ascertaining the legislative intent behind the manufacturing-of-methamphetamine statute. I conclude that the legislature did not intend for the liquid byproduct of the manufacturing process to be included in the measurement of the weight of methamphetamine involved.”

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June 29

Agency Appeal – Police/Employment Termination

City of Carmel v. Review Board of the Indiana Dept. of Workforce Development and Greg Park

93A02-1108-EX-841

The Indiana Court of Appeals reversed the finding by an administrative law judge and a review board that a city of Carmel police officer was fired, but not for just cause.

The city of Carmel appealed the finding that patrol officer Greg Park was not fired for cause. Park applied for unemployment benefits following his discharge in February 2011. The Carmel Police Department believed Park had violated department policies, rules and regulations. Cited was Park’s arrest of a juvenile involved in a fight at school with another juvenile. When Park arrived at the school, his superior officer told him to arrest just one of the juveniles. Park arrested the second juvenile, also.

Park filed for unemployment benefits, which was initially denied, but an administrative law judge reversed that determination. The administrative law judge cited that no evidence was submitted to indicate Park made a wrongful arrest of the second juvenile or that he knew an investigation was taking place regarding the incident at the school. The Review Board of the Indiana Department of Workforce Development affirmed.

The Court of Appeals found the record didn’t support the finding that Park was terminated but not for just cause. Based on the evidence and testimony before the ALJ and the review board, the city of Carmel showed that Park violated a reasonable and uniformly enforced rule related to a lawful order of a supervisor and other departmental rules, so he was discharged for just cause, wrote Judge Elaine Brown.

The case was remanded for further proceedings.

Juvenile – Termination of Parental Rights

T.B. v. Indiana Dept. of Child Services

79A04-1110-JT-594

The Indiana Court of Appeals declined to grant a mother’s request to carve out an exception in involuntary termination of parental rights cases for parents who are mentally handicapped. The Tippecanoe County mother claimed her children shouldn’t be removed from her care because of her mental faculties.

T.B. has two children, who were removed from her care twice because of unsafe living conditions and her inability to comply with Tippecanoe County Department of Child Services therapy and parenting services. During her involvement with DCS, psychological assessments revealed that T.B. has low to well-below average overall cognitive functioning skills, is chronically depressed, and has a mild form of bipolar disorder.

Her parental rights were eventually involuntarily terminated as being in the best interest of the children.

T.B. didn’t challenge any of the evidence supporting the trial court’s specific findings, but makes the sole argument on appeal that “mentally retarded parents should be immune from losing their parental rights.”

Judges are not allowed to terminate parental rights based solely on one’s mental faculties, the appellate court noted, but the law allows for termination of rights when parents are unable or unwilling to meet their responsibilities as parents.

The evidence shows that the trial court’s unchallenged findings clearly and convincingly support its decision to end T.B.’s parental rights.

Civil Plenary – Employment/Due Process

Doug Wynkoop v. The Town of Cedar Lake, Indiana, and the Town Council of the Town of Cedar Lake, Indiana

45A05-1111-PL-602

A fired employee’s claim that he had a constitutionally protected interest in his job with the Town of Cedar Lake and that he was entitled to due process before being fired failed on appeal.

The Indiana Court of Appeals affirmed the judgment entered by the trial court for the town of Cedar Lake and town council. In his complaint, Doug Wynkoop asked the court to find the disciplinary procedure instituted against him for violating town code of conduct and the town’s policy and procedure manual violated his due process rights under the personnel policy.

He relied on language in the procedure manual to support his claim, but that manual continually said it is not a contract of employment and contained an at-will employment provision. The manual also outlined progressive disciplinary policies and an employee appeal provision.

After a hearing, the town administrator sent a letter informing Wynkoop he would be suspended and his position demoted; he refused to acknowledge the letter and was eventually fired.

Judges L. Mark Bailey and Paul Mathias ruled that under Indiana law, Wynkoop didn’t have a cognizable property right in his position and was an employee-at-will, regardless of any language in the manual.

Chief Judge Margret Robb concurred in result.

“In an at-will state such as Indiana, an employer is not obligated to furnish to its employees a statement of its employment policies,” she wrote. “Having made statements in writing about the terms and conditions of employment, however, it is fundamentally unfair to allow an employer to essentially declare those statements illusory and raise the ‘employment at will’ doctrine as a shield when it is called to task by an employee who can demonstrate detrimental reliance on the employer’s failure to abide by those terms and conditions.”

But, Wynkoop didn’t demonstrate detrimental reliance on the provisions of the manual, so she agreed that the trial court decision should be affirmed.

Criminal – Murder/Fleeing

Jeffrey A. Weisheit v. State of Indiana

10A01-1202-CR-58

The Evansville man accused of setting fire to a home he shared with his girlfriend and her two children – which killed the children – and then fleeing will remain in jail awaiting his August trial, the Indiana Court of Appeals held.

Jeffrey A. Weisheit faces two charges of murder for the deaths of 8-year-old Alyssa and 5-year-old Caleb. The children’s mother, Lisa Lynch, was working the night shift when their home caught fire in April 2010. When authorities arrived, Weisheit’s car was gone and the children’s whereabouts weren’t known. Firefighters later discovered their bodies inside the home.

Weisheit was located in Kentucky. He tried to flee from police when they attempted to apprehend him.

More than a year after he was charged, Weisheit sought to be released on bail because he claimed the state didn’t have evident proof that he set the fire to the home. The trial court denied his request.

The appellate court noted that Weisheit has already fled once from authorities and intended to go to Brazil before he was apprehended. In addition, there is evidence establishing that Weisheit allegedly murdered the children. One of the children was found bound and gagged, surrounded by flares. The duct tape on the boy matched that found in Weisheit’s car.

Even though many questions remain in this case, Weisheit failed to meet his burden of proof that he should be released on bail, the judges ruled.

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July 3

Juvenile – Paternity

In Re: The Matter of the Paternity of S.C.: K.C. (Appellant), and C.C. (Appellee), and B.H. (Appellee-Intervenor)

30A01-1107-JP-322

A divided Indiana Court of Appeals reaffirmed its original opinion, in which the appellate court affirmed the Hancock Circuit Court’s grant of B.H.’s verified petition for relief from judgment for fraud upon the court.

A DNA test showed B.H. is 99.9997 percent likely to be the father of a child with K.C.

Hancock Circuit Court granted C.C.’s petition to establish that he was the father of S.C. the day after it was filed. The order was issued a day before B.H.’s scheduled paternity hearing in Fayette Circuit Court, and B.H. was served with notice of the Hancock County paternity order at the hearing, according to the appellate ruling.

The Fayette Circuit Court dismissed B.H.’s case, and he filed a motion to set aside the Hancock County judgment “on grounds that Mother committed fraud upon the court in not informing the Hancock Circuit Court of the then-pending Fayette County proceeding,” according to the opinion.

The Hancock Circuit Court granted the motion, vacated the paternity judgment in favor of C.C., and ordered DNA testing that concluded B.H. was almost certainly the father.

Judge Ezra Friedlander wrote the rehearing joined by Judge Paul Mathias. Judge Patricia Riley dissented without a separate opinion.

In granting rehearing, Friedlander set aside mother K.C.’s claims that B.H.’s paternity action didn’t meet statutory requirements and that DNA tests were in dispute and inadmissible.

Those issues, Friedlander wrote, are “beside the point with respect to the Hancock County order under review. The question is whether Mother committed fraud upon the Hancock Circuit Court by failing to apprise that court of the Fayette County proceeding” that court records indicate she knew about.

“It is enough that the record supports the Hancock Circuit Court’s finding that a paternity action was indeed filed and pending in Fayette County and that Mother knew of the action when she participated in the Hancock County action,” Friedlander wrote. “It is enough that there was evidence to support the Hancock Circuit Court’s finding that Mother did not inform the Hancock Circuit Court of the pending Fayette County paternity proceeding. And, it is enough that there was evidence to support the finding that Mother knew there was a reasonable possibility that B.H. was S.C.’s biological father, regardless of any defects or deficiencies in B.H.’s legal efforts to establish his paternity as a matter of law.”

Domestic Relation – Educational Support

Julie Winslow v. Larry D. Fifer

84A04-1109-DR-518

The Indiana Court of Appeals affirmed a trial court’s finding that a mother was in contempt for violating a court order on educational support for her college-age daughter and that she pay a recalculated proportion of those costs and the father’s attorney fees.

The appeals court praised the couple’s daughters – J.F., 21, and A.F., 19 – as academically gifted students who through scholarships to Indiana public universities cut their cost of tuition and fees to less than $2,000 per year that the parents must pay.

“Nevertheless, Mother, who took A.F. to Harry Potter’s World at Universal Studios in Florida for a week to celebrate her SAT scores, refused to comply with a court order requiring her to reimburse Father $1500 for her oldest daughter’s college tuition for the 2010-2011 academic year. Mother refused to do so because she did not know where her oldest daughter was living and apparently did not pick up the phone to contact Father or their daughter to ask. Had she done so, Mother would have learned that Father required J.F. to live at home because of a prior court order,” Judge John Baker wrote in a unanimous opinion.

The judges noted that the trial court advised Julie Winslow that there were several sanctions available to it and that it was electing to require her to pay Larry Fifer’s attorney fees.

Baker’s opinion concluded with a scolding tone.

“Mother and Father have been blessed with two daughters who excel academically. Indeed, both have received scholarships such that their college expenses are minimal. Nevertheless, although Mother has the financial means, she has chosen litigation over paying her proportionate share of these minimal expenses or even communicating with her children and Father. No one wins in such situations, and we strongly recommend that Mother consider this in the future.”

Civil Plenary – Zoning

James Mies and Janice Mies v. Steuben County Board of Zoning Appeals

76A03-1112-PL-564

The Indiana Court of Appeals ruled that a matter brought by the owners of a cottage on Lake Gage in Steuben County be remanded to the Steuben County Board of Zoning Appeals because the BZA’s decision granting the homeowners a development standards variance with a void condition was a legal nullity.

The COA affirmed the decision of the trial court.

After a contractor hired by the Mieses failed to obtain the necessary permits for a new deck and stairs, he attempted to remedy the situation by seeking a post-construction variance for the newly constructed deck and stairs because neither complied with a zoning ordinance requiring a 24-foot lakefront setback.

The Board of Zoning Appeals approved the variance for the stairs with the condition that the deck had to be brought into compliance with the 24-foot setback. The homeowners refused to comply, arguing that the board lacked statutory authority to impose conditions on the variance, which made the condition void or, in the alternative, that the newly constructed deck and stairs did not violate the zoning ordinance because it maintained its nonconforming status.

The trial court reversed the BZA decision, remanding the case to the BZA after concluding that the BZA decision granting the Mieses a development standards variance with a void condition was a legal nullity.

In their appeal, the Mieses argued that the underlying variance and void condition are severable and that the trial court should have upheld the underlying variance while voiding the condition. They further argued that even if the trial court didn’t err in voiding their variance, it erred by concluding that a deck that was attached to their cottage had lost its status as a nonconforming structure that is exempt from the development standards ordinances.

The BZA cross-appealed, arguing that the trial court elevated form over substance when it concluded that the board imposed an unauthorized condition on the Mieses’ variance. The BZA also contended that the Mieses consented to the condition by not objecting to it.

“Concluding that the Mieses did not consent to the unauthorized condition, that the underlying variance is not severable from the void condition, making the BZA’s entire decision a legal nullity, and that the Mieses’ new deck lost its nonconforming status and is no longer exempted from the zoning ordinances, we affirm the decision of the trial court,” Judge John Baker wrote.

Criminal – Due Process

Ronald B. Hawkins v. State of Indiana

20A03-1112-CR-579

The due process rights of a man charged with two counts of Class C felony non-support of a dependent child were not violated when he was tried in absentia and without trial counsel, the Indiana Court of Appeals ruled.

Ronald Hawkins appealed his convictions, arguing that he was denied due process when he was tried in absentia and without trial counsel, that his presence at sentencing by video only was erroneous, that the trial court improperly entered judgment on both counts as Class C felonies, and that the trial court abused its discretion in imposing consecutive sentences.

Hawkins failed to appear at a hearing concerning his counsel’s motion to withdraw. He was given notice that his public defender’s motion would be granted if he failed to appear at a reset meeting, and he did not appear. Hawkins, who traveled from North Carolina to Indiana for his jury trial, arrived several hours late and missed the proceedings.

“We find that the facts addressed by the Indiana Supreme Court in Jackson (v. State, 868 N.E.2d 494, 499 (Ind. 2007)), in which waiver of the right to counsel was found, are close enough to dictate the same result here,” the opinion states.

Hawkins waived for appellate review his argument that it was improper to sentence him via videoconference. The COA affirmed in part, ruling that Hawkins’ due process rights weren’t violated; reversed in part, addressing issues involving convictions and sentencing; and remanded the case.

“The trial court did not abuse its discretion in imposing consecutive sentences,” Judge Cale Bradford wrote. “The trial court, however, erred in entering both convictions as Class C felonies. We remand with instructions to reduce one of Hawkins’s Class C felony non-support of a dependent child convictions to a Class D felony and impose the advisory sentence, to be served consecutive to the sentence for the remaining Class C felony, for an aggregate sentence of five and one-half years.”

Judge Terry Crone concurred, while Judge Nancy Vaidik concurred in part and dissented with opinion.

Vaidik disagreed with the majority conclusion that Hawkins knowingly, intelligently and voluntarily waived his right to counsel.

“Because I believe that the facts in this case are readily distinguishable from the facts in Jackson and because of the importance of an attorney for a fair proceeding, I would reverse the trial court on this issue,” she wrote.

Civil Plenary – Res Judicata

Wells Fargo Bank, N.A., f/k/a Wachovia Commercial Mortgage Inc. v. PNC Bank, N.A. f/k/a National City Bank of Indiana

49A02-1111-PL-1004

The Indiana Court of Appeals affirmed the ruling of the Marion Superior Court that granted summary judgment in favor of the defense.

In this lawsuit, Wells Fargo alleged breach of contract, promissory estoppel, unjust enrichment, breach of duty to deal in good faith, tortious injury to property interest, slander of title, and bad faith. The Court of Appeals judges had to decide whether the trial court erred when it found that the claims asserted in Wells Fargo’s complaint are barred by res judicata.

On appeal, Wells Fargo maintained that res judicata did not bar its claims because claim preclusion does not apply because there is no privity of parties or mutuality of estoppel, and Wells Fargo is not asserting the same claims as decided in a prior matter and resolved by the Indiana Supreme Court.

The COA disagreed.

“In sum, National City and (Paula) Phillips are in privity for purposes of the instant action, and the issues are the same for purposes of res judicata. Wells Fargo does not dispute that the other two elements of claim preclusion are satisfied here. The trial court did not err when it concluded that National City is entitled to summary judgment under the doctrine of res judicata,” Judge Edward Najam Jr. wrote, with Judges Patricia Riley and Carr Darden concurring.

The facts and procedural history underlying the instant action were set out in Money Store Investment Corp. v. Summers, 849 N.E.2d 544 (Ind. 2006), in which Paula Phillips sued Neal Summers and the company in which he was sole shareholder regarding the ownership of the trademark/trade name “Paula’s Seafood.” They entered into a written settlement agreement in 1999 and the suit was later dismissed without prejudice. Money Store involves the foreclosure of mortgages owned by Summers.

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July 5

Domestic Relation – Division of Assets

Andrew Joseph Wortkoetter v. Amy Jean Wortkoetter

30A01-1111-DR-548

A husband’s individual retirement account is a divisible asset in a divorce, the Indiana Court of Appeals ruled, but it ordered the trial court to revise the award to reflect an equal division of both parties’ assets.

The judges found that a Hancock Superior Court did not abuse its discretion when it declined to award Andrew Wortkoetter his IRA exclusively. Both parties represented themselves.

The case involves an IRA the husband rolled over in 1990, the year before the couple married.

“The IRA was established by Husband before the marriage, most of the appreciation occurred during the marriage. Cf. Wanner, 888 N.E.2d at 263 (observing that, even where the trial court properly sets aside the value of premarital assets to one spouse, the appreciation over the course of the marriage is a divisible marital asset),” appellate Judge L. Mark Bailey wrote in a unanimous opinion.

“Additionally, the trial court was not required to set aside to Husband the value of the IRA, even though Wife made no contribution to its acquisition. See In re Marriage of Nickels, 834 N.E.2d 1091, 1098 (Ind. Ct. App. 2005).”  

The judges ordered a correction of the judgment in favor of the wife be reduced from $12,664 to $8,107, reflecting the difference between equalization netting and the wife’s net assets.

Criminal – Drunken Driving

Brenda Stutz v. State of Indiana

49A02-1110-CR-960

A Marion Superior Court conviction in a drunken driving case was affirmed by the Indiana Court of Appeals, but the court ordered a lesser included charge on which the driver was convicted be merged.

The court ruled that Brenda Stutz’s conviction for Class A misdemeanor operating a vehicle with a blood alcohol content of at least 0.15 percent should stand, but remanded the case to the trial court with instructions to vacate a lesser included conviction for Class C misdemeanor operating while intoxicated, holding that the two charges should be merged.

The court noted that the General Assembly amended the state’s drunken driving statutes in 2000, creating Class C misdemeanor violations in which the “endangerment” requirement was removed.

“Clearly, the classification of operating a vehicle with a BAC of at least 0.15 percent as a class A misdemeanor and that of driving while intoxicated as a class C misdemeanor is evidence that the legislature has determined that the former offense constitutes a greater risk than the latter offense,” Judge Carr Darden wrote in a unanimous opinion.

Stutz cited Sering v. State, 488 N.E.2d 369 (Ind. Ct. App. 1986), in which a defendant appealed his convictions of operating a vehicle with a BAC of 0.10 percent and operating a vehicle while intoxicated, which at the time were Class A and Class C misdemeanors respectively. That ruling held that the risk of someone operating at a level above 0.10 percent is greater than that of a driver who is intoxicated to a lesser degree. “This legislative intent is evidenced by the disparate classification of the two offenses,” the court ruled in Sering.

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July 10

Adoption – DCS Consent to Adopt

In the Matter of the Adoption of N.W.R.; M.R. v. R.B. and R.B., and Indiana Dept. of Child Services

36A01-1109-AD-407

The Department of Child Services’ failure to investigate a child’s aunt as a possible adoptive parent – and a trial court’s refusal to allow DCS to withdraw consent for foster parents to adopt after acknowledging its failure – prompted the Indiana Court of Appeals to reverse a trial court order granting the foster parents’ petition to adopt.

The court ruled that Jackson Circuit Judge William E. Vance erred in not allowing DCS to withdraw its consent for the foster parents to adopt. The appellate panel ordered the trial court to reconsider evidence after DCS completes an investigation of the child’s aunt, M.R., as a potential adoptive parent.

N.W.R., a 2-year-old boy, was determined to be a child in need of services less than three weeks after his birth. He was placed with foster parents R.B. and R.B., unbeknownst to the child’s aunt, M.R., with whom N.W.R.’s three siblings, ages 3, 4 and 5, had been placed.

M.R. requested the child be placed with her, court records show, but DCS told her that her East Chicago home was too far away and conflicted with the child’s permanency plan goal of reunification with biological parents.

As the aunt persisted, she was granted visitation rights that increased over time. But before N.W.R’s first birthday, the biological parents’ rights were terminated, and the court ultimately granted the foster parents’ adoption petition, in the course of which it denied DCS’s motion to withdraw its consent.

The appellate panel instructed the trial court to “review the evidence de novo to determine which adoptive placement is in the best interests of the child, giving due consideration to the evidence showing that these siblings should be placed together. The court shall not consider the passage of time or maintenance of the status quo dispositive.”

The unanimous opinion written by Judge Edward Najam Jr. said that when DCS informed the court of its desire to withdraw consent because it had not carried out its obligations to determine placement in the child’s best interest, the court had an obligation to allow the withdrawal of consent.

“DCS had the integrity to declare on its own initiative that it had failed to meet its statutory duty. And this notice by DCS that its investigation was incomplete went directly to the heart of the adoption because it is the court’s responsibility to determine the best interests of the child based upon a full investigation of credible placement alternatives,” Najam wrote. “The court’s ruling against DCS’ motion to withdraw its consent affected the substantial rights of the parties and was not harmless.”•