Indiana Court Decisions – Oct. 31 to Nov. 13, 2012

Indiana Supreme Court

Oct. 31

Civil Tort – Indiana Patient’s Compensation Fund/Damages

Stephen W. Robertson, Indiana Comm. of Insurance, as Admin. of Indiana Patient’s Compensation Fund and The Indiana Patient’s Compensation Fund v. B.O., A Minor, Lisa A. Ort and Kevin C. Ort

49S04-1111-CT-671

The Indiana Supreme Court ruled that in a case involving a boy diagnosed with a mild form of cerebral palsy, the Indiana Patient’s Compensation Fund may not present evidence to dispute the existence or cause of the boy’s injury while defending his petition for excess damages from the fund.

B.O. was diagnosed with spastic diplegia at age four and his parents filed a complaint under the Medical Malpractice Act, alleging the boy’s health care providers were negligent at his birth. The providers settled for a sum that allowed B.O. and his family to seek excess damages from the PCF.

The fund wanted to have five expert witnesses testify that B.O. either didn’t have spastic diplegia or if he did, it wasn’t the result of the conduct of the health care providers at his birth. The trial court granted the parents’ motion for partial summary judgment that the testimony couldn’t be offered; the Court of Appeals reversed.

The justices 4-0 affirmed the trial court, finding the PCF is precluded from disputing the existence or cause of B.O.’s claimed injury based on Indiana Code 34-18-15-3(5). At issue is this sentence of the statute: “In approving a settlement or determining the amount, if any, to be paid from the patient’s compensation fund, the court shall consider the liability of the health care provider as admitted and established.” The parties’ arguments hinge on the meaning of “liability” and in what manner it is “admitted and established.”

In this instance, the health care providers chose to settle B.O.’s claim as to the causation of his cerebral palsy consisting of spastic diplegia, and thus that is the claim for which liability is “admitted and established,” Justice Mark Massa wrote, “including, by implication, the required elements of causation and injury.”

“We recognize that this means that the existence and type of injury that B.O. sustained is determined without the full explication that may have been adduced at a trial. But this was the method chosen by the General Assembly when enacting the MMA,” he continued. “Perhaps in an effort to balance this sweeping reform, the legislature chose to provide plaintiffs with the benefit of final and established liability when the healthcare provider chooses to settle. It is not our place to upset that balance.”

The justices found that Atterholt v. Herbst, 902 N.E.2d 220 (Ind. 2009), is not applicable in the instant case, as the PCF argued. They also held the PCF is correct that it may present evidence regarding compensability of a claim when that issue is in dispute, but compensability is not disputed in the instant case.
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Nov. 5

Criminal – Suppression of Evidence/Drunken Driving

State of Indiana v. Elvis Holtsclaw

49S02-1205-CR-264

The Indiana Supreme Court reversed a divided Court of Appeals panel’s dismissal of an appeal of suppression of evidence in a drunken-driving case.

The justices held that the 30-day deadline in Appellate Rule 9 for filing a notice of appeal when a party files a motion to correct error applies to the state in a criminal case.

The Court of Appeals agreed with Elvis Holtsclaw’s argument that the court lacked jurisdiction to hear the state’s appeal of suppression of breath tests after a car wreck that led to the filing of drunken-driving charges. The Court of Appeals dismissed the state’s appeal.

“Appellate Rule 9 states that “if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court’s ruling on such motion … or thirty (30) days after the motion is deemed denied … whichever occurs first,” Justice Mark Massa wrote for the unanimous court.

“The state is undoubtedly a party, and Holtsclaw concedes that the state’s June 21, 2011 motion to correct error was timely. The trial court denied that motion on July 25, 2011. Pursuant to Appellate Rule 9, the state then had until August 24 — thirty days “after the court’s ruling on such motion” — to file its notice of appeal. The state filed its notice of appeal on August 19, well in advance of that deadline. Thus, the appeal is timely,” Massa wrote.

“We remand this case to the Court of Appeals for consideration of the merits of the State’s appeal.”

Criminal – Bodily Injury Requirement

Elmer J. Bailey v. State of Indiana

49S02-1204-CR-234

The Indiana Supreme Court reconciled conflicting interpretations of the “bodily injury” requirement for domestic battery and other criminal offenses using that language, concluding that any such offense that causes the victim physical pain meets the test.

Justices drew a “bright line” in a unanimous 18-page opinion written by Justice Mark Massa.

Elmer Bailey was convicted in Marion Superior Court of two counts of Class D felony domestic battery, enhanced from misdemeanors because of his prior convictions against the victim, his wife of 11 years, Farrenquai Bailey.

During a night in which the couple was drinking at home, Elmer Bailey became verbally abusive before poking Farrenquai Bailey multiple times in the forehead with his finger hard enough to push her head back, she testified. He also shoved her, and the actions caused physical pain, she said.

Justices overturned an Indiana Court of Appeals panel that in an unpublished opinion reversed Elmer Bailey’s conviction. That panel ruled that, “[I]n order for (the victim) to have suffered ‘bodily injury’ sufficient to justify Elmer’s conviction, her pain ‘must be sufficient to rise to a level of ‘impairment of physical condition.’”

“We think this is the wrong approach,” Massa wrote. “Nothing in our prior treatment of this statute implies such a hurdle, despite the facts of the particular cases. Rather, our prior treatment establishes a structure that mirrors statutes from other states and the Model Penal Code by creating a very low threshold for ‘bodily injury’ while maintaining a much more rigorous standard for ‘serious bodily injury.’”

The opinion pointed to a conflicting appellate panel’s opinion in a separate case issued just six days after the COA ruled in Bailey – Toney v. State, 961 N.E.2d 57, 59 (Ind. Ct. App. 2012). That panel ruled, “The statutory definition of bodily injury is clear and unambiguous. It contains no requirement that the pain be of any particular severity, nor does it require that the pain endure for any particular length of time. It must simply be physical pain.”

“Our holding today settles a question of statutory interpretation about which reasonable minds can differ. We choose this approach, in part, because we believe the alternative — requiring physical pain to rise to a particular level of severity before it constitutes an impairment of physical condition — could bring uncertainty to our relatively straightforward statutory structure,” Massa wrote.

The justices acknowledged the opinion risks witness coaching and potential false claims of pain in emotionally charged he said/she said cases. “But those are challenges of witness credibility, not statutory construction, and they are not new to criminal litigation. They are largely addressed through zealous advocacy and effective cross-examination,” according to the opinion.

The opinion noted that Indiana’s statutory language regarding bodily injury has been on the books for more than 35 years without modification. “Certainly, had the General Assembly disapproved of our approach and desired to create a threshold standard for physical pain, it could have done so. In the absence of such a change, we think it fair to infer a persuasive degree of legislative acquiescence with respect to our approach.”

The justices also affirmed Elmer Bailey’s sentence as appropriate because he was on probation at the time for a similar offense, and he has 11 prior adult convictions.
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Nov. 7

Criminal – Enhanced Sentence/Criminal Recklessness & Mischief

Michael Kucholick v. State of Indiana

12S02-1211-CR-630

In a divided per curiam opinion, the Indiana Supreme Court granted transfer to a case and agreed that a man’s aggregate sentence for criminal recklessness and criminal mischief should be revised to four years.

Michael Kucholick was convicted of Class C felony criminal recklessness and Class B misdemeanor criminal mischief for shooting twice at the home of the landlord of his girlfriend after the landlord obtained a civil judgment against her for unpaid rent. The trial court sentenced Kucholick to an enhanced term of seven years for criminal recklessness and six months for criminal mischief, to be served concurrently.

A divided Court of Appeals found Kucholick met his burden of establishing that his sentence was inappropriate and ordered it revised to two years executed in community corrections program and two years suspended to probation.

Justices Robert Rucker, Steven David and Mark Massa agreed that “a modest sentence revision is warranted,” upholding the aggregate four-year sentence imposed by the Court of Appeals. They found nothing particularly aggravating or mitigating on balance with regards to Kucholick’s character.

Chief Justice Brent Dickson agreed the justices should take the case, but believed the trial court’s sentence should be affirmed.
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Nov. 13

Domestic Relation – Modification of Custody

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

32S04-1206-DR-349

The Court of Appeals got it wrong when it reversed a trial court custody modification in favor of a child’s father, the Indiana Supreme Court ruled in one of the first opinions joined by Justice Loretta Rush.

“We reiterate that in family law matters, trial courts are afforded considerable deference. Here, the trial court’s judgment was well supported by the findings, and neither the judgment nor the findings were clearly erroneous,” Justice Steven David wrote in a 5-0 decision. “Applying the highly deferential standard of review, we affirm the trial court.”

The case involved mother D.C. and father J.A.C. After the couple divorced in 2008, they had an agreement for shared custody of a son born in 2003. In July 2010, the mother filed a motion to relocate, and while the motion was pending, she moved to Tennessee, where she had secured a better-paying job in the medical profession.

The trial court ultimately granted the father’s motion to modify custody and prevent child’s relocation, awarding him primary custody and allowing the mother visitation during school breaks and when she was in central Indiana. D.C. moved back to Indiana and appealed.

The trial court held that it was in the child’s best interests to remain in the state because of the father’s significant involvement in his daily activities and education, as well as the involvement of the child’s extended family.

A panel of the Court of Appeals overturned the trial court’s best-interest findings based in part on the mother’s improved employment and salary increase. But the justices said the appellate court erred by not showing proper deference to the trial court’s best-interest findings.

“The trial court conducted the evidentiary hearing over two days. It heard the testimony of ten witnesses, including the [guardian ad litem], who testified that he believed relocation was not in the best interest of child,” David wrote.

“Contrary to the Court of Appeals’ assertion, the trial court here did not base its conclusion that relocation was not in the best interest of child solely on the fact that father would not have as much contact with child. We agree with the Court of Appeals that there is no blanket rule that a relocation that deprives a parent of time with a child is always against the best interest of the child. But a trial court can, and in fact must, take into account the child’s relationship with parents,” according to the ruling.

“Although an appellate court in this case may be able to reach a different conclusion from that of the trial court, doing so would involve reweighing the evidence, which is not permitted.”

Civil Plenary – Termination of Employment

John Haegert v. University of Evansville

82S01-1204-PL-235

Despite a professor’s claim that he was in a joyous mood when he interacted with a colleague and his actions were harmless, the Indiana Supreme Court upheld his dismissal from his tenured teaching position.

The Supreme Court affirmed the trial court’s decision to grant summary judgment in favor of the University of Evansville.

Margaret McMullan, then the English Department chair, filed a formal complaint against Haegert following an incident on Aug. 25, 2004. As she was interviewing a prospective student and the student’s parents in the department lounge, Haegert walked over to McMullan, called her “Sweetie” and stroked his fingers under her chin and along her neck. He had engaged in similar behavior before which had elicited complaints and investigations.

After conducting a disciplinary review, the university dismissed Haegert. He then filed a complaint against the school, alleging multiple breaches of his employment contract. The trial court granted the university’s motion for summary judgment.

Subsequently, the Indiana Court of Appeals reversed, concluding the university failed to carry its burden of proof with respect to the sexual harassment complaint.

In granting transfer, the Supreme Court distilled the case down to two primary points of contention.

The first point focuses on Haegert’s conduct on Aug. 25, 2004, and whether it was harassment and, therefore, subject to dismissal and rescission of his contract. If so, the second point concerns whether the university followed the proper procedures as set forth in Haegert’s contract.

The Supreme Court noted the faculty manual makes clear that it is not only the intent behind the conduct that matters but also the effect of the conduct. The effect of Haegert’s verbal and physical conduct unreasonably interfered with McMullan’s work, creating an offensive office environment by making her uncomfortable and disrupting the work she was doing. Irrespective of his intent, the court ruled, his conduct nearly directly mirrors the faculty manual’s stated examples of what constitutes sexual harassment.

In addition, the Supreme Court found the university did comply with the provision of Haegert’s employment contract. Specifically, Haegert did receive notice of the complaint and the potential disciplinary action. He then had four separate opportunities before four distinct and neutral panels to tell his side of the story.

“Despite all this,” Justice Steven David wrote for the court, “he failed to persuade any individual, at any stage of the process. It is hard to imagine what additional process the University might have provided Haegert.”

Indiana Tax Court

Nov. 5

Tax – Assessment/Indiana Board of Tax Review

Shelbyville MHPI, LLC v. Anne Thurston, in her official capacity as Assessor, Shelby County

49T10-1003-TA-14

A dispute over a property tax assessment of a mobile home park is a case of buyer’s remorse and not indicative of an error by the Indiana Board of Tax Review, the Indiana Tax Court has ruled.

The Indiana Tax Court affirmed the IBTR’s decision to uphold the Shelby County assessor’s assessment of the property.

Shelbyville MHPI, LLC bought a 51.04 acre mobile home park in December 2004 for $4,266,400. This amount was close to an independent appraisal that valued a portion of the park at $4.2 million.

For the 2006 tax year, the Shelby County assessor assessed MHPI’s property at $4,983,300. When MHPI appealed, the Shelby County Property Tax Assessment Board of Appeals reduced the assessment to $4,263,800.

However in October 2008, MHPI appealed to the IBTR, claiming its assessment was still too high. During the hearing, MHPI presented an appraisal that estimated the market value-in-use of the park at $2.9 million as of Jan. 1, 2005. In response, the assessor presented an appraisal which valued the property at $4.2 million as of Nov. 4, 2004. The assessor pointed out that MHPI purchased the park for just over $4.2 million in December 2004 which supported the county’s assessment.

The IBTR found the assessor’s evidentiary presentation more persuasive and upheld MHPI’s assessment.

MHPI appealed to the Indiana Tax Court. It asserted, in part, that the IBTR should have completely rejected or significantly discounted the assessor’s December 2004 sales evidence because MHPI had demonstrated it never would have paid over $4.2 million for the property had it known that Indiana’s re-trending process would cause the property taxes to “sky rocket.”

In addressing that issue, the court found MHPI made an incorrect assumption when it thought its assessment and associated property tax liability would remain relatively constant. The December 2004 sales evidence reflected both the robustness and stability of the manufactured home market for the 2006 tax year but also shows what MHPI believed the property to be worth at the time of purchase.

In opinion, Senior Judge Thomas Fisher wrote, “Accordingly, while MHPI’s current complaints regarding its ‘sky rocketing’ property taxes are indicative of buyer’s remorse, they do not require the complete rejection or substantial discounting of the December 2004 sales evidence.”

Tax – Appraisal/Real Property Assessments

Millennium Real Estate Investment, LLC v. Assessor, Benton County, Indiana

49T10-1008-TA-42

Noting that determining the assessed value of a property is not an exact science, the Indiana Tax Court rejected a property owner’s assertion that the county assessor’s appraisal was improperly given greater weight.

The Tax Court affirmed the Indiana Board of Tax Review’s final determination in upholding the real property assessments of Millennium Real Estate Investment, LLC.

For the 2008 tax year, the Benton County assessor assigned property owned by Millennium Real Estate Investment, LLC a total assessed value of $639,800. Millennium believed the assessments were too high and sought review first with the Benton County Property Tax Assessment Board of Appeals and then the IBTR.

At the IBTR hearing, Millennium offered its appraisal estimated the value of the property at $325,000 as of March 1, 2008, and stated that the property was sold in December 2003 for $182,000. Also, the petitioner presented an Asset Purchase Agreement showing that it purchased its property for $193,817 on June 30, 2008.

The assessor presented an appraisal which valued the property at $640,000 as of Jan. 10, 2007.

After the IBTR upheld the assessment in July 2010, Millennium appealed on two grounds. First, Millennium claims the IBTR ignored its December 2003 sales evidence and improperly discounted its June 2008 sales evidence. Second, Millennium claims the IBTR erred in assigning greater weight to the assessor’s appraisal.

On the first claim, the Tax Court found that Millennium did not show that the IBTR erred with respect to the December 2003 sales evidence claim. Also Millennium’s June 2008 sales evidence does not probatively demonstrate that its 2008 assessments were incorrect.

On the second claim, the court ruled that the IBTR did not abuse its discretion in finding the assessor’s appraisal more persuasive than Millennium’s appraisal despite their differences.

Specifically, the court rejected the argument that the assessor’s appraisal utilized an improper assessment standard in estimating the value of Millennium property. The court also found Millennium’s argument unpersuasive that the IBTR should have determined that its appraisal better reflected the value of its property.

Indiana Court of Appeals

Oct. 31

Post Conviction – Plea Agreement/Sentencing

Robertson Fowler v. State of Indiana

49A05-1202-PC-68

Because a defendant entered into a beneficial plea agreement, the Indiana Court of Appeals denied his request for post-conviction relief. The man argued that a Supreme Court decision handed down while he was appealing should require that his sentence be reduced.

Robertson Fowler was charged with Class B felony unlawful possession of a firearm by a serious violent felon, Class D felonies pointing a firearm and resisting law enforcement, and being a habitual offender. He agreed to plead guilty to the possession charge and habitual offender enhancement in exchange for his sentenced being capped at 35 years. He faced a maximum of 56 years on the charges.

The judge sentenced Fowler to 15 years each on the possession charge and the habitual offender enhancement. When he entered the agreement, the law allowed the state to use the same prior felony to support a charge of unlawful possession by a SVF and to support a habitual offender enhancement.

Fowler appealed his sentence, and while he still could have filed a reply brief, the Indiana Supreme Court ruled on Mills v. State, 868 N.E.2d 446, 450 (Ind. 2007), which prohibits the state from using the same felony to establish unlawful possession by a SVF and to enhance the sentence under the general habitual offender statute. Fowler’s attorney didn’t cite Mills in any additional filings. Fowler’s sentence was affirmed on appeal and his post-conviction petition for relief was denied.

The Court of Appeals declined to grant him relief because it ruled Fowler benefited from the plea agreement. Fowler argued that he didn’t benefit because the maximum sentence he faced would have been 26 years based on Mills, and he agreed to plead guilty and was sentenced to 30 years.

“We must decline Fowler’s invitation to measure his ‘benefit’ at a time after he entered into the plea agreement,” Judge Melissa May wrote. “Where a defendant enters a plea of guilty knowingly, intelligently, and voluntarily, there is no compelling reason to set aside the conviction on the ground the sentence was later determined to be invalid.”

The appellate court also declined to adopt the state’s apparent position that post-conviction relief is never available when appellate counsel does not testify in the post-conviction proceedings. The state claimed it’s possible the attorney had reasons for not pursuing a claim.

Criminal – Sentence/Murder

Larry Michael Caraway v. State of Indiana

47A04-1205-CR-265

A Lawrence County man was unable to convince the Indiana Court of Appeals that his 65-year sentence for the murder of his wife in 2009 should be reduced to the advisory sentence of 55 years.

Larry Michael Caraway shot his wife Denise seven times in the stomach, head and arm after arguing over an unpaid utility bill. The day he shot his wife, Caraway drank very heavily, consuming more than 20 beers, and he also took four Valium pills. He was charged with murder and Class D felony altering the scene of death for trying to make it look like Denise Caraway shot herself. He agreed to plead guilty in 2010, and the trial court sentenced him to the maximum 65 years. Lawrence Circuit Judge Andrea K. McCord found Caraway’s intoxicated state and that he was in a position of trust outweighed the mitigators.

Caraway appealed and the Court of Appeals ordered the trial court to consider Caraway’s guilty plea as a mitigating factor. On remand, McCord resentenced Caraway to 65 years, finding he received some benefit from the plea, delayed entering his guilty plea, and that his decision to plead guilty was “merely a pragmatic one.” She again found Caraway’s state at the time of the shooting and his position of trust outweigh that he pleaded guilty and other mitigators.

The appellate judges affirmed the sentence, finding Caraway’s character and the nature of the offense don’t justify reducing the sentence. He’s had a long history of drinking and offenses dating back to 1980 but apparently never sought treatment. The judges also agreed with McCord’s reasoning as to the amount of weight she gave Caraway’s guilty plea.

Criminal – Reasonable Suspicion/Drugs

Kevin M. Clark v. State of Indiana

20A05-1202-CR-62

The Indiana Court of Appeals disagreed with an appellant who claimed police did not have reasonable suspicion to believe he and two other men were involved in criminal activity, which led to their stop and his eventual conviction of Class A felony attempted dealing in methamphetamine.

Robert Dunlap called police in August 2011 after he believed someone was living in one of the storage units he owned in Elkhart County. Sergeant Michael McHenry and Officer Dustin Lundgren responded and saw three men, including Kevin Clark, leaving the storage unit. Clark was carrying a duffel bag. Police ordered the men to stop, and Clark sat the bag on the ground.

McHenry asked if Clark had anything illegal in the bag; he admitted that it contained marijuana. McHenry then searched the bag without a warrant or Clark’s consent and found the drug, baggies of methamphetamine, pills and other paraphernalia. This led to a search of Clark’s car by a drug-sniffing dog. Police found marijuana in the car and an inactive methamphetamine lab inside the trunk. Trooper Maggie Shortt processed the lab.

Clark claimed police didn’t have reasonable suspicion to believe criminal activity was afoot at the storage unit, but the judges pointed out Dunlap called police because he thought a rental agreement was being violated by someone living in the unit. That report gave officers reasonable suspicion of criminal activity, which justified stopping Clark, Judge Melissa May wrote.

Clark admitted he had marijuana in the bag, which gave McHenry probable cause to search it. The trial court didn’t abuse its discretion in admitting the items found in it.

The judges also upheld Shortt’s testimony as to how much methamphetamine Clark possessed. She testified as to the conversion ration of pseudoephedrine to methamphetamine. Her testimony was opinion testimony of a lay person based on her experience, not expert testimony, May wrote. Her testimony could reasonably assist the jury in deciding whether Clark possessed the component to produce more than three grams of methamphetamine, the threshold needed to convict him of the Class A felony charge.
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Nov. 1

Civil Collection – Exhaustion of Administrative Remedies

Leslie Bridges v. Veolia Water Indianapolis, LLC, Veolia Water North America Operating Service, LLC, and The City of Indianapolis, Dept. of Waterworks

49A02-1112-CC-1097

The Indiana Court of Appeals agreed with a Marion Superior judge that the courts do not have jurisdiction over a woman’s lawsuit concerning the disconnection of her water because the woman did not exhaust all her available administrative remedies before suing.

Leslie Bridges filed a class action seeking the return of her $25 reconnection fee as well as unspecified damages and attorney fees against Veolia Water. The company turned her water off twice for nonpayment, and her services were governed by a tariff approved by the Indiana Utility Regulatory Commission.

At the time of the disconnection and filing of her suit, Veolia Water managed and operated the water treatment and distribution facilities of the Department of Waterworks, a municipal water utility.

Bridges’ lawsuit claimed that Veolia and/or the DOW violated the terms of the tariff when it turned off her water without following procedures outlined in the tariff. The department and Veolia moved to have the suit dismissed for failure to exhaust available administrative remedies; Bridges argued that utilization of the tariff-prescribed administrative remedies would have been futile and that the IURC did not have exclusive jurisdiction over her claim.

Marion Superior Judge Heather Welch dismissed Bridges’ suit in August 2011 and denied Bridges’ motion to correct error in November 2011.

The Court of Appeals, citing Bloomington Country Club Inc. v. City of Bloomington Water & Wastewater Utils, 827 N.E.2d 1213, 1219 (Ind. Ct. App. 2005), concluded that Indiana Code 8-1-2-68 through -70 grants the IURC exclusive jurisdiction over Bridges’ claim, regardless of whether it is treated as a challenge to and a request for reimbursement of the $25 reconnect fee or as a challenge to the allegedly improper act of terminating her residential water service in a manner inconsistent with the terms of the tariff.

The judges rejected Bridges’ claim that utilizing the administrative remedies would have been futile, pointing out that the IURC can grant a refund of charges collected by utilities, plus interest. The commission also could have determined whether the defendants did, in fact, violate terms of the tariff, which would allow Bridges the chance to seek additional damages incurred beyond the refund in court, the judges held.
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Nov. 2

Criminal – Criminal Rule 4(C)/Failure to Object

Joshua A. Bostic v. State of Indiana

12A02-1202-CR-154

A man convicted of multiple felonies lost his appeal when the court determined he had not objected to matters raised in the appeal during his jury trial or sentencing.

The defendant was convicted in Clinton Superior Court of Class C felony charges of attempted battery by means of a deadly weapon and criminal recklessness; Class D felony arson; Class A misdemeanor criminal mischief; and Class B misdemeanor criminal mischief. He also was determined to be a habitual offender.

On appeal, Bostic argued that the charges against him should have been dropped because the jury trial was scheduled more than a year after he was charged and arrested, and that a special, senior judge should not have been appointed in his case.

The Court of Appeals affirmed Bostic’s conviction and aggregate 20 year sentence with 16 years executed in a unanimous decision written by Judge Rudolph R. Pyle III.

Bostic, who was incarcerated in Tippecanoe County at the time the Clinton County charges were filed, was charged in February 2010, but his trial didn’t begin until January 2012. Criminal Rule 4(C) provides that a charged party must be brought to trial within one year of arrest or charge if the proceedings are delayed through no fault of the defendant.

But Pyle wrote that because Bostic didn’t object when the court rescheduled his trial beyond a year after charges were filed, “We need not calculate the number of days chargeable to each party, because here, at no point during his proceedings, did Bostic file a motion for discharge under Criminal Rule 4(C) or object to the trial court’s setting of any of his trial dates. Accordingly, he has waived his claim that Criminal Rule 4(C) was violated.”

Likewise, Bostic didn’t raise objections at the trial court relating to the process for appointment of Senior Judge Thomas Milligan, so the issue is not preserved for appeal.

The judges remanded the case to correct the sentencing order, abstract of judgment, and chronological case summary to reflect that Bostic’s 12-year habitual offender enhancement is an enhancement to his sentence for felony criminal recklessness, and not a separate conviction.
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Nov. 7

Civil Collection – Real Estate Employee/Commissions

Dennis Larson, Rose Real Estate, Inc., and Diversified Commercial Real Estate v. Peter N. Karagan

45A04-1112-CC-656

A former employee is entitled to commissions owed to him after he left a real estate company, the Indiana Court of Appeals affirmed. The judges also found the ex-employee is entitled to prejudgment interest.

Peter Karagan worked for Dennis Larson’s real estate companies for two years before leaving in December 2007. His oral agreement with Larson said Karagan would be paid 75 percent of the gross commissions Larson received for transactions Karagan procured. When Larson didn’t pay up, Karagan sued for breach of contract and conversion. Larson did not respond to Karagan’s motion for summary judgment or to Karagan’s two requests for admission of fact.

The Lake Superior Court found Karagan was entitled to treble damages and awarded him $177,612.50 plus costs and future commissions, but denied his request for prejudgment interest.

The Court of Appeals found Karagan’s designated evidence doesn’t give rise to a genuine issue of material fact, as Larson argued.

The judges also rejected Larson’s claim that there was no evidence of criminal intent to support the application of the criminal conversion statute that was used to award treble damages. The Court of Appeals cited White v. Indiana Realty Associates II, 555 N.E.2d 454, 458 (Ind. 1990), to support the trial court’s determination that Karagan was entitled to treble damages.

The evidence also established what Karagan’s commission was, the transactions for which he was entitled to commissions, and the amount of the commissions, so the trial court should have awarded Karagan prejudgment interest, Judge Melissa May wrote. The judges remanded the matter to the trial court to do so.

Civil Plenary – Liability for Debt/Subcontractor

Fred C. Feitler, Mary Anna Feitler, and the Feitler Family Trust v. Springfield Enterprises, Inc., J. Laurie Commercial Floors, LLC, d/b/a Jack Lauries Floor Designs, JM Woodworking Co.

17A04-1206-PL-297

The Indiana Court of Appeals reversed a decision by a DeKalb Superior judge that Fred and Mary Anna Feitler were personally liable for unpaid bills to subcontractors on their home, which was being constructed on land owned by a trust to which they were sole beneficiaries.

The Feitlers contracted with Cedar Creek Homes to build a home on real estate in DeKalb County. The couple and the contractor agreed that no mechanic’s lien could attach to the property in the event of nonpayment. A mortgage taken out by the Feitlers paid more than $366,000 of the $478,225 contract price of the home, but Cedar Creek went out of business before finishing the home and did not pay subcontractors J. Laurie Commercial Floors LLC, JM Woodworking Co., and Springfield Enterprises Inc. for work completed on the home.

The subcontractors sued the Feitlers, arguing they should be able secure money judgments against the couple, with J. Laurie and JM also arguing they should be able to hold mechanic’s liens against the real estate. The trial court entered summary judgment in favor of the subcontractors.

The Feitlers and the land trust argued that J. Laurie and JM can’t hold a mechanic’s lien against the property and that the trial court erred in granting summary judgment on the question of personal liability. The appellate court agreed with the Feitlers, reversing and concluding the question of personal liability should go to trial.

The COA found that the Feitlers qualify as owners pursuant to the mechanic’s lien, so the agreement they entered into with Cedar Creek is binding on J. Laurie. The Feitlers entered into an agreement with JM after Cedar Creek went out of business for JM to complete the cabinetry in the home, but did not pay JM. The Feitlers claimed JM’s failure to file a pre-lien notice pursuant to I.C. 32-28-3-1(i) prevents it from holding a mechanic’s lien. The judges agreed, finding the plain language of the statute makes the filing of a pre-lien notice a condition precedent to the right to hold a lien.

The designated evidence creates a question as to whether Cedar Creek was paid off by the Feitlers, which would prevent the subcontractors from having a claim against them under the personal liability notice statute.

The judges ordered summary judgment entered in favor of the Feitlers regarding whether JM and J. Laurie could hold a mechanic’s lien against the property and ordered a trial on the question of personal liability.
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Nov. 8

Criminal – Ex Post Facto/Sex Offender Registry

Jerome Michael Burton v. State of Indiana

45A03-1201-CR-6

The Indiana Court of Appeals ruled it’s a violation of the ex post facto provision of the state’s constitution to require a man who committed a sex crime in Illinois, but now lives in Indiana, to register in Indiana because the laws requiring him to register in both states were enacted after he committed the crime in Illinois.

Jerome Michael Burton appealed the denial of his motion to dismiss the charge of failure to register as a sex offender. Burton was convicted in 1987 in Illinois of a sex crime; Illinois didn’t require people who committed the same crime as Burton to register until 1996. In Illinois, he was convicted in 2003 and 2007 for sex offender registration violations, and when he moved to Indiana, he was convicted here for failure to register pursuant to the Indiana Sex Offender Registration Act. Indiana’s version of SORA that requires Burton to register became effective in 2006.

Burton again failed to register in 2011 and sought to dismiss the Class C felony failure to register charges the state filed, arguing that the requirement he register violates the ex post facto provision of the Indiana Constitution. The trial court denied the motion, but on interlocutory appeal, the Court of Appeals reversed.

The judges found Wallace v. State, 905 N.E.2d 371 (Ind. 2009), applies to this case. Burton has the protection of the Indiana Constitution as the application of Indiana’s SORA, without regard to the fact he was convicted of the qualifying sex offense in Illinois.

“It is for us, not Illinois, to determine who is required to register under our SORA,” Senior Judge James Sharpnack wrote.

The judges rejected the state’s argument that Burton’s obligation to register in Indiana stems from his 2007 conviction for failure to register in Illinois. But Burton’s current registration requirement in Illinois is based on the 1987 conviction, and but for that conviction, he would not be subject to any registration requirement, Sharpnack continued.

The Full Faith and Credit Clause is not implicated here, as the state argued, and the judges also rejected the state’s claim that Indiana would become a “haven” for offenders like Burton if he is not required to register.

“Any haven would be only for those who, under our constitution, could not be compelled to register in violation of our state’s prohibition of ex post facto laws,” he wrote. “We are dealing only with those offenders who committed crimes in states which had no registration requirements at the time of the offenses. The concern of the State does not outweigh the value of enforcing our constitution in the application of our registration statute.”

The Court of Appeals ordered the trial court grant Burton’s motion to dismiss.
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Nov. 9

Civil Tort – Workers’ Comp/Family Member’s Death

Amerisafe Risk Services, Inc., and Leerae Riggs v. The Estate of Hazel D. Wadsack, deceased, by Ronald J. Wadsack as Personal Rep., and Ronald J. Wadsack, individually

88A01-1204-CT-144

The mother of an injured worker whose estate claims she died due to emotional distress caused by an insurer’s handling of her son’s case cannot directly sue the insurer before exhausting the regulatory process, the Indiana Court of Appeals ruled.

The trial court without explanation denied Amerisafe’s motion to dismiss. The estate claimed that Hazel Wadsack died as a result of emotional distress at the handling of her son’s worker’s compensation claim. Matthew Wadsack had been severely shocked and burned while working for Mills Tree Service and was in a coma for some time.

“The Wadsacks argue that the Worker’s Compensation Board … does not have jurisdiction because their claims are not on behalf of Matthew, or based directly on his injuries, but instead are based on the handling of Matthew’s claims. We disagree,” Chief Judge Margret Robb wrote for the unanimous panel.

The judges ruled that I.C. 22-3-2-6.2 extends to personal representatives and next of kin. “While the Wadsacks may not have a claim for benefits pending themselves, the Board nonetheless has jurisdiction over their suit, which is a derivative of Matthew’s claim for benefits,” Robb wrote.

The court also rejected the Wadsacks’ argument that a requirement to have their case heard by the board deprived them of the open courts provision of Articles 1 and 12 of the Indiana Constitution. It noted the Wadsacks would have access to court to challenge an adverse ruling from the Worker’s Compensation Board, and the panel also agreed with Amerisafe that direct suits against third-party insurers are generally not allowed in Indiana.•