Indiana Court Decisions – Oct. 14 to 27, 2015

Indiana Supreme Court

Oct. 15

Discipline – Attorney Reprimand

In the Matter of: Anonymous

79S00-1508-DI-512

A Tippecanoe County attorney has received a private reprimand after the Indiana Supreme Court concluded she violated Professional Conduct Rule 3.5(b) when an emergency petition for a temporary guardian appointment was presented to the judge before notice was presented to the parents.

The attorney was hired by the grandparents of a child who were concerned about the child’s care. The child lived with grandparents; the putative father’s paternity had not yet been established and the mother was allegedly an unemployed drug addict.

An associate attorney in the respondent’s office presented the emergency petition for judicial consideration. The judge granted it and directed it be served on the child’s parents.

The respondent did not provide advanced notice to the mother or putative father before presenting the petition to the judge, nor did she comply with Trial Rule 65(B), requiring her to certify to the court any efforts made to give notice to the adverse parties and the reasons supporting a claim that notice should not be required.

The justices noted the attorney has no prior discipline, cooperated with the Disciplinary Commission, and her character and reputation within the Tippecanoe County legal community is good.

“To be sure, Trial Rule 65(B) contemplates that there will be situations justifying the issuance of temporary emergency relief without notice, and the availability of such extraordinary relief can be particularly critical in domestic relations or custodial cases where the immediate safety and well-being of a child or domestic partner is shown to be at demonstrable risk,” the per curiam opinion states. “We do not wish to discourage attorneys from seeking, or judges from issuing, such relief where appropriate. Nevertheless, when such relief is sought, the basic safeguards provided by Trial Rule 65(B) are essential to due process and must be followed.

“In sum, while Respondent’s intentions regarding the welfare of her clients’ grandchild may have been good, they did not justify dispensing with the mandatory procedures designed to protect the rights of other parties with legal interests at stake in the proceeding. For Respondent’s misconduct in this case, we agree with the parties that a private reprimand is warranted.”

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Oct. 26

Criminal – Testimony/Harmless Error

Wenzel Williams v. State of Indiana

48S05-1507-CR-424.

The Indiana Supreme Court ruled the admission of a detective’s statement regarding a controlled drug buy should not have been admitted because it resolved the issue of the defendant’s guilt, but that admission into evidence was a harmless error.

Wenzel Williams appealed his two Class B felony convictions of dealing in cocaine, which stemmed from controlled drug buys with a confidential informant. Madison County Drug Task Force Detective Keith Gaskill, acting undercover, witnessed the drug buys. At Williams’ trial, he said “there’s zero doubt in my mind that that was a transaction for cocaine,” when testifying about the first controlled drug buy.

Indiana Evidence Rule 704(a) expressly prohibits in criminal cases witness opinions concerning the ultimate issue of guilt. Because this statement did not merely “embrace” an ultimate issue by implying Williams’ guilt, but was an outright opinion of guilt, it is inadmissible under the rule, Chief Justice Loretta Rush wrote. Its admission violated the jury’s right to determine the law and facts in criminal cases.

The state argued excluding Gaskill’s testimony would require overruling precedent allowing officers to testify to other facts like a defendant’s intoxication or identity, but the Supreme Court found those cases distinguishable because an opinion of intoxication or identity does not reach every element of the offense.

“Detective Gaskill’s statement that ‘there’s zero doubt in my mind that that was a transaction for cocaine’ crossed the line into declaring Williams’s guilt. In the context of this drug-dealing offense, Detective Gaskill’s testimony, unlike testimony of intoxication and identity, does not just describe or imply some elements of the offense, but all of them – including mens rea,” Rush wrote.

But, the admission was a harmless error because the jury had ample evidence to independently convict Williams on both charges, so his convictions are affirmed.

Indiana Court of Appeals

Oct. 14

Civil Plenary – Probate/Attorney Fees

Scott Alan Stibbins, individually and as Personal Rep. of the Estate of Warren E. Stibbins, and Trustee of the Warren E. Stibbins Revocable Trust, et al. v. Carol (Stibbins) Pagano Foster, et al.

18A02-1410-PL-750

In a case in which the trial court awarded a woman and her children more than $170,000 in attorney fees even though two of the three claims raised were without just cause or good faith, the Indiana Court of Appeals specified the approach judges should follow when a party seeks attorney fees pursuant to I.C. 29-1-10-14.

Carol Pagano Foster and her children, Angela and Christopher, filed an action contesting the probate of the will of her father, Warren Stibbins. Stibbins had become frustrated with Foster’s inability to manager her finances, so he cut her out of his will and her deceased mother’s trust and instead purchased an annuity that would provide steady income for her. Although they lost the contest, the trial court granted the plaintiffs’ request for reimbursement of attorney fees under I.C. 29-1-10-14. The judge ruled the fraud action and incompetency claims were not brought in good faith, but the undue influence claim was brought with just cause. The judge held that the three claims were so interrelated that fees could not be divided.

The estate appealed the order it pay $171,360.64 in attorney fees to Foster’s attorneys.

The COA held that Foster and her children do not qualify as a “deivsee” under the statute because they were not beneficiaries to the two updates made to the will in 2005 and then 2008. The judges declined to extend the line of cases allowing someone who contests a previous will to be considered a devisee because in that case law, the parties challenging the will were devisees under the next will in line to be probated. In this case, Foster and her children were not devisees of the will being challenged or the next will in line. Opening the term devisee up as Foster suggests would create a slippery slope, allowing anyone once named in a will to be entitled to attorney fees if he or she challenged the will in place at the party’s death, Judge John Baker wrote.

“We acknowledge that the trial court was unable to separate the fees for the three claims, which is understandable given the process that was followed in this case. To avoid precisely this issue, we hold that a different process should be followed. First, the claimant seeking fees must prove that some or all of her claims were made in good faith and with just cause. The trial court must then make a preliminary determination as to which of the claims meet this standard. Then, the claimant is required to come forward with evidence showing the amount of attorney fees expended only for the claims that meet the statutory standard. In this way, the trial court and all parties can be assured that the claimant receives attorney fees only for those claims that were brought in good faith and with just cause, and the burden of proof remains on the claimant,” Baker wrote.

Criminal – Suppression of Evidence/Blood Draw

Tonya Herron v. State of Indiana

49A04-1504-CR-149

The Indiana Court of Appeals reversed the denial of a woman’s motion to suppress a blood sample taken after a police officer suspected her of drunken driving. The judges found the affidavit did not contain specific information alleging the woman drove a vehicle.

The police officer stopped Tonya Herron’s car and filled out a probable cause affidavit for a blood draw when she declined to submit to a chemical test. The officer suspected that she was intoxicated. The affidavit contained boilerplate text regarding the crime of operating a vehicle/motor vehicle while intoxicated, but the officer never filled in specific information to support that Herron was driving a vehicle. His affidavit does mention reasons for suspecting Herron was intoxicated.

The judge signed the warrant and a blood sample was taken, which Herron sought to suppress after she was charged with two drunken-driving charges.  The trial court denied her motion, leading to interlocutory appeal.

The state made four arguments as to why the affidavit is valid, but the appeals court rejected them all, including that the Implied Consent Law, at issue here and mentioned in the boilerplate text, only applies to drivers.

“This argument fails. This is precisely the type of ‘legal technician’ argument warned against in Gates. Although we do presume that officers know and follow the law, nothing in Indiana Code section 9-30-6 et seq. forbids an officer from offering a chemical test for intoxication to a passenger or a pedestrian. We cannot agree that an officer reading a law to an individual creates probable cause to believe that individual violated a law,” Judge John Baker wrote.

The COA also decided the good faith exception does not apply and so the warrant in this case was invalid.

Civil Plenary – Breach of Contract/Fiduciary Duty

Techna-Fit, Inc. and Stuart Trotter v. Fluid Transfer Products, Inc.

32A05-1410-PL-462

The statutory cap on punitive damages should be based on the amount of compensatory damages awarded in the action in which the party seeks punitive damages, the Indiana Court of Appeals held, and not based on the total compensatory damages awarded in the action on all claims.

Techna-Fit Inc. and its owner Stuart Trotter were embroiled in litigation with Trotter’s former company, Fluid Transfer Products Inc. Trotter, who had a company in California called Techna-Fit, started FTP with Michael Lang in Indiana as a way to manufacture and sell products under the Techna-Fit brand name. Techna-Fit used a specific system for numbering its parts, which FTP also adopted.

After a dispute arose regarding the operation of FTP, Trotter formed a new Indiana corporation called Techna-Fit Inc. He then hired an FTP employee to work at the new company. FTP continued using Techna-Fit’s parts numbering system, which led to a lawsuit alleging unfair competition. FTP filed a countersuit alleging breach of contract and also a third-party complaint alleging breach of contract and breach of fiduciary duty against Trotter. The trial court ruled in favor of FTP on Techna-Fit’s claims, its counterclaims and third-party claims. FTP was awarded $663,901.86 on the breach of contract claims and $125,000 for Trotter’s breach of fiduciary duty. FTP also received punitive damages of $1.5 million for Trotter’s breach of fiduciary claim.

The appellate court reversed the punitive damages award, noting no Indiana court has interpreted the meaning of “the amount of compensatory damages awarded in the action.” FTP argued the punitive damages are based on total compensatory damages awarded in all claims; Techna-Fit believes the statute limits punitive damages to three times the compensatory damages awarded just on Trotter’s breach of fiduciary duty, the only claim FTP requested punitive damages for.

The COA ruled in Techna-Fit’s favor on this issue, citing SJS Refractory Co. LLC v. Empire Refractory Sales Inc., 952 N.E.2d 758, 770 (Ind. Ct. App. 2011), which held that punitive damages must arise from the underlying claim for which those damages are sought. To include both the underlying and unrelated compensatory damages in the calculation of the statutory cap would expand, rather than limit, punitive damages, contrary to the clear legislative intent, Judge Edward Najam wrote.

Because FTP was awarded $125,000 for Trotter’s breach of fiduciary duty, the company is only entitled to $375,000 in punitive damages. The judges also determined FTP is not entitled to attorney fees and denied its request for appellate attorney fees.

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Oct. 15

Civil Tort – Insurance/Timely Notification of Claim

The Bar Plan Mutual Insurance Company v. Likes Law Office, LLC; Kevin L. Likes; Rickey D. Whitaker; and Cheryl L. Whitaker

02A03-1502-CT-65

A trial court improperly concluded that an Auburn, Indiana, attorney did not make a material representation in his application for renewal of malpractice insurance, the Indiana Court of Appeals held in reversing summary judgment in favor of the attorney.

Kevin Likes represented Rickey and Cheryl Whitaker in a personal injury lawsuit against Travis Becker. But Likes didn’t respond to repeated requests from Becker’s counsel for documents and interrogatories. The day before trial, Likes served his clients’ sworn responses. The trial court dismissed the Whitakers’ lawsuit and awarded sanctions on March 16, 2010. The Court of Appeals reversed on March 29, 2011, and the Indiana Supreme Court granted transfer and affirmed the trial court on Jan. 18, 2012.

The Whitakers filed a complaint for legal damages against Likes based on the dismissal of the negligence cause on Nov. 2, 2012. Likes notified Bar Plan, his insurer, on Dec. 7, 2012. Bar Plan denied coverage, saying he had knowledge in 2010 that there were circumstances that could give rise to a claim, but indicated there were no possible claims when he renewed his claims-based policy on Nov. 14, 2011.

The trial court ruled in favor of Likes on the parties’ motions for summary judgment, which the COA reversed.

Likes argued that when he filled out the renewal, the Court of Appeals had ruled in his favor, so he had no reason to believe there would be a claim. But Likes was put on notice in April 2011 when Becker filed his petition to transfer to the Supreme Court.

“Therefore, because of the severity of the trial court’s remedy – dismissal of the cause – any reasonable attorney in Likes’ position would realize that his client might pursue a potential legal malpractice claim against him should the supreme court affirm the trial court. Accordingly, when Likes signed his renewal application on November 14, 2011, Likes knew or reasonably should have known that the only thing standing between him and a probable malpractice claim was the supreme court ruling. Therefore, he should have disclosed these facts on his application for renewal,” Judge Patricia Riley wrote.

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Oct. 16

Protective Order – Stalking/Firearms

John A. Fox v. Tracy Bonam and Doug Bonam55A01-1503-PO-112

A trial court erred in ordering firearms seized and in placing other restrictions on a man the court properly determined had committed stalking against his neighbor, the Indiana Court of Appeals ruled.

A motions panel of the appeals court previously ordered John A. Fox’s firearms returned after they were seized as part of a court order issued by Senior Judge Thomas Gray in Morgan Superior Court. The order also required Fox not to use power tools or start his motorcycle before 8:30 a.m., conditions the appeals panel also reversed.

Feuding Morgan County neighbors Fox and Tracy and Doug Bonam live in the Foxcliff Estates North community near Martinsville and had obtained protective orders against each other in the past. Tracy Bonam obtained the order in the instant case after alleging numerous instances she said constituted stalking.

The appeals panel agreed that Fox’s behavior – such as setting up bullet-marked bull’s-eye targets facing the Bonam’s property and close to the property line – constituted harassment and intimidation. However, restricting Fox’s use of his motorcycle and power tools went too far.   

The protection order against Fox cited the Brady Handgun Violence Prevention Act, 18 U.S.C. § 922(g) in ordering the sheriff to seize Fox’s firearms, but it didn’t cite state code. Fox “asserts that Indiana’s ‘protective order statutes as a whole make clear that (Indiana Code section) 34-26-5-9(f) is simply the state law vehicle to effectuate  the mandates of 18 U.S.C. § 922(g), not an independent grant of authority to confiscate weapons every time a protective order is entered,” Judge Terry Crone wrote for the panel.

“John’s argument is compelling, but we need not address it because the trial court relied solely on 18 U.S.C. § 922(g) in ordering him to surrender his firearms, and that statute does not apply in this case because Tracy is not John’s ‘intimate partner,’” as required by the federal code. “Therefore, we vacate that portion of the protective order,” Crone wrote.

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Oct. 26

Civil Tort – Wrongful Death/Dependent Next of Kin

Robbie Lomax v. Jennie L. Michael

12A05-1503-CT-124

The Indiana Court of Appeals reversed summary judgment in favor of the driver in a deadly car accident on the decedent’s nephew’s wrongful death action, finding questions exist as to whether the nephew is his uncle’s dependent next of kin.

Edward Lomax lived with his nephew, Robbie Lomax and his wife, and regularly would contribute financially to household expenses, even when Robbie worked, and helped take care of his nephew’s animals. Edward was his nephew’s last living relative on his father’s side. The uncle was killed while riding his bicycle in 2010 after he was struck from behind by a vehicle operated by Jennie Michael.

Robbie brought a wrongful death action against Michael, alleging he was his uncle’s dependent next of kin. The trial court granted partial summary judgment to Michael on this issue, concluding the evidence didn’t establish Robbie as a dependent next of kin for purposes of the General Wrongful Death Statute.

The Court of Appeals reversed, finding the case to be similar to Necessary v. Inter-State Towing, 697 N.E.2d 73 (Ind. Ct. App. 1998), trans. denied, in which the decedent’s son filed a wrongful death action after his mother was killed in an automobile accident. The mother lived with her son and grandson for several years before her death and they shared household expenses.

“Given the facts as designated to the court, a reasonable trier of fact could conclude that Robbie was dependent on Edward, at least in part, or that Robbie was not, in fact, a dependent next of kin to Edward,” Judge Robert Altice wrote in remanding the matter for further proceedings.

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Oct. 27

Criminal – Trespass

Jonathan E. Powell v. State of Indiana

49A02-1503-CR-135

The Indiana Court of Appeals agreed with a defendant that there is insufficient evidence to support his criminal trespass conviction after he was kicked out of a downtown Indianapolis bar.

Jonathan Powell was inside Bartini’s when a bouncer asked him to leave and escorted him outside. Indianapolis Metropolitan Police officer Matthew Cook was working off-duty at the bar and told Powell he had to leave. Powell, appearing to be intoxicated, told Cook he didn’t want to leave and wanted to go back inside. Powell began yelling at Cook and people walking by the club, so Cook moved him from the bar’s side of the sidewalk to across the street. Powell was then arrested and charged with public intoxication and criminal trespass, but was only convicted of criminal trespass.

The state had to prove that Powell knowingly or intentionally refused to leave the bar’s real property after Cook asked him to do so and that Powell did not have a contractual interest in the property. The evidence in this case doesn’t show that Powell was on Bartini’s property when Cook asked him to leave. Thus, the state failed to prove that Powell refused to leave the bar’s real property after Cook told him to do so.

The judges rejected the state’s claim that Walls v. State, 993 N.E.2d 262 (Ind. Ct. App. 2013), supports its argument that even if Powell was not on bar property, the COA can still affirm his conviction. In Walls, the defendant was kicking doors of apartment residents trying to enter and put his foot through the threshold of one apartment door. The COA held the tenants had a sufficient possessory interest in their apartment doors, threshold and immediate areas by which they accessed their leased apartment units to allow a criminal trespass conviction when a defendant refuses to leave those areas after being requested to do so.

But in this case, there is no indication Powell attempted to re-enter the bar or put his foot across the threshold.•