Indiana Court Decisions — June 5-19, 2019

7th Circuit Court of Appeals

June 5

Criminal — Lake County Sheriff Fraud/Resentencing

USA v. John Buncich

18-1216

The 7th Circuit Court of Appeals has ordered resentencing for a former Lake County sheriff convicted last year on bribery and wire fraud charges, vacating some of his counts for insufficient evidence. 

Former Lake County Sheriff John Buncich received a 15-year sentence from a federal judge in January 2018 after he was removed from office following bribery and wire fraud convictions. A jury found him guilty after concluding that Buncich accepted tens of thousands of dollars in bribes from towing businesses for campaign fundraising. 

The former sheriff appealed his sentence in USA v. John Buncich, 18-1216, arguing that the government failed to introduce sufficient evidence to convict him on his five wire fraud counts. 

Buncich further argued that the district court erred in admitting a chart showing $58,100 in cash deposits into his jointly held bank account. He lastly appealed the admission of the testimony of an IRS agent in laying a foundation for the chart and testifying that deposits with no explained source were likely from criminal activity.

Three counts of Buncich’s five wire fraud conviction relied on “Federal Reserve payroll funds transfer[s]” dating from May 5, 2014, Nov. 17, 2014 and Aug. 10, 2015. The remaining two counts relied on JP Morgan Chase wire transfers dated April 8, 2014, and Oct. 21, 2014. 

The 7th Circuit reversed three of Buncich’s wire fraud convictions, finding that both parties agreed the evidence presented to the trial court failed to establish those wire transfers were the basis of three of the counts. The panel also found the prejudice to the former sheriff outweighed by the evidence’s probative value because there was no evidence of criminal activity, and this was a joint account.

However, it found sufficient evidence existed to uphold the latter two wire fraud convictions, noting the JP Morgan Chase wire transfers were made as payment to Buncich in exchange for official acts to expand towing territory for Willie Szarmach of CSA Towing and Scott Jurgensen of Samson Relocation & Towing. 

“The jury concluded that the April 2014 check was a quid pro quo bribe for maintaining Jurgensen’s territory. It also concluded that the October 2014 check was given in exchange for expanding the heavy tow boundary for Szarmach. These conclusions were rationally based on the evidence presented, and the guilty verdict is affirmed as to Counts IV and V,” Circuit Judge William Bauer wrote for the panel. 

Additionally, the 7th Circuit concluded that the cash payments and the agent’s testimony in the three reversed counts would not have significantly altered the weight given to the rest of the evidence.

“… [N]or would it have changed the mind of the average juror. The other evidence presented was sufficient to support the jury’s guilty verdict,” the panel wrote.  

It therefore concluded that the district court’s error in the admission of the Rule 404(b) evidence was harmless, and thus affirmed in part and reversed in part, remanding the case for resentencing.  

Indiana Supreme Court

June 17

Attorney Discipline — Client Neglect/2-Year Suspension

In the Matter of Hilary Bowe Ricks

18S-DI-574

An Indianapolis attorney with a lengthy disciplinary history has once again been suspended from the practice of law, this time for at least two years after repeatedly neglecting client cases and keeping unearned funds. The discipline divided the Indiana Supreme Court, with two justices believing the attorney’s conduct warranted disbarment.

The most recent disciplinary action against Hilary Bowe Ricks, In the Matter of Hilary Bowe Ricks, 18S-DI-574, began on Nov. 20, 2018, when the Indiana Supreme Court Disciplinary Commission filed a complaint against Ricks, who had previously been suspended in August due to mental health concerns that interfered with client representation. According to a June 17 disciplinary opinion, Ricks never responded to the November 2018 four-count complaint.

Count 1 of the November complaint alleges Ricks failed to file an expungement petition on behalf of “Client 1,” despite collecting a $691 upfront fee. After nearly four years, Ricks told Client 1 his case was “next on (her list).”

Client 1 filed a disciplinary grievance, and Ricks claimed she had not taken any action on his case because he had not paid sufficient fees. But the client had paid the full upfront amount Ricks asked for, and that money was never returned.

Similarly in Count 2, Ricks collected $8,500 for a post-conviction relief case but became unresponsive. A hearing on the PCR petition was set for December 2015, but Ricks obtained a continuance and failed to inform the client, leading to several of the client’s friends and family members taking off work and showing up at the cancelled hearing.

The attorney then failed to subpoena witnesses or arrange for her client’s transportation for the rescheduled hearing, and both she and her client failed to appear for the new hearing. Judgment was entered for the state on the merits, and Ricks did not refund the $5,000 she collected to litigate the case until a grievance was filed.

Count 3 also involves a failed PCR proceeding for which Ricks collected $8,500. But Ricks urged the client to file a pro se petition, and a public defender performed significant work on the case for which Ricks had been paid.

Ricks eventually appeared on behalf of Client 3 and the public defender withdrew, but she failed to follow through with an agreement with the state that would have allowed her to move to modify the client’s sentence. She then failed to appear for a hearing in the matter, so a public defender was again appointed.

The $4,500 she collected from Client 3 to litigate the PCR petition was not returned until the disciplinary commission began an investigation.

Finally, Client 4 hired Ricks to help with a sentence modification, for which she was paid $850 up front. As with the other cases, Count 4 shows Ricks became unresponsive and “did not appreciably advance the case.” She also did not timely refund her unearned fees.

All five justices agreed that Ricks’ actions violated seven Indiana Rules of Professional Conduct: Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.4(b), 1.16(d), 8.1(b) and 8.4(d).

“Respondent’s multiple transgressions in this case are but the latest chapter in a lengthy history of shirking her professional duties toward clients, courts and the Commission,” the per curiam opinion reads. “Respondent has been suspended twice before for substantially similar conduct,” including the August 2018 suspension and Matter of Ricks, 835 N.E.2d 208 (Ind. 2005).

In a footnote, the justices said a petition to revoke Ricks’ 90-day probation in the 2018 matter is pending. The per curiam opinion also notes she has been held in contempt for failure to return appellate records and “has been barred from withdrawing further records in cases over which this Court has exercised jurisdiction.”

“The instant case — the third disciplinary prosecution against Respondent for the same type of systemic negligence that has characterized her career — makes clear that her professional shortcomings have not been remedied and in fact are growing worse,” the court wrote. “… The hearing officer succinctly summed up these aggravating factors and others in concluding that ‘Respondent cannot be safely recommended to the public as a lawyer who they can trust to handle their affairs.’”

The Indiana Roll of Attorneys shows Ricks has been the subject of eight formal disciplinary actions.

Ricks’ two-year suspension began immediately on June 17. While all justices agreed with the misconduct findings, Justices Steven David and Geoffrey Slaughter dissented on the sanction, believing Ricks should be disbarred.

Civil Tort — Wrongful Death/Summary Judgment

Angela Brewer, Individually and as Personal Representative of the Estate of Rickey A. Brewer, Deceased v. PACCAR, Inc. d/b/a Peterbilt Motors Co.

18S-CT-451

When does a component-part manufacturer owe no duty, as a matter of law, to install safety features that an injured party alleges are necessary? Indiana Supreme Court justices answered that question June 17, reversing judgment previously entered for a national motor company on a defective design claim after a man was crushed by a semi that had no rearview safety features.

PACCAR, Inc. manufactures vehicles and parts that W&W Transport uses to conduct its trucking operations. One of its products includes a “glider kit,” which offers the body and frame of a semi truck. However, the glider kit has a 40-foot blind spot behind it, and PACCAR typically does not include safety measures to mitigate the danger.

In March 2016, a W&W semi-truck made from a gilder kit was backing up when it pinned and crushed Rickey Brewer, who had been standing directly behind the truck. His widow, Angela Brewer, filed a wrongful-death lawsuit against PACCAR, asserting a defective-design claim alleging that PACCAR’s glider kit was unreasonably dangerous and defective because it lacked certain safety features and warnings relating to the blind spot.

The Morgan Circuit Court entered summary judgment for PACCAR, but the Indiana Court of Appeals reversed, finding the judgment improper. PACCAR asserted that summary judgment was appropriate because it had no duty, as a matter of law, to include the safety features that Brewer alleged were necessary. Brewer, on the other hand, countered that summary judgment in PACCAR’s favor was improper because the designated evidence showed the glider kit was defective when it left PACCAR’s control, given PACCAR’s failure to include certain safety features.

In response to oral arguments in the case, the Indiana Supreme Court held that under the Indiana Product Liability Act, a manufacturer who produces a component part with only one reasonably foreseeable use has no duty, as a matter of law, to install safety features if the final manufacturer was offered the safety features and declined them, or, if the component part, once integrated, could be used safely without those safety features.

But because PACCAR failed to establish the absence of a genuine issue of material fact for either condition, it was not entitled to summary judgment, the high court concluded.

PACCAR asserted that the duty to install certain safety features fell on the final manufacturer alone. But justices found that while a component-part manufacturer may have no duty to install such features if the component part is integrated into a final product that has multiple anticipated configurations, PACCAR’s glider kit had just one reasonably foreseeable use.

“The designated evidence indisputably shows that PACCAR’s sleeper-cab glider kit has one reasonably foreseeable use — to be combined with an engine, transmission, and exhaust system into an over-the-road semi,” Chief Justice Loretta Rush wrote for the unanimous panel. “And there is no reasonable dispute that an over-the-road semi with a sleeper cab is, at some point, going to be used in reverse, and that the glider kit — both as supplied and as integrated — has a forty-foot blind spot.

“… But this does not mean that a manufacturer of a component part with one reasonably foreseeable use will necessarily owe a duty, as a matter of law, to include allegedly necessary safety features.”

The Supreme Court noted that while there were two paths in which PACCAR could have found relief, it did not make a showing of either. It first found PACCAR did not provide anything to refute W&W’s response that it was not offered a list of options from which to identify or select the options that it desired, including safety features.

Likewise, the high court concluded PACCAR failed to show the absence of a genuine issue of material fact that the glider kit, once built out as an operable semi, could be used safely without the allegedly necessary safety features. Justices added that while certain safety features such as a back-up alarm may be ineffective, that doesn’t mean the component part manufacturer must have no duty to include other safety features, such as a back-up camera.

The Supreme Court concluded by noting that the sophisticated-user defense should be available to challenge design-defect claims. But such defenses are suited for the trier of fact, not for summary judgment, the justices noted.

The case was thus reversed and remanded for proceedings in Angela Brewer, Individually and as Personal Representative of the Estate of Rickey A. Brewer, Deceased v. PACCAR, Inc. d/b/a Peterbilt Motors Co., 18S-CT-451.

Indiana Court of Appeals

June 7

Criminal — Community Corrections/Sliding Fee Scale

Lawrence Amick v. State of Indiana

19A-CR-27

The Indiana Court of Appeals has remanded a case after finding no clarification from the trial court as to whether Marion County Community Corrections was intended to evaluate a man on a sliding scale of fees for his home detention costs.

During a sentencing hearing, Lawrence Amick was sentenced to 730 days in community corrections for both of his Level 6 felony convictions of auto theft and forgery, to be served concurrently.

Per Amick’s request, the Marion Superior Court ordered the Marion County Community Corrections to evaluate Amick for sliding scale fees for the cost of his home detention. The court’s sentencing order totaled Amick’s court costs and fees at $285.

A memo filed by the MCCC stated Amick owed it $3,680. It also requested that the bond amount filed with the Marion County Clerk’s Office be transferred to the MCCC to apply toward the outstanding balance of program costs associated with the services provided to Amick, which the trial court approved.

Amick appealed, arguing the trial court abused its discretion in entering the community corrections fees based on a sliding scale. He specifically contended the abuse occurred when the trial court ordered the MCCC to evaluate Amick for sliding scale fees for the cost of home detention, asserting that the trial court holds the discretion to impose fees.

Although it argued Amick invited any error when he specifically requested the trial court impose the fees on a sliding scale, the state admitted it was unknown on appeal what the trial court was referring to based on the record. Thus, the Indiana Court of Appeals remanded the case.

“In reply, Amick asserts that no error was invited and that he is arguing that the court abused its discretion when it granted MCCC authority to determine what the sliding scale would be without first petitioning the court and receiving approval for the estimated costs,” Judge Elaine Brown wrote for the court.

“The record does not include the ‘sliding scale’ or state who established it or who administers it. We have no way of knowing whether the trial court intended to delegate any statutory responsibility to MCCC or whether the fees requested by MCCC and entered by the trial court were consistent with the sliding scale,” Brown continued.

Thus, the case was remanded for the trial court to clarify its intent regarding the fee and for further proceedings consistent with the opinion in Lawrence Amick v. State of Indiana, 19A-CR-27.
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June 13

Civil Tort — Personal Injury/Scope of Employment Defense

Bryce A. Burton v. Martin Benner and Indiana State Police

19A-CT-135

A motorcyclist injured in a crash after he attempted to evade a head-on collision with an oncoming state police trooper’s vehicle will have his day in court after the Indiana Court of Appeals reversed a trial court ruling for the officer.

Motorcyclist Bryce A. Burton sustained injuries in a crash four years ago in Benton County in northwest Indiana. He was riding southbound on Meridian Road while, coming from the opposite direction, Indiana State Police Trooper Martin Benner attempted to pass a vehicle in front of him.

“… Burton took evasive measures to avoid a head-on collision, resulting in the locking up of the motorcycle’s brakes,” which caused Burton to leave the roadway and sustain injuries, Judge John Baker wrote.

Benner was off duty at the time of the crash, having worked earlier in the day, but at the time of the crash, he was in street clothes driving an unmarked ISP Dodge Charger en route to his son’s baseball game. He was required to and did maintain radio contact in the event of an emergency, and he provided assistance to Burton after the crash. Baker noted ISP authorizes its troopers to engage in “de minimis use of police vehicles for personal matters.”

In response to Burton’s suit, Benner argued he was driving in the scope of his employment. The Benton Circuit Court agreed, granting partial summary judgment and prompting Burton’s successful appeal.

Baker wrote for the panel that the while the facts are undisputed in Bryce A. Burton v. Martin Benner and Indiana State Police, 19A-CT-135, “the inferences that can be made from and conclusions that can be based on those facts are anything but,” making summary judgment erroneous. The COA remanded the case for proceedings at the courthouse in Fowler.

“One reasonable factfinder could look at these facts and easily conclude that Benner was not acting within the scope of his employment at the time of the accident. Another reasonable factfinder could reach precisely the opposite conclusion,” Baker wrote, relying on Supreme Court guidance from Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

“…Given our standard of review on summary judgment and our Supreme Court’s caution that summary judgment should not be used to ‘short-circuit[] the trial process’ where even a ‘minimal[]’ amount of evidence raises a factual issue to be resolved at trial … we can only find that the trial court erred by entering summary judgment in favor of Benner on this issue.”
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June 14

Civil Collection — Execution of Judgment Lien/Landowner’s Death

Flatrock River Lodge v. Morris Stout and Tonia Sue Stout

18A-CC-1919

The death of a Rush County man whose parents deeded him and their granddaughter 46 acres of property in 1985 does not moot a judgment lien attached to the property, the Indiana Court of Appeals ruled, reversing the trial court.

Rush Circuit Judge David Northam had issued an order denying Flatrock River Lodge’s motion to execute its judgment lien upon Morris and Tonia Stout’s property they shared as joint tenants with rights of survivorship. In 2016, Flatrock, a health care provider, sued Morris over a debt of more than $39,000 and filed a lis pendens notice with the Rush County Recorder’s Office. Tonia moved to intervene, after which Flatrock and Morris entered into an agreed judgment in which Morris would pay $40,144 plus attorney fees.

Flatrock moved to foreclose on the judgment lien in 2018, but Tonia argued that because she and Morris had acquired title to the real estate as joint tenants with right of survivorship, their joint interest should be treated like a tenancy by the entireties. The Rush Circuit Court agreed, denying Flatrock’s motion and its subsequent motion to correct error.

Two months after Flatrock appealed last year, Morris died, leading Tonia to also argue that because of his death, Flatrock’s appeal was moot.

The COA disagreed, reversing the trial court in Flatrock River Lodge v. Morris Stout and Tonia Sue Stout, 18A-CC-1919. “We hold that Flatrock’s appeal is not moot and that the real estate is not exempt from execution on the judgment lien,” Judge Edward Najam wrote for the panel.

“Tonia asserts broadly and without qualification that “the law is clear that jointly held property is exempt from execution,’” Najam wrote, noting she asked the court to apply the exemption statute under Indiana Code § 34-55-10-2(c)(5). “… We decline Tonia’s invitation to read words into the statute that are not there, and we hold that subsection 2(c)(5) does not exempt from execution interests held in a joint tenancy with right of survivorship.

“Indeed, the differences between a tenancy by the entireties and a joint tenancy with right of survivorship are clear and well-established. In a tenancy by the entireties, one spouse may not unilaterally convey or mortgage his interest to a third party. … And an estate by the entireties is immune to seizure for the satisfaction of the individual debt of either spouse. … In contrast, a joint tenant may alienate his interest in real estate or his interest may be alienated by another.

“…Had the legislature intended to exempt from execution real estate owned as joint tenants with right of survivorship it would have done so. We hold that the trial court erred when it denied Flatrock’s motion to execute on its judgment lien.

“In sum, Flatrock’s judgment lien against Morris was a valid and subsisting lien upon his interest in the real estate, which he owned with Tonia as joint tenants with right of survivorship. The judgment lien was not extinguished when Morris died,” Najam concluded. “As the surviving joint tenant, Tonia acquired Morris’ interest in the real estate by operation of law, subject to the lien. The lien is subject to execution and judicial foreclosure in the manner provided under Trial Rule 69. And, if another party is the purchaser of Morris’ interest at an execution sale, Tonia and the purchaser will each own an undivided interest as tenants in common.”

Protective Order — Remand/Hearing Ordered

N.E. v. L.W.

18A-PO-2514

A woman alleging domestic violence at the hands of her husband will have another chance to make her case for a protective order against him after the Indiana Court of Appeals ordered a trial court to conduct a new hearing.

In N.E. v. L.W., 18A-PO-2514, wife N.E. filed a petition for protective order against her husband, L.W., alleging physical and verbal abuse on four occasions between December 2017 and August 2018. The alleged abuse included L.W. grabbing N.E. by the neck, throwing her, knocking over furniture and intimidating the couple’s granddaughter, prompting their 12-year-old grandson to call police.

Rather than granting or denying the petition ex parte, the Marion Superior Court set the matter for a hearing and encouraged N.E. to seek counsel regarding a divorce. N.E. was not permitted to present evidence or testimony during the hearing, and the trial court denied her motion after learning that a no-contact order had been issued in a criminal matter involving L.W.

N.E. also asked the court to evict L.W. from her home, but the court likewise declined that motion because he was already subject to the no-contact order, and because he was not present at the hearing. Instead, the court told N.E. to put her estranged husband’s belonging in boxes, give the boxes to family members “and just be done with it.” If L.W. tried to return to the house, the judge told N.E. to call the police.  

N.E. appealed, and the Indiana Coalition Against Domestic Violence and Battered Women’s Justice Project filed amici briefs in favor of a “fair and full hearing on the merits of a petition for a protective order … .”

The Indiana Court of Appeals likewise determined the hearing “did not meet the minimum requirements of Indiana Code section 34-26-5-9 and that the trial court erred when it did not allow Wife to testify, present evidence, and call witnesses before denying her petition.” Judge Margret Robb, writing for the panel, relied on Essany v. Bower, 790 N.E.2d 148 (Ind. Ct. App. 2003) to support reversal of N.E.’s protective order petition.

The case was, thus, remanded for a new hearing, so the COA declined to determine whether N.E. had met her burden of proving that domestic violence occurred. However, the appellate court agreed with N.E. and the amici that the denial of the PO based on the no-contact order was “wrongly based on the existence of a pending criminal court order and not on the merits of [Wife’s] allegations.”

“Furthermore, we remind the trial court that a protection order and a criminal no-contact order are not interchangeable, and that a criminal no-contact order cannot provide Wife all the relief that a protection order can,” Robb wrote.

Finally, noting Indiana’s Civil Protection Order Act does not require a respondent to be present before ordering an eviction, the appellate court ordered the trial court on remand to consider whether the additional relief N.E. sought — including attorney fees and expenses related to the violence — should be granted.
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June 18

Civil Plenary — Family Farm Trust Dispute/Evidence

Paul Zartman and Brenda Cameron, Individually; et al. v. William G. Zartman, III, Individually and as Successor Co-Trustee of the Marilyn M. Zartman Revocable Trust; Kim Zartman; et al.

18A-PL-1071

The Indiana Court of Appeals reversed and remanded the denial of two siblings’ motion for summary judgment against their brother in a family trust case, finding that the trial court erred by considering evidence that had not been designated.

After William Zartman, Jr. and Marilyn Zartman died, their son, William G. Zartman, III, transferred to himself one-quarter of the family farm that was held by his mother’s trust. He had been transferred another quarter of the farm from his father’s estate years before, while the remaining half of the farm was transferred to William III before their deaths.

William III’s siblings, Paul and Brenda, sued him in 2016, seeking to set aside his conveyance to himself of the one-quarter interest in the farm held by Marilyn’s trust and to recover lost income from the land. The trial court denied their motion for summary judgment, finding that the content of Marilyn’s trust documents was required to be determined by a jury.

A jury later returned a favorable verdict for William III, and his siblings appealed, asserting the trial court erred in its application of Evidence Rule 1008.

The Indiana Court of Appeals concluded that the Miami Circuit Court did err in its application of Evidence Rule 1008 in Paul Zartman and Brenda Cameron, Individually; et al. v. William G. Zartman, III, Individually and as Successor Co-Trustee of the Marilyn M. Zartman Revocable Trust; Kim Zartman; et al., 18A-PL-1071.

Noting that the primary trouble of the case stemmed from both parties’ lack of documentation of a complete copy of Marilyn’s trust and amendment, Paul and Brenda argued the conveyance was invalid because the deed conveying the property should have been executed by both co-trustees — William III and Brenda — but instead was executed solely by William III.

Citing Coltec Industries Inc. v. Zurich Insurance Company, No. 99 C 1087, 2002 WL 31185789 (N.D. Ill. Sept. 30, 2002) in its decision, the appellate panel noted that in granting summary judgement for Coltec, the court determined that the certificates of insurance confirmed the terms of the missing policies and that Zurich offered no evidence to undermine the probative value of the certificates.

“Similarly here, Paul and Brenda presented evidence in the form of sworn statements of both Paul and William III that the First Amendment to Marilyn’s trust was identical to that of William Jr., and William III offers no evidence to dispute this,” Senior Judge Randall T. Shepard wrote for the panel.

“Here, the trial court misconstrued its role in determining the contents of Marilyn’s trust for purposes of deciding summary judgment, and it erred by taking into account evidence that had not been designated (i.e., a deposition taken of Paul that was in the court’s file),” the panel concluded.

It thus reversed and remanded for the trial court to reconsider its ruling on summary judgment.
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June 19

Civil Tort — Neglience/Food Poisoning

Golden Corral Corporation v. Kristina M. Lenart

18A-CT-704

A damages award was upheld for a woman who alleged negligence against a Golden Corral restaurant after she consumed undercooked chicken wings from its buffet that resulted in food poisoning and injuries requiring multiple surgeries.

While eating lunch with her family at a Clarksville Golden Corral restaurant, Kristina Lenart ate numerous barbeque chicken wings from the restaurant’s buffet line. Halfway through the meal, however, Lenart’s husband noticed that a chicken wing his daughter had selected was “blood raw.”

After he demanded an explanation from the manager, the family received a refund and left. About two hours later, Lenart suddenly experienced diarrhea and intense vomiting. After more than a week, Lenart was still unable to keep food down and was experiencing abdominal pain, nausea and vomiting. She was referred to board-certified general surgeon Julie Hutchinson, who was required to perform surgery on Lenart upon discovery of an umbilical hernia.

Two additional surgeries were required after Lenart’s pain continued, and Hutchinson predicted that Lenart might require additional surgeries in the future. The chicken wings Lenart consumed were supposed to be cooked at 350 degrees Fahrenheit for a specified time, according to Golden Corral buffet procedures. However, the temperature logs for the buffets on the day Lenart dined there were not preserved after their 90-day extension period had expired.

Lenart sued Golden Corral claiming negligence, alleging it failed to prepare and serve its barbeque chicken wings in a manner safe for human consumption and that as a result of eating such chicken wings, she sustained injuries and damages.

A jury ultimately returned a verdict in Lenart’s favor, awarding her $240,000 in damages. Golden Corral appealed, arguing the trial court abused its discretion, but the Indiana Court of Appeals rejected all its assertions in Golden Corral Corporation v. Kristina M. Lenart, 18A-CT-704.

First, the appellate court denied the assertion that Hutchison should not have testified on Lenart’s behalf because the scientific methodology she used was not reliable and thus, did not meet the admissibility requirements of Evidence Rule 702.

The COA found that claim was waived because Golden Corral did not object at trial to Hutchinson’s direct or rebuttal testimony on those grounds. Waiver notwithstanding, the appellate court was unpersuaded by Golden Corral’s argument that Hutchinson’s expert opinion was faulty because she did not rule out all other possible causes for Lenart’s sickness, and because Lenart reported being sick two hours after eating the food.

It further found issue with Golden Corral’s argument that Lenart’s entire case was based on circumstantial evidence between the timing of her lunch and the manifestation of her symptoms, which the restaurant asserted amounted to nothing more than speculation.

“Dr. Hutchinson testified via video deposition that she engaged in a differential diagnosis and that based on information provided by Lenart, Lenart’s medical history, as well as her own medical training and experience, she was of the opinion that Lenart contracted one of a couple food pathogens having an incubation period consistent with the timeframe between when Lenart consumed the barbeque chicken wings and when she became sick,” Judge Robert Altice Jr. wrote for the panel.

“Dr. Hutchinson acknowledged that there was no way to definitively know what foodborne pathogen Lenart was exposed to but opined that her opinion was reasonable and appropriate given the available information,” the panel concluded, finding Lenart presented sufficient evidence as to the element of proximate cause.

Additionally, it found no abuse of discretion in allowing the jury to be informed on spoliation and the doctrine of res ipsa loquitur. Specifically, if Golden Corral failed to produce documents listing the temperature logs for the chicken wings consumed by Lenart, then the jury could conclude those documents would have been unfavorable to Golden Corral’s case.

“Under these circumstances, Golden Corral had a duty to maintain such records,” Altice continued. “Because Golden Corral destroyed the buffet temperature logs despite its knowledge and duty, the spoliation instruction was warranted.”

It similarly found Lenart presented sufficient evidence on the res ipsa loquitur claim. Lastly, the appellate court concluded that at the end of the cooking process, the chicken wing was still a chicken wing. Thus, the cooking process did not substantially alter the chicken wing or create a new product and Lenart’s action was not controlled by the Indiana Products Liability Act.

Small Claims — Auto Title Order/Junk Vehicles

Indiana Bureau of Motor Vehicles v. Majestic Auto Body

18A-SC-2524

Mayberry justice prevailed on appeal in a Morgan County case over whether vehicles damaged by Hurricane Harvey in 2017 and declared junk by the state of Texas ought to be issued titles in Indiana.

The Indiana Court of Appeals on June 19 reversed orders from the Morgan Superior Court requiring the Indiana Bureau of Motor Vehicles to issue salvage titles for two storm-damaged vehicles purchased by Majestic Auto Body in Quincy.

Majestic owner Mark Shumaker had petitioned the court first for clean titles and later for salvage titles for a 2013 Dodge minivan and a 2014 Dodge Ram truck that had been issued junk salvage titles after the state of Texas found them only suitable for scrap. But after Majestic produced Indiana State Police inspections of the vehicles giving them clean bills of health, the trial court held a hearing at which the BMV was not present because its attorney had not been noticed, and on the same day issued nunc pro tunc orders requiring BMV to issue salvage titles on the vehicles.

The Indiana Court of Appeals reversed, vacating the orders and doting on the BMV’s citing to a classic TV show to make its case.

“We commend the State for taping (sic) into its creative juices and comparing this case to the classic episode of Barney’s First Car in The Andy Griffith show,” Judge Patricia Riley wrote in a footnote in Indiana Bureau of Motor Vehicles v. Majestic Auto Body, 18A-SC-2524. “In that episode, the lovable Barney Fife empties his life savings to purchase his first car, a 1954 Ford. The seller purports to be an elderly widow struggling to part with her late husband’s vehicle, but unbeknownst to Barney Fife, the seller is a member of a gang that dishonestly sells stolen old vehicles as good-condition cars.

“The State argues that to prevent Hoosiers from finding themselves in Barney Fife’s shoes, the General Assembly enacted Ind. Code § 9-22-3-18, and that the aim of the statute is to ensure Indiana citizens are not duped into buying vehicles that have been declared as junk by other states.”

The panel reversed the trial court’s partial denial of relief under Trial Rule 60(B), noting the Morgan Superior Court wrongly conflated Texas’ and Indiana’s salvage title terms.

“The trial court reasoned that, because Texas had issued salvage titles to the vehicles, they should therefore receive similar titles in Indiana. However, under the plain and unambiguous terms of Indiana Code section 9-22-3-18, Majestic’s vehicles cannot be titled in Indiana since Texas had designated them as junk vehicles,” Riley wrote.

“Since the titling of vehicles that have been designated as junk by another state is not authorized by statute, we conclude that the trial court abused its discretion by not granting BMV full relief to its motion for relief. Accordingly, we reverse the trial court’s nunc pro tunc orders requiring BMV to issue salvage titles to Majestic’s 2013 Dodge minivan and 2014 RAM truck.”•