ILNews

Indiana Court Decisions - Feb. 20 to March 5, 2013

IL Staff
March 13, 2013
Keywords
Back to TopE-mailPrintBookmark and Share

7th Circuit Court of Appeals

Feb. 20

Civil – Venue/Merits

Columbus Regional Hospital v. Federal Emergency Management Agency

12-2007

Columbus Regional Hospital, which was flooded following heavy rains in southern Indiana in 2008, is not entitled to an additional $20 million in disaster relief funds from the Federal Emergency Management Agency in addition to the $70 million it already received, the 7th Circuit concluded.

The federal appellate court tackled two issues: whether the District Court was the proper venue for the lawsuit and the merits of the suit.

The lawsuit was filed in the Southern District of Indiana, but under the Tucker Act, suits seeking more than $10,000 in monetary damages are to move before the Court of Federal Claims. The judges concluded that the District Court was the right venue because it’s the only court that can serve as a forum for all of the hospital’s legal theories, which include claims under the Stafford Act and the Federal Tort Claims Act.

The 7th Circuit rejected FEMA’s claim that everything it does is a “discretionary function” so there can never be an obligation to pay more than the agency decides is due. Switching focus to the lawsuit, the hospital contended that FEMA must cover the replacement cost of equipment and supplies destroyed by the flood, and that includes new equipment. The court found FEMA’s approach – to value property lost as cost (basis) less depreciation – to make sense in that it gives all victims the value of what they lost, and no more.

“Disaster benefits are a subsidy, and no one is entitled to a greater subsidy than the statute mandates,” Chief Judge Frank Easterbrook wrote. “If a fast-food restaurant gets the depreciated value of a fryer or milkshake mixer, a hospital gets the depreciated value of a magnetic resonance imager.”

A second issue involved the proceeds the hospital received from insurance. FEMA concluded property damage represented roughly two-thirds of the hospital’s losses within the policy’s scope, so it attributed around $16 million of the $25 million in insurance proceeds to the property damage and deducted that amount from the federal funds. The hospital claimed that no deductions should be made because it used the $25 million to cover expenses such as salaries and the cost of moving patients.

“ … as far as we can see nothing in the Stafford Act or any regulation prevents the agency from imputing all insurance proceeds to covered claims. FEMA did the Hospital a favor when it allocated a third of the proceeds to losses outside the scope of the Stafford Act, and thus deducted only $16 million rather than $25 million from the Hospital’s claim,” Easterbrook wrote.

“The Hospital tells us that it now has pursued its administrative remedies and filed a second suit under the FTCA. We expect it to be met with a defense of claim preclusion (res judicata) as well as the observation that the suit is substantively feeble, but we leave that to the court where the FTCA litigation is pending.”
__________

Feb. 28

Criminal – I.D. Evidence/Sentence

United States of America v. Lamar E. Sanders

11-3298

Finding no error in the admittance of three photo identifications of a defendant following charges of kidnapping and extortion, the 7th Circuit Court of Appeals upheld Lamar Sanders’ convictions and 25-year sentence.

Sanders argued that the District Court denied him due process by admitting Timicka Nobles’ three identifications of him. Sanders claimed that the District Court ran afoul of the Confrontation Clause, or, alternatively, abused its discretion by limiting his cross-examination of Nobles. Finally, Sanders contended that the District Court applied the incorrect mandatory minimum sentence.

Sanders and Ralph Scott forced their way into Nobles’ apartment, kidnapped her 10-year-old daughter, and forced Nobles to drive to her mother’s currency exchange store in Chicago. There, she took money out of the store’s safe and placed it in a plastic bag on her car’s front seat, where Sanders then removed it. She was able to notify her mother of the plot, who then alerted police. Scott was arrested at the scene and Sanders turned himself in shortly thereafter.

Nobles was shown a photo at the scene found in Sanders’ car of him at a birthday party; two hours later she was shown a formal photo array. She also identified Sanders in court. The daughter, who did not see the birthday party photos, also identified Sanders as her kidnapper.

Two mandatory minimum sentences apply to kidnapping – 20 years or 25 years. The District Court imposed the higher penalty.

The 7th Circuit upheld the admission of Nobles’ identifications of Sanders in a 33-page decision, finding any errors to be harmless because the government’s evidence was strong and Sanders’ case was weak.

The District Court did not allow Sanders to probe the details of Nobles’ criminal past, including that her previous convictions of theft and forgery involved a currency exchange.

“Sanders presented the jury with his entire theory of Nobles’s motive to lie. The fact that the prior convictions involved crimes at another currency exchange would not have given the jury any further material information in appraising her credibility,” Judge Michael Kanne wrote. “The jury might not have possessed all the information Sanders wanted it to have, but it certainly had sufficient information to evaluate Nobles’s testimony.”

The judges also believed that Congress intended for the 25-year minimum sentence for kidnapping to apply, as that minimum was passed after the 20-year minimum sentence was in place.
__________

March 1

Civil – Contempt of Court Sanction

Securities and Exchange Commission v. First Choice Management Services Inc., et al.

12-3308

After initially vacating a District judge’s $600,000 sanction against SonCo Holdings for contempt of court and remanding to the lower court for more proceedings, the 7th Circuit Court of Appeals upheld the sanction.  

This case comes before the federal appellate court for a second time in less than a year. In May 2012, the Circuit judges ruled Judge Robert L. Miller didn’t fully explain why he imposed the $600,000 sanction against SonCo, so they vacated the sanction. They sent the matter back to the judge to impose the sanction he imposed upon demonstration that it is a compensatory remedy for a civil contempt after all; impose a different or even no sanction, whether for civil contempt or for misconduct not characterized as contempt; or proceed under the rules governing criminal contempts.

As part of a settlement SonCo entered into with the receiver of First Choice Management Services, SonCo agreed to replace ALCO Oil & Gas Co.’s $250,000 cash bond with the Texas Railroad Commission. ALCO operated oil and gas leases in Texas, and SonCo claimed to have a valid legal interest in the leases that were obtained through a sham organization that defrauded victims out of millions.

SonCo never obtained the bond to replace ALCO’s bond and did not obtain the railroad commission’s authorization to operate the wells by a final deadline imposed by Miller. SonCo had paid the receiver the $600,000 for a quitclaim assignment of the leases, which Miller allowed the receiver to keep as a sanction.

In their decision, the judges found Miller explained and ALCO and the receiver were able to demonstrate that $600,000 is a “gross underestimate of the harm caused by SonCo’s contempt.” A plausible estimate of the total harm is actually closer to $2 million, Judge Richard Posner wrote, meaning SonCo has gotten off lightly.

“The district judge remarked SonCo’s ‘record of truly brazen intransigence’ in this protracted proceeding. That is an understatement. SonCo will be courting additional sanctions, of increasing severity, if it does not desist forthwith from its obstructionist tactics,” he wrote.

Indiana Supreme Court

Feb. 20

Criminal – Sentencing/Term of Imprisonment

Kathleen Peterink v. State of Indiana

57S03-1302-CR-136

Joey Jennings v. State of Indiana

53S01-1209-CR-526

Deciding an issue that has led to confusion in the courts, the Indiana Supreme Court ruled that time suspended is not included under “term of imprisonment” as used in the Indiana misdemeanor sentencing statute.

Joey Jennings appealed his sentence for Class B misdemeanor vandalism – 30 days executed, 150 days suspended and 360 days of probation. He argued that the sentence is illegal under Indiana Code 35-50-3-1(b), which says, “whenever the court suspends in whole or in part a sentence for a Class A, Class B, or Class C misdemeanor, it may place the person on probation under IC 35-38-2 for a fixed period of not more than one (1) year, notwithstanding the maximum term of imprisonment for the misdemeanor set forth in sections 2 through 4 of this chapter. However, the combined term of imprisonment and probation for a misdemeanor may not exceed one (1) year.”

The Court of Appeals ordered he be sentenced to a period of probation of no more than 185 days because “term of imprisonment” must also include suspended time.

The justices clarified their ruling in Smith v. State, 621 N.E.2d 325, 326 (Ind. 1993), that a combined term of probation and imprisonment may not exceed one year, notwithstanding the maximum term of imprisonment for the misdemeanor. They also decided that “term of imprisonment” for purposes of misdemeanor sentencing, doesn’t include suspended time.

Justice Mark Massa authored the 10-page opinion in which he wrote, “The statutory language singles out each level of misdemeanor – A, B, and C – and says a court may suspend the sentences for each of those ‘in whole or in part’ and then place the misdemeanant on probation for up to one year. This clearly and unambiguously shows the legislature, by ‘term of imprisonment,’ meant only that time during which a misdemeanant is incarcerated.”

Under Jennings’ interpretation, only Class B or C misdemeanants could have a portion of their maximum statutory sentence suspended and still serve probation, but a Class A misdemeanant could never be sentenced to the statutory maximum of one year and have a portion of the sentence suspended subject to probation.

The opinion also looked at Smith and how the Court of Appeals has ruled on this issue since.

“Further, regardless of the maximum sentence available under Indiana Code §§ 35-50-3-2, 35-50-3-3, and 35-50-3-4, the combined term of imprisonment and probation for a misdemeanor may not exceed one year. We therefore remand this case to the trial court for imposition of a probationary period consistent with this opinion, not to exceed 335 days – the difference between one year (365 days) and the 30 days Jennings was ordered to serve in prison,” the court held.

In a companion case, the justices affirmed Kathleen Peternik’s sentence – one year in prison, suspended entirely, and probation for one year, six moths of which was to be served on home detention – which the Court of Appeals had reversed based on its decision in Jennings.

The justices also affirmed the Court of Appeals’ order that the sentencing order be amended to allow for credit time for her home detention.
__________

Feb. 22

Juvenile – Adjudication as Delinquent

K.W. v. State of Indiana

49S02-1301-JV-20

A high school student’s action of trying to pull away from a school resource officer who tried to handcuff him is insufficient to support his adjudication as a delinquent, the Indiana Supreme Court ruled.

The unanimous ruling affirms a Court of Appeals reversal of a Marion Superior juvenile court on different grounds. The COA held that there was insufficient evidence that the school resource officer was lawfully engaged in his duties.

The case arose from an Aug. 30, 2011, altercation at Ben Davis High School as K.W., then 15, and another student “faced off” with fists raised in a hallway. A teacher intervened and detained K.W. until the SRO, a sergeant with Indianapolis Metropolitan Police Department, arrived.

The officer attempted to handcuff K.W. when he turned to walk away, after which the officer used a “straight arm-bar takedown” to tackle and handcuff the teen. Justice Loretta Rush wrote that neither the officer’s testimony nor surveillance video of the incident establish forcible resistance.

Rush’s five-page ruling also invited the Legislature to further clarify the roles of school resource officers; current statutes apply only to their engagement in law enforcement duties.

“It would be within the Legislature’s prerogative to conclude that evolving threats to school security and discipline warrant expanding the resisting law enforcement statute to apply to forcible resistance, obstruction, or interference ‘with a law enforcement, school liaison, or school resource officer, or a person assisting the officer, while the officer is lawfully engaged in the execution of the officer’s duties,’” Rush wrote.

“Not only is such a policy judgment about the changing role of school officers best reserved to a politically responsive branch of government, it would be less likely than common law to cause unintended Fourth Amendment consequences. The Legislature may wish to consider such a change,” the court advised.

Criminal – Restitution/Child Support

Felix C. Sickels v. State of Indiana

20S03-1206-CR-308

The Indiana Supreme Court ruled that a mother was a victim of a father who failed to pay support for his three children even years after the kids were grown.

The justices overturned the Court of Appeals, which ruled the trial court erred in holding that the custodial parent was a victim of the non-custodial parent’s nonsupport.

“We hold that the trial court was well within its discretion to find that the custodial parent was the ‘victim,’” Justice Loretta Rush wrote for the unanimous court.

Felix Sickels had been charged in 2001 with failure to support his dependent children. He had moved to Michigan and wasn’t extradited until 2010, by which time his children were emancipated adults. He was convicted in 2011, ordered to serve 10 years through community corrections and pay the mother more than $84,000 in child-support arrearage.

Rush wrote that there were sound public policy considerations for why the custodial parent should be considered a victim, not the least of which is that directing restitution to children could create concerns about enforcement of support orders.

“We do not hold that a custodial parent whose children are now emancipated is the only possible ‘victim’ under these circumstances, but that a custodial parent is entitled to a presumption that he or she has suffered an ‘injury, harm or loss’ as a direct result of the noncustodial parent’s failure to pay child support. As a result, and barring an unusual circumstance, the custodial parent will be the recipient of criminal restitution for child-support arrearage in cases where the children have been emancipated,” Rush wrote.

Indiana Court of Appeals

Feb. 20

Protective Order – Challenge/Law Enforcement Databases

In Re: The Matter of: David Woodward Cook v. Beth Ann Cook

49A04-1207-PO-370

The Indiana Court of Appeals ruled that it has no authority to remove a man’s name from the Judicial Technology and Automation Committee website and law enforcement databases after a protective order against him was dismissed. But the judges remanded for a hearing before the trial court on David Cook’s claims.

Cook’s wife obtained an ex parte order for protection from him in Marion Superior Court, Criminal Division 21 in May 2012. The matter was then transferred to Civil Division 12 at the wife’s request because that court had jurisdiction over their divorce and custody proceedings. A second protective order was issued in June without a hearing.

He filed a motion in civil court to correct error and for a hearing. He wanted the protective order removed from posting in public databases. The civil court said the matter should be addressed by criminal court since it issued the protective order; the criminal court also denied relief and transferred the matter back to the civil court.

The protective order was terminated in July 2012.

Cook alleged the electronic posting of a protective order without a hearing violated his due process rights. He said having his name publicly posted could cause severe consequences with employers and peers.

The state agreed that Cook was wrongfully deprived of a hearing and suggested that he have a hearing in civil court to seek relief. Cook, instead, wanted the Court of Appeals to directly order the removal of his name from the JTAC website and law enforcement databases.

“We are not in a position to afford Cook the immediate relief he seeks. We agree with the State that Cook was entitled to a hearing in the civil court and was, by the sequence of transfers, conflicting orders, and dismissal, denied his statutory right,” Judge L. Mark Bailey wrote. “However, if Cook wishes to assert that the Act is unconstitutional as applied to him because of its injury to his reputation and negative impact upon his employability, it is incumbent upon him to develop a factual record.”

 Juvenile – Mental Health Treatment/Constitutional Rights

In the Matter of: Am.K., A Child In Need of Services and A.M. v. Marion County Department of Child Services and Child Advocates, Inc.

49A02-1207-JC-533

A mother whose child was adjudicated as child in need of services won a partial victory before the Indiana Court of Appeals.

Mother A.M. challenged the propriety of a parental participation order entered after her daughter AM.-K. was found to be a CHINS. She claimed that because the Department of Child Services failed to file a parental participation petition, the juvenile court lacked authority to order her to participate in any services or treatment. She also claimed that the order directing her to take any medications as prescribed violates her constitutional right to decide her own mental health treatment.

A.M.’s two children were removed from her custody and alleged to be CHINS after police found the mother naked behind a hotel behaving oddly. She was involuntarily committed for emergency mental health treatment and originally was taking medicine for her bipolar disorder, but stopped because it affected her existing heart condition. The mother also testified at a hearing she objected to medication on religious grounds.

The Court of Appeals found that although DCS failed to file a formal parental participation petition as described in Indiana Code 31-34-16-3, it did file a predispositional report that included all of its recommendations for the proposed plan of care, treatment, rehabilitation and placement of A.M.-K. The other child was placed with her father. The report substantially complied with the statute. Mother specifically agreed to almost all of the recommendations as to how she should fulfill her obligation as a mother except for the requirement she take all medications as prescribed.

Regarding the order she take all medications as prescribed, the Court of Appeals ruled that additional evidence is necessary to overcome A.M.’s constitutionally protected liberty interest in remaining free of unwanted intrusions in the mind and body, Judge John Baker wrote.

“Moreover, we believe that there is an inherent problem where, as here, the parental participation order does not direct Mother to take a specifically recommended medication on the basis of a doctor’s evaluation of Mother’s mental health but requires Mother to take any and all medications without regard to her objections and the possible side effects,” he wrote.

The case is remanded for further proceedings.
__________

Feb. 22

Criminal – Public Intoxication/Retroactivity

Clematine Hollingsworth v. State of Indiana

49A02-1207-CR-617

A woman convicted of public intoxication may not receive relief from a change in the statute that took effect a day before her bench trial.

Clematine Hollingsworth was charged with misdemeanors public intoxication and disorderly conduct on May 12, 2012, after Indianapolis police responded to a complaint of women fighting at an apartment complex. She was convicted of Class B misdemeanor public intoxication at a July 2 bench trial.

On July 1, an amendment to the public intoxication statute, I.C. 7.1-5-1-3, took effect. The new law narrowed the definition of P.I. to include actions that endanger the person’s life or that of other people; breaches the peace or is an imminent danger to breach the peace; or harasses, annoys or alarms another person.

Hollingsworth argued that the statutory change was remedial and that not applying it in her case was fundamental error. The state argued the issue was never raised at her trial and the argument was therefore waived. The appeals court agreed.

“Hollingsworth had the opportunity to raise the issue of retroactivity before the trial court and failed to do so. The purpose of the contemporaneous objection rule is ‘to promote a fair trial by precluding a party from sitting idly by and appearing to assent to an offer of evidence or ruling by the court only to cry foul when the outcome goes against him,’” Judge Ezra Friedlander wrote for the court. “We decline to abandon the contemporaneous objection rule here.”

Criminal – Sentencing/Interstate Agreement

Nathan Carl Gilbert v. State of Indiana

10A05-1204-CR-220

A Kentucky inmate brought to an Indiana court for sentencing on four burglary counts to which he pleaded guilty was deprived due process when his new attorney was given only minutes to prepare, the Court of Appeals ruled.

The judges remanded the case for resentencing but declined to dismiss the charges that Nathan Gilbert argued were voided under the Interstate Agreement on Detainers’ “anti-shuffling” provision. That provision requires charges be dropped if an inmate is transported to another state but a trial isn’t held before the inmate is returned to his original place of imprisonment.

Gilbert had been scheduled for sentencing in Clark Circuit Court in February 2012 and was brought to Indiana but returned to Kentucky before his sentencing hearing.

In deciding an issue of first impression, the court cited caselaw from states including Maryland, Massachusetts, New York and Michigan, essentially ruling that a sentencing hearing was not a trial.

“We adopt the reasoning followed by a majority of state and federal jurisdictions and hold Gilbert was no longer subject to an ‘untried indictment’ because he had pled guilty,” Judge Melissa May wrote for the court. “As the only matter left for the trial court to decide was Gilbert’s sentence, the IAD’s anti-shuffling provision was not violated when Gilbert was returned to Kentucky after his guilty plea but before sentencing.”

The court did, however, find error when the court ultimately allowed Gilbert’s sentencing hearing to proceed despite the fact that his attorney was on vacation during the 48-hour window when he was transported across state lines. Another defender was called, objected to having only a few minutes to prepare, and unsuccessfully asked the court for a continuance.

“Because Gilbert’s stay in Indiana was so short, his due process rights were violated because he did not have enough time to prepare for his sentencing hearing or to properly examine his pre-sentence investigation report. Therefore, we remand to the trial court for resentencing.”
__________

Feb. 26

Civil Plenary – Divorce/Partnership Agreement

Curves for Women Angola An Indiana Partnership, Dan Cole, and Lori Cole v. Flying Cat, LLC

76A04-1206-PL-312

A couple’s failure to inform a landlord of their divorce doesn’t excuse the ex-husband from a default judgment on rent payments for a health club that his former wife continued to run.

Lori and Dan Cole ran a Curves for Women franchise in Angola and rented space from the Flying Cat LLC, beginning in 2001. They separated in 2005 and filed for divorce in 2007.

The Curves franchise owed back rent of $21,641 when Lori Cole signed an option to renew the lease in 2008. By 2010 the landlord was owed $44,647. Flying Cat sued and the Steuben Circuit Court ruled that Dan Cole was liable for amounts due and unpaid through 2010.

The Court of Appeals affirmed the judgment. The court rejected arguments that Dan Cole was no longer in partnership with his ex-wife and that he was not liable under lease extensions signed by his ex-wife in the name of the partnership through which the franchise originally leased the space.

“Even after a partnership has been dissolved, a partner may still bind the partnership by engaging in a transaction that would bind the partnership had it not been dissolved, if the other party to the transaction had known of the partnership prior to dissolution but had no knowledge or notice of the dissolution because ‘the fact of dissolution had not been advertised in a newspaper of general circulation in the place … the partnership business was regularly carried on,’” Judge Paul Mathias noted, citing I.C. § 23-4-3-35(1)(b)(II).

Criminal – Evidence/Recorded Statements to Police

Dennis Ray Smith v. State of Indiana

82A01-1204-CR-175

The Indiana Court of Appeals threw out two charges and sent a case back to the trial court after the state admitted that it did not intend to charge the defendant with four separate acts of child molestation.

Dennis Ray Smith was charged and convicted of two counts of Class A felony child molesting by sexual intercourse and two counts of Class A felony child molesting by sexual deviate conduct.

During a recorded interview with an Evansville police detective, Smith told the officer he had inappropriately touched his stepdaughter when she was 5 years old.

Smith appealed his conviction on the grounds that his recorded statement to police should not have been admitted into evidence at trial because it was obtained in violation of his Fifth Amendment rights. He also argued that two of his convictions should be vacated because they violate Indiana’s prohibition against double jeopardy.

The Court of Appeals affirmed the lower court’s ruling to admit the recorded statement into evidence during the trial. It found Smith made the statement voluntarily and did not make an unequivocal request for an attorney.

However, the COA disagreed with the state that Smith waived any claim about the recorded statement because he failed to make a contemporaneous objection at trial. The court found that while the defense counsel raising his objection during a bench conference was not typical, it was sufficient to alert the trial court that the defense was objecting and why.

Also, the COA remanded with instructions to vacate the two counts of Class A felony child molesting by sexual deviate conduct. The state conceded it did not intend to charge Smith with four separate acts of child molestation, saying it was pleading in the alternative when it charged Smith with two counts of engaging in sexual intercourse with a minor and with two courts of child molesting by sexual deviate conduct.

Criminal – Sentencing

Pedro Alvarez v. State of Indiana

09A02-1203-CR-241

A man sentenced to 40 years in prison after he sold crack cocaine to undercover agents in two separate controlled buys received an inappropriate punishment, the Court of Appeals ruled.

Pedro Alvarez was convicted of two counts of Class B felony dealing in cocaine, and a jury convicted him in absentia and sentenced him to serve consecutive 20-year terms after he was found in Mississippi.

The appellate panel ordered the sentences be served concurrently.

Judge Rudy R. Pyle III wrote that the court has held that consecutive sentences for multiple counts based on nearly identical police buys was inappropriate, citing Rios v. State, 930 N.E.2d 664 (Ind. Ct. App. 2010), and Bell v. State, 881 N.E.2d 1080 (Ind Ct. App. 2008).

Alvarez did not prevail in his appellate claim that the prosecution’s use of a jail mug shot from a prior arrest caused him undue prejudice. The court has held that when a defendant fails to appear, mug shots are of probative value for establishing identity.

“The Cass County Sheriff’s Department only possessed a photograph of Alvarez from a prior arrest and not his current case. The mug shot was redacted to remove references to the prior arrest,” Pyle wrote. “… Had Alvarez simply appeared for his trial, there would have been no reason to admit the mug shot.”

Alvarez was represented on appeal by Lisa M. Traylor-Wolff of Logansport, a former senior judge who has been charged in a disciplinary action filed by the Supreme Court.

Criminal – Evidentiary Hearing/Probation

Paul Sparks v. State of Indiana

49A02-1207-CR-593

A man whose probation was revoked without an evidentiary hearing after he walked away from an inpatient alcohol treatment program imposed by the court will receive a new hearing.

The Indiana Court of Appeals ruled that Marion Superior Judge Robert Altice denied Paul Sparks’ due process rights when the court ordered him to serve the five-year sentence for convictions of battery and invasion of privacy that had been suspended.

“An evidentiary hearing did not take place in this case,” Chief Judge Margret Robb wrote in the unanimous opinion. “While Sparks admitted to violating a term of his probation, this admission came following the trial court’s comment that it was inclined to give him four years if he accepted responsibility for his actions.

“The trial court’s comment at the outset of the hearing overlooks the fact that the probationer has a constitutional and statutory right to an evidentiary hearing in which the State proves the probation violation by a preponderance of the evidence before the trial court decides whether a condition of probation was violated,” Robb wrote. “A trial court’s failure to hold an evidentiary hearing prior to revoking probation requires reversal even if there is sufficient evidence in the record to support the revocation of the probation.”
__________

Feb. 27

Juvenile – Paternity/Putative Father Registry

In the Matter of the Paternity of G.W., J.W. v. R.M.

22A01-1205-JP-234

The Indiana Court of Appeals reversed denial of a mother’s two motions to dismiss her child’s father’s paternity actions instituted after her husband attempted to adopt the child.

Mother J.W. had G.W. while she was in a relationship with R.M. R.M. claims to be the child’s father, but he never signed G.W.’s birth certificate or paternity affidavit and didn’t register with the Putative Father Registry. He regularly saw G.W. for about eight months after the child’s birth until J.W. stopped all visitation. She married J.U. in July 2011 and he filed a petition to adopt G.W. in August 2011, to which J.W. consented.

R.M. did not receive notice of the proceedings. Just before the filing of the adoption petition, he signed a petition to establish paternity. The mother sought to dismiss R.M.’s paternity actions, which was denied.

The judges analyzed the statute establishing the state’s Putative Father Registry, Indiana Code 31-19-5-2, and ruled in favor of the mother.

“The evidence reflects that although Mother disclosed R.M.’s name to the attorney arranging the adoption of G.W. by her husband, she never divulged R.M.’s address. Because both the name and address have to be revealed to fall outside the application of the putative father registry, we find that the provisions of the registry are applicable to R.M,” Judge Patricia Riley wrote. “As R.M. acknowledges that he never registered, we must necessarily conclude that he is not entitled to the notice of the adoption proceeding, and has irrevocably and implicitly consented to the adoption of his minor child to J.U.

“Moreover, other jurisdictions have similarly concluded that a putative father who fails to register with the putative father’s registry has waived his right to notice of adoption proceedings and impliedly consents to the adoption.”

The judges also held that R.M. can’t serve as G.W.’s next of friend to establish paternity because he is barred from establishing paternity pursuant to I.C. 31-14-5-9.

 Civil Tort – Insurance/Damages

Storm Damage Specialists of America d/b/a America’s SDS Construction, Inc. v. Melissa A. Johnson and Michael B. Johnson

64A03-1209-CT-386

A claimed scrivener’s error on the Secretary of State’s website should not be held against the couple filing the lawsuit against a company, the Indiana Court of Appeals held. The error involving an incorrect address on the website was made by an employee of the company being sued more than two years before the suit was filed.

A representative of Storm Damage Specialists of America solicited Porter County couple Melissa and Michael Johnson to repair their roof for suspected hail damage. The Johnsons agreed to hire the company and their insurer sent a check for $4,224.78 to the company to perform the work. SDS never repaired the roof and refused to refund the insurance proceeds.

The Johnsons sued SDS and sent the summons to the name and Gary address listed on the Secretary of State’s website. SDS never replied or appeared in court, so the trial court granted default judgment to the Johnsons. They received $23,936.94 for compensatory damages, treble damages, prejudgment interest, costs, and reasonable attorney fees, plus statutory interest at 8 percent per annum.

After the judgment was entered, SDS filed a motion to correct error, citing lack of service and an error in the judgment amount as grounds to set aside the award. It claimed an accountant sent the wrong address to the SOS’s office two years prior to the Johnsons’ lawsuit, but never corrected the error. The Johnsons had no reason to believe the address was an error because someone signed the return receipt at the address.

“The Johnsons complied with our rules of trial procedure when they sent the complaint and summons to Storm Damage Specialists’ acknowledged registered agent at the address it provided to the Indiana Secretary of State,” Judge John Baker wrote. “In our view, the fact that the registering of that particular address is claimed to be a scrivener’s error on the part of Storm Damage Specialists’ accountant is a burden that should be born by the company.”

But the amount of damages should be reduced, the judges ruled and the Johnsons conceded, because the trial court erred in quadrupling rather than trebling the compensatory damages that were awarded. The damage award should be reduced by $4,224.78. The amount of attorney fees awarded was affirmed.
__________

 Feb. 28

Domestic Relation – Termination of Child Support

David A. Turner v. Debbie L. Turner

85A02-1208-DR-704

An amendment to Indiana Code last year lowering the age child support may be terminated to 19 trumped a previous dissolution decree that said a father must pay support for his son until he turns 21, the Indiana Court of Appeals has decided.

David Turner argued that based on the July 2012 amendment to Indiana Code 31-16-6-6, the trial court should have granted his petition to terminate child support for his 19-year-old son Cody. The amendment says the duty to support a child, which does not include support for educational needs, ceases when the child becomes 19, with some exceptions not applicable to the Turners.

When David Turner and his wife Debbie divorced in 2000, the final dissolution decree said that David Turner would pay child support for Cody until he reached the age of 21, or is married, leaves home or is emancipated. After the amendment that decreased the age for termination of child support took effect, David Turner sought to stop paying support for Cody.

Debbie Turner believed the dissolution decree entered in 2000 should remain in place. The trial court noted that the language in the decree was “boilerplate” and reflected Indiana law at the time, but denied David Turner’s petition.

“Indeed, the language used by the trial court in the decree, which tracks most of the situations that would trigger the termination of child support, makes clear that the trial court took its lead from the legislature and followed the existing law at the time of the decree regarding the duration that Father would be required to pay child support for Son,” Judge Rudy Pyle III wrote. “However, the trial court ignored the changes in the law regarding the termination of child support. The trial court’s failure to follow the law as set forth by our legislature was an abuse of discretion.

“The trial court had no discretion to go outside the law set out in the termination of child support statute and to extend Father’s duty to pay child support beyond what is required by the law.”

The judges remanded to the trial court to enter an order granting David Turner’s petition and to terminate child support effective July 1, 2012.
__________

March 4

Criminal – Ineffective Assistance of Counsel

Michael Williams, Jr. v. State of Indiana

30A01-1207-CR-305

Because the extent of prior bad acts admitted into evidence during a man’s trial in Hancock County was “breathtaking,” the Indiana Court of Appeals ordered he be retried on burglary and handgun charges.

Michael Williams Jr. was convicted of Class B felonies burglary and conspiracy to commit burglary, and Class C felony carrying a handgun without a license. Williams, along with two other men, agreed to break into the home of Gregory Peek to steal marijuana, money and guns from him. Williams was the only one who entered the home and was later taken into custody by police.

A “deluge” of Williams’ previous criminal acts was admitted into evidence without objection and used by the state to argue that Williams had a propensity to commit the crimes for which he was charged. That evidence included previous felony convictions for possession of cocaine and a firearm, an arrest for possession of marijuana and carrying a handgun without a license, and various other offenses Williams admitted to a police officer that he had committed.

Williams’ attorney never objected to the admission of this evidence, which was inadmissible under Indiana Evidence Rule 404(b), the judges held, so her performance was deficient. And Williams was prejudiced by her poor performance.

“We are not confident that without the evidence of Williams’ prior crimes and gun-related acts the result of the proceeding would have been the same. Learning of an extensive criminal history of an accused surely weighs heavily on the minds of jurors,” Judge Nancy Vaidik wrote.

She pointed out that the state also systematically elicited improper testimony and ultimately encouraged the jury to convict Williams on that basis.

The COA reversed the convictions and ruled that Williams can be retried on the three charges.•

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

ADVERTISEMENT