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Indiana Court Decisions - March 5-18, 2014

IL Staff
March 26, 2014
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7th Circuit Court of Appeals

March 13

Civil – Eighth Amendment/Prisoner Lawsuit

Leonard Thomas v. Keith Butts, et al.

12-2902

Finding that a District Court judge should have tried to learn why an inmate had not paid his initial filing fee on a lawsuit before the judge dismissed it for nonpayment, the 7th Circuit Court of Appeals ordered the lower court to take another look at the case.

Inmate Leonard Thomas sued prison officials and medical personnel at the Pendleton Correctional Facility, alleging they violated 42 U.S.C. Section 1983 for deliberate indifference to his epilepsy in violation of the Eighth Amendment. Judge Jane Magnus-Stinson ordered Thomas to pay an initial partial filing fee of $8.40 based on Thomas’ average monthly balance on his prisoner trust account of $43.50 and current ending balance of 2 cents.

A month after the payment deadline passed, Magnus-Stinson dismissed the case without prejudice because the fee hadn’t been paid. Thomas sent a letter to the court five weeks after the dismissal seeking to appeal it. His delay in payment was because he had no funds in his account, and his delay appealing was because he did not have access to the law library, he told the judge. Magnus-Stinson then extended his deadline to appeal, and Thomas filed his appeal.

“[B]efore dismissing Thomas’s suit, the district court should have attempted to learn why the fee had not been paid by, for example, issuing a show-cause order. Thomas asserts on appeal that he could not pay the initial fee because he simply had no funds and no income when payment was due. That may be correct: The transaction record that Thomas submitted to the district court shows that his ending account balance was only $0.02, that he received no deposits in the previous two months, and that only $1.50 had been deposited into the account during the previous three months,” the per curiam opinion states. “But the truth of his assertion that he lacked funds, and whether he can be faulted for lacking them, is for the district court to determine in the first instance.”

Indiana Supreme Court

March 6

Civil Plenary – Employment/County Board of Commissioners

Fayette County Board of Commissioners v. Howard Price

21S04-1308-PL-530

Because the decision by the Fayette County Board of Commissioners to not reappoint its county highway supervisor was a ministerial decision, the Indiana Supreme Court held it was not subject to judicial review.

Howard Price sough judicial review of the board’s decision to terminate his employment in February 2011. He served as Fayette County highway supervisor from 1991 to 2002 and again in 2006 until he was terminated. A motion by one commissioner to renew his appointment for the standard 12-month period died for lack of a second. Another commissioner made the motion to appoint a different person as interim supervisor while beginning the search for a new supervisor. That was approved on a 2-1 vote.

The trial court denied summary judgment in the matter, concluding the board’s decision to terminate Price’s continued employment was “quasi-judicial in nature” and thus subject to judicial review.

The justices relied on the four-factor test for determining whether an administrative action is judicial in nature as outlined in Lincoln v. Bd. of Comm’rs of Tippecanoe Cnty, 510 N.E.2d 716 (Ind. Ct. App. 1987), in their decision to reverse the trial court. Genuine issue of material fact exists with respect to the first two Lincoln factors: the presence of the parties upon notice and the ascertainment of facts.

“We find as a matter of law, however, that the ‘nature, quality, and purpose’ of the Board’s actions in deciding who should be the County Highway Supervisor was not ‘equivalent to a court’s adjudication of issues between opposing parties.’ The ‘nature, quality, and purpose’ of the Board’s action was not a ‘determination of issues’ nor a ‘rendition of a judgment or final order regarding the parties’ rights, duties, or liabilities,’” Chief Justice Brent Dickson wrote, referencing Lincoln. “In the absence of these two critical factors, we find as a matter of law that the Board’s employment decision regarding Price was administrative and ministerial, not quasi-judicial. It is thus not subject to judicial review.”
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March 10

Civil Tort – Med Mal/Timely Filing

Bonnie Moryl, as Surviving Spouse and Personal Representative of the Estate of Richard A. Moryl v. Carey B. Ransone, M.D., La Porte Hospital, Dawn Forney, RN, Wanda Wakeman, RN BSBA, et al.

46S04-1403-CT-149

A medical malpractice complaint was timely filed when an attorney delivered it to Federal Express a day before the statutory deadline, the Indiana Supreme Court ruled, reversing lower court orders and remanding the complaint to the trial court.

Justices reversed a grant of summary judgment in favor of defendants that was issued by a LaPorte Superior Court and affirmed by the Court of Appeals. 

In a unanimous opinion by Chief Justice Brent Dickson, justices settled an issue of first impression, holding “that the commencement of a medical malpractice action occurs when a copy of the proposed complaint is deposited for mailing by registered mail or by certain private delivery services and that the plaintiff’s complaint was timely filed in this case.”

Richard Moryl died under the defendants’ care at LaPorte Hospital on April 20, 2007, and the proposed malpractice complaint was sent via FedEx to the Indiana Department of Insurance on April 19, 2009. The department received and file stamped the complaint April 21, one day after the filing deadline, and the trial court granted summary judgment on the basis of untimely filing.

Justices analyzed conflicting statutes that until recent years were ambiguous as to whether cases were deemed filed when provided to a courier or third-party carriers other than the U.S. Postal Service. Longstanding Indiana law has provided that matters are filed when they are delivered or mailed by certified or registered mail.

“Our decision constitutes a refusal to elevate form over substance,” Dickson wrote. “We see no substantive difference between a proposed medical malpractice complaint mailed via FedEx Priority Overnight, tracking and return receipt requested, and a proposed complaint mailed via USPS registered and certified mail. And neither does the Indiana General Assembly, as evident by their adoption of Indiana Code section 1-1-7-1.”
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March 11

Criminal – Credit Time/Sentencing

State of Indiana v. Adrian Lotaki

32S01-1403-CR-151

A Department of Correction inmate serving a 17-year sentence was improperly given credit time that reduced his sentence for punching a prison worker in the face.

The Indiana Supreme Court remanded with instructions to resentence Adrian Lotaki. At sentencing on a conviction of Class D felony battery for the prison-worker assault, a judge imposed a three-year sentence but awarded 471 days of credit time for time served before the battery charge plus another 471 days of Class I credit time against the battery charge.

“This award of credit time with respect to a mandatory consecutive sentence was error, and conflicts with our precedent,” justices held in a four-page, per curiam opinion. The ruling affirms the state’s position in a motion to correct error that was denied at the trial court and Court of Appeals.

Justices noted I.C. 35-50-1-2(d)(1) requires consecutive sentences when crimes are committed by someone imprisoned for another crime. Lotaki’s credit time was calculated in conflict with the statute.

“To award credit for this time against the battery sentence rather than against the aggregate of the consecutive sentences would result in more credit to which he was entitled and would effectively enable him to serve part of the consecutive sentences concurrently,” justices reasoned.
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March 13

Criminal – Timing of Appeal

Bobby Alexander v. State of Indiana

49S04-1308-CR-534

A man’s appeal of his aggravated battery convictions should proceed to the Indiana Court of Appeals even though the issue of restitution remains unresolved, the Indiana Supreme Court ruled.

In a four-page per curiam opinion, the justices rejected the state’s claim that Bobby Alexander’s appeal should be dismissed because he appealed before the issue of restitution had been settled. The state sought around $96,000 in restitution for the medical expenses incurred by an uninsured battery victim. The trial court set the matter for a hearing to be scheduled in a “couple weeks” and then told Alexander if he wanted to appeal he had to file his notice within 30 days.

The restitution hearing was set for July 16; Alexander filed his notice of appeal July 11. The Court of Appeals dismissed the appeal as premature.

“[H]ere the trial court advised Alexander that any Notice of Appeal had to be filed within thirty days of the June 20 hearing and the trial court appointed appellate counsel a few days later. That advisement sufficiently put matters in a state of confusion about Alexander’s appeal deadline, we think, such that he is entitled to have his appeal decided on the merits now,” the opinion states.

The justices remanded the case to the Court of Appeals for consideration of the points raised in Alexander’s appellant’s brief.

Juvenile – Termination of Parental Rights

In re the Involuntary Termination of the Parent-Child Relationship of G.P., a Minor Child, and His Mother, J.A. v. Indiana Department of Child Services and Child Advocates, Inc.

49S02-1308-JT-558

Because a mother was denied her statutory right to counsel during the course of child in need of services proceedings, and those proceedings directly flowed into the action to terminate her parental rights and adopt out her child, the Indiana Supreme Court vacated the judgment terminating her parental rights.

Mother J.A. waived her right to counsel at an initial CHINS hearing and her son G.P. was found to be a CHINS. At the next CHINS review hearing, J.A. asked for counsel and the trial court found she was indigent and entitled to an attorney, but never appointed one to her case. She failed to show at additional CHINS hearings and the Department of Child Services decided to change the plan from reunification to adoption, with G.P. being adopted by his paternal grandparents, who had been caring for him during the proceedings.

J.A. was appointed an attorney for the TPR proceedings, at which time the trial court granted the adoption. The Court of Appeals affirmed.

The justices found J.A. had a right to counsel after reading the juvenile statutes – I.C. 31-32-4-1, -3 and 31-34-4-4-6, collectively.

“Reading the juvenile statutes collectively, Section 31-32-4-1 provides that parents in TPR proceedings are entitled to be represented by counsel, along with ‘[a]ny other person designated by law.’ And one such person ‘designated by law’ – designated by Section 31-34-4-6 specifically – is the indigent parent who requests a court-appointed attorney in a CHINS proceeding and is found by the trial court to be indigent. To the extent the trial court ‘may’ appoint counsel to represent a parent in another proceeding, it would be pursuant to Section 31-32-4-3. It does not have discretion in a circumstance falling under Section 31-34-4-6,” Justice Steven David wrote.

The justices rejected DCS’ claim that J.A. permanently waived her right to counsel or invited the due process violation because she did not contest the failure to appoint her an attorney at the subsequent hearings. They found it inappropriate to hold J.A. to the standards of an attorney at subsequent hearings when counsel was never actually appointed.

“And without question it was fundamentally unfair to tell J.A. she would receive appointed counsel, as she was entitled to by statute, and then not follow through with the appointment but instead continue with proceedings challenging her fitness as a parent,” the opinion states.

The CHINS action and TPR actions are “almost inextricably linked and the defectiveness of one inevitably has a destructive collateral impact on the other,” David wrote. “The undoing of the CHINS process here compels the undoing of the TPR process.”

Civil Plenary – Insurance/UMI

Howard Justice v. American Family Insurance Company

49S02-1303-PL-221

The Indiana Supreme Court held that a man can recover the remaining $25,000 available to him under his underinsured motorist policy because he did not receive the full statutory minimum of $50,000 from the tortfeasor’s insurer.

Kathleen Wagner, an underinsured motorist, collided with an Indianapolis city bus driven by Howard Justice. He received a net compensation of nearly $72,000 in workers’ compensation from IndyGo’s insurer. He also received $25,000 from Wagner’s insurer.

Since his underinsured motorist policy with American Family Mutual Insurance Co. provided coverage up to $50,000 per person, he sought the difference from his insurer. When his insurer denied the claim, he sued for the $25,000. American Family claimed Justice wasn’t entitled to recover under the policy because the nearly $72,000 he received in workers’ compensation benefits operated as a “setoff” against the $50,000 policy limit, reducing the insurer’s liability to zero. The trial court granted American Family’s motion for summary judgment.

The Supreme Court found that the language unambiguously provides for a setoff against the policy limit, not against his total damages as Justice argued. As such, the policy limit is reduced to zero when factoring in the workers’ compensation and disability benefits, Justice Mark Massa wrote.

But, the setoff provision contravenes Indiana Code 37-7-5-2, the justices held, so Justice is entitled to the remaining $25,000 available under his policy. The uninsured/underinsured motorist statute requires limits of not less than $50,000, and the statute is a mandatory, full-recovery remedial statute.

If Wagner had carried the required amount of liability insurance, Justice would have received $50,000, and the purpose of the statute is to put him in that position. Any policy provision to the contrary is unlawful and unenforceable, Massa wrote.

The justices remanded for further proceedings.

Chief Justice Brent Dickson concurred in part, but wrote that he believes the workers’ compensation setoff provision cannot apply to reduce benefits payable under the underinsured motorist policy because the policy expressly excludes coverage of injuries eligible for workers’ compensation.
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March 18

Criminal – Attempted Child Exploitation

David S. Delagrange v. State of Indiana

49S04-1304-CR-249

The Indiana Supreme Court has upheld the attempted child exploitation convictions of a man who used a camera to take pictures up females’ skirts at an Indianapolis mall.

David Delagrange wandered around Castleton Square Mall in 2010 for eight hours trying to take “upskirt” photographs of women and girls as they shopped. He would put his foot in between a person’s legs and take a picture using a camera on his shoe. The images showed the area under the skirt and between the legs of the victims but did not show any uncovered genitals. Three of the victims were 17; one was 15 years old.

He appealed his convictions of four counts of Class C felony attempted child exploitation, which a majority on the Court of Appeals reversed, reasoning that the child exploitation statute requires the child’s genitals be uncovered with the intent to satisfy sexual desires.  

Delagrange argued that because the state presented no evidence that any of the images he captured depict uncovered genitals, it failed to prove an element of the charged offense. His argument might have merit if he was charged with child exploitation, Justice Mark Massa wrote, but he was charged with attempted child exploitation.

The state had to show that he took a “substantial step” toward capturing images of uncovered genitals.

“[C]an a jury infer that someone taking ‘upskirt’ photographs of women and girls by means of a concealed shoe camera does so in the hope that some of them will not be wearing undergarments? We say yes,” Massa wrote.

“Finally, we note that Delagrange’s trial counsel repeatedly drew a parallel between the images Delagrange captured with his ersatz equipment and a famous photograph of Marilyn Monroe standing over an air vent. This analogy was unpersuasive for a lack of similarity between a photograph of a knowing and consenting adult and a video of an unknowing and unconsenting child. The former is legal; the latter is not,” he wrote.

Indiana Court of Appeals

March 6

Domestic Relation – Divorce/Property Distribution/Maintenance

In Re the Marriage of: Frank J. Ozug v. Karen S. Ozug

45A03-1307-DR-250

Citing inconsistencies and lack of information, the Indiana Court of Appeals ordered more proceedings to determine issues of spousal maintenance and distribution of the marital estate in a divorce case.

Frank and Karen Ozug agreed to binding arbitration regarding Karen Ozug’s petition for dissolution of marriage. Karen Ozug sought a deviation from the statutory presumption of an equal distribution of personal property because she had inherited nearly $195,000 from her family 10 years earlier. She tried to stash away this money, which had been in various joint accounts in both parties’ names, upon separation of the parties. She also sought spousal maintenance due to alleged health issues, but there was no credible evidence presented to support her allegations of these conditions.

Frank Ozug was ordered to pay spousal maintenance in the form of continuing health coverage for his ex-wife for one year from the date of the decree. He was ordered solely responsible for the $47,000 in credit card debt and awarded funds in several accounts and 50 percent of his pensions, except for his pension in place before marriage. Karen Ozug received funds from several other accounts as well as two of the three cars.

“We find the findings and conclusions in this case to be facially inconsistent and insufficient to support the property distribution in the present case,” Judge James Kirsch wrote. Under the spousal maintenance section, the findings say the arbitrator found no credible evidence to support Karen Ozug’s allegations, yet the health care coverage was awarded as a form of spousal maintenance. In addition, her request for a deviation of the presumptive equal division of personal property was denied without explanation, but a clarification by the arbitrator indicates the distribution of property resulted in 61 percent to Karen Ozug and 39 percent to Frank Ozug.

“We, therefore, vacate the trial court’s judgment and remand for proceedings to remedy these problems and determine the issues of spousal maintenance and distribution of the marital estate,” he wrote.

Miscellaneous – Tax Deed/Quiet Title

Vinod C. Gupta v. Henry S. Busan, Heritage Federal Credit Union

87A01-1307-MI-340

Noting that the parties and trial court did not follow the established procedures to set aside a tax deed, the Indiana Court of Appeals held that the court erred in finding a buyer’s notices sent certified mail were statutorily deficient. The notices did not request return receipt.

Vinod Gupta bought the tax certificate to a lot owned by Henry Busan that was sold at a tax sale in 2008 in Warrick County. Gupta sent notice of the sale and redemption period to Busan by certified and first class mail; he sent notice of his filing for a petition for issuance of a tax deed in the same manner.

The notices were not returned to Gupta, but Busan said he did not receive them. Busan filed an action to quiet title in 2012, claiming he just learned of the sale. He argued Gupta did not comply with the certified mail requirements. The Circuit Court treated the complaint as an action to set aside the grant of the tax deed pursuant to Trial Rule 60(B).

The trial court concluded Gupta failed to comply with the certified mail requirements and awarded summary judgment in favor of Busan.

The Court of Appeals noted that the trial court could only hear the complaint within a “reasonable time” instead of within 60 days under Trial Rule 60(B) if Busan alleged he did not receive constitutionally adequate notice.

“Because Busan did not file the motion within sixty days and did not allege inadequate notice to meet the exception, the trial court should not have entertained his motion for relief; however, Gupta did not raise this issue either at the trial court or on appeal, and we will not become an advocate for a party,” Judge Margret Robb wrote. “All of these deviations from the established process to set aside a tax deed under Trial Rule 60(B) contributed to the unique issue presented here upon appeal.”

Gupta provided certified mail receipts, postmarked by the post office as evidence of the fact he mailed the notices to Busan, which is sufficient to prove that he sent the notices by certified mail and complied with the statute. Gupta was not required to provide actual proof of tracking and delivery to show compliance, the judges held. They remanded for grant of summary judgment quieting title for Gupta.•

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  1. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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