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Indiana Court Decisions - May 29 to June 11, 2013

IL Staff
June 19, 2013
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7th Circuit Court of Appeals

May 30

Criminal – Murder/Jury Instructions

United States of America v. Daniel L. Delaney

12-2849

7th Circuit Court of Appeals Judge Richard Posner had a fellow judge on the edge of his seat waiting to see how the opinion in a murder case would be decided. The court upheld a prisoner’s conviction of first-degree murder of the prisoner’s cellmate.

Daniel Delaney strangled his cellmate after finding out he was a convicted child molester. He had been in the cell with the man for a couple weeks before he beat him and strangled him. He originally told an FBI agent that he attacked the man “after some thought,” but Delaney later testified at trial that he had been sexually abused as a child and snapped after learning his cellmate was a child molester.

Delaney argued that the jury should have found that he killed in “the heat of passion” and therefore convicted him of only voluntary manslaughter.

Posner delved into the jury instructions given in this case for first-degree murder and manslaughter, and he noted the “archaic language” in the federal statutory provisions, such as “aforethought.”

“That such terms should appear in modern statutes and jury instructions … testifies to the legal profession’s linguistic conservatism,” he wrote. “And sometimes linguistic ineptitude.”

What is said to distinguish killing in the heat of passion from murder is absence of malice. The judge instructed the jury that it should convict Delaney of voluntary manslaughter if it found he killed “intentionally but without malice and in the heat of passion.”

“This is puzzling, because ‘malice aforethought’ in the statute means intent and so what does it mean to say that a person did something intentionally but without malice?” Posner pondered.

Ultimately, Delaney’s argument that the jury should have found he acted in the heat of passion failed because there was considerable evidence of forethought, much of it from his own statements admitting his cellmate “had to” be killed and he attacked the man “after some thought.”

Posner ended the opinion suggesting that “heat of passion” shouldn’t be thought a defense, as the “defense” just puts the government to its proof.

Judge William Bauer concurred, writing, “I have to admit that this opinion had me in suspense until the last minute. I’m not sure it provides a clear trail for future prosecutions but I sign on because the result is in keeping with the evidence.”

The panel on the case also included Judge John Tinder.
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May 31

Civil – Contracts/Commercial Liability

SAMS Hotel Group, LLC v. Environs, Inc.

12-2979

The 7th Circuit Court of Appeals has ruled that a contract clause limiting liability stands because the two commercial entities that entered into the agreement were sophisticated and knowingly negotiated the terms.

SAMS Hotel Group LLC filed a diversity-jurisdiction suit against Environs Inc., an architectural firm, for breach of contract and negligence. The hotel group had contracted with Environs to build a six-story Homewood Suites hotel in Fort Wayne.

Shortly after the contract was signed in March 2007, the design and construction process began. However, just as the hotel was nearing completion, structural defects were discovered that eventually led to the structure being condemned and demolished.

SAMS estimated its loss topped $4.2 million.

The original contract the two parties entered into provided Environs a flat fee of $70,000 for its work. The contract also contained a clause limiting Environs’ liability for breach of contract to an amount not exceeding “the total lump sum fee due to negligence, errors, omissions, strict liability, breach of contact or breach of warranty.”

SAMS filed a diversity-jurisdiction suit against Environs for breach of contract and negligence. The U.S. District Court of the Southern District of Indiana held the limitation of liability clause was enforceable, which capped SAMS’s breach of contract claim at $70,000. The 7th Circuit affirmed.

SAMS argued that the limitation of liability provision in the contract was not enforceable because the provision did not refer specifically to a limit on damages for Environs’ own negligence. The provision, SAMS asserted, covered only Environs’ liability for negligence of third parties.

While Indiana courts have made specificity a requirement in indemnification and exculpatory clauses, they have not spoke clearly regarding limitation of liability clauses in sophisticated commercial contracts. SAMS argued the differences among the provisions were not significant so the specificity requirement should apply to the limitation of liability.

The Circuit Court was not persuaded. It held that the different types of clauses serve different purposes and Indiana case law does not indicate they should be analyzed alike. Moreover, while a limitation of liability clause can be harsh when it limits a party’s liability to only nominal damages, SAMS knew what it was getting into.

“…SAMS and Environs were sophisticated commercial entities that knew the risks and freely bargained for the terms of the contract, including the limitation of liability clause. SAMS did not unknowingly agree to the limitation of liability clause or assume these risks,” Judge David Hamilton wrote. “To the extent it suffered a harsh result, it cannot blame the general nature of limitation of liability clauses.”
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June 3

Criminal – Drugs/Sentence Enhancement

United States of America v. Jeffrey Weaver

12-3324

Although an Indiana man determined how much and how often his buyers received methamphetamine as well as pressured them to sell, the 7th Circuit Court of Appeals concluded his sentence should not have been enhanced because his actions were not coercive.

Jeffrey Weaver pled guilty to conspiring with two buyers to possess and distribute methamphetamine. The U.S. District Court for the Southern District of Indiana found that the way Weaver fronted his drugs merited him receiving a 3-level manager/supervisor enhancement on his sentence. Weaver was then sentenced to 235 months imprisonment, the bottom of the range calculated by the court.

Weaver appealed, arguing there was no evidence that he managed or supervised his buyers. The Circuit Court agreed, vacating the sentence and remanding for resentencing.

The 7th Circuit found that the U.S.S.G. 3B1.1 enhancement requires an exercise of control and authority. A key indicator of control that is suggestive of managerial responsibility is the ability to coerce the underlings.

Describing Weaver as providing insufficient ongoing supervision and coercive authority, the court said he simply fronted methamphetamine to his buyers. In fact, the court found Weaver was like any other business that extends credit to customers. He encouraged behavior that would protect his investment and insure payment of the debt owed to him.

The Circuit Court noted Weaver did not tell his buyers what price they had to charge, impose territorial limits on their sales or set distribution quotas. Moreover, if the buyers did not sell the drugs, they remained indebted to Weaver at $1,700 per ounce.

Weaver pushed his wares aggressively and demanded prompt payment, the court said, but his interest in a quick turnaround does not make his buyers his underlings.

“Weaver simply ‘instructed them to promptly sell’ the methamphetamine ‘so he could distribute more to them,’” Judge Joel Flaum wrote. “Trying to sell more while getting paid is what merchants – not necessarily managers and supervisors – do.”
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June 10

Criminal – Sentence/Drugs/Fleeing

United States of America v. Javier Munoz

12-3351

A defendant was unable to convince the 7th Circuit Court of Appeals that despite his decision to flee the country for five years before he was sentenced in a drug case, the government should have to stick to the terms of his original plea agreement.

Javier Munoz agreed in 2007 to plead guilty to two cocaine charges. He was released on his own recognizance by promising to appear at all court proceedings and remain in the district. But before sentencing, he fled to his native Mexico, where he remained until U.S. Marshals caught him five years later.

When he was sentenced, the District Court applied a higher base offense level than what was agreed to in the 2007 plea, reasoning Munoz lost the benefit of his plea agreement when he fled. The judge imposed a sentence of 121 months for the drug charges, with an additional 60 months for fleeing the country. This sentence was 29 months below the bottom of the advisory guideline.

Munoz argued on appeal that the government wasn’t free to repudiate the plea agreement despite his flight because the agreement didn’t contain express language permitting it to do so.

“[A] defendant breaches a plea agreement when he absconds before sentencing even if the agreement is silent on the subject,” Judge David F. Hamilton wrote. “Even in the absence of a statement in a plea agreement itself explicitly requiring the defendant to show up for sentencing, any reasonable defendant has a common-sense understanding that he must not flee the country.”

Munoz also argued that the government got all it bargained for – a guilty plea preventing Munoz from going to trial – so it was not substantially harmed by his flight.

“But it is not as though Munoz had a flat tire while driving to the scheduled sentencing and made himself available for sentencing the next day. Because Munoz spent five years on the run, the government got much less than it bargained for. Although Munoz’s eventual capture ensured that the government obtained some benefit from his guilty plea – the benefit of avoiding trial – the government also devoted resources to finding, arresting, and extraditing him, and it faced the possibility that he would never be punished for his crimes,” Hamilton wrote.
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June 11

Civil – Evidence/Integration Clause

Judson Atkinson Candies, Incorporated v. Kenray Associates, Incorporated, Charles A. McGee and Kenneth J. McGee

12-1035, 12-1036

The 7th Circuit Court of Appeals held that in the absence of a factual inquiry, the mere presence of an integration clause doesn’t preclude a party from introducing parol evidence that it was fraudulently induced to enter into the agreement as a whole. The decision came in a dispute involving a settlement agreement.

Judson Atkinson Candies Inc. and Kenray Associates Inc. settled two lawsuits through an agreement that required Kenray to pursue its insurer for coverage of Atkinson’s claims that Kenray failed to satisfy certain technology agreements and representations. But after Kenray’s insurer Hoosier Insurance Co. won judgments that it did not have to provide coverage for Atkinson’s claims, Atkinson alleged that it had been fraudulently induced to enter into the agreement by relying on oral representations made by Kenray that its insurer would cover the claims when in fact it already knew it would not.

As part of the settlement, the parties entered into a covenant not to execute, which contained language the District Court concluded was an integration clause: “The parties agree this agreement represents the parties’ sole agreement.”

Magistrate Judge William G. Hussmann Jr. held that because the covenant contained an unambiguous integration clause, parol evidence could not be considered to vary the terms of the agreement. But if Atkinson could show there was fraud in the inducement specific to the integration clause, then it may still be able to circumvent the parol evidence rule and prevail on its claim.  

“The question before us then lies at the intersection of … two legal principles. To wit, where a party to a contract alleges fraudulent inducement and the contract in question has a valid integration clause, must the party demonstrate that it was fraudulently induced to agree to the integration clause itself before it can rely upon prior representations to vitiate the contract, or is it sufficient for a party to show that it was fraudulently induced to enter into the contract as a whole? Relying upon Circle Centre(Dev. Co. v. Y/G Ind., L.P., 762 N.E.2d 176, 179 (Ind. Ct. App. 2002), the district court found that, before Atkinson could invoke any parol evidence, it had to show that it had been fraudulently induced to agree to the integration clause itself. Because we believe that this is too narrow a reading of Indiana law, we reverse,” wrote Judge John Z. Lee, of the Northern District of Illinois, sitting by designation.

“The imposition of an inflexible rule that would require a party claiming fraudulent inducement to demonstrate that he or she was fraudulently induced to agree to the integration clause itself would unreasonably restrict the trial court’s ability to conduct the factual analysis that the Indiana Supreme Court requires,” he continued.

The Circuit Court ruled that by invoking a categorical rule without conducting a case-by-case analysis, the magistrate judge’s decision is inconsistent with the Indiana Supreme Court’s pronouncements in Franklin v. White, 493 N.E.2d 161, 166 (Ind. 1986) and the Indiana Court of Appeals decisions of Prall v. Ind. Nat’l Bank, 627 N.E.2d 1374, 1378 (Ind. Ct. App. 1994), and its progeny.  The case goes back to the District Court for further proceedings.

Civil – Police Search/Seizure

United States of America v. $196,969.00 United States Currency; Rodney Johnson

12-3414

The 7th Circuit Court of Appeals sent a man’s claim contesting forfeiture of nearly $200,000 found in his home during a police search back to the District Court for reconsideration. The judges ruled that the ground for dismissal given by the judge, as well as the alternative ground argued by the government, were “unsound.”

The state turned over the money found in Rodney Johnson’s home to the federal government for forfeiture proceedings. The money would then be split between the state and federal government if the proceedings were successful.

The Justice Department filed the forfeiture suit, alleging the cash found was the proceeds of illegal drug activity and therefore subject to forfeiture. Johnson filed a claim contesting the matter, which said “as a legal occupant of the house I have rights of ownership to all items found within the house.”

District Judge Jane E. Magnus-Stinson ruled that Johnson’s claim did not comply fully with the requirements of Rule G(5)(a)(i): the claim must be signed under penalty of perjury; served on the government; and identify the specific property claimed, the claimant, and state his or her interest in the property. Magnus-Stinson relied on an unpublished District Court opinion out of Maryland that included additional requirements a claimant must state, none of which Johnson did, so she dismissed the claim. She did not address the issue of Article III standing.

“The government was free to respond with evidence that Johnson had no rights in the money but it could not simply demand that he prove, beyond the claim itself if compliant with Rule G(5), that he had standing – especially that he ‘prove’ Article III standing,” Judge Richard Posner wrote. “Imagine what it would do to federal litigation to require every plaintiff (or claimant in a forfeiture suit, who is like a plaintiff) not only to allege, but to prove, facts establishing the district court’s constitutional authority to decide his case. That is not required.”

He pointed out that Magnus-Stinson could have dismissed the claim before the government objected to it because it was either frivolous or obscure. This was Johnson’s second try at filing the claim, and it will be up to the District Court as to whether to give him a third try.

Civil – Termination of Employment/Pregnancy

Jennifer Hitchcock v. Angel Corps, Inc.

12-3515

The 7th Circuit Court of Appeals reversed summary judgment in favor of a company on a fired employee’s claim that her employment was terminated because she was pregnant, finding the company’s explanations for her firing were shifting, inconsistent, and/or facially implausible.

Jennifer Hitchcock worked as a client services supervisor for Angel Corps, a non-medical home care agency that performs personal care services for clients. After her supervisor learned Hitchcock was three months pregnant, the supervisor asked if Hitchcock would be “quitting.” She also increased Hitchcock’s workload to include tasks that were normally performed by someone else.

Several weeks later, Hitchcock went to a home of a new client to do an assessment. This appointment had to be rescheduled because Hitchcock was ill on the original date a few days earlier. Hitchcock got an uneasy feeling from the son regarding his 100-year-old mother and when she saw the woman, thought she may be sick or dead. Hitchcock left and told her supervisor, who then called adult protection services, who then instructed them to call emergency personnel. The woman had been dead for several days.

Angel Corps fired her nearly a month later. Reasons given for the termination included that she performed a full admission on an expired client, although she did this at the request of the supervisor; that Hitchcock compromised the health and safety of the client; and she performed a deficient assessment on the potential client, but there was no explanation how the assessment was deficient.  

Hitchcock sued alleging violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. Magistrate Judge Roger B. Cosbey granted summary judgment to Angel Corps.

Judge Ann Claire Williams pointed to the four potentially different explanations given for Hitchcock’s firing and how their inconsistency or suspicion create a reasonable inference that they do not reflect the real reason for Hitchcock’s firing.

“Angel Corps’s brief attempts to make sense out of these disparate explanations, but it does so by piling on additional ever-evolving justifications that may cause a reasonable juror to wonder whether Angel Corps can ever get its story straight,” she wrote.

The judges also noted that Hitchcock’s supervisor gave her more work to perform after learning she was pregnant and asked if she was “quitting.” An affidavit from a former co-worker who was pregnant while at Angel Corps said that the supervisor suggested that employee get an abortion when learning she was pregnant.

“In sum, we find that the evidence provides a sufficient basis for a rational jury to conclude that Hitchcock was fired because she was pregnant. Naturally, Angel Corps disputes several of the critical factual assertions made by Hitchcock. We leave it to the jury to decide whom to believe,” Williams wrote.

Indiana Supreme Court

May 31

Criminal – Right to Counsel

Brian Scott Hartman v. State of Indiana

68S01-1305-CR-395

Incriminating statements made to detectives during an early morning interrogation in the county jail have been thrown out by the Indiana Supreme Court because the defendant had invoked his right to counsel at an interrogation two days before.

Brian Scott Hartman had been taken into custody on burglary charges. After detectives read Hartman his Miranda rights, he requested to speak with an attorney. The following afternoon, detectives executed two search warrants at a residence and discovered the body of the defendant’s father.

At 1 a.m. the next day, Hartman was brought to the jail’s intake area where he was read the search warrants. After Hartman indicated he wanted to speak with the detectives and was re-read his Miranda rights, he essentially confessed to his role in his father’s death.

During the trial, Hartman moved to have his confession suppressed on the grounds that the statements were obtained after he had invoked his right to remain silent and consult an attorney.

The trial court denied the motion, concluding Hartman was not coerced but rather voluntarily chose to initiate the conversation with detectives.

The Supreme Court reversed and remanded for further proceedings.

Although the Indiana justices cited Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010), where the U.S. Supreme Court refused to extend Miranda protections, they noted the circumstances surrounding those cases were different from Hartman’s.

In Shatzer, the suspect had been released from custody and likely had been able to seek advice from an attorney, family members or friends. Moreover he knew from earlier experience the he could stop the interrogation by demanding counsel.

“Here, despite the defendant’s request for counsel, he had not been provided the opportunity to consult with an attorney prior to the police approaching him to read the search warrants,” Chief Justice Brent Dickson wrote. “Nor had he consulted with family members or friends, nor been released from custody. Further, there is nothing in the record showing his knowledge from his earlier experience that a demand for counsel would bring dealings with the police to a halt. In fact, the defendant’s experience two days earlier, when his request for counsel was unproductive, could well have led him to the opposite conclusion – that a request for counsel would not be honored prior to further police dealings. This has the likely effect of increasing coercive pressure on the defendant.”

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June 4

Civil Tort – Personal Injury/Auto Accident

City of Indianapolis v. Rachael Buschman

49S02-1210-CT-598

Even though a woman originally stated she did not suffer any injuries after her vehicle was rear ended by a police car, the Indiana Supreme Court has ruled she can file a subsequent complaint against the municipality and the police department for personal injuries.

The Supreme Court examined the amended statute pertaining to the Indiana Tort Claims Act and concluded the Legislature intentionally removed any requirement pertaining to specifying personal injuries. It affirmed the trial court’s grant of summary judgment in Buschman’s favor and remanded for further proceedings.

“It may well be true, as the City argues, that ‘public and legislative policy support requiring notice to political subdivision of the nature of the injury to allow them to investigate and prepare defenses,’ …and that Buschman could have amended her claim once she discovered her injuries,” Justice Mark Massa wrote. “The statute, however, requires neither notice ‘of the nature of the injury’ nor an amended notice. If the legislature wishes to impose either or both of these requirements, it is free to do so. We, however, are not.”

Rachael Buschman was hit by an Indianapolis Metropolitan Police Department officer in July 2008. In submitting a tort claim notice to the city of Indianapolis, she included a statement that she had not sustained any injuries as a result of the automobile accident.

However, in July 2010, Buschman and her husband filed a complaint against the city and IMPD alleging she had suffered personal injuries because of the officer’s negligence.

The trial court granted the Buschmans’ motion for summary judgment.

On appeal, the city argued Buschman’s original tort claim did not comply with the requirement of the ITCA because it noted she has suffered no injuries.

The Indiana Court of Appeals agreed and reversed the trial court.

However, the Supreme Court found Buschman complied with the requirements outlined in Collier V. Prater, 544 N.E.2nd 497, 498 (Ind. 1989): The notice was filed timely, it informed the city that she intended to pursue a claim and it contained details about the accident.

“Although the notice also stated ‘No injuries,’ we note the statute no longer requires any statement regarding injuries, and we do not believe the General Assembly intended to penalize claimants for including information – even information that is ultimately found to be inaccurate – beyond what the statute requires,” Massa wrote.

Indiana Court of Appeals

May 29

Domestic Relation – Child Support/Attorney Fees

Jill Finfrock a/k/a Jill Bastone v. Mark Finfrock

64A05-1209-DR-489

A woman does not have to pay the attorney fees for her ex-husband after she sought more than $135,000 in owed child support after he failed to pay for 16 years, the Indiana Court of Appeals ruled. The trial court ordered her to pay the fees under the Fair Debt Collection Practices Act.

Jill and Mark Finfrock divorced in Porter County in 1994. Mark Finfrock only paid child support for about seven months after the divorce because he lost his job.

Jill Finfrock didn’t attempt to collect on the owed support until 2011, when she used National Child Support, a child support-collection firm based in Ohio. By that time, the children were emancipated.

The exes agreed in December 2011 that Mark Finfrock owed $135,856.74, which was reduced to judgment. He would pay $280 each week to his ex-wife through an income withholding order.

Mark Finfrock has not missed a payment since, but Jill Finfrock sought a qualified domestic relations order to be attached to his 403(b) retirement account. The trial court initially signed the order, but later rejected Jill Finfrock’s request and ordered her to pay $1,645 in attorney fees to her ex-husband.

The attorney fee order was an error because the award was based on perceived violations of the FDCPA, the Court of Appeals decided.

“It is clear that an attorney who regularly engages in consumer debt collection activity, even when that activity consists of litigation, is a ‘debt collector’ as defined by the FDCPA,” Judge Paul Mathias wrote. “However, Mother appears to be correct that the FDCPA is not applicable to ‘debt’ that is the result of a child support arrearage, even if that arrearage has been reduced to a judgment.”

The judges affirmed the refusal by the trial court to issue a qualified domestic relations order attaching to Mark Finfrock’s retirement account. The parties agreed he would pay nearly half of his weekly income to erase the arrearage. In addition, it’s up to the discretion of the trial court whether his pension plan may be attached or garnished to satisfy the support arrearage.

The COA did not address Jill Finfrock’s claim on appeal that the court erred in ordering her ex-husband to pay his weekly payment to the Indiana State Central Collections Unit instead of National Child Support.

“The trial court did not actually alter Father’s income withholding order to direct that the payments go to INSCCU, and we need not consider whether the trial court erred in opining that Father’s income withholding order should be altered to comply with new federal rules,” Mathias wrote in remanding for further proceedings.
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May 30

Miscellaneous – Tax Sales/Redemption Payment

Joshua Lindsey v. Adam Neher

08A04-1211-MI-575

The Indiana Court of Appeals found a Carroll County man should be allowed to make a redemption payment to obtain five parcels of real estate owned by his mother that were put in a tax sale. The failure to comply with the statutes governing tax sales and redemption rendered void a tax deed on the properties assigned to someone else.

The land owned by Joshua Lindsey’s mother, who is deceased, was delinquent on taxes, so it was put in a tax sale on April 9, 2012. Lindsey had lived on the property for more than 40 years. The tax sale certificate was assigned to Adam Neher. Notices published in the local newspaper said the tax sale occurred April 11, as did a redemption notice addressed to Lindsey’s mother.

When Lindsey went to the auditor’s office to request a redemption amount on Aug. 9, 2012, he was told that the redemption period had expired one day earlier and he couldn’t make a payment. He challenged the issuance of the tax deed, which the trial court had ordered be issued to Neher on Oct. 11, 2012.

The COA agreed with Lindsey that the tax deed is void due to insufficient notice and that he was deprived of his constitutional right to due process. The actual and constructive post-sale notices failed to accurately reflect that the tax sale took place April 9, Judge L. Mark Bailey wrote, and so Lindsey wasn’t given a proper date upon which to calculate the redemption period.

The judges rejected Neher’s argument that because the notice was issued, the inaccuracy of the tax sale date is inconsequential and the redemption date must be mathematically calculated without regard to the content of the notices.

“If we held as Neher suggests – that so long as notices are issued and received, the statutory period runs without regard to the content of published notices or communications between parties – that holding could invite fraud in future cases. A party may not draft, publish, and mail erroneous information, making no correction before the lapse of a statutory period, and then benefit from the dissemination of falsity,” he wrote.

The judges ordered the Carroll County auditor to accept Lindsey’s redemption payment.
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May 31

Civil Tort – Wrongful Death/Estate

Linda Huffman, Individually and as Personal Rep. of the Estate of Jerry Huffman, Deceased v. Dexter Axle Company & Evans Equipment Co.

85A02-1207-CT-586

A trial court erred in granting summary judgment for an axle manufacturer sued by the estate of a contract truck driver who died when a load fell on him in an accident that occurred while the facility was closed.

The Indiana Court of Appeals held that Dexter Axle Company owed a duty of reasonable care to Jerry Huffman as a business visitor who had permission to pick up loads even when the company was closed and no employees were present.

“As a matter of law, Dexter owed a duty to Huffman on the day of the accident. Genuine issues of material fact exist as to the remaining elements of Linda’s claim. We reverse and remand this case to the trial court for further proceedings,” Judge Rudy Pyle III wrote in an opinion joined by Chief Judge Margaret Robb. The case was sent back to the trial court.

Judge Melissa May concurred in result but split with Pyle and Robb on their finding that the evidence demonstrates a genuine issue of material fact regarding breach of duty due to violation of OSHA regulations that may have led to the accident.

“I agree we should reverse summary judgment for Dexter for the reasons the majority states: Dexter owed Huffman, its invitee, a duty and there are fact issues as to breach and proximate cause,” May wrote in the concurring opinion. “However, I believe it is unnecessary, and therefore inappropriate, to address OSHA regulations, DOT regulations, the interpretation and application of those regulations, preemption, and congressional intent in this relatively straightforward premises liability case.”

Criminal – Drugs/Double Jeopardy

Kevin Speer v. State of Indiana

79A02-1209-CR-748

A man found guilty of multiple drug charges will have one conviction vacated because he was subjected to double jeopardy, the Court of Appeals ruled.

Kevin Speer was sentenced to more than 33 years in prison for his conviction of Class B felony conspiracy to manufacture methamphetamine and manufacturing meth; Class D felony charges of possession of meth and possession of precursors and maintaining a common nuisance; and Class A misdemeanor possession of paraphernalia.

The panel found there was sufficient evidence that Speer committed the crimes for which he was convicted and that searches that turned up evidence didn’t violate his Fourth Amendment protections. The Tippecanoe Superior Court didn’t abuse its discretion in denying Speer’s mistrial request and didn’t impose an inappropriate sentence, the COA found.

But the court ruled that because the state mentioned Speer possessed an ammonium mixture containing two precursors for making meth in its arguments for conviction on the possession of precursors and manufacturing meth counts, “there is a reasonable probability that jury used those pieces of evidence to establish the essential elements of both crimes, violating double jeopardy,” Judge Melissa May wrote.

“We therefore vacate his conviction of and sentence for Class D felony possession of two or more precursors used to manufacture methamphetamine, and remand to the trial court for revision of the Abstract of Judgment to reflect this holding.”
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June 3

Criminal – Partial Consecutive Sentences

Bryant E. Wilson v. State of Indiana

27A02-1212-CR-1012

A Court of Appeals opinion further deepened a divide on whether judges may impose partially consecutive sentences.

The court in a 2-1 decision affirmed denial of Bryant E. Wilson’s motion to correct erroneous sentence for his conviction in 1996 of Class A felony charges of rape and criminal deviate conduct, and Class B felony robbery. Wilson was sentenced to an aggregate executed prison term of 50 years – concurrent 45-year terms for the Class A felony, and 20 years for the robbery conviction, with five years of that sentence served consecutive to the 45-year terms.

“Simply put, Wilson’s sentencing judgment is not erroneous on its face, and therefore the trial court did not err in denying his motion to correct erroneous sentence. Consequently, we affirm,” Judge Terry Crone wrote in an opinion joined by Judge Ezra Friedlander.

Chief Judge Margret Robb found differently and would have reversed the Grant Superior Court’s denial of motion to correct error. “Because the sentence in question was not explicitly permitted by statute, I believe it was therefore erroneous,” Robb concluded.

“Because I believe that courts are limited to imposing sentences that are authorized by statute, rather than only being limited to sentences that are not prohibited by statute, I respectfully dissent.”

Wilson argued in his pro se appeal that the trial court “lacked statutory authority in holding a part of his sentence in abeyance.”

“Wilson cites no statute that expressly prohibits partially consecutive sentences, and in fact there is currently a difference of opinion on this Court regarding whether such sentences are permissible,” Crone wrote. “Compare Hull v. State, 799 N.E.2d 1178, 1182 and n.1 (Ind. Ct. App. 2003) (disapproving of partially consecutive sentences for two counts of murder), with Merida v. State, 977 N.E.2d 406, 409-10 (Ind. Ct. App. 2012) (disagreeing with Hull’s rationale and noting that Ind. Code § 35-50-1-2 ‘does not specifically prohibit partially consecutive sentences such as the one imposed in Hull.’) (Crone, J., dissenting), trans. granted (2013).

“We note that Hull was decided more than seven years after Wilson was sentenced in 1996, and thus there was no legal authority in 1996 that expressly disapproved of partially consecutive sentences,” Crone wrote.
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June 4

Criminal – Child Molestation/Sentence

Cesar Chavez v. State of Indiana

49A02-1211-CR-892

A man convicted of five counts of molesting an 8-year-old girl on repeated occasions should only have been convicted of two counts, the Indiana Court of Appeals ruled.

A jury in Marion Superior Court convicted Cesar Chavez of five counts of Class A felony child molestation after hearing evidence that he inappropriately kissed and touched a child his wife was babysitting. He was sentenced to serve an aggregate four years in prison.

“We hold that the State’s five counts for child molesting were in violation of the continuing crime doctrine. Applying that doctrine to the facts in this case, we hold that Chavez committed two chargeable crimes, not five,” Judge Ezra Friedlander wrote for the court.

“Accordingly, we affirm in part, reverse in part, and remand with instructions that the trial court vacate Chavez’s convictions under Counts II, III, and V.”

Chavez also argued that identically worded charging information for each of the five counts violated due process. Friedlander wrote that because the argument rests on double jeopardy, the issue was addressed under his continuing crime claim. The court also found, however, that Chavez had not preserved his objection to the charging information.
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June 5

Criminal – Restitution/Plea Agreement

Jesus S. Gil v. State of Indiana

24A04-1211-CR-603

The Indiana Court of Appeals upheld a Franklin Circuit judge’s decision to require a defendant to pay restitution and a fine after he entered into an open plea agreement on a burglary charge. But the judges instructed trial courts to consider apportioning the amount of restitution among co-perpetrators in relation to each person’s contribution to the victim’s loss.

Jesus Gil pleaded guilty in August 2012 to one count of Class B felony burglary pursuant to an unwritten plea agreement. In return, a second count of felony burglary was dismissed. The charges stemmed from his involvement in a home invasion in which jewelry and other items were taken in December 2010. Gil was sentenced by Franklin Circuit Judge J. Steven Cox to 12 years in the Department of Correction with two years suspended to probation. He was ordered to pay a $250 fine and the victims $20,000 in restitution, jointly and severally with the three other perpetrators.

Gil challenged the imposition of the fine and restitution order, the probation terms and his sentence.  

The appellate judges affirmed Cox’s order that Gil must pay the fine and restitution because the open plea agreement left sentencing up to Cox’s discretion, but the COA did order a new hearing on the restitution. There wasn’t sufficient evidence that the victim suffered a loss of $20,000.

At the new hearing, Cox should consider whether imposing joint and several liability for the full amount of the restitution order is constitutionally proportionate under Article I, Section 16 of the Indiana Constitution to the nature of the offense committed by Gil when he only caused a portion of the damages and in relation to the sentences entered against the other co-defendants. The COA pointed out that all sentencing courts should consider these circumstances.

The trial court also abused its discretion by not specifying the conditions of Gil’s probation. The trial court failed to provide him a written statement of probation terms and, although the judge did orally indicate that no contact with the victim was a term of the probation, Gil never acknowledged he understood this as a term of his probation, Judge Paul Mathias wrote. The judges ordered Cox to enter written probation terms.

They also affirmed Gil’s sentence as appropriate given the nature of the offense and his character.
__________

June 7

Civil Plenary – Purchase Agreement

Gayle Fischer v. Michael and Noel Heymann

49A02-1204-PL-340

By a vote of 2-1, the Indiana Court of Appeals reduced nearly $94,000 in damages to just $117 after finding the seller of a condo failed to mitigate her damages after the buyers backed out of the sale over repairs. Judge Cale Bradford believed seller Gayle Fischer was entitled to the original damages award.

Michael and Noel Heymann entered into a purchase agreement to buy an Indianapolis condo from Fischer for $315,000. An inspection of the property revealed several outlets did not have power and a light did not work properly. The Heymanns believed this constituted a “major defect” as defined in their agreement that allowed them to demand Fischer to fix the issues or walk away from the deal.

The Heymanns informed Fischer of the problems Feb. 10, 2006. She asked for an extension to agree to fix the issues, but the Heymanns on Feb. 15 said she had only until Feb. 18 to respond. Fischer never responded, so the Heymanns sought to buy another condo. Fischer’s electrician did resolve the issues, which cost $117 to fix.

This case has already gone before the Court of Appeals once, and the judges found the Heymanns attempted termination of the purchase agreement was ineffective and that Fischer was owed damages. In this appeal, the issue is when Fischer failed to mitigate her damages. The Heymanns claimed that she is only entitled to the $117; Fischer wants actual and consequential damages of more than $286,000.

Judges Edward Najam and Ezra Friedlander held that the trial court findings don’t support the original $94,000 award. The evidence shows that after the Heymanns breached the purchase agreement, Fischer could have easily mitigated her damages by indicating she would make the minor electrical repairs. They ruled that whatever additional damages she may have incurred through 2007 or 2011 were caused by her own failure to mitigate in 2006. They ordered that she receive just $117, plus attorney fees commensurate with her recovery and costs.

Judge Cale Bradford believed that had Fischer assented to the inspection report response, she would have been required to make the minor repairs, but that would have been in performance of the purchase agreement, not in mitigation of damages. The contract didn’t require her to fix minor defects in the home. Instead, she failed to mitigate her damages in February 2007 when she did not accept a $240,000 offer on the condo from another buyer.

As such, she would be entitled to the nearly $94,000, which includes $75,000 in damages, more than $15,000 in carrying costs and nearly $4,000 in attorney fees, Bradford concluded.
__________

June 10

Civil Plenary – Fraud/Rental Property

Flaherty & Collins, Inc. v. BBR-Vision I, L.P., and New Castle Realty, LLC

49A05-1111-PL-569

Because there are genuine issues of material fact regarding claims made against apartment management company Flaherty & Collins in a complaint alleging fraud and other charges dealing with renting apartments to people who did not qualify based on income requirements, the Indiana Court of Appeals ordered more proceedings.

F&C entered into a management agreement with BBR-Vision I to manage Autumn Oaks in New Castle as an independent contractor. BBR owns the complex, in which a majority of the apartments are designated as low-income units, qualifying them for tax credits under Section 42 of the Internal Revenue Code. New Castle Realty and BBR had a partnership agreement.

F&C hired several on-site employees, including a manager, and F&C was required to obtain income certifications and verify them before renting to someone. In September 2001, F&C discovered that a previous onsite manager may have forged a resident’s income documents from his employer to make him eligible to live in the low-income apartment. Other instances were discovered of people in apartments they did not financially qualify to live in. BBR was informed in November of the issues, which were a concern because BBR and its members could lose tax credits if the IRS conducted an audit and demanded a recapture.

In January 2002, BBR fired F&C as manager. In April of that year, BBR and NCR sued F&C alleging breach of contract, negligent supervision, indemnity, fraud and civil recovery of treble damages by a crime victim pursuant to the Crime Victims Statute.

On interlocutory appeal, F&C appealed the trial court’s ruling that evidence shows F&C’s conduct violated the Crime Victims Statute, that NCR had standing to assert its claim as a third-party beneficiary, and that the indemnity clause in the management agreement between F&C and BBR required F&C to pay BBR’s and NCR’s attorney fees.

The COA reversed the trial court’s interpretation that Section 12(a) of the agreement requires F&C to pay attorney fees for first-party actions. The language of that section doesn’t create an exception to the general rule that an indemnity clause creates liability to pay only for third-party actions, Senior Judge Carr Darden wrote.

The appeals court also found the trial court erred in making findings that effectively granted summary judgment to BBR and NCR on the issue of whether they could recover damages under the Crime Victims Statute because there is a genuine issue of material fact as to whether the F&C’s employee’s action or BBR and NCR’s inaction cause any pecuniary loss to the companies. It also reversed what was effectively summary judgment on the issue of whether F&C committed deception.

The judges affirmed the decision that NCR had standing in this action. The partnership agreement between NCR and BBR and management agreement between F&C and BBR establish that the parties clearly intended to benefit NCR and that the duty imposed on F&C was in favor of NCR. NCR’s receipt of money and tax benefits depended on F&C’s performance of its responsibilities under the partnership and management agreements, Darden wrote.•

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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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