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Indiana Court Decisions - Nov. 25 to Dec. 10, 2013

IL Staff
December 18, 2013
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7th Circuit Court of Appeals

Dec. 3

Civil – Supplemental Security Income

Carol Bates v. Carolyn W. Colvin

12-3359

A woman who claimed disability in part because of her diminished mental health will get another chance to present her case after the 7th Circuit Court of Appeals found the administrative law judge did not properly consider the opinions and testimony regarding the woman’s mental condition.

Carol Bates applied for Supplemental Security Income following an auto accident that left her with physical and mental impairments and inhibited her ability to work. Her treating psychiatrist diagnosed Bates with bipolar type 2 disorder but noted that medication appeared to be helping.

The ALJ denied her application and the U.S. District Court for the Northern District of Indiana, Hammond Division, affirmed. The 7th Circuit reversed the decision of the District Court and remanded for rehearing.

The 7th Circuit found the ALJ was not “patently wrong” in discrediting Bates’ testimony about the extent of her chronic pain. Although the ALJ disregarded the opinions of two physicians treating Bates in favor of the opinion of the consultative doctor, this was not an error because the ALJ found discrepancies in Bates’ testimony and observed the claimant did not appear to be in pain during the hearing.

However, the ALJ did not provide any sound reasons for giving little weight to the psychiatrist’s opinion which was supported with Bates’ testimony and primary physicians.

“…in this case there was no other medical opinion for the ALJ to fall upon,” Judge Michael Kanne wrote for the court. “The state agency examining and consultative physicians did not examine Bates for psychological illness; at the time they reviewed her record, Bates had only seen a therapist briefly after the death of her fiancé. While Bates did bear the burden of producing evidence of her impairments, if the ALJ thought this evidence insufficient – as she apparently did – it was her responsibility to recognize the need for additional evaluations.”

Indiana Supreme Court

Nov. 26

Civil Tort – DCS/Tort Claims Act/Reporting

F.D., G.D., and T.D. b/n/f J.D. and M.D.; and J.D. and M.D., individually v. Indiana Dept. of Child Services, Evansville Police Dept., and Vanderburgh County Prosecutor’s Office

82S01-1301-CT-19

Claims that the Department of Child Services was negligent in its handling of child-molestation allegations were reinstated when a divided Indiana Supreme Court in a 3-2 opinion reversed in part a trial court grant of summary judgment.

The parents of three children sued DCS and other public-agency defendants after an investigation into allegations that a 12-year-old relative had molested one of their much younger children. DCS investigated and discovered the relative also had admitted to molesting another of the children and had been adjudicated delinquent – facts that the mother learned from a third party and which later were confirmed to her when she contacted the agency.

The trial court granted summary judgment to the public-agency defendants on the basis of immunity, but justices reversed as it pertained to DCS.

Chief Justice Brent Dickson wrote for a majority joined by Justices Steven David and Robert Rucker that the grant of summary judgment was appropriate under the Tort Claims Act as it pertained to the Evansville Police Department. “However, because plaintiffs’ claims against DCS do not result from the ‘initiation of a judicial or an administrative proceeding,’ DCS is not immune under Indiana Code Section 34-13-3-3(6) and summary judgment in favor of DCS is therefore improper,” he wrote.

Likewise, summary judgment is improper under the child-abuse reporting statute, I.C. 31-33-6-1.

Justices Loretta Rush and Mark Massa dissented and would have affirmed immunity in part because the claim arose from DCS’s participation in the initiation of a judicial proceeding.

“In the absence of immunity, Indiana law requires us to analyze whether the Legislature intended the violation of the Notice Statute to give rise to a negligence action. Applying that analysis, I can find no such legislative intent here. I do not condone DCS’s egregious conduct of allegedly not notifying parents of their child’s abuse, but not every breach of a statutory duty provides plaintiffs with a negligence action,” Rush wrote in dissent.

“I conclude DCS is immune from liability, and even if it weren’t, the Notice Statute would not provide plaintiffs with a private right of action,” she wrote.

Indiana Tax Court

Dec. 10

Tax – Homestead Deduction

Roderick E. Kellam v. Fountain County Assessor

49T10-1211-TA-78

The Indiana Tax Court reversed the determination that a man could not receive the homestead standard deduction on his Fountain County property because the decision is unsupported by evidence. The Indiana Board of Tax Review’s conclusion that the property was not Roderick Kellam’s principal place of residence was contrary to law.  

Kellam, pro se, appealed the final determination by the tax board denying the homestead standard deduction on the Fountain County property for the 2010 tax year. He bought the home with Carol Myers; he owned another property in Wells County and she owned one in Grant County.

Kellam received the deduction on the Fountain County property in 2010, but the following year the Fountain County treasurer issued a new tax statement that did not include the deduction. The change was based on the fact Kellam was not living there while he fixed up the property and that he had a homestead deduction on the Wells County property for 2010. He had that one removed and paid the taxes he would have owed on the Wells County home, but the deduction for the Fountain County property was still denied.

Kellam presented evidence that he paid the amount of property tax on the Wells County home for 2010 that he would have owed if not for the homestead deduction. The record also shows that Kellam used the Fountain County property as his mailing address and that address is on his driver’s license, bank statements and tax returns.

Judge Martha Wentworth found the tax board’s final determination denying the deduction on the Fountain County property to be unsupported by substantial or reliable evidence.

The case is remanded for further action.

Indiana Court of Appeals

Nov. 26

Agency Action – Worker’s Compensation Board

Sally Thompson, Widow of Dennis Thompson v. York Chrysler

93A02-1302-EX-153

The Indiana Court of Appeals ruled that the Indiana Worker’s Compensation Board’s decision to deny benefits to a man injured at work was unsupported by the evidence. The judges ordered a determination of the benefits that the man’s widow should receive on his behalf.

Dennis Thompson worked as a parts clerk at York Chrysler car dealership. He got into a verbal altercation with service technician Dan Blackford in August 2007 after Thompson told Blackford the part he needed was unavailable. Thompson, who had a pre-existing heart condition, decided to leave work. As he was leaving, Blackford and Thompson continued the verbal altercation, as the court record described it. During this incident, Thompson fell to the ground, was injured and received treatment at St. Clare Medical Center. He claimed Blackford pushed him; Blackford said Thompson came at him flailing and that he blocked Thompson’s hand, causing the fall.

Thompson filed an application for adjustment with the board in October 2007, seeking medical expenses and temporary total disability until he completed treatment at HOPE counseling services to determine his need for treatment for depression, disability and past assault at his workplace.

He died from unrelated causes in 2011, after which his widow Sally Thompson amended the claim to seek the benefits on his behalf.

The board determined Sally Thompson didn’t meet her burden to show the injuries arose out of and occurred in the course of Dennis Thompson’s employment.

“The physical interaction stemmed from and was part of the work-related verbal altercation, as evidenced by the parties’ stipulation there was only one altercation or incident. Thus, the uncontroverted evidence leads inescapably to the conclusion that this altercation occurred in the course of Dennis’s employment, and the Board’s finding to the contrary must be overturned,” Judge Melissa May wrote. “The uncontradicted evidence shows the confrontation between Dennis and Blackford stemmed from their work relationship.”

“An injury from an assault by a co-worker may be compensable under the IWCA, and the only evidence presented was that Blackford was the aggressor. Thus we must overturn the Board’s finding to the contrary,” she wrote.
__________

Nov. 27

Domestic Relation – Modification of Visitation/Support

Glenn Hatmaker v. Betty Hatmaker

49A05-1305-DR-253

The Indiana Court of Appeals has ruled that a domestic violence victim whose earnings since have increased may have to pay for supervised child-visitation services that the father is unable to afford.

The ruling reversed Marion Superior Judge David Dreyer’s denial of motions for unsupervised parenting time and modification of child support.

Glenn Hatmaker was convicted of battery against his wife, and the couple since has divorced. Neither parent was earning more than $1,200 per month at the time the father was ordered to pay $85 a week in support for the couple’s child.

The father was allowed supervised visitation but claimed he couldn’t afford to pay an agency that facilitated it. The mother testified earlier this year that she was afraid of the father, who was seeking unsupervised visitation.

The Court of Appeals held that because the mother’s income had significantly improved and the father’s had declined, his child support obligation should be reduced to about $22 a week according to guidelines. Also, the appeals court noted that the couple’s dissolution decree limiting the father to supervised visitation included no specific finding of endangerment of the child.

“(I)f unsupervised parenting time would pose a danger to a child, the parent is not entitled to dispense with supervision because of the costs associated with supervisory programs,” Judge L. Mark Bailey wrote for the panel that included Judges Cale Bradford and Melissa May.

“That said, however, our parenting-time statutes do not prohibit the trial court from exploring affordable options for low-income parents, such as grandparent, relative, or child advocate volunteer supervision. Moreover, it appears that Mother has much greater earnings than does Father and may be able to contribute to costs of supervision.”

“The order for supervised parenting time, modifiable upon agreement of the parties, is contrary to law,” the appeals panel ruled. “The trial court abused its discretion by refusing to modify Father’s child support obligation in the face of uncontroverted evidence that Mother’s income had increased substantially while Father’s income had decreased substantially.”

Domestic Relation – Child Support

Debra A. Roop v. Dean A. Buchanan

88A01-1304-DR-171

An emancipated child will be able to collect child support arrearages to pay for her custodial parent’s funeral, but she and her sibling will not be allowed to accept the remainder of the accrued support payments, ruled the Indiana Court of Appeals.

When Dean Buchanan died, his ex-wife Debra Roop owed about $9,400 in child support payments. The trial court granted the oldest child Tina Buchanan’s request that she be allowed to collect the arrearages to cover the expenses of her father’s funeral and that the rest of the money be divided between her sibling and herself.

Roop appealed, asserting the trial court abused its discretion when it ordered her to continue to make payments toward her child support arrearage even though the recipient was deceased. Because no estate has been established, the court improperly earmarked the support arrearage to pay for Dean Buchanan’s funeral expenses that had been incurred by the adult child.

The Court of Appeals concluded the trial court properly ordered Roop to pay the accrued child support obligation to cover the funeral costs.

The COA pointed out that Dean Buchanan likely could not save for his funeral because he had to use his own money to offset any deficit caused by Roop’s unpaid child support while the children were minors. Now, since Tina Buchanan has to assume the funeral costs, the Court of Appeals did not find that the lower court abused its discretion.

However, the appellate court did reverse the award of the arrearages leftover after the funeral expenses are paid to the emancipated children. It ruled in the absence of an estate, the trial court abused its discretion in allowed the siblings to receive the rest of the unpaid debt.

Miscellaneous – Medical Malpractice/Filing of Complaint

Anonymous Physician v. Diana Wininger, Stephen Robertson, Commissioner, Indiana Department of Insurance, and Douglass J. Hill, Panel Chair

59A04-1303-MI-103

A woman who suffered with a troubled toe for four years got her medical malpractice claim booted by the Indiana Court of Appeals for waiting too long to file the complaint.

The Indiana Court of Appeals reversed the denial of the doctor’s summary judgment. It found the patient’s medical malpractice complaint was barred by the two-year statute of limitations.  

To relieve Diana Wininger’s pain in her right foot, the anonymous physician shortened her second toe and corrected a deformity in March 2007. However, by July, her toe was standing up at a 45 degree angle and the foot pain continued.

When Wininger sought a second opinion in April 2009, she was told her toe was too short and she should have another operation.

Wininger filed a malpractice claim in March 2011. She argues she was within the statute of limitations because she did not know something was wrong until she consulted the second doctor.

The physician contended since Wininger knew there was a problem in October 2007, she should have filed the complaint within two years of the surgery date.

Citing Johnson v. Gupta 762 N.E.2d 1280, 1283 (Ind. Ct. App. 2002), the Court of Appeals noted a plaintiff does not need to be told malpractice has occurred to trigger the statute of limitations. Wininger continued to have pain after her surgery and knew by October 2007 she should seek another opinion.

Therefore, the COA found the statute of limitations was not tolled and Wininger’s complaint was not timely filed.

Civil Collection – Attorney Fees/Wrongful Death/IPCF

Indiana Patient’s Compensation Fund v. Judy Holcomb, Personal Representative of the Estate of Mable Louis Cochran, Deceased

49A05-1207-CC-340

A complex and complicated case regarding whether attorney fees awarded from the Indiana Patient’s Compensation Fund are capped at 15 percent led to a split in the Indiana Court of Appeals. The majority decided that the cap does not apply to the calculation of excess damages of any type from the fund.

“As attorney fees are recoverable as pecuniary damages in an adult wrongful death action, we cannot adopt the Fund’s position that the total amount of attorney fees recoverable may be only 15% of what is taken from the Fund, without regard to whether or to what extent that amount includes attorney fees on the amount recovered before the Fund is reached. Instead, the 15% limitation applies only to new monies from the fund, not monies that otherwise might be characterized as attorney fees on the amount recovered before the Fund is reached, but that is included as damages when applied to the Fund,” Judge Melissa May wrote. Judge Rudolph Pyle III joined her decision.

The issue of the amount of legal fees owed by the Patient’s Compensation Fund stems from the death of Mable Louise Cochran in 2011 allegedly caused by medical malpractice. Judy Holcomb, her personal representative, opened the estate to pursue a wrongful death claim under the Adult Wrongful Death Statute against the nursing home where Cochran resided.

The trial court awarded Holcomb’s attorneys $50,440 in attorney fees to be paid by the fund after she settled with the nursing home and sought additional money from the fund. That amount was calculated by Holcomb’s attorneys based on a $400 hourly rate and hours worked. But the IPCF claimed the amount exceeds that permitted under I.C. 34-18-18-1, which says the attorney fees may not exceed 15 percent of any recovery from the fund. The fund sought the attorney fee award cut to $17,852.98, which would be 15 percent of the $101,166.89 awarded.

“Under the facts the parties have placed before us, including an agreement regarding the Fund’s liability that purported to include no attorney fees as damages, it is impossible to reach a result that is fair to the Estate and to its counsel, yet consistent with the statutory 15% limitation. As the trial court’s award does not accurately reflect either the proper amount of attorney fees or proper allocation of money awarded from the Fund, we must reverse and remand for further proceedings consistent with this opinion,” May wrote.

The judges on the appellate panel at times were stumped during oral arguments on the issues in this case, which is reflected in Chief Judge Margret Robb’s dissent. She pointed out the majority addressed issues that weren’t before the court. All the COA should rule on is the total amount of the fund’s excess damages liability. She would affirm the trial court’s award, plus the $50,000 in attorney fees.

She wrote the probate court should determine how much Holcomb’s counsel receives from the excess damages payment, taking into account the Medical Malpractice Act’s 15 percent limitation.

“In other words, when the time comes to distribute the Fund payment – which is not now – the probate court could not approve distribution of more than $22,741.03 of the Fund’s payment to the Estate’s attorneys ($151,606.89 x .15 = $22,741.03). Any fee balance remaining due to the attorneys pursuant to the fee agreement would have to be paid out of the earlier provider payment to the Estate,” she wrote.

Civil Plenary – Commercial Transactions/Promissory Estoppel

Sterling Commercial Credit - Michigan, LLC v. Hammert’s Iron Works, Inc.

49A02-1306-PL-513

A series of verification letters from a subcontractor to a contractor provided the grounds for the doctrine of promissory estoppel from being applied to commercial transactions.

Sterling Commercial Credit – Michigan LLC, Hammert’s Iron Works Inc., and National Steel Erectors Inc. entered into a maze of contractor and subcontractor agreements to do construction work at the Veteran’s Administration Outpatient Clinic in Evansville.

As part of those agreements, Sterling purchased invoices from NSE and Hammert’s verified the validity of the invoices. Hammert’s tried to impose payment conditions on the second invoice and did not pay the third invoice.

On appeal, Sterling argued that since Hammert’s had sent verification letters, it was estopped from denying payment on the third invoice and placing payment restrictions on the second invoice.

The Indiana Court of Appeals agreed. It found that Hammert’s did make promises that it would not assert claims to reduce the value of the invoices. Also, there was detrimental reliance when Sterling believed Hammert’s verification that NSE had done the work.
__________

Dec. 5

Trust – Dismissal of Appeal

Old National Bancorp d/b/a Old National Trust Company, as Trustee of the Percy E. Goodrich Trust and the Hanover College Trust v. Hanover College

68A05-1303-TR-111

Old National Bancorp cannot appeal the termination of two trusts it served as a representative of, either in the representative capacity or in an individual capacity, the Indiana Court of Appeals held. As such, the court dismissed the appeal.

Old National was trustee of the Hanover College Trust and the Goodrich Trust when Hanover College petitioned to terminate both trusts. The trial court granted the petition in February and ordered Old National to transfer the trust assets to the college. Old National did not seek a stay of the judgment and transferred the assets. It later brought appeals in its capacity as trustee in both cases, which were consolidated.

The trial court granted Hanover College’s motion to dismiss on the ground that the bank lack standing to bring the appeal.

The COA found Union Savings & Trust Co. v. Eddingfield, 78 Ind. App. 286, 134 N.E. 497 (1922), and Simon v. Simon, 957 N.E. 2d 980 (Ind. Ct. App. 2011),  instructive in this matter.

Once the trusts terminated, the bank’s representative capacity was terminated along with any power or ability to act on behalf of the trusts, so Old National cannot maintain this appeal in its representative capacity, Senior Judge Carr Darden.

Old National argued it brought the appeal in its individual capacity, but the judges quickly dismissed the claim. The bank never moved to intervene in its individual capacity.

“Merely because Old National is aggrieved by losing the business and corresponding revenue that is involved in holding the position of trustee and administering trust assets does not automatically confer standing,” Darden wrote.
__________

Dec. 6

Post Conviction – Challenge to Evidence Underlying Conviction

Everett Sweet v. State of Indiana

35A02-1305-PC-451

A man sentenced to 18 years after pleading guilty to a methamphetamine charge may not collaterally challenge the evidence underlying his conviction through a petition for post-conviction relief, the Indiana Court of Appeals ruled.

The judges affirmed the denial of Everett Sweet’s pro se petition for post-conviction relief from his Class B felony dealing in methamphetamine conviction. He was charged after Jason Weinley found a mobile meth lab in Sweet’s backpack, which was at Weinley’s house.

Weinley was never questioned about his relationship with the Huntington Police Department, for which Sweet says he is a paid informant.

“Sweet asserts that his conviction must be reversed because, had his counsel not rendered ineffective assistance, his motion to suppress the State’s evidence would have been granted. This is, in effect, a challenge to the evidence underlying Sweet’s conviction,” Judge Edward Najam wrote. “But Sweet’s conviction is based on his own guilty plea and the factual basis underlying his plea. Accordingly, he may not challenge the evidence underlying his conviction in the post-conviction forum. And Sweet does not suggest that, independent of his counsel’s alleged ineffective assistance, his guilty plea was neither counseled nor voluntary.

“In sum, our post-conviction rules do not permit a defendant who has pleaded guilty to collaterally challenge the evidence underlying his conviction.”

Criminal – Probation Violation

Michelle Orr Carpenter v. State of Indiana

77A01-1306-CR-293

The Indiana Court of Appeals reversed the revocation of a Sullivan County woman’s probation, finding the state didn’t demonstrate that Michelle Orr Carpenter took a barbiturate while on probation.

Carpenter pleaded guilty to resisting law enforcement Oct. 4, 2012, and was placed on probation. She was prohibited from using any controlled substance without a prescription as a part of her probation terms. Five days after starting probation, she failed a drug test that showed she took phenobarbital. She did not have a prescription for that drug.

At a hearing on the probation violation, a pharmacist testified that phenobarbital can show up on a test up to three weeks after having ingested it. Carpenter said she had been prescribed the drug while an inpatient at a drug rehab center back in May, but said she never took it outside of her time at the facility.

The Court of Appeals reversed the probation revocation because there is no evidence she used the drug during the five days between her placement on probation and her drug test. Her probation officer did not give her a drug screen at the start of her probation to establish if any drugs were in her system. The state did not present any evidence of the amount or concentration of the drug it detected.

“Even when viewed most favorably to the State, the evidence here was in equipoise, and it was no more likely that Carpenter ingested phenobarbital during her probationary period than it was that she ingested it before her probationary period,” Judge Edward Najam wrote.•

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  1. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  2. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

  3. This outbreak illustrates the absurdity of the extreme positions taken by today's liberalism, specifically individualism and the modern cult of endless personal "freedom." Ebola reminds us that at some point the person's own "freedom" to do this and that comes into contact with the needs of the common good and "freedom" must be curtailed. This is not rocket science, except, today there is nonstop propaganda elevating individual preferences over the common good, so some pundits have a hard time fathoming the obvious necessity of quarantine in some situations....or even NATIONAL BORDERS...propagandists have also amazingly used this as another chance to accuse Western nations of "racism" which is preposterous and offensive. So one the one hand the idolatry of individualism has to stop and on the other hand facts people don't like that intersect with race-- remain facts nonetheless. People who respond to facts over propaganda do better in the long run. We call it Truth. Sometimes it seems hard to find.

  4. It would be hard not to feel the Kramers' anguish. But Catholic Charities, by definition, performed due diligence and held to the statutory standard of care. No good can come from punishing them for doing their duty. Should Indiana wish to change its laws regarding adoption agreements and or putative fathers, the place for that is the legislature and can only apply to future cases. We do not apply new laws to past actions, as the Kramers seem intent on doing, to no helpful end.

  5. I am saddened to hear about the loss of Zeff Weiss. He was an outstanding member of the Indianapolis legal community. My thoughts are with his family.

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