The Indiana Supreme Court will weigh in on whether communications during mediation can be used as extrinsic evidence.

The justices took Dennis Jack Horner v. Marcia (Horner) Carter, 34S02-1210-DR-582, in which the Indiana Court of Appeals held that the trial court erred in excluding Dennis Horner’s offer of evidence of communications during a settlement agreement following his divorce to establish a mistake occurred in drafting the agreement. The appellate court found the error was harmless.

Indiana courts hadn’t addressed whether extrinsic evidence can be communications that happened during mediation. The COA found the settlement agreement was ambiguous, and not allowing this evidence was a harmless error because Dennis Horner did testify to communications that happened during mediation and his statements fall short of establishing any mistake that may entitle him to relief.

The justices also took the appeal of the not-for-publication decision in Brad W. Passwater v. State of Indiana, 48S05-1210-PC-583. Convicted murderer Brad Passwater sought post-conviction relief, which was denied. He argued that his trial attorney was ineffective, but the Court of Appeals affirmed.

The high court declined to take 27 other cases for the week ending Oct. 12.