Indiana Court Decisions – May 7-19, 2020

Indiana Supreme Court

May 19

Criminal — Arson/Insanity

Jesse L. Payne v. State of Indiana

20S-CR-313

A man who confessed to burning down two Indiana covered bridges has had his guilty but mentally ill verdict reversed by a divided Indiana Supreme Court. The 3-2 majority cited unanimous expert opinion that the defendant is legally insane in overturning a jury’s conclusion.

In 2005, Jesse Payne was charged with two counts of arson after he was accused of burning down two historic Parke County covered bridges, as well as attempted arson of a third bridge. Those charges were supplemented with a habitual-offender enhancement, and a trial court later found Payne incompetent to stand trial until 2016.

At his jury trial two years later, Payne asserted the insanity defense and three court-appointed mental-health experts unanimously concluded that he suffered from paranoid schizophrenia and delusional disorder that left him unable to distinguish right from wrong.

Despite the expert unanimity, a jury rejected the insanity defense and found Payne guilty but mentally ill on all counts, sentencing him to an aggregate 90 years in the Department of Correction. A panel of the Indiana Court of Appeals affirmed, holding that the demeanor evidence of Payne’s deliberate, premeditated conduct was sufficient to support the jury’s conclusion that he was legally sane at the time of the crimes.

But justices of the Indiana Supreme Court split on the issue, with the majority finding that the guilty but mentally ill finding conflicted with the holding in Barcroft v. State, 111 N.E.3d 997, 1002 (Ind. 2018), effectively creating an “impossible standard of review.”

Writing for the majority, Justice Christopher Goff first noted that absent conflict in expert opinion, Payne’s long and well-documented history of mental illness clearly supports a finding of insanity and that the unanimous expert opinion laid a solid foundation for establishing Payne’s insanity.

“And the lack of ‘flaws’ or ‘inconsistencies’ in this expert opinion lends strong support to this conclusion,” Goff wrote, joined by Chief Justice Loretta Rush and Justice Steven David.

Next, the majority found that Payne’s well-documented history of mental illness deprives any relevant demeanor evidence of its probative value.

“Unlike Barcroft’s sparse medical record, Payne’s long history of mental illness is consistent and thoroughly documented. Payne first received mental-health treatment at the age of thirteen, inaugurating what would become a lifetime of involuntary commitments and psychiatric hospitalizations. Diagnosed with chronic paranoid schizophrenia in 2000, Payne has since been treated with a veritable cocktail of antipsychotic medications, including Risperdal, Prolixin, and Haldol. Mental-health evaluations over the ensuing decade regularly affirmed his schizophrenia diagnosis, reporting on a consistent pattern of hallucinations and delusional episodes. Doctors have also diagnosed Payne with polysubstance abuse and anti-social personality disorder, further evidence of amplified mental illness,” Goff wrote for the majority.

The majority additionally noted that the record revealed no deviation from those findings over the following decades. It therefore reversed the guilty but mentally ill conviction, finding Payne not guilty by reason of insanity. On remand, the majority instructed the trial court to hold a hearing on the state’s petition for Payne’s commitment to “an appropriate facility” or “therapy program.”

However, Justice Mark Massa dissented in a separate opinion, joined by Justice Geoffrey Slaughter in Jesse L. Payne v. State of Indiana, 20S-CR-313.

“In the end, the Court discounts the evidence of Payne’s demeanor, elevates the documentation of his mental illness, reweighs the conflicting evidence, and supplants the factfinder’s determination. I fear the Court’s opinion, by flouting our standard of review, quiets the immutable trust we place in factfinders and permits appellate courts to inconsistently establish rejected insanity defenses,” Massa wrote. “Yes, our appellate review must mean something. But that oversight must uniformly flow from the proper standard of review. Because today’s opinion does not, I respectfully dissent.”

Criminal — Rape/Sentence Reduction

Thomas K. Jackson v. State of Indiana

20S-CR-315

In granting a petition to transfer, Indiana Supreme Court justices lowered a man’s sentence after he was convicted of three counts of felony rape. A dissenting justice, however, would have denied transfer in the case.

Thomas Jackson sentenced to 36 years in prison after he was convicted of three counts of Level 3 felony rape of a “moderately, mentally handicapped” woman. Jackson insisted it was consensual, but the issue was whether the woman could, and did, legally consent to sex with him. After the first trial on the charges ended in a mistrial when the jury could not reach a unanimous verdict, a second jury found Jackson guilty of all three offenses in December 2018.

During the sentencing hearing, the prosecutor acknowledged that Jackson, then 52, had led a law-abiding life and recommended that the court impose the advisory sentence of nine years for each of the three counts. The prosecutor also did not object to a split sentence with part of that time served on probation.

The LaPorte Superior Court, however, sentenced Jackson to consecutive sentences of 12 years on each count, for an executed sentence of 36 years.

Splitting on what to do, the Indiana Court of Appeals affirmed Jackson’s convictions and sentence. But Judge Elaine Brown dissented on his sentence, writing that an enhanced prison term for a low-risk offender with no criminal history “does not reflect the goals of reformation or rehabilitation.”

Upon granting his petition to transfer, the majority of the Supreme Court in Thomas K. Jackson v. State of Indiana, 20S-CR-315, revised Jackson’s sentence to 27 years, with seven of those years suspended to probation.

“During the sentencing hearing, the prosecutor and trial court identified two mitigating factors: Jackson’s lack of criminal history and his low risk to reoffend as identified in the Presentence Investigation Report. Aggravators included Jackson’s violation of a position of trust and his lack of remorse — though the trial court conceded that the latter was ‘consistent with [Jackson’s] claim of a consensual relationship.’ The prosecutor recommended that Jackson receive the advisory sentence for each charge, for a total of 27 years,” the majority wrote in a per curiam opinion.

“Whether a sentence should be deemed inappropriate ‘turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.’ Pursuant to our authority under Appellate Rule 7(B), we find that exceeding the 27-year sentence the prosecutor recommended, absent more significant aggravating factors, is inappropriate under the circumstances of this case.”

It therefore affirmed the remainder of the Court of Appeals opinion and remanded to the trial court to issue a revised sentencing order consistent of no more than 27 years. Justice Geoffrey Slaughter dissented, believing that transfer should be denied.

IndianaCourt of Appeals

May 7

Juvenile Termination of Parental Rights — Reversal/Failure to Pursue Reunification

Termination: M.A., et al. v. Indiana Department of Child Services

19A-JT-02570

An Indiana Court of Appeals panel has reversed for two parents in a termination of parental rights case after finding that reasonable efforts were not made by the Department of Child Services to reunify them with their children.

After the Indiana Department of Child Services received a report that three of J.A. and M.A.’s children were missing excessive amounts of school, a visit to the family’s home was conducted.

The parents’ other children, F.A., L.A., D.A., P.A., and Z.A., were eventually found to be children in need of services based on M.A. and J.A.’s admissions regarding the unsanitary condition of their home and the three eldest children missing 75% of the school year.

Both parents were ordered to participate in recommended programs and permit family case managers and service providers to make announced and unannounced visits to the home, ensure the children attended school, and maintain suitable and safe housing with adequate bedding and food supplies.

The children were twice removed and returned to the home, but both parents attended all scheduled visitations and individual counseling sessions. As both parents made improvements, the children were gradually reintroduced to home by the end of 2018.

By January 2019, DCS requested a case closure after reporting that the children seemed happy and that their permanency plan was reunification. But it quickly backtracked and filed a petition to terminate home placement later that month after J.A. had an altercation with one of the older children.

The trial court eventually terminated parental rights for both J.A. and M.A., finding that they didn’t show an ability to provide adequate care or supervision and the capability to provide a safe or clean home, among other things.

On appeal, both parents asserted that DCS gave them no time to correct the behavior that prompted the termination petition and that J.A. was deprived of due process because of the decision to terminate her rights based on a dispute with her daughter without offering her services to remedy the issue. M.A. also contended that there were no safety concerns before the incident and that insufficient evidence supported parental termination.

In a reversal, the Indiana Court of Appeals sided with the parents in Termination: M A, et al. v. Indiana Department of Child Services, 19A-JT-02570.

“We do not deny the seriousness of the altercation. Nevertheless, DCS does not assert that it kept the CHINS proceedings open in order to reassess the needs of the Children and Parents in light of the altercation and to adjust services to meet the identified needs. Instead, it moved immediately to terminate Parents’ parental rights as to the five Children, filing termination petitions on February 5, 2019 and May 1, 2019,” Judge Elaine Brown wrote for the appellate panel.

“We are mindful that termination of parental rights is the most extreme sanction and ‘intended as a last resort, available only when all other reasonable efforts have failed,’” it continued. “We cannot conclude, in totality and under the circumstances, that DCS made all reasonable efforts to reunify Parents with the Children following the altercation with De.A.”

Thus, in light of DCS’s actions following the altercation and its burden of proof, the appellate court reversed and remanded for reinstatement of the CHINS cases and reassessment consistent with its opinion.

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May 12

Criminal — Involuntary Manslaughter/Daycare Death

Daniel Wahl and Saundra Wahl v. State of Indiana

19A-CR-2258

The involuntary manslaughter conviction of a Fishers couple after a retrial over the death of a toddler at their home daycare facility has been upheld by a divided panel of the Indiana Court of Appeals.

Daniel and Saundra Wahl, who operated a daycare business from the basement of their Fishers home, had several security gates in the residence including a white metal gate closing off the stairway leading to the first floor.

That gate caused issues for the Wahls when it started to give way, prompting Daniel to repair it twice in 2006. However, he didn’t use screws to secure the gate’s hinges but instead used washers, bolts and nuts to hold it in place.

In 2013, a 20-month-year-old toddler died after getting his head stuck between the wall and the broken baby gate. As a result, the Wahls were subsequently charged and found guilty of Class D felony involuntary manslaughter.

However, the Indiana Supreme Court overturned their convictions in 2016 after finding the Wahls’ motion for mistrial due to juror misconduct should have been granted.

After the reversal and remand of their case for a new trial, the Wahls moved to suppress photographs taken from inside the residence, an audio recording of the Wahls conducted in the living room, a video recording of Saundra reenacting the events that occurred before she discovered the child stuck in the gate, and the metal security gate that trapped him.

Excluding the actual gate, the evidence was found admissible and the Wahls were ultimately found guilty a second time. They were sentenced to 550 days in the Department of Correction with credit for 550 days served, and ordered to pay restitution of $22,353.72 to the child’s parents.

A split panel of the Indiana Court of Appeals affirmed in Daniel Wahl and Saundra Wahl v. State of Indiana, 19A-CR-2258, with the majority first finding no abuse of the trial court’s discretion in excluding testimony from the Wahls’ potential expert witness. That witness had admitted that his expertise did not involve interpreting regulations affecting daycares for preschool children.

Additionally, the appellate majority found Saundra voluntarily and knowingly consented to the search of her home, which led to the video reenactment. It therefore concluded that the Wahls’ Fourth Amendment rights under the U.S. Constitution were not violated, and neither were their state rights.

“Saundra on behalf of Daniel, waived any and all of the Wahls’ search rights since she agreed to submit to the video reenactment,” Judge Patricia Riley wrote for the majority. “Thus, given the reasonably high degree of suspicion of criminal activity, the minimally intrusive nature of police conduct prior to obtaining Saundra’s consent, and the extent of law enforcement needs, the Wahls have failed to establish that the video reenactment, was unreasonable under Article I, Section 11 of the Indiana Constitution.”

The majority further held that the evidence supported the restitution amount of $22,353.72. It additionally found that Saundra was not in custody and therefore was not required to be advised of her Miranda rights when she was asked to narrate the events that were captured in a video.

In a separate concurring opinion, Judge Elizabeth Tavitas emphasized relevant statutory provisions under Indiana Code Section 36-2-14-6 which she said further support the conclusion that Miranda warnings were not required.

“The events on June 20, 2013, were tragic, and there is no positive outcome here. Nonetheless, I am compelled to conclude law enforcement was conducting a general on-the-scene investigation to assist the coroner, and Saundra was not subjected to a custodial interrogation during the reenactment video,” Tavitas wrote.

But appellate Judge Paul D. Mathias disagreed with the majority on that point, dissenting in a separate opinion and arguing that the admission of the video reenactment violated Saundra’s Miranda rights.

Mathias opined that the totality of the circumstances demonstrated Saundra was in custody at the time she was asked to reenact what she saw by detectives. Rather than simply asking her to recreate the scene of the child’s death in order to help the police assist the coroner, Mathias argued that the police were encouraging Saundra to incriminate herself.

“Under the totality of these facts and circumstances, I believe that Saundra’s freedom of action and movement were deprived in a significant way, i.e., she was in custody for purposes of Miranda. Because Saundra was subject to custodial interrogation, the police were required to advise her of her Miranda rights,” Mathias wrote. “The failure to so advise Saundra of her Miranda rights means that the trial court should have excluded the video reenactment from evidence, and I respectfully dissent from the majority’s conclusion otherwise.”

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May 13

Criminal — Attempted Murder/Exclusion of Parent from Courtroom

Byron D. Harris, Jr. v. State of Indiana

19A-CR-1863

Is the parent of a juvenile defendant waived to adult court “essential” to the presentation of that juvenile’s defense? The majority of a split Indiana Court of Appeals panel concluded the answer to that question was yes, despite a dissenting judge’s opinion.

In Byron D. Harris, Jr. v. State of Indiana, 19A-CR-1863, Byron Harris was 15 when he was accused of shooting a man he thought had robbed him. The man suffered two gunshots wounds to the leg and Harris was later charged with committing acts that would be Level 1 felony attempted murder and Level 3 felony aggravated battery if committed by an adult.

Juvenile jurisdiction over Harris’ case was waived to the Elkhart Circuit Court based on the teen’s history with the juvenile justice system and other pending charges against him. The juvenile court particularly noted that it was “in the best interest of the safety and welfare of the community” that Harris be tried as an adult.

During jury trial and before voir dire, the state requested a separation of witnesses order, which included Harris’ mother, Twanna Warren. But despite Harris’ objection that Warren wanted to be present at the trial as much as possible because Harris was a juvenile, the trial court overruled and never called her to testify during trial.

Harris was ultimately convicted of attempted murder and sentenced to 37 years in the Department of Correction, but a split Indiana Court of Appeals reversed.

Addressing an issue of first impression, the majority concluded that Harris’ mother was essential to presenting her son’s claim or defense under Indiana Evidence Rule 615(c).

“Once a juvenile is waived to adult court, Indiana Code Section 31-32-5-1 and its requirement for meaningful consultation no longer apply. Despite the waiver to adult court, however, the juvenile is still a minor child; the juvenile’s lack of maturity and need for meaningful consultation with a parent regarding the juvenile’s rights remain. Regardless of the waiver to adult court, our criminal procedures should take into account the juvenile’s youth and need for such meaningful consultation with a parent, especially during a trial,” Judge Elizabeth Tavitas wrote for the majority, joined by Judge Edward Najam.

“As such, we conclude that the parent of a juvenile waived to adult court is ‘a person whose presence a party shows to be essential to presenting the party’s claim or defense.’ Accordingly, the trial court erred by excluding Harris’ mother from Harris’ trial,” it concluded.

The appellate majority further found that error violated Harris’ due process right, noting that denying a teenager “any opportunity for meaningful consultation with a parent cannot readily be quantified.”

“We also note that, although the State listed Harris’ mother as a witness, she was never called to testify. Under these circumstances, we cannot say that the exclusion of Harris’ mother was harmless error,” the majority wrote, thus reversing and remanding for proceedings consistent with its opinion.

Judge Nancy Vaidik dissented from the majority and noted several problems with its conclusions.

“First, Harris does not argue on appeal that his mother should have been allowed to stay in the courtroom because of Evidence Rule 615(c). Instead, he argues that he had a right to have his mother in the courtroom in spite of Evidence Rule 615. Therefore, the State had no reason to address — and did not address — Rule 615(c) in its brief. We should not reverse a judgment based on an issue that was not raised by the appellant, especially when the appellant’s silence leads to the appellee’s silence,” Vaidik wrote in her dissent.

“Second, Harris did not raise either the due-process issue or the Evidence Rule 615(c) issue in the trial court. In objecting to the separation-of-witnesses order, he did not mention ‘due process,’ the United States Constitution, or the Indiana Constitution, and he did not say anything about Rule 615(c) or argue that his mother’s presence was ‘essential.’ In fact, he never even said that he wanted his mother to be present. He said only that his mother ‘would like to be — to be in the trial as much as possible.’ By failing to raise either issue in the trial court, Harris waived both issues for purposes of appeal,” she continued.

Lastly, Vaidik disagreed with “the majority’s blanket conclusions that every waived juvenile has an absolute due process right to have a parent who is also a witness present throughout trial and that the presence of such a parent is per se ‘essential’ for purposes of Rule 615(c).”

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May 14

Civil Tort — Wrongful Death/Medical Malpractice

Frances L. Batchelder, Special Administrator of the Estate of John E. Batchelder, M.D., Deceased v. Indiana University Health Care Associates, INC, d/b/a IUHP

19A-CT-2569

The estate of a deceased doctor was denied the full potential recovery it was entitled to after a hospital was awarded summary judgment in his wrongful death case, the Indiana Court of Appeals ruled.

John Batchelder, a cardiologist who was also a paraplegic, was injured in a car accident in September 2015 that resulted in a cervical spine fracture. After the accident, an Indiana University Health Care Associates radiologist misread Batchelder’s x-rays and released him from the hospital too soon.

A second opinion revealed the fracture and John underwent neurosurgery, but he died several months later, just after filing a complaint for damages against the driver. The driver ultimately settled all claims arising from the collision for $1.25 million.

Frances Batchelder, special administrator of John’s estate, later filed a wrongful death complaint against Indiana University Health, Inc., and IUHP, alleging that their provision of negligent medical care resulted in John’s death. The hospital, however, asserted in a motion for summary judgment that the estate was not entitled to additional damages because the Indiana Medical Malpractice Act caps the estate’s damages at $1.25 million, and that it already obtained $1.25 million from the driver.

Although the estate argued that the setoff for the $1.25 million settlement should be deducted from the total damages or the value of the case, Marion Superior Judge Timothy Oakes ruled for IUHP on its argument that the $1.25 million setoff should be applied to the $1.25 million statutory limit, rendering the estate’s claims moot.

But the Indiana Court of Appeals reversed and remanded that decision in the case of Frances Lorraine Batchelder, et al. v. Indiana University Health, Inc., et al.,19A-CT-02569.

“The (Palmer v. Comprehensive Neurologic Services, P.C., 864 N.E.2d 1093, 1099-1100 (Ind. Ct. App. 2007)) and (Indiana Dept. of Ins. v. Everhart, 960 N.E.2d 129, 138 (Ind. 2012)) decisions highlight a crucial omission in the instant case. In those cases, the jury or trial court determined the value of the case or the entirety of the recoverable damages incurred by the plaintiffs before the trial court applied any setoffs,” Judge Elizabeth Tavitas wrote for the appellate court.

“In the instant case, however, the trial court applied the setoff without first determining: (1) the value of the case or the extent of the Estate’s injury; and (2) whether the (Emma) Mourouzis settlement satisfied the Estate’s injury and made the Estate whole. Forgoing this threshold determination, the trial court found that the Mourouzis settlement satisfied the Estate’s losses such that the Estate was not entitled to pursue additional damages from IUHP. We have found no support for this conclusion,” it wrote.

The appellate court found that by prematurely applying the $1.25 million setoff to the statutory limit and offsetting the IUHP judgment to zero, without first determining the value of the estate’s case, the trial court denied it the potential full recovery to which the estate is legally entitled.

“Accordingly, we find that genuine issues of material fact exist; and, thus, as to the amount of damages, IUHP was not entitled to judgment as a matter of law,” it wrote. “For these reasons, the trial court erred in granting IUHP’s motion for summary judgment and finding that IUHP was entitled to judgment as a matter of law; we must, therefore, reverse the entry of summary judgment in favor of IUHP and remand for further proceedings.”

Criminal/Murder — Sentence

William Steve Landske v. State of Indiana

19A-CR-2528

The husband of a late Indiana legislator convicted of murdering a northwestern Indiana lawyer and family friend will serve his 55-year advisory sentence, the Indiana Court of Appeals affirmed.

William “Bill” Landske, the widower of former state Sen. Sue Landske, was arrested in 2018, accused of fatally shooting Lake County lawyer and family friend T. Edward Page at the attorney’s Hobart home. Landske, who was 83 at the time of the killing, told law enforcement he shot Page because he had been “pissed off” because of Page’s procrastination in preparing his taxes after the death of his wife several years earlier.

The shooting occurred in August 2018, when Landske was at Page’s residence with his two daughters to collect tax paperwork Page had in his possession. Upon pulling Page aside, Landske shot him in the stomach four times with a shot to the upper abdomen killing Page instantly.

At his jury trial, Landske argued that he had killed Page in the heat of the moment as a result of Page’s provocation and that he could only be convicted of voluntary manslaughter, not murder. After Landske requested a voluntary manslaughter instruction, the parties and the trial court discussed at length whether there was a “serious evidentiary dispute” on the question of sudden heat.

Although the court stated that it was a “close call,” the court ultimately instructed the jury on both murder and voluntary manslaughter. The jury found Landske guilty of murder and sentenced him to an advisory term of 55 years in the Department of Correction.

The Indiana Court of Appeals affirmed that sentence in an appeal of William Steve Landske v. State of Indiana, 19A-CR-2528, noting it was not persuaded that the sight of a large number of tax-related documents in Page’s foyer was a provocation sufficient to cause Landske’s sudden “impetus to kill.”

“Landske confuses irritation and consternation with provocation,” Judge Edward Najam wrote for the appellate court. “… The jury found no sudden heat, and we will not disturb its finding. Accordingly, we hold that in its case-in-chief the State presented evidence beyond a reasonable doubt that Landske was not acting under sudden heat when he killed Page.”

Additionally, the appellate court found nothing inappropriate about Landske’s advisory sentence of 55-years. It noted that his reliance on Griffin v. State, 963 N.E.2d 685 (Ind. Ct. App. 2012) was misplaced, pointing out that nothing in Page’s conduct “would remotely entitle Landske to mitigation of his sentence.”

It likewise found that whether the murder was premeditated, Landske’s behavior toward Page “was methodical and deliberate, that he delivered not one shot but multiple shots to Page, point blank and at close range, all of which reflects poorly on his character.”

“And then Landske calmly recounted the details of the murder to law enforcement in a matter-of-fact manner with no apparent indication of remorse,” the appellate court wrote. “The trial court’s judgment in sentencing is entitled to considerable deference. We cannot say that Landske’s advisory sentence is inappropriate in light of his character.”

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May 15

Civil Tort — HIPAA Privacy Violation/Vicarious Liability

Haley SoderVick v. Parkview Health System Inc.

19A-CT-2671

A divided Indiana Court of Appeals has reinstated a patient’s claim that a hospital is vicariously liable for the actions of a medical assistant who accessed her medical records and then shared details with her husband after she noticed that the patient had “liked” a photo of her husband on Facebook.

Haley SoderVick sued Fort Wayne-based Parkview Health System Inc. after Parkview notified her in May 2018 of the disclosure of her protected health information. SoderVick had gone to an appointment with OB/GYN Dr. Catherine Reese at Parkview’s campus in Wabash the prior October, and while there, medical assistant Alexis Christian accessed her medical records for one minute, according to the record.

“Christian then immediately texted information about SoderVick to Christian’s then-husband, Caleb Thomas. In these texts, Christian disclosed SoderVick’s name, the fact that she was a patient, a potential diagnosis, and that she worked as a dispatcher. Christian also texted Thomas that SoderVick was HIV-positive and had had more than fifty sexual partners, although this information was not included in her chart and was ultimately false,” Judge John Baker wrote for the majority, joined by Judge James Kirsch.

“Christian testified that she had been checking Facebook on her phone during her lunch break earlier that day and had seen that SoderVick had liked a photo of Thomas. Later that afternoon, when Christian was ‘inputting chart information and came across all of that information’ about SoderVick, she claims she felt ‘concerned’ and therefore texted her husband asking if and how he knew SoderVick, curious as to whether they might have had a sexual history together.”

Thomas’ sister saw the texts on his phone and notified Parkview, which investigated the potential violation of the Health Insurance Portability and Accountability Act. Parkview ultimately fired Christian and notified SoderVick, prompting this lawsuit.

The Allen Superior Court ultimately granted Parkview summary judgment on SoderVick’s claims for respondeat superior, direct negligence for Parkview’s negligent training, supervision and retention, and direct negligence for Parkview’s violation of its statutory and common-law duties of protection of privacy under HIPAA.

SoderVick appealed summary judgment on the respondeat superior claim, and the COA majority reversed and remanded, finding Christian’s conduct met the test of whether it was incidental to employment.

“Parkview argued in its motion for summary judgment that there was no genuine issue of material fact as to whether Christian was acting in the scope of her employment. But we find that that there is a genuine issue of fact on the scope of employment issue; specifically, there is an issue of fact as to whether Christian’s conduct was incidental to authorized employment activities. We therefore find that the trial court erred in granting summary judgment in favor of Parkview on the respondeat superior claim, reverse that portion of the order, and remand for further proceedings,” Baker concluded for the majority.

Judge Elizabeth Tavitas dissented and would affirm the trial court. She said SoderVick’s case more closely resembled Hayden v. Fransiscan All., Inc., 131 N.E.3d 685, 691 (Ind. Ct. App. 2019), trans. denied, in which judgment for a health care provider was affirmed in a privacy breach.

That ruling, Tavitas said, was “more persuasive” than Walgreen Co. v. Hinchy, 21 N.E.3d 99, 112 (Ind. Ct. App. 2014), to which the majority cited. In that case, the COA affirmed a $1.4 million damages judgment to a customer whose protected medical information was disclosed by a pharmacist.

“As in Hayden, Christian accessed the medical records for a non-employment related reason in direct violation of the Parkview Confidentiality Agreement and Acknowledgement that Christian signed. I conclude, based on Hayden, that the trial court properly granted summary judgment to Parkview. Accordingly, I dissent,” Tavitas wrote.

The case is Haley SoderVick v. Parkview Health System, Inc., 19A-CT-2671.

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May 18

Miscellaneous — Name Change Petition/Citizenship Status

In Re the Name Change of Jane Doe, et al.

19A-MI-2166

Citizenship in the United States is not required in order to obtain a name change, the Indiana Court of Appeals ruled, reversing a trial court and ruling for two transgender men.

After coming to the U.S. from Mexico as children with their families, Jane Doe and R.A.C. each respectively received a grant of deferred action under Deferred Action for Childhood Arrivals. R.A.C has a pending petition for a visa, while Doe became a lawful permanent resident in 2016.

Although the Marion Circuit Court found that the men’s respective petitions for a name change were made in good faith and not for fraudulent or unlawful purposes, the court noted it could not grant their petitions because the men were not able to prove U.S. citizenship so the court was constrained by Indiana Code § 34-28-2-2.5(a)(5).

In a consolidated appeal, the men argued that they were statutorily entitled to a name change regardless of their citizenship status and that the trial court’s interpretation of the statute would render it unconstitutional on several grounds. Upon intervening in the case, the state argued that while the statutory provision at issue is facially constitutional, it was unconstitutional as applied.

“At first blush, the statute appears to require proof of United States citizenship before a name change may be granted. Such an interpretation, however, not only leads to constitutional problems — as acknowledged by the State — but is counter to the history of liberally allowing nonfraudulent name changes in Indiana and the overall framework of the name change statutes,” Judge Robert Altice wrote for the unanimous panel in the case of In The Matter of The Name Change Of: Jane Doe, et al., 19A-MI-02166.

“… (I.C.) § 34-28-2-2.5(a) provides a list of information to be submitted with a name change petition for an individual who is at least seventeen years of age. We interpret this provision as requiring submission of the enumerated information whenever possible. Where a petitioner is unable to provide certain information, however, the petitioner is relieved from the necessity to produce it. For example, a homeless person is not precluded from seeking a name change simply because they cannot provide a current address as required by subsection (a)(2). Similarly, here, Petitioners are unable to provide proof that they are United States citizens. Therefore, they are absolved of providing such proof,” the appellate court wrote.

Thus, the appellate court found that a trial court is required to recognize the name change so long as the petitioner, a natural person at least 17 and not subject to the specific exclusions in I.C. § 34-28-2-1.5, establishes that the name change is not being sought for fraudulent purposes.

“The trial court indicated that it could easily grant the petitions if it were not for the citizenship requirement that it believed existed in subsection (a)(5) of I.C. § 34-28-2-2.5. Having concluded that the applicable statutes do not require United States citizenship in order to obtain a name change, we remand with instructions for the trial court to grant Petitioners’ respective petitions for a name change,” it concluded.•