For Publication opinions on Indiana cases released by the 7th Circuit Court of Appeals and the Indiana Supreme Court, Court of Appeals and Tax Court during this issue’s reporting period are highlighted in this section of the Indiana Lawyer. To read the complete opinion issued in any of these cases, visit www.theindianalawyer.com and search by case name.
7th Circuit Court of Appeals
Criminal – Traffic Violation/Traffic Stop
United States v. Jason Smith
While Indiana statute doesn’t specifically define the word “turning” in the context of traffic law, the 7th Circuit Court of Appeals has held the failure to use a right-hand turn signal at an intersection amounts to a violation and justifies a traffic stop.
The appellate panel affirmed a ruling by U.S. Judge Robert Miller in the Northern District of Indiana.
The District Court considered the case of Jason Smith, who was pulled over in July 2010 by a marked police car with a narcotics canine inside after the officer saw Smith’s vehicle turning right at a South Bend intersection without using a signal. The officer had previously received a tip about that vehicle being driven by a man carrying a gun and illegal drugs, and the license plate matched the information that an informant had provided. When Smith didn’t use his turn signal, the officer initiated a traffic stop which led to a search revealing a gun, marijuana, crack cocaine and a digital scale.
Smith was charged with being a felon in possession of a firearm, possession of crack cocaine with intent to deliver and possession of a firearm in furtherance of a drug transaction. Smith filed a motion to suppress the items recovered in the search on grounds that the traffic stop was unlawful, specifically because he wasn’t turning at the intersection but “bearing right.” The District judge found the stop didn’t violate the Fourth Amendment because it was “enough of a turn that Indiana law requires a signal,” and a jury convicted Smith on all three counts. He received a sentence of 165 months imprisonment.
On appeal, the 7th Circuit noted that Indiana law doesn’t specifically define a “turn” but it relied on state court precedent to find that Smith was sufficiently “rotated” and a plain reading of Indiana’s statute equates that movement to a turn. As a result, the officer had probable cause to pull Smith over because he didn’t use a signal. The appellate court didn’t address the question of whether the vehicle’s window tinting provided independent grounds for justifying the stop, an aspect that had come up in the case.
The 7th Circuit also briefly addressed an issue Smith argued about when the traffic stop occurred. The charging information said July 13, 2010, and at trial the government noted that the events actually occurred on July 14. Smith argued the state constructively amended his indictment and he moved for acquittal, and the court denied that motion. The appellate court found the difference in date didn’t result in an impermissible constructive amendment based on its own caselaw.
Indiana Supreme Court
Civil Tort – Insurance
Sarah Haag, et al. v. Mark Castro, The Indiana Youth Soccer Association, Virginia Surety Company, Inc., et al.
The Indiana Supreme Court ruled 3-1 that an insurer for the Indiana Youth Soccer Association does not have to provide coverage for an accident involving a Carmel team during a trip to Colorado for a soccer tournament.
Justice Frank Sullivan Jr. authored the majority opinion, which found the insurance policy provided by Virginia Surety was unambiguous and did not require the insurer to provide coverage for the youth who were injured in the accident. Team members of Carmel Commotion, which is affiliated with IYSA, were in a rented van driven by their coach, Mark Castro, on their way to a “team-building” activity of white-water rafting when the van was in an accident.
The injured players and their parents sued Castro and IYSA’s insurance carrier seeking a declaration that IYSA’s insurance policy through Virginia Surety provided coverage while Castro drove the team to the white-water rafting activity. The trial court granted summary judgment to Virginia Surety; a divided Indiana Court of Appeals panel affirmed.
Examining the commercial lines policy at issue, the justices concluded that the accident did not occur while the van was being “used in the business of” IYSA. The high court deduced using the IYSA’s organizational documents that the association has three lines of business: promoting soccer; regulating competition, leagues, teams and players; and conducting specific events. For the policy to provide coverage for the accident, the van had to be used in one of those three lines of business. At the time of the accident neither the team nor Castro were doing any of those three things, so the accident wasn’t covered, wrote Sullivan.
“Carmel Commotion’s ‘business’ is competing – along with the practicing, ‘team-building,’ and the like that comes with it. And while the IYSA promotes tournaments and regulates who plays in tournaments and even sponsors tournaments … the IYSA itself does not compete. The IYSA promotes soccer. It regulates playing soccer. It conducts soccer tournaments. But when an IYSA-registered team, with the help of its coach, competes in a tournament (even a tournament sponsored or sanctioned by the IYSA), the team is engaged in its own business, not that of the IYSA,” he wrote.
Justice Brent Dickson dissented because he found the policy to be ambiguous and should be construed to provide coverage under Indiana law. He disagreed with the majority’s narrow characterization of the “business” of the IYSA, and he wrote Virginia Surety should have clarified in its policy that travel to “team-building events” away from the soccer field should be excluded from coverage.
Justice Steven David did not participate.
Indiana Court of Appeals
Post Conviction – Proffered Agreement/Sentencing
Steven Jackson v. State of Indiana
The Indiana Court of Appeals has held that a post-conviction court isn’t required to accept any proffered agreement from a defendant because that type of proceeding isn’t the same as a civil hearing and the Indiana Supreme Court has given local judges final authority in accepting or denying agreements.
The three-judge appellate panel affirmed a ruling from Harrison Superior Judge Roger Davis that partially granted a post-conviction relief petition but denied the appellant-defendant’s request to accept a proffered agreement in that hearing.
Steven Jackson pled guilty in 2007 to felony operating while intoxicated and to his status as a habitual substance offender, resulting from a prior Floyd County drunk driving conviction. While the appellate court’s record doesn’t reflect the sentence Jackson received from the trial court, Jackson was apparently placed on probation for an unspecified amount of time and in 2010 the state filed a petition to revoke his probation based on an alleged violation of operating a vehicle as a habitual traffic offender. In December 2010, Jackson’s counsel filed a PCR petition seeking to vacate his guilty pleas to his OWI conviction and habitual status enhancement. At some point, Jackson reached an agreement with the state to set aside the felony conviction and enhancement to allow him to plead guilty to public intoxication, and his sentence would be time served.
At a hearing, the post-conviction court denied the agreement in its entirety but granted Jackson’s petition, setting aside his habitual enhancement and reducing the Class D felony OWI conviction to a Class A misdemeanor.
On appeal, Jackson argued the post-conviction court had no discretion to deny his proffered agreement because in civil cases trial courts have no discretion and must accept agreed judgments as presented. He argued the court couldn’t consider the substance of the proposed agreement and it was merely required to accept it without question.
Citing Indiana Supreme Court precedent from 2001, the appellate panel disagreed with Jackson’s contention that a post-conviction proceeding is equivalent to a civil proceeding because it’s a “collateral attack on the validity of a criminal conviction.” Even if the process is civil in nature, the PCR process still stems from a criminal conviction and those rules apply.
Judge Carr Darden wrote for the unanimous panel, which also included Judges John Baker and Mark Bailey.
Estate – Wills/Probate in different states
In the Matter of the Estate of Florian T. Latek; Nicholas G. Grapsas, et al. v. Gerald Ronneau
Relying on the majority rule, the Indiana Court of Appeals concluded that a man’s will that was denied probate in Illinois could be admitted in Indiana to deal with real property located here.
Florian Latek owned his family’s farm in Porter County, but lived in Chicago and also owned real and personal property in Illinois. He executed a will, but he did not have it notarized. An Illinois court denied probate of Latek’s will because it failed to conform with Illinois’ self-proving requirements and because witness signatures couldn’t be validated by testimony or by a formal attestation clause as required by Illinois law. His real and personal property in Illinois has since been distributed.
Nicholas Grapsas, the Illinois public administrator of Latek’s estate, challenged the admission and probate of the will in Indiana court concerning the Indiana property. Grapsas argued that because the Illinois court had already determined the will was invalid under Illinois law, Indiana was precluded under the doctrines of res judicata and full faith and credit from deciding the same issue.
On interlocutory appeal, the COA found the majority rule – which provides that title to and disposition of real estate either by deed or will is governed by the law of the state where the land is situated – to be applicable. The judges cited cases from outside of Indiana as well as an Indiana Supreme Court case from 1897 that stated Indiana will follow the majority rule.
“We therefore conclude that under the majority rule, the Illinois Court’s denial of Latek’s Will to probate because it failed to comply with Illinois’s statutory execution requirements has no effect on the subsequent admission and probate of Latek’s Will in Indiana as it concerns the disposition of real property located in Indiana. Principles of res judicata and full faith and credit have no application in matters involving probate and title to realty,” wrote Judge Ezra Friedlander.
The appellate court also found the Indiana trial court did not abuse its discretion in appointing James Bozik, Latek’s attorney, as personal representative of Latek’s estate.
Criminal – Police/Reasonable Suspicion and Consent
Michael Woodson v. State of Indiana
Finding that an Indianapolis police officer didn’t have reasonable suspicion or consent to stop a man acting suspiciously in a gas station parking lot, the Indiana Court of Appeals has reversed two fraud convictions involving the possession of movie DVDs that weren’t yet on the market.
The appellate court found that a “hot zone” of drug activity doesn’t alone justify stopping and questioning someone who might be acting suspiciously.
The officer was patrolling an area in Indianapolis in February 2011 when he saw a bicycle parked next to a maroon vehicle in the fast food and gas station parking lot. A man later identified as Michael Woodson exited the car, put on a backpack and began riding in the parking lot. The car left and another police patrol vehicle pulled the car over, while the original patrolling officer approached Woodson and asked him what he was doing. The officer testified that Woodson became loud and belligerent, so the officer immediately handcuffed him for safety reasons and then asked to search the backpack. Woodson consented. Inside, the officer found 34 DVDs marked with titles of movies that he recognized as still being in the theater and not yet on sale. Woodson was arrested and charged with two counts of fraud, and at a Marion County bench trial he was found guilty on both and sentenced to a partially suspended two-year sentence.
On appeal, Woodson argued the trial court had erred by denying his motion to suppress the evidence because the search and seizure wasn’t based on reasonable suspicion as required by the Indiana and U.S. constitutions. The appellate court agreed, finding that the officer didn’t have the necessary reasonable suspicion to conduct the stop and that the initial interaction wasn’t consensual. The court found that because Woodson observed the maroon car being pulled over by another police vehicle and he was immediately handcuffed and not free to leave, his consent to search the backpack wasn’t adequate.
“Only the fact that the area of Indianapolis in which Woodson was arrested was considered to be a ‘hot zone’ gave Officer (Christopher) Cooper any kind of suspicion that drug-related or other illegal activity might be afoot,” Judge Mark Bailey wrote for the unanimous three-judge panel. “This is not enough to amount to reasonable suspicion, and we therefore cannot conclude under the totality of the circumstances that Officer Cooper’s Terry stop was appropriate under the Fourth Amendment.”
The court reversed Woodson’s convictions, finding that admitting the DVDs into evidence was clearly prejudicial and led to testimony that otherwise would have left the state with insufficient evidence for a conviction.
Criminal – Double Jeopardy/Child Support Convictions
Felix C. Sickels v. State of Indiana
The Indiana Court of Appeals has found a man’s three convictions on non-payment of child support for his three children doesn’t violate double jeopardy principles, even though that issue is currently pending in another case before the Indiana Supreme Court.
The appellate court affirmed and reversed in part a case involving a northern Indiana man’s nonpayment of child support for his three children.
The non-support stems back to child support payments that Sickels didn’t make between 1997 and 1999, involving three children he and his wife had before their divorce in 1992. He lived out of state and the wife and children remained in Goshen, and Sickels was ordered to pay $118 in child support each week by a civil support order. But he didn’t pay that amount and was charged with three felony counts of non-payment in September 2001, each count alleging he accumulated an arrearage in excess of $15,000 per child.
Sickels was arrested in Michigan first in 2002 and three more times through the years, but released after Michigan authorities either didn’t notify Indiana about the arrest or he wasn’t extradited. Eventually, Sickels was brought back to Indiana in July 2010 on the felony non-support charges, and he was convicted at a bench trial, sentenced and ordered to pay more than $80,000 in unpaid support.
On appeal, Sickels argues that his conviction on three counts of non-payment involving one civil support order is a double jeopardy violation. The appellate court pointed out that Sickels is subject to the child support non-payment laws in place in the late 1990s, requiring a per-dependent arrearage of at least $10,000 to support each alleged Class C felony. Although this is an issue in a related child support payment and double jeopardy case currently before the Indiana Supreme Court in Sanjari v. State, 942 N.E.2d 134 (Ind. Ct. App. 2011), the Court of Appeals panel concluded that in the context of double jeopardy Sickels’ three convictions do not violate the same elements test of the U.S. Constitution or the Indiana Constitution’s statutory elements test.
The court affirmed Sickels’ convictions and part of his sentence, but remanded the case to the trial court with instructions to clarify the restitution order because it is inconsistent with what was said at the sentencing hearing.
Criminal – Attorney Misconduct
Daniel E. Serban v. State of Indiana
The Roanoke attorney who stole more than $200,000 from his clients will not have his sentence reduced, the Indiana Court of Appeals decided.
Daniel E. Serban asked the appellate court to find his 11-year sentence – with half the time to be served on probation – to be inappropriate. For a 36-month period, Serban mishandled the funds of more than 100 clients and stole $283,000. He was charged with Class C felony corrupt business influence, Class C felony theft, Class C felony forgery and Class D felony theft. He pleaded guilty only to the corrupt business influence and Class D felony theft charges.
He received the maximum sentence allowed for each count, but the trial court suspended half his sentence to probation, with the remainder to be served in prison.
“Here, Serban not only victimized those individuals who had placed their trust in him, but also degraded the legal profession – a profession that people reach out to for guidance during some of the most vulnerable and distressing times of their lives. In short, we cannot say that the nature of Serban’s offenses assists him in his inappropriateness argument,” wrote Judge John Baker.
Criminal – Confidentiality of Records
Nicholas Williams v. State of Indiana
A Marion Superior trial court erred in granting the Indiana Board of Pharmacy’s motion to quash a defendant’s subpoena that the board produce a certified copy of “any and all” of his prescription records so he could use the information as defense for the charges of possession of a controlled substance, the Indiana Court of Appeals ruled.
On interlocutory appeal, the Court of Appeals found that Nicholas Williams waived any physician- or pharmacist-patient privilege outlined in Indiana Code when he requested the records from the pharmacy board. Williams was arrested and charged with possessing the controlled substances methadone and alprazolam. He originally couldn’t recall what doctors had prescribed the drugs, so he asked for the data kept in the pharmacy board’s electronic drug tracking program INSPECT RX. He later could recall the doctor names but not where he filled the prescriptions.
The Indiana Board of Pharmacy cited the confidentiality components of Indiana Code 35-48-7-11.1 to deny Williams’ request and support its motion to quash his request. The COA noted that the statute does not list the patient as someone specifically authorized to receive the information from the INSPECT RX database.
“To the extent that the confidential information in the database might also be considered privileged, by virtue of either the physician-patient privilege or the pharmacist-patient privilege, that privilege inures to the patient, not the Board (or the physician or the pharmacist, for that matter),” wrote Judge Terry Crone.
Williams’ request for information from the database amounts to a waiver of any privilege, so the judges found that the three-part test for discoverability – particularity, relevance or materiality and “paramount interest” – applies in this case.
His request was sufficiently particular, the request information is material to his defense, not all of the information requested would be available from his doctors, and the board failed to show a paramount interest in not disclosing the information, ruled the appellate court.
The judges remanded for further proceedings.
Civil Plenary – Access Easement
Anthony J. Rehl, Sr. and Bessie A. Rehl v. Robert V. Billetz and Joy A. Billetz
The Indiana Court of Appeals affirmed the trial court judgment in favor of the owners of a RV campground regarding an access easement.
Robert and Joy Billetz took over the campground owned by Clyde and Margorie Allmon in 1991. The Allmons retained a two-acre portion of their land abutting County Road 200 North, land that Anthony and Bessie Rehl later purchased from the Allmon estate in 1999. In order to provide access to the Billetz property from County Road 200 North, the Allmons granted an easement for ingress and egress.
The Rehls sued the Billetzes in January 2008 alleging that the ongoing operation of the campground has increased or added to the burden upon their land imposed by the original easement, and the burden “is now unreasonable.” The Rehls argued that the Billetzes could access their property from the county road without using the easement.
The trial court found there may have been a modest increase in the number of vehicles using the easement since it was originally granted, but it did not create a burden on the Rehl property.
The Rehls claimed that the easement was granted only to allow the grantees ingress and egress, but it does not mention business invitees, customers or others who might be visiting the RV campground.
“Although the grantees named on the 1991 warranty deed (and the 1998 personal representative’s deed) were the Billetzes, we observe that the language creating the Easement does not expressly provide that the Easement benefits the Billetzes as the grantees only. Moreover, the language expressly provides that the Easement ‘is for ingress and egress to lands to the north of said 2 acre tract,’” wrote Judge Elaine Brown. “The implication of this language is that the parties, and the Allmons as the grantors, intended for the Easement to benefit or provide access to the Billetz Property and the campground.”
Criminal – Murder
Charles Lawrence, Sr. v. State of Indiana
The Indiana Court of Appeals found the state presented sufficient substantive evidence to establish that a man killed his sister’s boyfriend while staying in her apartment.
Charles Lawrence Sr. spent the night with his sister, Tekelia Lawrence, so she would feel safe after her boyfriend hit her in the mouth with a bottle. The boyfriend, Quinton Lewis, had a key to her apartment. Tekelia Lawrence smoked marijuana, took two Vicodin pills and went to bed while her brother stayed up. She awoke to the sound of “pops” and saw that her front door was open and her brother was gone. She chained the door from the inside and went back to bed.
Police arrived later that morning after someone found Lewis’ body in the hallway on the bottom floor of the apartment building. A trail of blood led to Tekelia Lawrence’s front door, there was an empty shell casing inside her apartment, and there was a bullet hole in the wall. In a state of shock, Tekelia Lawrence told police that her brother had been at the apartment and stayed with her so she could sleep.
Charles Lawrence was charged with and convicted of murder and being a habitual offender and sentenced to 90 years.
Charles Lawrence argued that the evidence placing him at the scene consisted almost entirely of impeachment evidence rather than substantive evidence. He asserted that there was insufficient substantive evidence to sustain the verdict because the only evidence presented that he was in the apartment at the time of the murder came in through the state’s impeachment of its own witnesses.
At the trial, Tekelia Lawrence testified that her brother was gone before the murder, but the state offered her prior statements to police that he had stayed the night so she could sleep as both impeachment and substantive evidence. Judge Terry Crone noted that Charles Lawrence’s attorney did not object to the admission of some of the statements nor did the attorney request an admonishment or jury instruction limiting the use of any of those statements to impeachment only.
The appellate court found substantial evidence of probative value to support the conclusion Charles Lawrence murdered Lewis.
Civil Plenary – Breach of Contract
Dave’s Excavating, Inc. and Liberty Mutual Insurance Co. v. City of New Castle, Indiana
The Indiana Court of Appeals has affirmed that a contractor and insurance
company owe the city of New Castle more than $900,000 in damages and attorney fees for breaching a construction contract.
Dave’s Excavating and Liberty Mutual, which guarantied Dave’s performance with its performance bond, appealed the Henry Circuit Court’s decision granting summary judgment in favor of New Castle in its lawsuit for breach of contract. Dave’s was awarded a contract for a sanitation project but stopped work at one point because of “differing subsurface conditions” in accordance with Section 4.03 of the contract. Dave’s sought review from the engineer of the project as to how to handle the unexpected physical conditions of the land. The project engineer responded that Dave’s should return to work, but Dave’s interpreted the contract to mean that the engineer should conduct an investigation before Dave’s resumed work.
The dispute led to delays in work and caused New Castle to have to hire another contractor to finish the work. New Castle filed suit against Dave’s for breach of construction contract and sought payment of the performance bond in the amount of $427,524.54 from Liberty Mutual.
The appellate court affirmed summary judgment in favor of the city, finding that Dave’s did breach the contract. The contract required that the city “review the pertinent condition,” which it did when the engineer reviewed the claim and determined that Dave’s wasn’t entitled to a price or time adjustment and should continue working, wrote Judge Edward Najam. Despite what Liberty Mutual argued, the contract did not require the city to “investigate” the physical site.
With regards to the performance bond, Liberty Mutual failed to exercise any of its options to mitigate under the performance bond. The evidence showed Liberty Mutual did not act promptly to assert its rights under the performance bond, as was required under Section 4.4. Liberty Mutual also specifically directed the city to mitigate its damages, which it did by hiring another contract to complete the project.
The judges also upheld the award of attorney fees for the city.
Civil Plenary – County Boards
Clark County Drainage Board and Clark County Board of Commissioners v. Robert Isgrigg
The Indiana Court of Appeals affirmed summary judgment for the former Clark County surveyor in his request that he should have been involved in a project involving Lancassange Creek. But the judges reversed summary judgment for the surveyor regarding whether he should have been involved in a project in a subdivision.
Robert Isgrigg, while Clark County surveyor, filed a complaint for declaratory judgment and permanent injunction against the Clark County Board of Commissioners and Clark County Drainage Board, claiming the boards didn’t follow Indiana Code with regards to his involvement in projects. He claimed that he should have been involved in a project in the Sunset Hills subdivision to fix surface water collecting onto the subject properties. Isgrigg argued that the improvements in Sunset Hill constituted a regulated drain under Indiana code, so he should have been involved. The drainage board had worked with Brian Dixon, a licensed engineer, regarding the surface water problems.
The appellate court found there to be no genuine issues of material fact that there were any regulated drains in the subdivision, as is required to trigger the use of the county surveyor. There were no open channels in the subdivision either before or after the drainage board’s involvement in the project, Judge Edward Najam wrote.
But the COA did affirm summary judgment for Isgrigg in his complaint regarding whether the drainage board had authority to remove an obstruction in the Lancassange Creek project. On appeal, the drainage board conceded that the work should have been administered in accordance with Indiana Code 36-9-27.4, which should have included the participation of the county surveyor.
Because the appellate court held that each party was entitled to a partial grant of summary judgment, it vacated the award of costs to Isgrigg and ordered each party to pay their own costs.•