Indiana Court Decisions – June 14 – 27, 2012

7th Circuit Court of Appeals

June 18

Civil –Sherman Act/NCAA

Joseph Agnew, et al. v. NCAA

11-3066

The 7th Circuit Court of Appeals affirmed a District Court’s dismissal of a lawsuit two former college athletes brought against the National Collegiate Athletic Association.

The men, Joseph Agnew and Patrick Courtney, both received one-year scholarships to play football at NCAA schools, with the caveat that the scholarships must be renewed annually. When injuries they sustained prevented them from playing, their schools chose to not renew their scholarships.

The men claimed that the NCAA policies capping the number of scholarships per school and prohibiting multi-year scholarships had an anti-competitive effect on the market for student athletes and therefore violate the Sherman Act. The NCAA filed a motion to dismiss, and finding the plaintiffs did not sufficiently identify a commercial market, the District Court dismissed the suit.

The NCAA argued that the plaintiffs did not identify any market, including a bachelor’s degree or labor market, in which its bylaws restrained trade. And the 7th Circuit panel found that the difference between a market for educational services and a market for a bachelor’s degree was of vital importance in the case, holding that a student is owed educational instruction upon payment of tuition, but whether that instruction leads to a degree is up to the student.

The 7th Circuit held that it is undeniable that a market of some sort exists in the relationship of student athletes and the university issuing scholarships based on athletic performance. But the plaintiffs presented no discussion about a relevant market for student athlete labor, even after having an opportunity to amend their complaint. The appellate panel affirmed the District Court’s finding that without identifying a cognizable market, the men failed to prove the NCAA’s policies violate the Sherman Act.

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June 26

Civil – Eviction/Housing Authority

A.B., a child by his next friend, Linda Kehoe v. Housing Authority of South Bend

11-2581

The appeal of an eviction initiated by the Housing Authority of South Bend was dismissed by the 7th Circuit Court of Appeals because the woman and her son have already been evicted.

A.B. appealed the order that he and his mother be evicted from public housing following the mother’s arrest and guilty plea to possession of cocaine and resisting law enforcement. On June 6, 2011, A.B. filed a request for a preliminary injunction to prevent the housing authority from pursuing the eviction in state court; the U.S. District Court judge denied the motion. On June 24, the judge ruled in favor of the housing authority and issued an order for immediate possession of the property and eviction of A.B. and his mother.

A.B. appealed, but the 7th Circuit dismissed because the family has already been evicted.

“For a preliminary injunction to be effective, it must be issued prior to the event the movant wishes to prevent. Once the event in question occurs, any possible use for a preliminary injunction is expired,” wrote Judge William Bauer.

Indiana Supreme Court

June 19

Criminal – Murder/Juror Challenge

Tina Whiting v. State of Indiana

38S05-1206-CR-345

A woman sentenced to 55 years in prison for her role in a 2010 murder lost an appeal to the Indiana Supreme Court.

Tina Whiting appealed the seating of a juror in her murder case because the trial judge denied a joint challenge for cause. The juror knew Whiting and several other people involved in the trial in Jay Circuit Court, and said “No I cannot” when asked if she could provide a fair trial. The juror was empanelled and served.

But the justices ruled that the defense had peremptory challenges available to strike the juror and failed to do so, preserving no error for the court to review.

“We hold that Whiting’s juror-bias claim is procedurally defaulted because she failed to exhaust her peremptory challenges. We also hold that a procedural default under the exhaustion rule is not amenable to fundamental-error review. Accordingly, we affirm Whiting’s conviction for felony murder and summarily affirm her sentence,” said the unanimous ruling written by Justice Frank Sullivan.

Whiting and accomplices were convicted in the beating and stabbing death of Shawn Buckner of Portland, Ind. Buckner was found buried in a shallow grave in Delaware County after Whiting and several others lured him to an apartment and then began beating him in an attempt to steal his prescription medication.

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June 20

Discipline – Attorney

In the Matter of: Douglas W. Patterson

82S00-1111-DI-662

The Indiana Supreme Court has disbarred an Evansville attorney who pleaded guilty in 2011 to Class D felony theft for exercising unauthorized control over more than $17,000 that belonged to 24 current or former clients.

Douglas Patterson has a history of disciplinary action. In 2008, he was suspended for three years after he wrote unauthorized checks totaling $10,500 on the firm’s trust account. He lied to the Indiana Supreme Court Disciplinary Commission during the investigation and hearing. While suspended, he was found in contempt in 2009 for practicing and fined $500.

Last year, Patterson pleaded guilty to three counts of Class D felony theft and received an interim suspension from the Supreme Court, which is still in effect. His disbarment comes after the disciplinary commission charged Patterson in November 2011 with violating Indiana Professional Conduct rules 8.4(b), committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer; and 8.4(c), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

Patterson received an aggregate three year sentence, with one year executed, for the theft convictions.

The justices in the per curiam opinion found Patterson’s conduct warrants immediate disbarment.

Criminal – Insanity Defense/Attempted Murder

John Berry v. State of Indiana

49S04-1110-CR-611

A Marion County court correctly rejected the insanity defense entered by a man who suffers from bipolar disorder and alcoholism in his attempted murder bench trial, the Indiana Supreme Court ruled.

John Berry was on trial for attacking Tony Monday, a man helping Berry’s father renovate a house. The weekend prior to the attack, Berry drank heavily; the attack took place on a Monday. When police arrived, they found Berry’s behavior to be nonchalant and calm, he offered no resistance, and his speech was clear. He did give nonsensical answers as to why he attacked Monday.

A court-appointed psychiatrist and psychologist, as well as a psychiatrist hired by the defense, submitted reports and testified as to Berry’s mental status during the attack. None of the experts cited that Berry suffered delirium tremens, which is a type of settled insanity caused by the chronic abuse of alcohol, at the time of the attack. Two of the three experts testified that Berry suffered from bipolar disorder during the attack and didn’t appreciate the wrongfulness of his conduct. One expert believed it was the consumption of alcohol that caused the attack.

The trial court rejected Berry’s insanity defense, but the Indiana Court of Appeals reversed, concluding Berry suffered from “settled insanity” due to his prolonged and chronic abuse of alcohol.

“The intersection of voluntary intoxication and insanity is murky at best,” wrote Justice Steven David for the court. “Certainly, not all chronic alcoholics have destroyed their mental faculties to the point where they suffer from a mental disease as defined in Indiana’s insanity statute. On the other hand, consumption of alcohol prior to committing an offense does not automatically rule out the insanity defense, as the underlying cause of a defendant’s behavior could be a mental disease.”

The justices ruled it’s ultimately up to the trier of fact to determine whether the defendant’s conduct was the result of a diseased mind, regardless of the source of the disease, or whether it was the result of voluntary intoxication.

They agreed that “settled insanity” is a mental disease or defect as defined by the insanity statute, but found conflicting evidence in this case whether Berry suffered from such a condition.

There was credible expert testimony that his behavior was caused by the voluntary abuse of alcohol and not a mental disease or defect, David wrote, so the justices affirmed the rejection of Berry’s insanity defense.

Criminal – Drugs/Sentence

Rondell Walker v. State of Indiana

34S02-1206-CR-346

Four Indiana justices decided that a man who pleaded guilty to Class B felony possession of cocaine should have been sentenced to 12 years instead of 20.

In the per curiam opinion, Rondell Walker appealed the 20-year sentence imposed after his participation in drug court was terminated. He pleaded guilty to the charge following his arrest for drug crimes and related offenses after he was stopped by police for a traffic infraction within 1,000 feet of a family housing complex.

The Indiana Court of Appeals affirmed, but a majority on the Supreme Court decided to revise Walker’s sentence to 12 years, citing Abbott v. State, 961 N.E.2d 1016, 1017-1019 (Ind. 2012).

Justice Mark Massa voted to deny transfer to the case. The justices affirmed the decision of the Court of Appeals in all other respects.

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June 21

Tax – Reinsurance/Out-of-State

Indiana Department of Revenue v. United Parcel Service, Inc.

49S10-1107-TA-417

The Indiana Supreme Court found that two reinsurance companies of the United Parcel Service are foreign companies that don’t do business within Indiana, so they aren’t exempt from Indiana adjusted gross income tax.

UPS argued its two affiliated reinsurance companies – UPINSCO, formed under the laws of the U.S. Virgin Islands, and UPS Re, formed under the laws of Bermuda – are subject to Indiana’s gross premium privilege tax statute, so they would be exempt from adjusted gross income tax here.

In Indiana, insurance companies are required to pay tax on earned premiums in lieu of state corporate income tax. The premium tax works like an excise tax allowing a foreign insurer to do business in Indiana, wrote Justice Robert Rucker.

UPS contracted with several companies to provide workers’ compensation insurance and liability insurance for damage to its packages, but UPINSCO and UPS Re ultimately insured UPS’s risks.

UPS sought to exclude in 2000 and 2001 from its federal taxable income the income of its affiliates UPINSCO and UPS Re. The Indiana Department of State Revenue disallowed the exclusion and claimed UPS underpaid taxes in 2001. The Indiana Tax Court granted summary judgment for UPS and denied the department’s motion. The Tax Court reasoned that because UPS was “subject to” the premium tax under Indiana Code 6-3-2-2.8(4), it was exempt from the adjusted gross income tax.

The justices concluded that the affiliates were not doing business in Indiana. The record shows – and the parties don’t dispute – that the reinsurance transactions took place between foreign companies as neither the primary insurers nor the affiliates are organized under the laws of Indiana, Rucker wrote.

“… even assuming UPINSCO and UPS Re reinsured Indiana risks, there is no evidence in the record before us that the reinsurance transactions took place in the State of Indiana,” he wrote. “Because this is a necessary condition in order to be ‘subject to’ the premium tax, UPS failed in its burden of establishing that it is entitled to summary judgment as a matter of law. Because we are definitely and firmly convinced the Tax Court’s determination to the contrary is in error, we reverse the grant of summary judgment in favor of UPS and remand this cause for further proceedings.”

Death Penalty – Post-Conviction

Roy Lee Ward v. State of Indiana

74S00-0907-PD-320

A man whose death sentence and murder and rape convictions previously were reversed on appeal by the Indiana Supreme Court remains condemned after the justices affirmed a trial court’s denial of post-conviction relief.

Roy Lee Ward appealed the denial of post-conviction relief of his death sentence after he pleaded guilty to murder and rape in his second trial for the 2001 mutilation killing of 15-year-old Stacy Payne. The state’s high court previously reversed his first conviction due to prejudicial publicity.

The Indiana Supreme Court affirmed denial of PCR on a direct appeal from Spencer Circuit Special Judge Robert Pigman. Ward appealed on several grounds. He claimed trial counsel were ineffective in presenting mitigating factors, challenging aspects of the state’s case, and assisting at appeal; and that Indiana’s death penalty violates the Eighth Amendment.

The unanimous 52-page ruling held that mitigating factors such as Ward’s mental health and upbringing were properly heard in post-conviction court, and in some cases Ward raised claims in PCR that were unknown at the time of his trial.

“Our review of the record does not lead us to an opposite conclusion than that reached by the PC court, that Ward’s trial counsel did not perform deficiently in their mitigation investigation,” Justice Frank Sullivan wrote. “The record largely corroborates the PC court’s findings of fact and ultimately supports its conclusions of law.”

The opinion detailed the grisly nature of Ward’s crime and found that any mitigating factors that had not been presented at sentencing would have been unlikely to persuade jurors to impose a sentence of life without parole.

“The dominant features of Ward’s makeup as it relates to this case are his antisocial personality and his total lack of remorse,” Sullivan wrote. “ … We found the evidence of torture and mutilation to be overwhelming.”

The justices also rejected claims by Ward that Indiana’s death penalty was unconstitutional and that evidence of fewer executions and capital opinions weighed in favor of a sentence of life without parole.

“We do not find the reduction in the rate of death sentences imposed since 1993 to result from any constitutional infirmity in our death penalty statute,” the justices found, and used Ward’s claims of declining frequency to argue in favor of its constitutionality.

“Ward reported that 94 individuals had been sentenced to death in Indiana since 1977,” the ruling says. “Of those, 22 had been executed, 12 were currently on death row, and 4 had died of other causes. We have reviewed the remaining 56 cases and found that in 44, the individuals received relief from their death sentences on direct appeal or in state post-conviction proceedings.

“We believe this record is indicative of a death penalty system that provides the appellate review required by the Constitution.”

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June 25

Civil – Improvement to Real Property

Sharon Gill, on her own behalf and on behalf of the Estate of Gale Gill v. Evansville Sheet Metal Works, Inc.

49S05-1111-CV-672

For the first time, the Indiana Supreme Court addressed what constitutes an “improvement to real property” as mentioned in the construction statute of repose. In doing so, the justices reversed the trial court’s grant of a contractor’s motion for summary judgment in a wrongful death claim.

In 2007, Sharon Gill filed a complaint in Marion Superior Court against Evansville Sheet Metal Works and 18 other defendants asserting wrongful death claims. As to ESMW, she sought damages on theories of products liability and contractor negligence. Her husband worked at Aluminum Company of America in Newburgh and was allegedly exposed to and inhaled asbestos fibers during the course of his employment. He was diagnosed with an asbestos-related disease in 2004 and died of lung cancer in 2005.

ESMW allegedly worked as a contractor for Alcoa at a common worksite with Gill’s husband.

The Marion Superior Court placed the complaint on its Mass Tort Asbestos Litigation Docket and eventually granted ESMW’s motions for summary judgment on the grounds that Gill’s product liability and contractor negligence claims were barred by the product liability statute of repose and construction statute of repose, respectively. At issue before the justices was only whether the construction statute of repose applied.

The Court of Appeals found Gill brought her claim outside the 10-year period stipulated in the statute, so her claim was barred.

Indiana courts have yet to define the meaning of “improvement to real property” as used in Indiana Code 32-30-1-5 (2004). The justices cited the statute in effect at the time of Gill’s complaint even though the statute was amended in 2005. Justice Frank Sullivan noted the court perceived no substantive difference between the former version and the current one.

Looking at how other states have handled this issue, the justices decided to take the “commonsense” approach that looks to the ordinary or plain meaning of the phrase. Whether something is an improvement to real property under the commonsense approach is a question of law, but its resolution is grounded in fact, Sullivan wrote.

The high court held that an “improvement to real property” is an addition to or betterment of real property, that is permanent, that enhances the real property’s capital value, that involves the expenditure of labor or money, that is designed to make the property more useful or valuable, and that is not an ordinary repair.

“In applying this commonsense definition, judges and lawyers should focus on these individual criteria but they should not lose sight of the fact that this is a definition grounded in commonsense,” he wrote. “The fact that a purported improvement satisfies each of these individual criteria may not be sufficient for it to be an improvement within the meaning of the CSoR if it would do violence to the plain and ordinary meaning of the term as used in the construction context.”

In this case, ESMW failed to make a prima facie showing that its work at Alcoa constituted an improvement to real property. The justices remanded for further proceedings.

The justices also addressed the COA’s criticism of that Marion County court following its local rule allowing pre-discovery motions for summary judgment. They agreed with the COA judges that whether something is an improvement to real property is a fact-sensitive inquiry that may require discovery in some cases, but disagreed with the conclusion that Local Rule 714 can’t be applied in this context.

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June 26

Criminal – Credit Restricted Status

Michael Sharp v. State of Indiana

12S02-1109-CR-544

Indiana appellate courts can take into account the potential consequences of an offender’s status as a credit restricted felon when reviewing a sentence, the state Supreme Court ruled.

Michael Sharp appealed his convictions and sentence for one count of Class A felony child molesting and one count as a Class C felony. He was sentenced to 40 years, but because he was assigned to class IV for purposes of credit time, his minimum possible sentence would be a little more than 34 years.

The justices only focused on Sharp’s argument that the Indiana Court of Appeals should have considered his credit restricted felon status when evaluating his request for appellate sentence review under Indiana Appellate Rule 7. The Court of Appeals panel said it wouldn’t take into account a person’s credit restricted felon status because “credit time is set by the legislature and is not a discretionary tool used by the trial court judge.”

The Supreme Court disagreed, holding that credit time status may be considered by an appellate court exercising its review and revise authority.

Chief Justice Brent Dickson wrote that Appellate Rule 7(B) authorizes appellate courts to review and revise the totality of penal consequences ordered by the trial court to determine its appropriateness. “Accordingly, evaluation of a defendant’s sentence may include consideration of the defendant’s credit time status because this penal consequence was within the contemplation of the trial court when it was determining the defendant’s sentence,” he wrote.

The justices found that even considering his assigned credit time status, Sharp’s sentence is not inappropriate because he was in a position of trust with his victim and evidence at trial demonstrated that Sharp committed the offenses multiple times over a period of years.

Indiana Tax Court

June 19

Tax – Filing of Records/Deadlines

Harsukh and Parul Bosamia v. Marion County Assessor

49T10-1108-TA-53

The Indiana Tax Court found it was a couple’s inaction – not the illness and death of a relative – that caused them to miss the deadline to file the certified administrative record with the court.

Harsukh and Parul Bosamia appealed the Indiana Board of Tax Review’s final determination that upheld their commercial real property assessments for the 2007 and 2008 tax years. The Bosamias, who initially represented themselves, initiated the tax appeal on Aug. 27, 2011. They paid a deposit to the board of tax review for a copy of the certified administrative record.

On Sept. 8, they received an invoice for the balance due and letting them know that the record was prepared. On Oct. 2, Harsukh Bosamia traveled to England after learning his mother was ill. Parul Bosamia stayed in Indiana but did not pick up the record or pay the balance. The couple paid the balance due Oct. 21, traveled to England again, and returned Nov. 3 following the death of Harsukh Bosamia’s mother. The Bosamias did not file the record until they returned to the United States and also requested that they be allowed to untimely file it. The Marion County assessor moved to dismiss under Tax Court Rule 3(E) because of the untimely filing.

Judge Martha Wentworth granted the assessor’s motion, finding the Bosamias had several opportunities to file the record with the Tax Court within the designated time frame and received adequate notice that the record was ready. The Bosamias claimed that the notice they received was inadequate and didn’t trigger the 30-day filing period and that their failure to file should be excused under Trial Rule 6(B)(2) because of “excusable neglect” due to the death in the family.

Indiana Court of Appeals

June 15

Domestic Relation – Child Support/Emancipation

David Ashabranner v. Sandy Wilkins, f/k/a Ashabranner

22A01-1109-DR-411

The Indiana Court of Appeals affirmed a Floyd Superior Court ruling denying emancipation of a 19-year-old, but sent the case back to the trial court for recalculation of support payments to include her mother as well as her father.

Cassandra Ashabranner’s father, David Ashabranner, filed a motion for emancipation that would have ended his child support payments to her. She lived alone after her mother, Sandy Wilkins, moved out of the apartment the two had shared in Clarksville.

The appeals court said that while both the daughter and mother were comforted by the mother’s relocation to provide her daughter a future property, “this move was not initiated by Cassandra, and therefore she is not emancipated,” according to the unanimous ruling written by Chief Judge Margret Robb.

“Father next argues that if we affirm the trial court order continuing his child support obligation, which we do, then Mother should also be ordered to pay child support. We agree,” Robb wrote. “We remand this case to the trial court for calculating the correct amount of Mother’s child support obligation and enter an order requiring Mother pay accordingly. To the extent that such calculation warrants modification of the amount of Father’s obligation, the trial court is ordered to make the appropriate adjustment.”

The daughter works as a waitress and is pursuing post-secondary education. “It is prudent to note here that the only reason the trial court should not consider Cassandra’s income at this point is because the issue before it is one of basic child support and not one of post-secondary education expenses,” according to the order. “If the trial court had before it a petition for post-secondary education expenses, Cassandra’s income would necessarily be fair game for the trial court’s consideration.”

The order concluded, “We applaud Cassandra for her courage and determination to seek an education and provide for herself financially, and we refuse to hold her efforts and resolve to do so against her.”

Juvenile – Parental Rights/Due Process

Term. of Parent-Child Rel. of H.K., Ta.K., and Ty.K., (Minor Children), and R.K., Their Mother, and D.K., Their Father; R.K. (Mother) v. The Indiana Dept. of Child Services

42A05-1109-JT-548

The Indiana Court of Appeals remanded with instructions for the trial court to determine whether the mother received proper notice of a Knox County DCS hearing that terminated her parental rights, and if so whether the mother’s due process rights were violated.

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June 18

Civil Plenary – Business Ownership

Don Morris and Randy Coakes v. Brad Crain, Richard Redpath, BioSafe Engineering, LLC, Steven Biesecker, Tyler Johnson, Brandon Ross and Chris Sollars

32C01-1003-PL-414

The Indiana Court of Appeals reversed summary judgment in favor of defendants in a dispute involving ownership of a business.

A panel unanimously reversed an order by Hendricks Circuit Judge Jeffrey V. Boles that granted summary judgment.

Appeals Court Judge L. Mark Bailey wrote in a unanimous opinion that because the court “ordered the parties to implement a procedure inconsistent with summary judgment proceedings, summary judgment was improvidently granted.”

Boles issued an order dismissing several of the defendants from the lawsuit and ordering the remaining parties to submit documents within 10 days. Plaintiffs were ordered to state legal theories asserted against the defendants; defendants were ordered to detail the legal elements of the plaintiffs’ theories they assert had not been met.

Don Morris and Randy Coakes sued after selling a biological effluent destruction systems products company in which they had interest, along with other officials who had lesser interests. The suit was filed after Morris was fired by Steven Biesecker.

The plaintiffs alleged they had equitable interests and contractual rights in BioSafe Engineering and standing to bring a shareholder derivative action that would include seeking appointment of a receiver, an accounting and disgorgement of funds, and BioSafe’s dissolution.

The defendants denied that Richard Redpath and Brad Crain created a false document, made false representations, brought about the plaintiff’s ouster, diverted funds, or met with Morris to discuss ownership participation. The defendants also denied that Morris and Coakes held an equitable interest or that they had standing to bring a shareholder derivative claim.

Criminal – Murder/Conflicting Testimony

Shepell Orr v. State of Indiana

45A03-1107-CR-308

A man convicted of two murders failed in his appeal to the Indiana Court of Appeals, which ruled that a Lake Superior Court did not err in allowing testimony about conflicting statements in reference to the fatal shootings.

Shepell Orr argued that the court should not have allowed testimony from a witness who testified about another witness’s inconsistent statements.

The appeals court disagreed, ruling in a unanimous opinion by Chief Judge Margret Robb that “Orr has failed to demonstrate the trial court committed an error which made a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process.”

Orr was convicted of the Dec. 30, 2009, shooting deaths of Steven Williams and Joshua Haywood. He was sentenced to two consecutive 55-year prison sentences for a total of 110 years.

The shootings happened after Orr and Williams became involved in an argument, and Orr retrieved a gun from his truck and began firing. Orr’s appeal focused on the testimony of a person about what she was told by a witness on the night of the shootings.

Civil Plenary – Wrongful Termination/Jury Award

Peru School Corp. a/k/a Peru Comm. Schools v. Gary Grant v. Peru School Corp. a/k/a Peru Comm. Schools and Stanley Hall

52A04-1107-PL-352

The Indiana Court of Appeals ruled that a fired bus driver and custodian for Peru Community Schools is entitled to damages for wrongful termination, but not the $175,000 a jury awarded him.

Gary Grant was a school bus driver with a yearly contract and an at-will custodian for the school corporation. He would drive the bus during the day and work as the custodian after his afternoon route ended. He was fired from both positions during the 2007-08 school year after nearly 24 years of employment. Grant sued for wrongful termination and a jury awarded him nearly $175,000 in damages. Peru Community Schools appealed the denial of its motions for summary judgment and judgment on the evidence, as well as the admission of evidence regarding Grant’s salary as a school bus driver and custodian until he turns 65.

The trial court denied the schools’ motion for judgment on the evidence regarding Grant’s employment as an at-will custodian, which was an error, the appellate court held. There is no substantial evidence that Grant relied on letters from the school corporation to his detriment, which is required to defeat the presumption of at-will employment, wrote Judge Nancy Vaidik. Grant argued that for years, he received letters thanking him for his services “as a bus driver” and providing “reasonable assurance” that he would be employed for the upcoming school year. He argued that his employment in both jobs were linked from the beginning and believed these letters guaranteed him a job as a bus driver and custodian in the upcoming school year.

But regarding his employment as a contracted school bus driver, the COA found there to be a genuine issue of material fact as to why Grant was fired as he denied one of the two grounds for termination. In addition, cause is required to fire an employee with a contract with a definite term, and the facts were heavily disputed as to whether cause existed, so the trial court properly allowed this issue to go before the jury to resolve.

The appellate judges reduced the amount of damages Grant will receive to $2,422.82, which is the remainder of his salary as a school bus driver for the 2007-08 school year, minus the $1,800 in unemployment he received. Because the trial court should have granted judgment on the evidence for the school system regarding Grant’s termination of employment as an at-will custodian, he’s only entitled to damages regarding his firing from his school bus driver position.

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June 19

Mortgage Foreclosure – Pro Se/Summary Judgment

Alan Patrick McEntee v. Wells Fargo Bank, N.A.

75A03-1106-MF-277

A pro se litigant in a Starke County foreclosure case will get a new day in court after the Indiana Court of Appeals ruled that a judge erred when he granted summary judgment in favor of the bank.

Starke Circuit Judge Kim Hall found for Wells Fargo Bank, which was the mortgager of a property owned by Alan Patrick McEntee. But the appeals court reversed the decision and sent the matter back to the trial court.

McEntee claimed that Wells Fargo mishandled payments that he made on the mortgage, including prematurely depositing checks that had been postdated. He also submitted in his defense a timeline of his payment history and his allegation that the bank failed to recognize certain payments as being made. He also said the bank required payments be made only at certain locations in an escalating dispute over how the bank handled payments.

Wells Fargo at some point returned checks that McEntee submitted to pay the mortgage that deducted for such expenses as overdraft fees incurred due to early deposits and mileage to deliver checks to bank branches.

McEntee also countersued Wells Fargo for the full amount of the mortgage owed, claiming “emotional pain and suffering.”

A unanimous ruling written by Judge L. Mark Bailey found multiple errors in the trial court’s decision.

“The trial court erroneously entered summary judgment in favor of Wells Fargo on its foreclosure claim because Wells Fargo failed to establish that there was no genuine issue of material fact as to the allegation that McEntee had defaulted on the note,” Bailey wrote.

“The trial court’s entry of summary judgment in favor of Wells Fargo on McEntee’s counterclaims was also in error because Wells Fargo did not establish the absence of a genuine issue of material fact as to McEntee’s affirmative defense, and because McEntee’s counterclaim concerning emotional distress was not properly before the trial court at summary judgment. We therefore reverse the trial court and remand this matter for further proceedings.”

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June 20

Civil Plenary – Zoning/Airport Authority

Town of Zionsville, Indiana and Zionsville Plan Commission v. Hamilton County Airport Authority

49A05-1107-PL-374

The portion of Indiana Code that gives an airport authority the power to “fix and determine exclusively the uses” to which airport land may be put does not give the Hamilton County Airport Authority complete zoning jurisdiction over an airport it owns in Boone County, the Indiana Court of Appeals concluded.

The Hamilton County Airport Authority and the town of Zionsville are involved in litigation over whether the airport authority is subject to any Boone County zoning. The airport authority owns and operates the Indianapolis Executive Airport in neighboring Boone County. In 2004, the predecessor to the airport authority executed covenants to govern land use at the airport. The Boone County Commissioners and the county area plan commission allowed the airport authority’s predecessor to execute these covenants in exchange for creating airport districts as a category of use under the county zoning ordinance and designating the airport site for this purpose. The town of Zionsville reorganized with Eagle and Union townships into a single governmental entity known as the town of Zionsville.

In 2010, Zionsville’s planning director told the airport authority it needed approval prior to obtaining construction permits. The airport authority filed a complaint for declaratory judgment, in which the trial court ruled the airport authority had exclusive jurisdiction over land use, zoning and drainage; the Boone County and Zionsville ordinances are invalid as applied to the airport; and the covenants are invalid.

On appeal, Zionsville cited Indiana Code Chapter 36 in support of its argument that it has general zoning authority. The airport authority cited Indiana Code 8-22-3-11, which dictates airport authority powers, and specifically subsection 16, to support its argument it has separate statutory authority to exercise zoning jurisdiction.

The Court of Appeals reversed the trial court, citing City of Crown Point v. Lake County, 510 N.E.2d 684 (Ind. 1987).

“The Indiana Supreme Court has held that a general unit of government maintains zoning authority within its boundaries, even as to other general governments. It has also made clear that this authority cannot be employed for abusive or unreasonable interference,” wrote Senior Judge Randall T. Shepard.

The judges did not address the airport authority’s arguments that the covenants are no longer valid because that issue has not been briefed.

Criminal – Rape/Jury/Vouching Testimony

Jason Michael Palilonis v. State of Indiana

42A05-1104-CR-197

The man charged with raping a fellow Vincennes University student following a night of drinking had his conviction affirmed by the Indiana Court of Appeals.

Jason Michael Palilonis challenged his Class B felony conviction of raping B.S., claiming the trial court abused its discretion when it denied his motion to correct error based on alleged juror misconduct; when it allowed the jury to be informed that B.S. was unavailable because she was deceased; in admitting statements made by B.S. during the course of her sexual-assault examination; when it admitted the vouching statements made by the nurse who performed B.S.’s sexual-assault examination; and when it admitted the statements Palilonis made during his interview with law enforcement after the incident. He also claimed there wasn’t sufficient evidence to support the rape conviction.

Palilonis and B.S. met at a party and had sex. The next night, they were drinking at the same party. B.S. eventually went to a friend’s apartment and passed out on the couch. Palilonis showed up and attempted to have sex with her. A witness saw Palilonis having sex with B.S. Palilonis was beat up by some of B.S.’s friends, and B.S. woke up and went to the hospital for an examination.

About a year after the incident, B.S. committed suicide.

Several days after the jury convicted Palilonis, one juror claimed that the jury learned through the foreperson that the presiding judge told high school students visiting his courtroom that he thought Palilonis was guilty. A special judge heard the misconduct allegations but denied Palilonis’ motion to set aside the verdict.

The Court of Appeals ruled against Palilonis on all of his arguments except for his challenge to allowing vouching statements made by the nurse who examined B.S. to be admitted. The nurse testified that B.S.’s case was noteworthy to her because B.S.’s statement that she was raped was believable, but this is impermissible vouching testimony, noted Judge Nancy Vaidik. It did not rise to the level of fundamental error, however.

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June 21

Miscellaneous – Stolen Goods/Sales Tax

Byron Chan v. State of Indiana

49A02-1110-MI-1024

The Indiana Court of Appeals ruled that a trial court erred in adding sales tax to the value of goods stolen, which allowed the state to seize the car used by the thief.

Byron Chan stole $97 worth of merchandise from an Indianapolis Menards store. The state filed a complaint seeking forfeiture of the car used by Chan to commit the crime. The sales tax of $7 was added into the complaint, pushing the total over the $100 threshold required to be able to forfeit a vehicle under Indiana Code 34-24-1-1(a)(1)(B).

That statute says a vehicle may be forfeited if it’s used or intended to be used … “if the retail purchase value of that property is $100 or more.” The code doesn’t give a detailed definition of “retail or repurchase value,” but the judges decided it does not include sales tax.

“Both Chan and the State have advanced entirely respectable interpretations of the forfeiture statute. One says ‘retail value’ is the price of the goods without tax, and the other says most people think of value as how much they had to pay when they purchased the goods,” wrote Senior Judge Randall T. Shepard.

The judges concluded that “retail or repurchase value” should be read as meaning the price of the goods without the addition of the sales tax due on the transaction.

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June 22

Criminal – Identity Theft/Forgery

Rafael Bocanegra v. State of Indiana

20A03-1108-CR-361

The Indiana Court of Appeals was divided over whether a man who used another person’s Social Security number and a false identification should have been convicted of forgery under a 2005 amendment to the law.

Rafael Bocanegra got a job in 2010 with Keystone RV Co. in Goshen by listing his name as “John Giron” on the application and providing a Social Security number and card that had the name “John Giron” on it. He also had an identification card allegedly issued by Ohio that had the name “John Giron.” When the real John Giron received a letter from the IRS accusing him of not reporting income from Keystone, an investigation showed Bocanegra used Giron’s identification to get the job.

He was charged with and convicted of Class C felony forgery and identity deception as a Class D felony, but he was only sentenced on the forgery conviction.

The majority relied on Lohmiller v. State, 884 N.E.2d 903 (Ind. Ct. App. 2008), to affirm that Bocanegra had intended to defraud his employer and Keystone could suffer potential injury. An amendment in 2005 – enacted after Lohmiller committed her offenses – creates a lesser offense to the Class C felony forgery: counterfeiting. The intent to defraud is not needed to convict one of counterfeiting. The state did not charge Bocanegra with counterfeiting.

While the majority found Bocanegra’s argument that Keystone didn’t sustain any actual injury persuasive, the judges pointed to Indiana decisions after the 2005 amendment that indicate actual injury doesn’t need to be proven to convict of forgery. They ordered that his identity deception conviction be vacated.

Senior Judge Patrick Sullivan dissented, finding there must be an actual injury to prove that Bocanegra committed fraud.

“The fact remains, however, that Bocanegra performed the work for which he was hired and paid. I discern no legally cognizable harm to Keystone from that. One might deduce that by hiring Bocanegra, Keystone was incurring a prospective or possible inquiry and sanctions for hiring an illegal alien,” he wrote. “Nevertheless, such speculative ‘harm’ does not meet the requirement for proof of a legal harm or injury.”

Sullivan would reverse the forgery conviction and leave in place the identity deception conviction.

Civil Plenary – Arbitration/Investments

German American Financial Advisors & Trust Co. d/b/a German American Investment Svcs., PrimeVest Financial Svcs., Inc., and Jeffery W. Tooley v. Dennis M. Reed

19A01-1110-PL-428

A complaint filed by a client against financial services companies and a former employee must be arbitrated per an agreement the client signed when opening an IRA account, the Indiana Court of Appeals concluded. The court split over whether one of the companies could compel arbitration.

German American Financial Advisors and other appellants appealed the denial of their second motion to compel arbitration of Dennis Reed’s claims against them. Reed worked with Jeffery Tooley of GAFA and PrimeVest to open an IRA in 2003. GAFA and PrimeVest had a “commission sharing agreement.”

Reed’s new account application included an arbitration clause. In 2006, Reed rolled over his IRA accounts into a variable rate annuity under the advisement of Tooley that he’d be able to earn around $100,000 in three years and be able to withdraw the full amount without penalties at that time.

Three years later, when Reed sought to withdraw all the funds from the annuity, and after Tooley left GAFA, another employee told Reed he could only withdraw a portion without incurring significant penalties. Reed filed his complaint alleging violations of the Indiana Uniform Security Act, fraud, negligence, and other claims in 2009. The trial court denied the appellants’ first motion to compel arbitration; it denied the second motion to compel as well.

Reed challenged the second motion to compel by pointing out that PrimeVest and GAFA didn’t keep his entire record on file, so the original agreement was not found. He also argued that the companies provided several forms that they believed were the correct documents, but those forms turned out not to be the exact agreement that Reed signed in 2003.

The Court of Appeals reversed and ordered the dispute be arbitrated. They found the appellants satisfied their burden to show the existence of an enforceable arbitration agreement and that the disputed matter is the type of claim that is intended to be arbitrated.

“While we are unimpressed with Appellants’ failure to locate the proper documentation to support their first motion to compel, they ultimately met their burden on the second motion to compel arbitration, which is the only issue before us, and Reed has not offered any evidence to refute the evidence pointing to a valid arbitration agreement,” wrote Judge Edward Najam in the majority opinion.

The judges split over whether GAFA may compel Reed to submit his claims against it to arbitration. The majority found he is required to do so under the doctrine of equitable estoppel, but Judge Michael Barnes believed the majority “is elasticizing the plain and unambiguous language of the arbitration agreement by allowing GAFA to insist on arbitration when GAFA was not a named party to the arbitration agreement—only PrimeVest and Reed were named.”

Criminal – Robbery/Double Jeopardy

Karla P. Estrada v. State of Indiana

20A03-1110-CR-474

An Elkhart teenager convicted in adult court for her role in several armed robberies of gas stations lost her appeal before the Indiana Court of Appeals.

Then-17-year-old Karla Estrada conspired with several friends to rob gas stations around Elkhart in order to get money for Estrada to send to her cousins in Texas. Estrada drove the three friends to and from the gas stations while the friends committed the robberies at five different locations.

Estrada was adjudicated in juvenile court for three counts of Class C felony robbery if committed by an adult, which pertained to the robberies that did not involve weapons. Two months later, the state charged her as an adult with two counts of Class B felony armed robbery as an accomplice based on the first two robberies and one count of Class C felony conspiracy. She was convicted and sentenced to a total of 24 years.

She appealed on four grounds: that the trial court abused its discretion by denying her motion to dismiss and by admitting her statement to police into evidence, that her conspiracy conviction violates Indiana’s double jeopardy prohibition and that her sentence is inappropriate.

The appellate judges found that her charges in adult court weren’t barred by the successive prosecution statute and that those adult charges could not have been brought in juvenile court under Indiana Code 31-30-1-4.

Estrada’s statement to the police detective was admissible because the appellate court found Estrada’s mother knowingly and voluntarily waived Estrada’s rights and both the mother and daughter signed the form saying they understood it.

The conspiracy conviction does not violate double jeopardy prohibition and her sentence is appropriate, the judges held.

Civil Plenary – Pre-Suit Demand/Shareholder

William T. Carter, derivatively on behalf of CNO Financial Group, Inc. v. R. Glenn Hilliard, et al.

49A02-1106-PL-582

A Marion County court didn’t err when it granted insurance holding company CNO board of directors members’ motion to dismiss a shareholder’s lawsuit for failure to make pre-suit demand, the Indiana Court of Appeals concluded.

In 2010, William Carter filed a purported shareholder derivative action against the defendants, who are current and former CNO directors and officers. He did not make a demand on the board of directors before filing the complaint. Carter alleged that these members breached their fiduciary and good faith duties and other claims because they were aware or should have been aware of problems with CNO’s long-term care business segment.

Both the trial court and Court of Appeals looked to Delaware law to decide whether to grant the defendants’ motion to dismiss because CNO is a Delaware corporation. The trial court granted the motion, finding Carter didn’t allege claims showing that pre-suit demand on the board of directors was futile, as required by Delaware Chancery Court Rule 23.1. The Court of Appeals agreed. “We conclude that Carter has not alleged particularized facts to show that the Director Defendants face a substantial likelihood of liability for the conduct described in the Amended Complaint, nor has he alleged particularized facts to show that the Director Defendants breached their duties of good faith and loyalty,” Judge Edward Najam Jr. wrote. “Therefore, Carter has not shown under Delaware law that pre-suit demand on the Board would have been futile.”

Criminal – Immunity/Prosecutor

In Re: Prosecutor’s Subpoena Regarding S.H. and S.C.; S.H. v. State of Indiana

73A01-1109-CR-468

The Indiana Court of Appeals relied on state Supreme Court precedent to find a Shelby County prosecutor could compel parents to testify by providing use immunity. The parents argued the prosecutor couldn’t grant use immunity because there were no grand jury proceedings and they hadn’t been charged with a crime.

The prosecutor petitioned for subpoenas to compel parents S.H. and S.C. to testify about the circumstances surrounding the birth of their child in 2010. S.C. gave birth at home and when she and the baby went to the hospital, the baby showed signs of injury in the form of multiple puncture wounds.

The trial court quashed the subpoenas on the grounds that they violated the parents’ right against self-incrimination, so the prosecutor asked for use immunity to make the parents speak about the birth and injuries. The trial court granted the motion and ordered the parents to testify even though they hadn’t been formally charged with a crime. The trial court also denied the parents’ motion to correct error.

The Court of Appeals found that a prosecutor investigating a crime before charging someone and without a grand jury does have the same authority to grant use immunity as a prosecutor using a grand jury. The trial court cited In Re Order for Ind. Bell Te. To Disclose Records, 274 Ind. 131, 134-35, 409 N.E.2d 1089, 1091 (1980), in support, and determined that such authority is implicit in the office of the prosecutor itself.

The appellate judges disagreed with the judge on that point, finding that a prosecuting attorney only has powers that are prescribed by statute. But, they pointed out that Indiana Bell decided that the investigatory powers of a prosecutor parallel those of the grand jury, and that the prosecutor has the same ability as the grand jury to accumulate evidence. It doesn’t matter that the issue in Indiana Bell did not involve self-incrimination, the judges held.

“While Parents’ argument is persuasive, we cannot reconcile the result they advocate with our Indiana Supreme Court’s statement that a prosecutor has the same ability to accumulate evidence as does a grand jury. We must agree with the State that the legislature’s explicit reference to grand jury proceedings in Ind. Code § 35-34-2-8 cannot be read to restrict the right of a prosecutor to seek use immunity when prosecution is initiated by means of an information rather than an indictment,” Judge Melissa May wrote. “Nor could the legislature have intended that prosecutors have fewer investigative tools before deciding to bring charges than they do after charges are brought.”

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June 25

Civil Plenary – Breach of Contract

Steven Brown v. Chris Guinn

22A01-1111-SC-524

The Indiana Court of Appeals affirmed a Floyd Superior Court breach of contract ruling for a defendant who made a contract with a purchaser who defaulted after assuming payments on a Freightliner truck.

The appeals court found that the trial court did not abuse its discretion when it denied the plaintiff’s motion for involuntary dismissal or commit reversible error when it concluded that the defendant was estopped from denying the term of the parties’ lease contract.

Steven Brown appealed the trial court decision in Chris Guinn’s favor. Brown had signed a contract to assume payments on a tractor-trailer rig that Guinn had with Daimler Truck Financial.

Brown made payments for three months, but then failed to pay for three months and the truck was repossessed.

Though the contract was not produced in court, both parties testified that such a contract had been agreed to. It included provisions that either party could cancel the contract at any time.

Brown, who drafted the contract, said he canceled it after the last monthly payment he made because he had another buyer for the truck, but the sale fell through.

Brown also claimed the trial court’s decision was clearly erroneous. “Brown’s arguments on appeal are without merit,” Judge Edward Najam Jr. wrote in a unanimous decision.

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June 26

Domestic Relation – Division of Marital Assets

Gwen E. Morgal-Henrich v. David Brian Henrich

46A05-1111-DR-645

The Indiana Court of Appeals upheld the equal division of marital assets of a divorcing LaPorte County couple but found the trial court erred in its calculation of how much the ex-husband owes in child support.

Gwen Morgal-Henrich and David Henrich married in 2000 and divorced in 2011. When they married, Henrich adopted Morgal-Henrich’s minor son. They paid $105,000 as down payment on a $230,000 home, with that money coming from the sale of Morgal-Henrich’s home and money from her father. She also had life insurance polices that predated their marriage.

When they divorced, both were out of work and had filed for bankruptcy in 2007. The trial court didn’t deviate from the presumptive equal division of marital assets dividing the couple’s property. The trial court ordered Henrich to pay $6,240 in child support for their son, who was emancipated as of the date of the final hearing in 2011. The judge calculated that Henrich’s weekly gross income was $390 based on his unemployment benefits and that he could pay $65 a week in child support from the date of the filing to the date of the final hearing.

Morgal-Henrich appealed, claiming she brought significant assets into the marriage, which should have created an unequal division in her favor. The judges cited Fobar v. Vonderahe, 771 N.E.2d 57, 59 (Ind. 2002), in upholding the lower court on this issue. The trial court was not required to alter its equal division of the marital property to reflect Morgal-Henrich’s premarital assets, wrote Judge Michael Barnes.

Regarding the child support order, however, the appellate court reversed and ordered a recalculation. The trial court should look at the weekly earnings of Henrich for the applicable time period of August 2009 to June 2011 and use an income averaging calculation to determine his weekly gross income due to his fluctuating income. Henrich does seasonal work and his income varied during the marriage depending on the availability of work.

Domestic Relation – Child Support Calculation

Cortney L. Schwartz v. Jodi S. Heeter

02A03-1109-DR-401

Against the advice of their attorneys, a divorcing couple entered into a settlement agreement that included a “true up” provision for calculating child support each year. That provision came before the Indiana Court of Appeals.

Cortney Schwartz and Jodi Heeter entered into a marital settlement agreement in which the two agreed that Schwartz would pay Heeter $430 a week in child support. The agreement also contained the “true up” provision, which read: “At the conclusion of each calendar year, starting with 2009, the parties’ respective weekly child support obligation shall be adjusted and recalculated by taking the amount of their gross taxable income from their tax return(s) for that year, dividing it by 52 weeks, and using this amount at line 1 of the [Child Support Obligation Worksheet], with all other factors remaining the same for purposes of calculating the parties’ adjusted child support obligation.”

For the 2009 and 2010 years, Schwartz calculated his “true up” payment using the 2009 Child Support Guidelines and paid Heeter approximately $6,000 more a year. Heeter argued that Schwartz should have used the guideline that was applicable at the time he was paying, so for the 2010 year, he should have used the 2011 guidelines, resulting in an additional $44,000 or more.

The trial court ruled that Schwartz correctly paid for the 2009 year, but his “true up” payment for 2010 should have been based on the 2010 guidelines.

The Court of Appeals was divided over what guideline to use, focusing on the word “factors” in the agreement. The majority concluded that the 2009 guidelines should be used until a modification is made to the child support order, so the trial court was correct regarding the 2009 calculation, but erred on the 2010 calculation.

Judge Paul Mathias dissented on this point, finding the trial court’s determination to be the correct one. He believed the provision in the agreement meant that the other “factors” that will remain the same are the other variables that go into calculating the “true up” amount, not the child support obligation worksheet or formula itself.

The appellate court ruled that Heeter may not on remand seek rulings from the trial court on her prior motions for modification of Schwartz’s support obligation because she didn’t comply with Appellate Rule 46(A)(8), and it denied her request for appellate attorney fees.

Civil Tort – Personal Injury/Claim Notice

City of Indianapolis v. Rachel Buschman

49A02-1108-CT-782

A trial court improperly granted summary judgment to a woman on whether her notice to the city of Indianapolis was sufficient to inform it of a potential personal injury claim, the Indiana Court of Appeals ruled.

The city of Indianapolis on interlocutory appeal claimed that the tort claim notice Rachel Buschman provided following an accident with a city police officer was insufficient. Buschman was rear-ended by the officer on July 25, 2008; on Aug. 1, she submitted her tort claim notice to the city. In it, she described the damage and said “no injuries.”

Less than a year later she sued the city, alleging as a result of its negligence she suffered personal injuries, including pain in her lower body and back and herniation of lumbar discs. The city contended that her claims were barred because her tort claim notice didn’t include information about personal injuries.

Buschman argued that at the time she mailed her notice, she only had soreness and didn’t believe she had an injury. It was later that she decided to seek medical treatment. The trial court concluded the notice was sufficient as a matter of law.

The Court of Appeals reversed because the notice contained an explicit denial of injuries so the city had no reason to investigate a personal injury claim or anticipate a claim for medical expenses, lost earnings, and pain and suffering, wrote Judge Michael Barnes. The judges rejected her claim that the purpose of the statute was fulfilled because the city knew of her intent to make a claim and they could investigate the specifics of the accident to prepare a defense.

“[W]e hold that, when a claimant’s notice contains a specific and definitive assessment of loss, his or her recovery is limited to the loss described in the original notice. Alternatively, if, as is the case here, additional losses are discovered after the notice has been submitted, we see no reason why the claimant could not amend the original notice or submit another notice in a timely manner,” he wrote.

The judges remanded for further proceedings.

Miscellaneous Criminal – Search

In Re The Matter of a Search Warrant Regarding the Following Real Estate, Sensient Flavors, LLC v. Indiana Occupational Safety and Health Administration

49A02-1109-MC-844

Because a manufacturer didn’t exhaust its administrative remedies regarding a challenge to a search of its Indianapolis facility by the Indiana Occupational Safety and Health Administration, the Indiana Court of Appeals dismissed the manufacturer’s appeal.

The federal government had concerns about the use of flavoring chemicals, including diacetyl, at Sensient Flavors’ facility. The company makes flavoring for food and beverages. A union became concerned about possible respiratory problems and the use of the chemicals and asked for a health hazard evaluation by the National Institute for Occupational Safety & Health. A report issued by the agency in 2011 found employees experienced respiratory conditions due to exposure to food-flavoring chemicals, including diacetyl.

The Indiana commissioner of labor petitioned for a search warrant in Marion Superior Court to conduct an administrative inspection of the facility. That warrant was amended and narrowed to only include the search of documents, records and areas associated with the use of certain substances. The trial court denied Sensient’s request to stay the execution of the search warrant.

IOSHA informed the trial court in February 2012 that the warrant had been fully executed and later filed a motion to dismiss Sensient’s appeal, arguing the matter was moot.

The judges focused not on the mootness argument but on the fact that Sensient had not exhausted its administrative remedies before taking action in court. The appellate court cited In re Establishment Inspection of Kohler Co., 935 F.2d 810 (7th Cir. 1991), a similar case out of Wisconsin, to find it is without jurisdiction to consider Sensient’s challenge to the warrant.

Judge Nancy Vaidik pointed out that Indiana’s Supreme Court has also emphasized the value of completing administrative proceedings before resorting to judicial review.

Small Claim – Easement Use

Dennis and Jeremy Cochran v. Zeroffos Hoffman and John Dye

15A01-1109-SC-00015

The Indiana Court of Appeals concluded that the language of an easement dating back to the 1800s allows for a family to park its cars on that easement.

Zeroffos Hoffman and John Dye filed a claim against Dennis and Jeremy Cochran in small claims court over use of an easement. The easement allowed for the Cochrans to access their home through the Hoffman property.

In February 2011, Dye, who lives on the Hoffman property, had the Cochrans’ car towed because it was partially parked on the Hoffman property and partially parked on the easement. The Cochrans countersued for damages for conversion as a result of the car being towed. The small claims judge ruled in favor of Dye and Hoffman.

The appellate judges reviewed the language of the easement, which dates back to 1896, and found it grants the right of way for “all purposes of travel,” creating a general easement.

They reversed the trial court on the finding that parking is prohibited, but the court upheld the denial of damages to the Cochrans. There was no evidence that the car was parked completely on the easement when it was towed.

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June 27

Civil Plenary – Easement

Gunther Kranz and Carol Kranz v. Meyers Subdivision Property Owners Association, Inc., Christopher Bartoszek, and Indiana Dept. of Natural Resources

75A03-1112-PL-577

A family that owns property on Bass Lake failed to show that the Natural Resources Commission’s decision that the family must move its pier to accommodate the placement of a group pier was arbitrary and capricious, or unsupported by evidence, the Indiana Court of Appeals ruled.

Gunther and Carol Kranz own property on the lake that is subject to an easement by other landowners. The NRC determined that those easement holders had the right to place a group pier at the end of the easement. The Department of Natural Resources initially denied the permit for a pier over safety concerns. An administrative law judge determined the easement holders should be allowed to have the pier and that the Kranzes and another landowner should move their piers to accommodate the group pier.

Both the NRC and the trial court affirmed the administrative law judge’s decision.

On appeal, the court denied reversing the NRC’s decision. The Kranzes argued that the NRC lacked jurisdiction to determine property rights; that the decision was arbitrary and capricious because the NRC didn’t follow its own rule; that the decision wasn’t supported by substantial evidence; and the decision was an unconstitutional taking.

The NRC has jurisdiction to render a decision regarding property rights to the extent necessary to implement the permit process, wrote Judge Terry Crone. The NRC also properly interpreted and applied its rule, 312 Indiana Administrative Code 11-4-8(c)(1).

“Further, the evidence favorable to the decision is that the safety concerns were alleviated by moving the neighboring piers away from the Group Pier. Finally, we conclude that there was not an unconstitutional taking of the Kranzes’ property,” he wrote. “Because Bass Lake is a public freshwater lake, the only effect of the NRC’s decision on the Kranzes’ property rights was to relocate their pier, and there was no indication that the pier was any less usable in the location chosen by the NRC. The decision does not deprive the Kranzes’ property of all or substantially all of its economic or productive use and therefore is not an unconstitutional taking.”

Criminal – Double Jeopardy

Fili Moala v. State of Indiana

49A02-1109-CR-870

The Indiana Court of Appeals disagreed with the state’s argument that prosecutorial discretion extends to the determination of which conviction should be vacated after a finding of double jeopardy.

Indianapolis Colts defensive end Fili Moala was convicted of Class C misdemeanors operating a vehicle with an alcohol concentration between 0.08 and 0.15 and operating a vehicle while intoxicated; the convictions were merged by the trial court. He was also convicted of Class B misdemeanor public intoxication.

Moala and the state agreed that the operating while intoxicated conviction and the public intoxication conviction violate double jeopardy, but they disagreed as to which conviction should be vacated. The state wanted to drop the Class B misdemeanor public intoxication conviction because the Class C misdemeanor operating while intoxicated could have more severe penalties, such as license suspension, and may lead to a future Class D felony charge if Moala is arrested again for drunk driving.

The appellate judges noted there is not a less serious form of either offense to remedy the double jeopardy issue. Moala argued that the lower class offense should be vacated and the judges agreed.

“As we do not believe non-punitive sanctions should be considered as part of the penal consequences of a conviction, we also do not believe potential future consequences should be considered in determining the penal consequences of a conviction. Considering future consequences would be speculative and raises the possibility of disparate treatment in sentencing,” wrote Chief Judge Margret Robb.

The judges also rejected the state’s argument that it should have the discretion to determine which conviction should be vacated upon a finding of double jeopardy.

They reversed the Class C misdemeanor operating while intoxicated conviction and ordered the trial court vacate it.

Criminal – Child Molestation/Sentence

Cory Heinzman v. State of Indiana

29A02-1012-CR-1327

The Indiana Court of Appeals affirmed the 24-year sentence imposed on a former Hamilton County Department of Child Services’ case manager found guilty of molesting his cousin’s son.

Cory A. Heinzman raised several issues on appeal: whether the trial court erred by denying his motion for discharge, whether it abused its discretion in admitting testimony that he claims vouched for the credibility of the victim and a letter written by the victim, and whether his convictions of three counts of Class C felony child molesting constitute double jeopardy. He also challenged his sentence.

In addition to being convicted of molesting his cousin’s son in 2002 and 2003 when the boy was 10 and 11, Heinzman pleaded guilty to Class D felony sexual battery in a separate case that involved the boy’s younger brother.

The trial court did not err in denying Heinzman’s motion for discharge because he waived his right to a speedy trial under Criminal Rule 4(C) by not objecting when the trial court set a trial date outside the one-year time limit, the judges found. Because Heinzman was responsible for some delay in the trial, did not timely assert his right to a speedy trial, and failed to demonstrate resulting prejudice, the delay in his trial didn’t violate his constitutional right to a speedy trial.

The judges ruled the trial court didn’t abuse its discretion in admitting evidence of the report showing Heinzman’s abuse had been “substantiated” because this testimony didn’t run afoul of Indiana Evidence Rule 704(b), wrote Judge Paul Mathias. The letter written by the victim was admissible under an exception to the hearsay rule and was cumulative of the boy’s testimony.

Heinzman’s convictions of child molesting don’t constitute double jeopardy and the trial court didn’t abuse its discretion in sentencing him.•