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Indiana Court Decisions Aug. 8-21, 2012

August 29, 2012

7th Circuit Court of Appeals

Aug. 8

Civil – Due Process

Michael J. Alexander v. Mark McKinney

11-3539

The Muncie attorney who sued former Delaware County Prosecutor Mark McKinney, alleging due process violations following his arrest and acquittal on conspiracy to commit bribery charges, lost his appeal before the 7th Circuit Court of Appeals. The judges found the attorney was trying to recast an untimely false arrest claim into a due process claim.

Michael Alexander and McKinney butted heads over the years on McKinney’s handling of drug forfeitures involving local law enforcement’s drug task force while McKinney was deputy prosecutor. McKinney was suspended by the Indiana Supreme Court in 2011 after he was no longer prosecutor for his involvement in prosecuting the drug offender cases while pocketing assets seized from defendants in those cases.

After he was elected prosecutor in 2007, the 7th Circuit Court opinion says McKinney sought a way to punish Alexander as an outspoken critic.

Alexander’s colleague, Jeff Hinds, was under investigation by the FBI for possible involvement in a bribery scheme. The FBI originally decided Alexander wasn’t involved, but later allegedly worked with McKinney to bring false charges against Alexander. False and misleading evidence was gathered and submitted to a special prosecutor on conspiracy to commit bribery charges in 2007. That prosecutor was unaware the evidence was false or altered. A jury acquitted Alexander of the charges in 2009. More than a year later, Alexander sued McKinney and the FBI agents. McKinney filed a motion to dismiss, which the District Court granted, finding he was entitled to qualified immunity because Alexander didn’t allege that he was deprived of a cognizable constitutional right.

The 7th Circuit affirmed, finding that Alexander was trying to circumvent his failure to file a timely Fourth Amendment claim for false arrest and his decision to not file a state law malicious prosecution claim. The Circuit Court has squarely rejected similar cases to Alexander’s, where a plaintiff tries to file a due process claim when other state law and constitutional claims are unavailable. He should have used the Fourth Amendment, not the due process clause, to challenge the lawfulness of his arrest, Judge Michael Kanne wrote.
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Aug. 9

Civil – Inmate/Eighth Amendment

Danny R. Richards v. Michael Mitcheff, et al.

11-3227

A federal judge was incorrect in dismissing an inmate’s lawsuit alleging Eighth Amendment violations by prison staff who ignored his abdominal pain for months until the inmate was diagnosed with ulcerative colitis, the 7th Circuit Court of Appeals ruled.

Danny Richards began complaining in January 2008 about pain and blood in his stool; prison physicians said he was fine. In October 2008, Richards was sent to the hospital, where he was diagnosed with ulcerative colitis. At that point, there was nothing doctors could do but remove his colon and construct an ileo-anal pouch.

Richards sued prison medical staff in December 2010, citing their indifference to his serious medical condition. The District Court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) following a motion by the defendants, ruling the lawsuit untimely.

This was wrong, the 7th Circuit ruled, because Indiana requires the judiciary to toll the time limits for incapacitated persons. Richards claimed that he did not file the suit within the applicable statute of limitations because the three surgeries he had disabled him for extended periods of time, that when he was out of the hospital he was in constant pain and unable to walk, and only filed the suit when he had the energy to do so.

These allegations may not be true, but they are plausible, and no more is required of a pleading, Chief Judge Frank Easterbrook wrote. A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted; his complaint does that so it can’t properly be dismissed under that rule, Easterbrook continued.

The suit also couldn’t have been dismissed under Rule 12(c), he pointed out. The federal judge rejected Richards’ plead of incapacity, only saying his reasons for delay are “unpersuasive.” But a judge can’t reject a complaint’s plausible allegations by calling them unpersuasive, Easterbrook said. Only a trier of fact can do that, after a trial.

This case has not reached the point where Richards’ allegations of physical incapacity are put to the test. Once he has an opportunity to produce evidence material to the tolling question, its sufficiency under Indiana law can be tested by a motion for summary judgment, the court held. Easterbrook also wrote that before proceeding further, the District Court should consider carefully “whether to assist Richards in finding a lawyer who can muster the facts and, if necessary, secure medical experts.”
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Aug. 16

Civil – Attorney/Legal Duty

Thomas Rosenbaum, et al. v. Beau J. White, et al.

11-3224

A group of investors suing attorneys who worked on the establishment of two business entities – which later failed – were unable to show the 7th Circuit Court of Appeals that the attorneys owed the investors any legal duty.

The federal appellate court upheld summary judgment in favor of Beau Jack White and James Beaman and their firm Johnson Beaman Bratch Beal and White LLP on the investors’ claims of RICO violations, conversion, securities fraud, civil conspiracy and legal malpractice.

Real estate investor Chad Seybold hired White and Beaman to help him create two business entities, one of which would be partially owned by a group of investors. At a seminar with potential investors, White explained the concept of limited individual liability afforded by an LLC structure. Seybold told the potential investors that White represented one of the new companies being formed, he’s looking out for the investors’ best interests, and White is working for Seybold and the investors. White never clarified or corrected Seybold’s statements that he was not the attorney for the investors.

Investors sank more than $1 million in Seybold’s plan; about a year later he informed investors he was filing for bankruptcy and that their investments were gone.

The plaintiffs alleged that they each established an attorney-client relationship with the defendants, and even if they didn’t, the defendants still owed them a duty under the Indiana Rules of Professional Conduct, most especially Rule 4.3 laying out a lawyer’s responsibility when dealing with unrepresented persons.

The only attorney-client relationship formed was with the two businesses, the 7th Circuit ruled, rejecting the investors’ claim that White’s presentation at the seminar implied existence of the attorney-client relationship with each investor. The judges also didn’t think Seybold’s comments during White’s presentation implied an attorney-client relationship with investors. They also rejected the claims that a duty was implied under the Rules of Professional Conduct.

“Further, several plaintiffs’ subjective beliefs demonstrate that they understood that the defendants were acting on behalf of the investors as a group, not individually, and that the defendants’ involvement in the investment plan did not last beyond the companies’ formation. And the disclaimer included in the operating agreement that each investor signed should have alerted a reasonable investor that the defendants were not representing them in their personal capacities,” Judge Daniel Manion wrote.

The 7th Circuit also found the investors couldn’t rely on the statements made at the seminar to support their securities fraud or actual fraud claims.

“We need not address the merits of each independent tort … because the plaintiffs have failed to demonstrate that the defendants acted in concert with Seybold to commit any unlawful act, or that they accomplished a lawful purpose through unlawful means,” Manion wrote.
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Aug. 17

Civil – Personal Injury/Insurance Liability

Amerisure Insurance Co. v. National Surety Corp. v. Scottsdale Insurance Co.

11-2762, 11-2771

A District judge did not err in how he apportioned liability among three insurers for payment of a settlement between an injured worker and a contractor, the 7th Circuit Court of Appeals held.

Indiana Steel Fabricating hired Central Steel Erectors as a subcontractor on a project. In the course of that work, Brian Colip, a Central Steel employee, fell from a roof and was injured. He sued ISF and settled for $2.9 million. At issue before the 7th Circuit is how much, if any, should ISF’s insurers, Amerisure Insurance Co. and National Surety Corp., or Central Steel’s insurer, Scottsdale Insurance Co., be liable with regard to the settlement.

U.S. District Judge William Lawrence ultimately found Amerisure and Scottsdale liable for $1 million each and National liable for $900,000.

The appeal relates to Scottsdale’s obligation to contribute to the settlement under its umbrella policy. Central Steel had two policies through Scottsdale: a commercial general liability policy and an umbrella policy. Scottsdale claimed that the umbrella policy contains an explicit exclusion that exempts it from paying; Amerisure and National countered that Scottsdale is estopped from relying on that provision and it doesn’t apply here.

The exclusion says the insurance doesn’t apply to “bodily injury” arising out of a claim or suit brought by any insured against another insured. The judges found a straightforward way of reading this exclusion is as one that applies to lawsuits between two parties covered by the same insurance, and it reflects the intent of Scottsdale and Central Steel not to purchase insurance that would cover personal injury lawsuits between insured parties under the umbrella policy.

The exclusion applies to this case, the 7th Circuit held, so Scottsdale doesn’t have to draw on the umbrella policy to fund the settlement. The appellate court also rejected Amerisure and National’s arguments that Scottsdale didn’t bring up its rights under the exclusion until too late in the game, which constitutes an unfair attempt by Scottsdale to “mend its hold.” The mend-the-hold doctrine prevents a defense in contract litigation from changing defenses midstream without any reason for doing so.

Indiana has only applied this doctrine once – back in 1928 – and the judges declined to use it in this case. In addition, the parties had ample notice of Scottsdale’s intent to assert all defenses to coverage available to it under the policy, Judge Diane Wood wrote.

A typo in some of Scottsdale’s filings regarding how much it seeks to recover does not prevent it from recovering more than $450,000, the judges ruled.

Indiana Tax Court

Aug. 17

Tax – Unauthorized Practice of Law

Wireless Advocates, LLC v. Indiana Department of State Revenue

49T10-1109-TA-60

The Indiana Department of State Revenue asked the Indiana Tax Court to create a rule requiring limited liability companies be represented by attorneys in court, similar to a rule pertaining to corporations, but Judge Martha Wentworth declined to “invent such a rule where one does not currently exist.”

Wireless Advocates LLC appealed the revenue department’s final determination denying its claim for refund of adjusted gross income tax for the 2006 tax year. Thomas Gaisser, a member, vice president and chief financial officer of the company, signed the verified petition for judicial review and notice of appearance filed with the clerk’s office. An attorney appeared on behalf of Wireless Advocates after the department filed its motion to dismiss.

The revenue department wants Wentworth to dismiss the case because Wireless Advocates as a company couldn’t initiate the appeal itself but needed an attorney to file it. Gaisser, as a non-attorney, engaged in the unauthorized practice of law by signing and filing the verified petition and notice of appearance, the government agency argued.

Wentworth declined to create a rule for LLCs similar to that of corporations. She noted that she didn’t need to determine whether Indiana Small Claims Rule 8(C)(3) applied – which requires LLCs be represented by attorneys in matters of more than $1,500 – since neither attorney mentioned the rule. She also pointed out in the footnote that UPL determinations are for the Indiana Supreme Court to decide.

Corporations proceeding pro se are given an opportunity to retain counsel when its opponent contests the party proceeding pro se. A corporation must refuse before dismissing the action, Wentworth noted.

She rejected the agency’s argument that Gaisser – over the advisement of the clerk’s office and a certified public accountant to consult with an attorney before appealing – attempted “to game the system and get additional time to hire an attorney.”

Wentworth pointed out Wireless Advocates hired an attorney just nine days after the department filed its motion to dismiss, and its petition reveals nothing to defeat an equitable result. The revenue department will have 30 days to file its answer to the complaint.  

Indiana Court of Appeals

Aug. 9

Criminal – Jury Instructions/OWI

Guydell Watson v. State of Indiana

48A04-1107-CR-443

A Madison Circuit judge did not abuse his discretion in instructing the jury on operating a vehicle while intoxicated as a Class C misdemeanor, a lesser-included offense of drunk-driving charges a man faced, the Indiana Court of Appeals concluded.

Guydell Watson faced two charges for allegedly driving while under the influence: operating a vehicle with a B.A.C. of at least 0.15 percent as a Class A misdemeanor and operating with a B.A.C. of at least 0.15 percent with a previous conviction for operating while intoxicated as a Class D felony. Watson’s first trial resulted in a hung jury, so the state retried him on the same charges.

Over Watson’s objection, the trial court also instructed the jury on operating a vehicle with a B.A.C. of at least 0.08 percent but less than 0.15 percent as a lesser-included offense of operating a vehicle with a B.A.C. of at least 0.15 percent. The jury found Watson guilty of the lesser-included offense, and Watson pleaded guilty to an amended Class D felony charge.

On appeal, Watson challenged the refusal to grant him public funds to hire an expert witness to decipher the results of tests performed on the BAC Datamaster used by the arresting officer. At the trial, an inspector with the Indiana State Department of Toxicology testified about how Datamasters are calibrated.

But Watson failed to show that the proposed unnamed expert could demonstrate that which he desired from the expert and failed to set forth what exactly he wanted the expert to testify about, Senior Judge Carr Darden wrote. It appeared he wanted the expert for only exploratory purposes.

Watson also claimed the trial court improperly granted the state’s motion to instruct on the lesser-included offense. The Court of Appeals found that operating a vehicle with a B.A.C. of at least 0.08 percent but less than 0.15 percent is an inherently lesser-included offense of operating a vehicle with a B.A.C. of at least 0.15 percent, so the trial judge did not abuse his discretion in instructing the jury on the Class C misdemeanor.
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Aug. 10

Civil Plenary – Misappropriation & Conversion/Trade Secrets

HDNET LLC v. North American Boxing Council

49A02-1112-PL-1146

A dispute over idea misappropriation and civil conversion involving the origin of televised mixed martial arts through HDNET Fights was sent back to the trial court. The Court of Appeals ruled that Marion Superior Court’s grant of partial summary judgment in favor of a sanctioning body that had suggested the development of a similar idea was in error.

Five years ago, the North American Boxing Council and cable and satellite channel HDNet exchanged a series of emails about the possible future development of weekly broadcasts of a mixed martial arts fight series. The parties didn’t enter into a contract, but the boxing council considered the information in the emails a protectable commercial idea.

The NABC sued in 2008 after HDNet owner Mark Cuban formed HDNet Fights. NABC alleged eight counts: idea misappropriation, unfair competition, breach of oral contract, breach of implied covenant of good faith and fair dealing, negligence, misappropriation of trade secrets, conversion of trade secrets and promissory estoppel.

Marion Superior Judge Thomas Carroll granted summary judgment to NABC on its claims of idea misappropriation and conversion of trade secrets, holding that the claims were not preempted by the Indiana Uniform Trade Secrets Act.

The appeals court ruled the trial court found in favor of a narrow reading of Indiana Code 24-2-3-1(b) that subverted legislative intent.

“NABC’s interpretation of the IUTSA would encourage piece meal litigation and would thus fail to implement the legislature’s intended goal of uniformity. Accordingly, we conclude that the trial court’s summary judgment order is erroneous as a matter of law,” Senior Judge Carr Darden wrote in reversing the court’s summary judgment for idea misappropriation.

Darden wrote on reversing the second finding of summary judgment that “NABC’s civil conversion allegation does not delineate a criminal act; it merely outlines another allegation of civil misappropriation of NABC’s ideas. Thus, the conversion action is not saved by the criminal law exception to the IUTSA’s preemption provision.”

Miscellaneous/Estate – Malpractice/Statute of Limitations

Teresa A. Houser, Personal Rep. of the Est. of Anonymous Physician, Deceased v. Stacy Kaufman, C.K., and Brent Kaufman; Teresa A. Houser, Personal Rep. v. Stacy Kaufman, et al.

50A03-1201-MI-19

A woman’s malpractice lawsuit against the estate of a Marshall County doctor who died more than two decades ago will go forward, the Indiana Court of Appeals ruled. The court found the two-year statute of limitations on medical malpractice claims unconstitutional in certain cases.

Stacy Kaufman filed a proposed medical malpractice claim against the estate of anonymous physician Dr. K in 2009, 35 years after Dr. K delivered her. The doctor ordered a blood test for phenylketonuria (PKU), and although the blood test revealed that Stacy had PKU, Dr. K. never communicated the result to Kaufman’s parents, according to court records.

Indiana Code 34-18-7-1(b) “violates Article 1, Section 23 and Article 1, Section 12 of the Indiana Constitution in cases where a plaintiff, within the two-year period, does not know, or in the exercise of reasonable diligence could not have discovered, that he or she had sustained an injury as a result of malpractice,” Judge Michael Barnes wrote in a unanimous opinion.

Kaufman didn’t discover that she had PKU – a condition in which a person cannot break down a certain amino acid which can lead to a toxic buildup in the body. It can cause severe malformation and mental retardation in children.

Kaufman gave birth to C.K. in November 2005. C.K. was born with microcephaly – a small head – and dysmorphic facial features. It wasn’t until 2007 that a neurologist diagnosed C.K. as having PKU. Kaufman’s mother, Mary, in September 2007 obtained Stacy’s birth records and discovered the test confirming PKU that had not been communicated.

The Court of Appeals affirmed the ruling of Marshal Circuit Judge Curtis Palmer, who declined to grant the estate’s request for summary judgment on the statute of limitations. Palmer found an issue of fact as to when the diagnosis was discovered and properly denied summary judgment for the estate.

“We are, of course, fully cognizant that we are permitting a nearly four-decade old claim of malpractice to proceed at this time. Nonetheless, it is not unheard of in our jurisprudence to permit lawsuits based upon decades-old acts of negligence to proceed, under very limited circumstances. See, e.g., Jurich v. Garlock, Inc., 785 N.E.2d 1093, 1095 (Ind. 2003),” Barnes wrote.

Meanwhile, the court declined to reverse Palmer’s ruling that Dr. K did not owe a duty to Kaufman’s child, C.K.

“Recognizing duty in a case such as this could extend a physician’s potential liability for several decades after an alleged negligent act. This would contravene the Act’s purpose of placing reasonable limits upon a physician’s exposure to malpractice claims. Additionally, there is no doubt a strong public policy in favor of ensuring that infants are properly tested for PKU and that any such test results be expeditiously conveyed to the infant’s parents. However, the original patient him- or herself is directly harmed and sustains injury if a positive PKU test result is not conveyed and the patient may state a claim for malpractice against the doctor,” Barnes wrote.

“We acknowledge some tension between our holding on this issue and on the statute of limitations issue, particularly with respect to our concerns regarding the time period between the alleged original negligence and the filing of this lawsuit. Nevertheless, the two issues are governed by different legal standards and, as such, has led to two different results.”
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Aug. 13

Miscellaneous – Homeowners Association

CSL Community Association, Inc. v. Clarence Ray Meador

40A01-1112-MI-579

The Indiana Court of Appeals reversed a trial court’s ruling that changes in a gated residential vacation and retirement community were so radical as to abrogate a homeowner’s obligation to pay yearly fees to the homeowners association.

In 1998, Clarence Ray Meador and his wife bought a lot, which included a double-wide trailer and a 40-foot boat dock, in Country Squire Lakes Community in North Vernon. In 2006, Meador purchased an adjacent lot. The annual dues are $75 per lot and the current assessment is $300 per lot. As the economy fluctuated, investors purchased lots for rental or contract properties and the community shifted from owner-occupied to tenant-occupied. The rental property owners frequently stopped making payments to the HOA. Currently, 60 to 65 percent of these owners are delinquent on their fees and assessments, leaving the HOA with a $3 million to $4 million revenue shortfall.

As a result, dues and assessments are used on essentials such as payments on a $950,000 improvement loan, repairs to a dam, insurance and limited road maintenance, leaving insufficient funds to maintain the recreational amenities. Meador paid his dues and assessments and tried to influence the HOA board of directors in their budgetary decisions but he was ignored, and he has been unsuccessful at getting a financial audit of the HOA.

The trial court abrogated Meador’s obligation to pay dues and assessments, concluding the changes in the community had been so radical that the original purpose of the community and the deed restrictions had been defeated long ago. It also ruled that Meador could still vote at the HOA meetings because his obligation to pay had been abrogated.

In its appeal, the HOA argued the trial court’s decision “conflicts with long-established Indiana contract law.”

The COA agreed with the HOA, finding the lack of recreational facilities is not radical enough to justify the abrogation of a private contractual property covenant and that the HOA bylaws clearly state the financial obligations of homeowners.

Although the COA appreciated the trial court’s attempt to provide relief, the majority stated, “the relief provided is not one afforded under Indiana law, and thus we cannot affirm the judgment. The abrogation of Meador’s obligation to pay dues and assessments is not a remedy for these problems, but there are potential alternatives that Meador and the HOA can investigate.”

Civil Tort – Negligence/Statute of Limitations

E.J., a minor by his mother and father Victor and Lynell Jeffrey v. Paul Okolocha, M.D., Okolocha Medical Corp., and Okolocha Medical, Pain and Weight

45A03-1201-CT-15

A New York couple who adopted a child born in Lake County lost their appeal of an unsuccessful negligence claim against a doctor who did not provide requested prenatal records that would have revealed the child’s significant brain abnormalities before the adoption was finalized.

“This case involves a very unfortunate set of circumstances,” Judge Terry Crone wrote for a unanimous panel that affirmed Lake Superior Judge Diane Kavadias Schneider’s grant of summary judgment for Dr. Paul Okolocha.

Victoria and Lynell Jeffrey adopted E.J., who they thought to be a healthy baby boy, from birth mother V.S. in 2006. Days before E.J. was born, a sonogram revealed abnormalities that would require a lifetime of medical care and assistance.

The trial court, upon hearing grants for summary judgment from both sides, granted summary judgment for Okolocha, and the appeals court agreed.

A request from the Jeffreys’ attorney for the records was directed to “To whom it may concern,” and though the release was signed by the birth mother, both the trial court and the appeals court found that the request did not comport with laws to protect patient privacy, specifically the federal Health Insurance Portability and Accountability Act (HIPPA) and Indiana Code 16-39-1-4.

“The fact remains that Dr. Okolocha only has a duty to release medical records when properly authorized by a patient to do so. There was no such authorization here, and therefore no duty. The Jeffreys claim for negligence must fail,” Crone wrote.

“We are mindful of the great emotional and monetary harm suffered by the Jeffreys in this case. However, it cannot be ignored that the Jeffreys and their attorneys were in the best position to avoid the harm suffered. The Jeffreys and their attorneys finalized the adoption of E.J. despite the fact that they had not received V.S.’s prenatal records from Dr. Okolocha. Unfortunately, there were tragic consequences to that gamble. Nevertheless, we cannot find a duty in negligence when none exists. Summary judgment in favor of Dr. Okolocha is appropriate. The judgment of the trial court is affirmed.”

Juvenile – Termination of Parental Rights

In the Matter of the Term. of the Parent-Child Rel. of Ma.J. and My.J.; and K.B. v. Indiana Dept. of Child Services

27A02-1112-JT-1193

A Grant County mother who lost parental rights to twin children won a reversal of the termination order after the Indiana Court of Appeals noted her progress in areas of concern to the Department of Child Services.

The twins were born in 2007, and since then mother K.B. and the children’s father were arrested after a domestic dispute, and K.B. had been accepted into a drug court program for treatment of a prescription drug abuse problem. She has complied with drug court terms, has maintained an appropriate home, has been working and visiting regularly with her girls, the order noted.

“In light of the undisputed evidence that mother had eight months of solid progress in each area of concern, we conclude that DCS did not meet its burden of demonstrating that the conditions resulting in removal would not be remedied. Therefore, we reverse,” Judge Terry Crone wrote in a unanimous opinion.

The court said there was evidence that K.B. was invested in her recovery through the drug court process and had shown no cause for concern during the previous eight months.

“When a parent has been involved with drugs or an abusive relationship, there will always be concern about relapse. However, this is not a case where the parent’s progress has been inconsistent or last-minute. We do not feel that it is necessary to speculate about mother’s potential for relapse. There are no longer any immediate concerns about her ability to parent the twins, and her ability to cope with the added responsibility can be quickly assessed without substantial risk of harm to the twins,” Crone wrote.

The order said that while the ruling will cause some disruptions in the twins’ lives, they had a loving relationship with their mother and termination also would be a disruption.

“It is well established that the involuntary termination of parental rights is an extreme measure that is designed to be used as a last resort when all other reasonable efforts have failed,” Crone wrote in reversing.
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Aug. 14

Criminal – Child Molestation/Sentence

Andrew Stetler v. State of Indiana

01A04-1201-CR-1

An Adams Circuit judge’s sentence of 90 years in prison for a man convicted of molesting two girls ages 7 and 9 and for being a habitual offender was not inappropriate, the Indiana Court of Appeals ruled.

Andrew Stetler lost his appeal that challenged the sufficiency of the evidence against him and whether the sentence was inappropriate based on the nature of the crimes and Stetler’s character.

The court ruled that evidence presented by a nurse who examined the girls provided necessary support for Stetler’s convictions.

“Stetler took advantage of an opportunity with two young girls to commit two separate and distinct offenses, he has a prior conviction for the same crime, multiple previous attempts at rehabilitation have failed, and he was released on parole for his prior molestation conviction only two months before committing these crimes,” Chief Judge Margret Robb wrote in a unanimous opinion.

“These facts convince us that the nature of Stetler’s offenses and his character do not warrant reduction of the sentence imposed.”

Trust – Property Agreement Execution

Harold O. Fulp, Jr. v. Nancy A. Gilliland, Individually and as Successor Trustee of the Ruth E. Fulp Revocable Trust Dated June 29, 2005

41A01-1111-TR-530

A trustee who canceled the sale of Johnson County farmland from mother to son was within her rights to do so, but the 91-year-old mother was capable of executing the agreement, the Indiana Court of Appeals ruled.

The court affirmed that Nancy Gilliland individually and as successor trustee of the Ruth E. Fulp Revocable Trust did not tortiously interfere with a contract that Harold Fulp had signed to purchase farmland his mother owns in a trust. He farmed the land near Franklin on a rental basis.

But the appeals court reversed the trial court by holding that Ruth Fulp at 91 could properly execute a purchase agreement, and the family dynamic was a factor in her agreeing to sell the property below market value.

Harold Fulp had presented various purchase scenarios for the land and suggested he pay $2,200 per acre, the same price his mother had allowed a daughter to pay years earlier.

Mother and son agreed on a total purchase price of $450,252, but before the deal could be closed, Gilliland canceled the transaction. The trial court found for Gilliland and ruled that Ruth Fulp was not mentally competent.

“Absent a finding of undue influence or mental incapacity – which Gilliland does not allege, nor did the trial court find any – Ruth entered into a valid agreement and Harold is entitled to specific performance of the Purchase Offer Agreement,” Judge Patricia Riley wrote in a unanimous opinion.

On the other hand, the court also upheld Gilliland’s voiding the deal in her role as trustee.

“Being confronted with a purchase offer agreement that depleted the trust corpus and sold the farm below fair market value, Gilliland, as successor trustee, had a legitimate and reasonable reason to repudiate the agreement. Therefore, we conclude that she did not tortiously interfere in the contractual relationship between Ruth and Harold,” Riley wrote.

Civil Plenary – Limited Partnership

In Re: Rueth Development Company, An Indiana Limited Partnership

45A03-1110-CP-468

The dissolution of a family-owned limited partnership was remanded to a Lake County court after the Indiana Court of Appeals ruled that the trial court erred in allowing some of the partners to pursue a derivative action.

In a 35-page unanimous opinion, Judge Patricia Riley ordered continuation of proceedings that began almost 18 years ago to dissolve Rueth Development Company. The court affirmed in part, reversed in part and remanded the Lake Superior Court’s grant of relief vacating the dismissal of dissolution proceedings involving partners in the land-development company.

“Because appellees’ claims do not satisfy the statutory requirements for a limited partnership derivative action and because the claims asserted by Harold (Rueth) in the amended application were brought in the context of winding up RDC’s affairs and his demand for an accounting, the trial court’s grant of relief is clearly erroneous,” Riley wrote.

The order also ruled that the trial court did not abuse its discretion by granting relief under Trial Rule 60(B) and that the court did not abuse its discretion by granting a preliminary injunction on capital distribution and payment of attorney fees.
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Aug. 15

Criminal – Waiver of Right to Jury Trial

Reko D. Levels v. State of Indiana

82A01-1201-CR-25

The Indiana Court of Appeals reversed a Vanderburgh County man’s misdemeanor convictions of battery and public intoxication, finding he did not waive his right to a jury trial.

At a November 2011 hearing, Vanderburgh Magistrate Judge Sheila Corcoran advised Reko Levels that he had a right to a trial by court or by jury. Levels told the magistrate later in the hearing he wanted a jury trial “ten days ahead of time.”

A bench trial was conducted, at which Levels was convicted of the Class B misdemeanors battery and public intoxication.

The trial court failed to adequately advise Levels of the consequences of failing to demand a jury trial, Judge L. Mark Bailey wrote. The court didn’t mention the necessity of making such a request no later than 10 days before the scheduled trial date and never disclosed that the failure to make the request would waive Levels’ right to a jury trial. There’s also no indication that Levels knew his demand had to be in writing.

The COA rejected the state’s argument that the advisement was unnecessary because Levels had mentioned he wanted a jury trial 10 days ahead of time. Levels’ reference doesn’t reveal that he knew the request had to be in writing or even what the 10 days had to be ahead of, Bailey wrote in a footnote.

Civil Tort – Negligence/Evidentiary Ruling

Mary Barrix and Joe Barrix, Jr. v. Kristopher Jackson and Graves Plumbing Co. Inc.

28A04-1202-CT-82

A couple who consented to an entry of judgment on the evidence against them in a negligence claim in order to appeal the evidentiary rulings lost their case in the Indiana Court of Appeals.

Mary Barrix and her husband sued Kristopher Jackson and Graves Plumbing Co. Inc. for negligence after Barrix was involved in a car accident with Jackson while he was in the scope of his employment.

The Barrixes retained neurologist Dr. William Fulton to perform a medical evaluation of Barrix. He concluded Barrix suffered a 1 percent permanent partial impairment because of her ongoing pain. At a 2012 deposition of Fulton – who was unable to testify during trial – the defendants objected to the doctor’s testimony concerning the content of the medical records upon which he based his evaluation of Barrix’s condition. At trial, the defendants also objected to the admissibility of his deposition and the medical records and bills he relied upon.

After hearing oral argument and the Barrixes’ offer of proof, the trial court sustained the defendants’ objection, at which time the Barrixes rested their case and stated they would appeal the evidentiary ruling. The defendants moved for judgment on the evidence, which the court granted.

The appellate judges affirmed, finding the Barrixes couldn’t show reversible error as a result of the exclusion of Fulton’s deposition testimony from the evidence, and that any such error was invited. The Barrixes never directed the trial court to specific portions of the testimony that may have been admissible without the admission of prior doctors’ opinions and diagnoses, Judge L. Mark Bailey wrote.

In addition, the court didn’t abuse its discretion when it excluded Barrix’s medical bills from evidence, and the plaintiffs failed to submit even the minimal amount of evidence required to avoid entry of judgment on the evidence in this case.  

“Rather than seek a continuance or an interlocutory appeal, the Barrixes, through counsel, effectively consented to entry of judgment on the evidence against them in order to appeal the trial court’s evidentiary rulings. Here, the strategy worked to their peril,” he wrote.

Miscellaneous – Public Records Request

Michael R. Jent v. Fort Wayne Police Department

02A03-1108-MI-388

An inmate at the Pendleton Correctional Facility was unable to identify with reasonable particularity the records he sought from the Fort Wayne Police Department, the Indiana Court of Appeals concluded. The case also allowed the judges for the first time to address “reasonable particularity” under the Access to Public Records Act.

Michael Jent, a convicted child molester, sought in 2009 daily incident report logs of crimes committed from Jan. 1, 2001, through Dec. 8, 2005, dealing with specific crimes and specific descriptions of a perpetrator. Sgt. Andrew Bubb with the Internal Affairs Unit of the city of Fort Wayne wrote Jent and said that the police department’s software “won’t facilitate the production of any kind of list with the parameters you specified.”

Jent then filed a complaint with the Indiana Public Access Counselor. The PAC issued an advisory opinion saying the department must make available for inspection and copying the information required to be maintained in the daily log, except for any information that falls under the investigatory records exception.

Jent sought declaratory and injunctive relief, and the trial court granted summary judgment for the FWPD.

The appellate judges noted they have never interpreted the “reasonable particularity” requirement under the APRA, but in the context of discovery rules, a requested item fits the designation if the request enables the subpoenaed party to identify what is sought and enables the trial court to determine whether there has been sufficient compliance with the request.

Jent’s request describes the records he wants in some detail, but that detail doesn’t satisfy the “reasonable particularity” requirement, the COA concluded. The FWPD was unable to fulfill his request using the search parameters Jent provided due to the software used to maintain the logs. The judges also found Jent’s reliance on the PAC advisory opinion to be misplaced because the opinion misconstrued the letter from Bubb.

“Jent did not designate any evidence showing a question of material fact on whether the FWPD had the capacity to locate the records using the search parameters set out in his request. Accordingly, it is undisputed that the FWPD was entitled to summary judgment on the basis that Jent’s request did not conform with Indiana Code Section 5-14-3-3(a)(1),” the appellate opinion states.

Civil Tort – Expert Witnesses/Nurses

Michael K. Curts, Individually and as Personal Representative of the Estate of Dorothy J. Curts, Deceased v. Miller’s Health Systems, Inc. a/k/a Miller’s Merry Manor, Logansport, LLC, et al.

09A02-1112-CT-1191

The Indiana Court of Appeals declined to create a blanket rule that nurses cannot qualify as expert witnesses under the Indiana Evidence Rule and testify as to whether a health care provider breached a standard of care or whether an alleged breach caused an injury.

The decision came in a wrongful death, breach of contract and negligent infliction of emotional distress claim filed by Michael Curts. Curts’ elderly mother lived in Miller’s Merry Manor nursing home to receive care following a stroke. She had a history of falling and of getting out of bed while waiting for nurses to help her to use the bathroom. On May 7, 2006, staff found her lying face down on the floor in a large amount of blood. Curts happened to arrive at the room during this incident and saw his mother on the floor. She died the next day in the hospital.

He sought to have Theresa Weitkamp, a nurse and nursing home administrator, testify as an expert witness. She concluded that Miller’s Merry Manor deviated from commonly accepted standards of care and regulations.  

A medical review panel of three doctors determined the evidence didn’t support that the nursing home failed to meet the appropriate standard of care and its conduct wasn’t a factor of the resultant damages. The trial court granted summary judgment in favor of the nursing home.

The appellate court reviewed caselaw in which nurses have been found unable to testify as expert witnesses regarding medical causation and medical standards. In those cases, the medical causation issues were complex, but in the instant case, the question is whether Miller’s Merry Manor failed to meet its standard of care and whether the injuries from the fall caused the woman’s death.

“In a scenario such as this, we cannot foreclose the possibility that some nurses have sufficient expertise to qualify as an expert witness,” Chief Judge Margret Robb wrote. But Curts didn’t present sufficient evidence of Weitkamp’s expertise for the court to conclude that she qualifies as an expert witness. In addition, the judges found Curts failed to meet his burden of establishing a genuine issue of material fact.•

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