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Indiana Court Decisions: Sept. 18 to Oct. 1, 2013

Sept. 18 to Oct. 1, 2013

October 9, 2013
KEYWORDS neglect

Indiana Supreme Court

Sept. 18

Criminal – Fourth Amendment/Drugs

Kevin M. Clark v. State of Indiana

20S05-1301-CR-10

A man’s conviction and 45-year sentence on a meth charge cannot stand because the police search at a rental storage unit that led to his arrest violated his Fourth Amendment protections, a majority of the Indiana Supreme Court ruled.

Four of five justices agreed to overturn an Elkhart Superior jury’s verdict affirmed by the Indiana Court of Appeals.  

Kevin Clark was arrested in August 2009 after police arrived at a 24-hour self-storage facility owned by Robert Dunlap, who complained to police that he believed a renter of one of the units might be living there. When Dunlap saw renter Dennis Collins and two other men at the site late at night, Dunlap called police and asked them to help remove Collins from the facility.

When Elkhart police arrived, they approached the three men in a manner that the majority concluded was not consensual. As the men were leaving the unit, Clark dropped a black bag he was carrying as police approached. When police persisted in questioning, he admitted having marijuana in the bag.

Police then proceeded to search his nearby car and found materials commonly used to manufacture methamphetamine. Clark ultimately was charged with and convicted of Class A felony attempted dealing in methamphetamine.

But a majority opinion written by Justice Steven David concluded Elkhart Superior Judge George W. Biddlecome wrongly denied Clark’s repeated efforts to suppress the search evidence. “The violation of Clark’s Fourth Amendment rights in this case was the direct jumping-off point to the discovery and seizure of all of the substantive evidence used to convict him,” David wrote in a 4-1, 29-page opinion from which only Justice Mark Massa dissented.

“Without repeating the analysis in full, we note that it would also apply to the same evidence when it was re-found following execution of the search warrant. Because none of that evidence should have been admitted at a trial against him, the conviction cannot stand.”

The majority characterized the encounter leading to the arrest as a “fishing expedition” that quickly spiraled from the initial purpose of the police response.

“In short, the officers encountered three men that they did not know, in a place where people are permitted to be, doing something completely in line with the expected activity at that location, at a time when people might be expected to be found there (or, given that it was a twenty-four-hour facility, at least not at a time where people are not permitted),” David wrote.

The majority noted that officers who came to the scene ordered the three men to sit, and after Clark initially refused to answer questions about the contents of the bag, he made the marijuana admission only after an officer told him he would employ a K9 that would alert to any narcotics in the bag.

Another problem the majority noted in the analysis: no evidence in the record specifically prohibited a renter from living in the units.

“We therefore are left with the conclusion that Clark’s admission to possessing marijuana, the marijuana and other contents of his black bag, and the contents and state of his vehicle, were all fruits of his unlawful detention. As such, all of this evidence should have been suppressed and it was error to admit it at trial,” the majority held.

In dissent, Massa said he would affirm the trial court and unanimous COA ruling affirming it.

“The Court’s thoughtful and meticulous parsing of the facts and the law, in the end, leaves one overarching question unanswered: what should the police have done?” Massa wrote.

“When called at midnight to a 24-hour storage facility in a high-crime area to help the owner evict a customer improperly living in a unit, should they have refused to come? I doubt it. Once there, should they have declined to investigate further and not accompanied the owner from the gate to the unit? Again, I think not. Most critically, once they entered the unit and saw Clark drop his bag, should they have looked the other way and departed?

“… Once they saw Clark drop his bag, I would conclude they did have such a suspicion, whatever the tone of their ensuing instructions. It was Clark’s subsequent admission, as the majority notes, that led to his arrest and all that followed — most of which this Court would approve, had it not found all that fruit poisoned,” Massa wrote.
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Sept. 26

Civil Collection – 14th Amendment/Tax Sale

M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank

03S04-1211-CC-645

The Indiana Supreme Court upheld 20 years of precedent in finding that a county auditor is obligated to notify a mortgage holder of an impending property sale only when that mortgage holder specifically requests a notice.

The Supreme Court reversed the trial court and remanded. It ruled the requirement in Indiana Code 6-1.1-24.3(b) that a mortgage holder annually request a notice of a tax sale does not violate the 14th Amendment’s due process clause.

Monroe Bank, the mortgagee of the Ahlemeyer Farms, did not know the property was included in the Bartholomew County tax sale until after the buyer, M&M Investment, notified the bank.

Challenging the sale, the bank argued the statute mandating the mortgagee first request a notice of a tax sale before the county is required to provide a copy violates the 14th Amendment of the U.S. Constitution.

The bank asserted that under Jones v. Flowers, 547 U.S. 220 (2006) and Mennonite Bd. Of Missions v. Adams, 462 U.S. 791 (1983), due process requires the government to provide pre-tax sale notice by mail or personal service regardless of whether the mortgagee has requested it or not.

The Supreme Court was not persuaded to overturn two decades of precedent. The court did not want the state to take additional burdensome steps. It also questioned whether obligating the state to do more would be beneficial in today’s era of mortgaged-backed securities and trading.

Writing for the court, Justice Steven David held, “…Monroe Bank’s apparent alternative – that a county auditor be required to comb the files of the recorder’s office to see if a mortgage is recorded for a tax-delinquent property, assess whether the mortgage is still valid, and then determine whether the mortgage accurately reflects the mortgagee’s identity and address – remains unnecessary for two reasons: it would unreasonably tip the scales of our analysis by imposing too great a burden on the State, and the burdens this approach would impose would not result in a greater likelihood of successful notification.”

Indiana Court of Appeals

Sept. 18

Civil Tort – Arbitration

Anonymous, M.D. and Life Care Centers of America, Inc., d/b/a Lane House v. Evelyn Hendricks

79A04-1304-CT-185

The Indiana Court of Appeals has found an arbitration agreement’s “plain language” trumps a woman’s attempt to stop the alternative dispute resolution process.

Evelyn Hendricks, through her health care representative, signed a voluntary agreement for arbitration when she moved into Lane House.

Later, when she filed suit against the health care facility for negligence, Hendricks argued arbitration would not be possible. She pointed to a 2009 consent decree the National Arbitration Forum had entered into with the Minnesota attorney general which barred it from conducting any future arbitration involving disputes between consumers and businesses.

The trial court agreed and denied Lane House’s motion to stay the proceedings and compel arbitration.

Reversing the denial, the Court of Appeals found Hendricks assertion overlooked a key element in the arbitration agreement she signed.

NAF is named as the preferred entity to conduct the arbitration in the Lane House agreement but the document also contains provisions for another alternative dispute resolution service or method to be used if NAF is unavailable.

Since the agreement provides for an alternate entity or method, the Court of Appeals held that NAF was not integral to the arbitration. Its current inability to serve as the arbitrator between Hendricks and Lane House does not void the agreement.

Juvenile Paternity – Surname

In Re: the Paternity of: N.C.G., B.G., v. N.G.

02A04-1301-JP-21

A noncustodial father’s active participation in his son’s life convinced the Indiana Court of Appeals that giving the father’s surname to the minor was in the best interest of the child.

The trial court denied the petition for change of name, ruling because the child, N.C.G., had gone by his mother’s surname for more than two years, giving the minor a new last name would not be in his best interest.

The father appealed, asserting the conclusions of the trial court “derived from findings of fact are clearly erroneous.” He told the court he had been trying to get his son’s name changed since the child was born. However, he had been unsuccessful because he could not settle the issue with the child’s mother.  

The Indiana Court of Appeals agreed with the father. It reversed the trial court and remanded with instructions that the trial court enter an order changing N.C.G’s surname to the father’s.

The Court of Appeals pointed to recent cases, namely C.B. v B.W., 985 N.E.2d 340, 348 (Ind. Ct. App. 2013) and Petersen v Burton, 871 N.E.2d 1025, 1029 (Ind. Ct. App. 2007), which held that it is in the child’s best interest to carry the father’s surname when the adult pays child support and actively participates in the minor’s life.

Protective Order – Evidence

Justin D. Maurer v. Crystal Cobb-Maurer

02A03-1304-PO-129

A divorcing woman’s protective order against her soon-to-be ex-husband was not supported by evidence, an appeals panel ruled in reversing the trial court’s order.

The panel found evidence in the record – including the judge’s own uncertainty – didn’t meet the statutory minimum for issuing a protective order.

Senior Judge Frederick A. Schurger issued an ex parte protective order for Crystal Cobb-Maurer against Justin Maurer that was transferred to the couple’s divorce case earlier this year. Neither party testified, though their attorneys engaged in a back-and-forth exchange to which the parties agreed everything each said was true.

“The Indiana Rules of Trial Procedure and the Indiana Rules of Evidence neither explicitly allow nor prohibit this practice as a proper method of presenting evidence, but neither party objected to carrying on the hearing in this fashion. Suffice it to say, the line between evidence and argument was significantly blurred,” Chief Judge Margret Robb wrote in a footnote.

Evidence that was presented included one email from Justin to Crystal, in which he wishes her happy birthday and says he wishes to restore their marriage. It also says he disapproves of and forgives her for a relationship with another man and quotes Bible passages.

Crystal also said Justin touched her “in some sort of effort to get her to abide by his wishes to save the marriage.”

“The trial court gave only this comment on the evidence before ruling: ‘I’ve got an incident I’m bothered by the uh extent of the uh, uh harassing, uh or the email uh exchanges, I think are, reached the level of harassment,’” Robb wrote for the panel that also included Judges James Kirsch and Patricia Riley.

“These matters should be treated with the care and consideration that the gravity of their purpose demands. To that end, we believe that this case demonstrates the shortcomings — on many levels — of a hearing on such matters conducted without thorough presentation of the evidence and examination of the parties involved.

“After a review of the record, we are left with the firm conviction that there was not sufficient probative evidence presented at the hearing to support a finding that the contacts in evidence would cause a reasonable person and in fact caused Crystal to feel terrorized, frightened, intimidated, or threatened. Therefore, there was not sufficient evidence to support the trial court’s issuance of a protective order.”

Civil Plenary – Attorney Fees/Mitigation of Damages

Lily, Inc. d/b/a Weinbach Cafeteria and Fernando Tudela v. Silco, LLC.

82A05-1209-PL-459

The Indiana Court of Appeals split over what duties a landlord has to re-lease a commercial space when the current tenant is behind on payments.

Fernando Tudela leased space in an Evansville shopping center from Silco LLC. He quickly fell behind in his payments and eventually Silco filed a complaint for breach of the lease agreement, ejectment, foreclosure of mortgage and conversion.

After the trial court granted summary judgment to Silco, Tudela raised multiple issues on appeal.

The Court of Appeals affirmed in part the trial court’s order granting summary judgment to Silco. It also reversed and remanded for consideration issues related to attorney fees, mitigation of damages and accounting.

Tudela asserted that Silco did not try to find a new tenant. Specifically, the landlord designated no evidence that it made any effort to re-let the premises and therefore failed to use reasonable diligence to mitigate damages.

Silco countered that Tudela’s deposition was improperly designated and he presented no evidence of his claims.

The Court of Appeals observed that Tudela did designate his deposition and pointed to specific portions in his response to Silco’s motion for summary judgment. Silco also designated portions of Tudela’s deposition.

Writing for the majority, Judge Elaine Brown concluded that based on the designated evidence there is a “genuine issue of fact as to whether Silco failed to use reasonable diligence to mitigate damages.”
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Sept. 25

Juvenile – Parental Rights/Due Process

In the Matter of the Involuntary Term. of the Parent-Child Rel. of D.P., Minor Child, and her Father, D.P.; D.P. v. Indiana Dept. of Child Services and Child Advocates, Inc.

49A02-1303-JT-245

A father’s due process rights were violated when a juvenile court stripped him of parental rights based on findings of facts prepared by a magistrate who did not hear from and observe witnesses, the Indiana Court of Appeals ruled. The magistrate took over the case after another magistrate, who had conducted the evidentiary hearing in his case, resigned.

In the appeal arising from the court of Marion Superior Judge Marilyn A. Moores, the appellate panel reversed the termination order and remanded for a new evidentiary hearing followed by new findings of fact and conclusions of law.

Magistrate Julianne Cartmel conducted an evidentiary hearing in October 2012, but she resigned her position before findings could be provided to the court, and the case was transferred to magistrate Larry E. Bradley.

“DCS has presented no authority, and we find none, suggesting that a magistrate should be treated any differently from a trial judge in a situation where the magistrate makes factual findings without having had the opportunity to hear the testimony and observe the witnesses,” Judge Rudy Pyle III wrote for the panel, which included Judges Mark Bailey and Melissa May.

“As such, we conclude that Father’s due process rights were violated in the instant matter. Magistrate Bradley could not properly resolve questions of credibility and weight of evidence because he did not have an opportunity to hear the evidence and observe the demeanor of witnesses,” Pyle wrote.
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Sept. 30, 2013

Small Claims – Change of Judge

Amy Palmer v. Margaret Sales and Unique Insurance Company

45A03-1302-SC-31

How long a small-claims court litigant has to request a change of judge is a question that divided a Court of Appeals panel, where a majority found that an earlier appellate panel majority got it wrong. The dissenting judge authored the prior opinion, and said it shouldn’t be disturbed even if it may have been wrongly decided.

A panel of the Court of Appeals reversed a Lake County case arising from a property damage accident in which damages awarded after a bench trial were less than $3,000. But the judge in the case erroneously ruled a plaintiff’s motion for change of judge untimely. The panel remanded, ordered a change of judge and implementation of procedures for choosing a new judge, and ordered the case moved to the plenary docket.

Judge Terry Crone wrote the majority opinion joined by Judge Patricia Riley that found the law improperly applied and perhaps improperly formulated.

“We agree that the small claims court erred by finding that (Palmer’s) request for a change of judge was untimely. The small claims court had relied on McClure v. Cooper, 893 N.E.2d 337 (Ind. Ct. App. 2008). We disagree with the majority opinion in McClure, which gives the defendant only three days after receiving the notice of claim to request a change of judge. In any event, McClure is distinguishable because the notice of claim sent to Palmer did not properly notify her of the trial date.”

The majority sided with Judge James Kirsch’s dissent in McClure, in which he found that Trial Rule 76(C)(5) should govern the amount of time a litigant has to ask for a change in judge.

Judge Mark Bailey concurred in part and dissented in part, finding that Palmer properly moved for a jury trial but was denied, so the matter should be moved to the plenary docket as the majority did. But Bailey wrote that the panel shouldn’t have reached the change of judge question, and he noted that since Palmer acknowledged liability, the only question for the court should be damages.

“In recognition of our judicial role and as a matter of policy, it seems wise to me not to reach matters beyond those necessary for resolution of a case. Because we can resolve this appeal without disturbing existing precedent, based upon the trial court’s erroneous denial of a jury trial, we ought not to address McClure,” Bailey wrote, noting the rule of stare decisis stands for the proposition of not disturbing findings of the same court absent urgent reasons or clear error.

Domestic Relation – Child Support/Judge

William A. Asher v. Stephanie J. Coomler

49A04-1302-DR-71

A father whose lawyer was surprised to see a magistrate presiding at his child support modification hearing that had been docketed with a special judge won a new hearing from the Indiana Court of Appeals.

William Asher was ordered to pay 78 percent of the educational expenses for his daughter after Magistrate Kimberly Mattingly conducted a hearing in Marion Superior Court. Asher’s attorney had objected to Mattingly presiding. Special Judge S.K. Reid had been selected to hear the matter under Trial Rule 79 after Asher had moved for a special judge.

 “By the express terms of T.R. 79(I)(2)(a), only a judge pro tempore, temporary judge, a senior judge appointed by Judge Reid could preside under such circumstances. Further, T.R. 79(I)(2)(b) is inapplicable since Judge Reid was the regular judge of Civil Division 14 at the time of hearing. Because a magistrate is not within the class of judicial officers specified in T.R. 79(I)(2), Magistrate Mattingly could not preside at the hearing,” Judge Patricia Riley wrote for the panel that included Judge James Kirsch and Chief Judge Margret Robb.

“Because Father objected to Magistrate Mattingly presiding over the case at the first hearing, no further objections were required,” Riley wrote. “Therefore, the Order is without legal effect. … Accordingly, we reverse and remand with instructions to the trial court to permit the parties to select a successor special judge in accordance with the procedures specified in T.R. 79(I)(1).”•

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