Indiana Court Decisions – Oct. 29 to Nov. 11, 2014

Keywords neglect

7th Circuit Court of Appeals

Nov. 7

Criminal – Due Process/Mistake-of-Fact Defense

United States of America v. James Bowling


The 7th Circuit Court of Appeals reversed a Manilla, Indiana, man’s convictions of making false statements in connection with the purchase of a firearm, holding the trial court violated his due process right to present a mistake-of-fact defense.

James Bowling was charged with felony strangulation and three misdemeanors in December 2011. His trial was continued in July 2012 after the Rush County prosecutor offered a plea agreement in which Bowling would plead guilty to a misdemeanor charge in exchange for the other charges being dropped. Bowling pleaded guilty in October 2012.

But prior to pleading guilty and while the charges were pending, Bowling attempted to purchase a firearm from a dealer in Rushville. On the federally required form, he answered no to the question, “Are you under indictment or information in any court for a felony for any crime, for which the judge could imprison you for more than one year?” He also provided his office address, which is the address on his driver’s license, as his residence.

These two answers led to an indictment on the two making false statement charges. At his jury trial, Rush County Prosecutor Phillip Caviness testified for the government that he drafted the state charging information against Bowling, which included the felony charge. When Bowling attempted to ask Caviness about the plea offer to dismiss the felony count, the government objected. The jury never heard testimony about the plea offer.

Bowling asked for his two convictions to be overturned because he claimed he was entitled to present a mistake-of-fact defense. For him to be convicted, the government has to prove that he knowingly made the false statement. Bowling wanted to show the jury that he believed at the time he attempted to buy the gun that he no longer was under a felony information based on the plea agreement.

 “Among Bowling’s due process rights is the right to cross-examine the county prosecutor (or call him as a defense witness) in order to obtain a testimony concerning any facts relevant to the case,” Judge Daniel Manion wrote. “Having made the requisite showing, Bowling had the right to develop the mistake-of-fact defense and present it to a jury.”

Because the judges couldn’t say whether the jury still would have found him guilty had he been able to cross-examine the county prosecutor and develop this defense is full, the error is not harmless and requires a new trial.

Indiana Supreme Court

Nov. 6

Civil Plenary – Right-to-Work Statute

Gregory F. Zoeller, Attorney General and Rick J. Ruble, Commissioner of the In. Dept. of Labor v. James M. Sweeney, et al.


The Indiana Supreme Court has ruled that two sections of the state’s right-to-work law do not violate the Indiana Constitution. A union had asked a Lake County judge to declare the entire statute unconstitutional.

Plaintiffs Local 150 of the International Union of Operating Engineers, AFL-CIO, and several of its members and officers sought a declaratory judgment that the right-to-work law violates several portions of the state constitution. The state sought to dismiss the action.

Last year, Lake Superior Judge John M. Sedia sua sponte found that I.C. 22-6-6-8 and 22-6-6-10 violate Article I, Section 21 of the Indiana Constitution. The judge found that “the effect of IC 22-6-6-8 and IC 22-6-6-10 under the current, long-standing federal labor law, is to demand particular services without just compensation,” and thus violates Section 21. Sedia had stayed his ruling from taking effect, pending appeal.

The law was passed in February 2012 and took effect the following month.

I.C. 22-6-6-8 prohibits employers from requiring union membership or the payment of monies as a condition of employment; Section 10 makes the knowing or intentional violation of Section 8 a Class A misdemeanor.

The state and the union disputed whether the challenged provisions of the RTW law constitute a demand by the state for particular services under Section 21. The state argues that, literally, state law has not demanded the union to do anything. The union argues that its services are indirectly demanded by the state because it is “charged with the knowledge of the existence of the federal law which requires unions to represent every individual employee fairly,” and also has enforced the federal law in state courts.

“On the face of the Indiana Right to Work Law, there is no state demand for services; the law merely prohibits employers from requiring union membership or the payment of monies as a condition of employment, Justice Brent Dickson wrote. “… Article 21 requires just compensation when the state demands particular services, not when the federal government does so.”

Justice Robert Rucker concurred in result with a separate opinion, writing there may be a case that if properly presented and proven could demonstrate that a union has actually been deprived of compensation for particular services by application of the right-to-work law, so as to that union, the statute would be unconstitutional.

“However, this is not that case,” he wrote.

Indiana Court of Appeals

Oct. 29

Civil Tort – Construction Injury

Gary Lamb v. Mid Indiana Service Company, Inc., B2 Contractors, LLC, C&M Wrecking Inc., and C&M Trucking & Excavating Inc.


Finding genuine issues of material fact exist in a negligence lawsuit as to the general contractor’s role in a subcontractor’s injury, the Indiana Court of Appeals reversed summary judgment and ordered further proceedings.

Gary Lamb worked for Kingdom Electric, a subcontractor on a convenience store construction project with Mid Indiana Service Co. Inc., as the general contractor. Lamb asked Mid Indiana’s sole employee at the construction site, John Conarro, to delay digging a trench for an electrical cable outside the building until Lamb installed a CT cabinet. He told Conarro he would get to it the next day.

The next day, the trench had been dug and Conarro told Lamb things had to get done and that “he had to dig it out.” Conarro asked Lamb if he could still install the cabinet; Lamb and his co-workers attempted to install the cabinet, but the trench partially collapsed, injuring Lamb.

Lamb sued Mid Indiana and others to recover damages for his injuries. Mid Indiana moved for summary judgment, which the trial court granted.

Mid Indiana contended generally that as a general contractor it owed no duty to provide a safe place to work for Lamb. Lamb argued that Mid Indiana assumed such a duty by undertaking to dig the trench before Lamb could finish his work, thereby creating an unreasonable risk of injury for Lamb.

Conarro said in his deposition that he had the equipment and skill to dig the trench but he did not do it and didn’t know when it was dug. But there is evidence from which it could be inferred that either he dug the trench himself or directed someone to do it.

“Here, although the general contractor may not have assumed responsibility for providing a safe work place for all subcontractors, by its actions through Conarro it created a condition in the work place that posed an unreasonable risk of harm to Lamb. Thus, there are genuine issues of material fact that preclude summary judgment for Mid Indiana,” Senior Judge John Sharpnack wrote. 

Domestic Relation – Attorney Fees/Spousal Payment

Robert A. Masters v. Leah Masters


The Indiana Court of Appeals ruled that the arbitrator in a contentious divorce proceeding erred when she ordered the husband to pay $95,000 in attorney fees to his ex-wife.

Robert and Leah Masters agreed to submit to arbitration to end their marriage and determine custody and parenting time issues regarding their one child. The arbitrator determined the parties’ respective incomes, whether actual or imputed. Robert Masters was determined to have an $80,000 income; Leah Masters had not worked for many years to be a stay at home mother, but received an imputed income between $15,000 and $23,400 based on her college degree.

In addition to ordering Robert Masters to pay back child support and an equalizer payment, the arbitrator ordered him to pay Leah Masters $95,000 for her attorney fees. Robert Masters hired an attorney through his union, at a reduced fee; Leah Masters had to pay for a private attorney with a loan from her parents.

“We hold that the arbitrator’s findings are clearly erroneous because they do not demonstrate Husband’s ability to pay the fee assessed against him. When determining whether to award attorney’s fees, the other party’s ability to pay is a factor to be considered,” Judge Edward Najam wrote. “But there are no findings here that demonstrate that the arbitrator considered that factor. To the contrary, the arbitrator expressly found that Husband’s annual income is $80,000; she directed Husband to pay $17,735 in his child support arrearage; she directed him to pay $23,965.05 as a cash equalization payment within 100 days of the dissolution order; and she directed him to pay $51,000 to “replenish…the parties’ bank accounts.” Moreover, the $95,000 award is about $1,000 more than Husband’s 40% of the valued portion of the marital estate. If anything, the arbitrator’s findings seriously call into doubt Husband’s ability to pay another $95,000 to Wife.”

In addition, there are no findings that Robert Masters acted in bad faith or in any way more inappropriately than wife through the dissolution process. The COA remanded with instructions for the court to enter a reasonable award of attorney fees to wife in a manner consistent with this opinion.

The judges also rejected each party’s request for appellate attorney fees but found that husband has the right to recover his appellate costs pursuant to Appellate Rule 67(C) since he was wholly successful in this appeal.

Oct. 30

Juvenile – Delinquency/Evidence

M.J. v. State of Indiana


Citing lack of evidence, the Indiana Court of Appeals reversed an Indianapolis teen’s adjudication as a juvenile delinquent for committing what would be Class A misdemeanor resisting law enforcement if committed by an adult. None of his actions suggested any criminal activity was afoot.

The police were dispatched to an apartment complex to investigate the report of a suspicious young, black male wearing a white T-shirt who was seen “around” a white SUV. The officers found nothing when they arrived; but 30 minutes after they arrived, they saw M.J., a young black male wearing a maroon T-shirt, approaching them in the distance. When he saw the officers, he abruptly turned and began walking in a different direction. The officers ordered him to stop, but he took off running.

M.J. claimed he lived nearby the complex and he had overslept that morning. He was running to catch the bus to the Boys and Girls Club. His father testified that he overslept and was not able to take M.J. to the club.

The juvenile court found M.J. committed Class A misdemeanor resisting law enforcement if committed by an adult, and placed him on probation with a suspended commitment to the Indiana Department of Correction. The juvenile court also modified orders in three previous cases – two theft cases and an auto theft case – to include the same suspended commitment to the DOC.

“Although the resisting law enforcement statute, on its face, does not expressly require the order to stop to be lawful, in order to interpret the statute as constitutional, the Indiana Supreme Court has explained that such an order to stop must be understood to require probable cause or reasonable suspicion,” Senior Judge Carr Darden wrote.

Because there’s no evidence M.J. was involved in any criminal activity, his adjudication must be reversed, the COA held. The judges also vacated the modification of the three previous orders.

Oct. 31

Domestic Relation – Post-Secondary Education Expenses

Michael Dwain Neal v. Amanda Lee Austin


Tackling an issue of first impression involving a request for payment of post-secondary education expenses, the Indiana Court of Appeals held that a child support order under I.C. 31-16-6-6 refers to the parties’ most recent order concerning support.

Amanda Lee Austin filed a petition Feb. 28, 2014, for her ex-husband, Michael Dwain Neal, to pay college expenses for their second child, A.N., who at that time was 19 years old. He asked the trial court to deny her petition because A.N. had been emancipated by law when she turned 19 on Jan. 30, 2014.

The trial court ordered Neal pay for a portion of A.N.’s college expenses. He appealed and the Court of Appeals unanimously reversed.

The judges looked at the language of I.C. 31-16-6-6, which was amended effective July 1, 2012, to change emancipation age and at what age a parent was no longer responsible for paying for college expenses.  In order to make their decision, the judges had to decide what the Legislature meant when it referred to established child support orders. They noted it was an ambiguous term.

Neal argued subsection (d) barred Austin from filing the petition. It reads: “If a court has established a duty to support a child in a court order issued after June 30, 2012, the: parent or guardian of the child; or child; may file a petition for educational needs until the child becomes nineteen (19) years of age.” He claimed because A.N. already was 19 and the most recent agreed child support order was approved after June 30, 2012, Austin’s petition is barred.

The two divorced in 2000 and a support order was entered then; an agreed order was approved by the trial court in July 2012, in which the older child, who was 20 at the time, was considered emancipated.

The judges decided that the statute necessitates that where the most recent order establishing a child support obligation was issued after June 30, 2012, the child must file a petition for educational needs before becoming 19.

“Mother and A.N. are not the sort of unsuspecting parties that we believe the General Assembly’s 2013 amendments were focused on. Here, subsequent to the 2012 amendment, Mother participated in the court system and obtained a support order (i.e. the Agreed Order) that specifically referenced the updated statute’s effect of establishing nineteen as the age of legal emancipation. Thus, Mother was aware of the statute’s requirement that a petition for educational support must be filed before A.N. turned nineteen,” Judge Margret Robb wrote.

Civil Tort – Privacy/Negligence/Breach of Duty

J.H. v. St. Vincent Hospital and Health Care Center, Inc.


A man who says he is suffering negative repercussions after a mental health facility released his medical information to a family member will be able to move forward with his case in court.

J.H. checked himself into St. Vincent Stress Center because he was suffering from depression but told the staff he did not want his family to know he was being treated. However, the hospital did call his grandmother, E.H., and informed her that her grandson was hospitalized and was safe.  

Claiming that he now feels shame and anger because his family knows about his condition, J.H. filed a complaint against the hospital alleging invasion of privacy, breach of statutory duty, negligence and intentional infliction of emotional distress.

The Marion Superior Court awarded summary judgment to St. Vincent. J.H. appealed and the Indiana Court of Appeals reversed in part and remanded for further proceedings

J.H. argued, in part, that by calling his grandmother and telling her where he was, the hospital violated Indiana statute which prohibits the release of a patient’s mental health records except in very limited circumstances.

St. Vincent countered that J.H. did consent to the release of information when he signed the “Release of Information” and Authorization to Disclose Health Information” forms. The Court of Appeals rejected the hospital’s contention. It noted that contrary to the language on the release form that the information will be given to family members who are involved in the patient’s care and to anyone who inquired about the patient by name, J.H.’s grandmother was not involved in his medical treatment and she did not initiate the contact with St. Vincent. In addition, the authorization form states information will be disclosed in an emergency. The Court of Appeals was not convinced by St. Vincent’s argument that an emergency existed because during the admission process staff found a bullet in J.H.’s pocket and he alluded that he owned a gun.

“But that evidence is completely unavailing in light of the designated evidence that neither of St. Vincent’s communications with E.H. pertained to that alleged emergency or otherwise indicated to E.H. that an emergency existed at all,” Judge Edward Najam wrote. “Both in the voice mail left for E.H. and during E.H.’s subsequent phone call with a Stress Center employee,” Najam continued, “no information touching on anything that could be interpreted to be of an emergent nature was given or obtained. E.H. was told only that J.H. was a patient at the Stress Center and that he was safe. Accordingly, St. Vincent has not made a prima facie showing that it communicated with E.H. because of an emergency, which was the only permitted disclosure under the Authorization form.”

Civil Plenary – Breach of Fiduciary Duty/Fraud/Defamation

Michael Kent Smith v. Thomas L. Taulman, II, et al.


Noting a pending discovery may still turn up answers, the Indiana Court of Appeals overturned a summary judgment and allowed a feud between former business partners to continue.  

Michael Kent Smith filed a complaint against his former business partner Thomas Taulman II and other employee-shareholders in T.K.O. Enterprises after he was fired. He alleged Taulman and the shareholders breached their fiduciary duties and committed fraud by failing to disclose the company’s financial outlook during the December 2009 board of directors meeting.

The defendants called Kent Smith’s first discovery request overly broad but after reaching an agreement, responded by producing more than 10,000 pages of documents. However, during depositions, Kent Smith learned the shareholders had not fully responded to his document request so he filed two supplement discovery requests.

The defendants agreed to turn over the additional information but five days later they filed a motion for summary judgment. During the extension of time Kent Smith was given to respond to the defendant’s motion, he filed a motion to compel discovery.

At a subsequent hearing, the Hendricks Superior Court granted the summary judgment and denied Kent Smith’s motion to compel.

Kent Smith appealed, claiming the trial court abused its discretion by denying his motion. He pointed to the dispositions which revealed the defendants had not complied with his first request for documents.

The Indiana Court of Appeals agreed. It reversed the trial court’s entry of summary judgment on Kent Smith’s claims against Taulman for alleged breach of fiduciary duties as well as his claims against Taulman and the shareholders for actual fraud.

“All that matters for the instant proceedings is that (Kent Smith’s) requests were relevant to the arguments made on summary judgment on the issues discussed above and that (Kent Smith’s) pursuit of discovery has been reasonably diligent. Accordingly, the trial court abused its discretion when it denied (Kent Smith’s) motion to compel,” Judge Edward Najam wrote.

Nov. 7

Civil Tort – Medical Malpractice/Timely Filing

Anonymous Physician and Anonymous Medical Group v. Richard Loucks Rogers


The Indiana Court of Appeals reversed the denial of summary judgment in favor of a physician and a medical group on a patient’s claim of malpractice after the patient learned his allergic reactions were caused by the disinfectant used by the doctor. The judges held the doctrine of continuing wrong does not apply in this case.

Richard Loucks Rogers sued the urologist who treated him for bladder cancer and his medical group, which are not named in the opinion. The physician performed several cystoscopies on Rogers and disinfected the equipment with Cidex OPA. There are warnings against using this disinfectant on patients with bladder cancer. The doctor didn’t tell Rogers he was using the product, and Rogers initially didn’t suffer any ill effects from it.

But beginning in March 2008, Rogers began experiencing allergic reactions to the drug that progressively became more severe. He and the urologist did not learn that it was the Cidex OPA that was causing the reaction until March 6, 2009, two months after the doctor performed the last cystoscopy.

Rogers filed a pro se complaint March 4, 2011, alleging negligent care from August 2006 until July 2009, the date the urologist stopped treating Rogers. The trial court first granted the medical professional’s motion for summary judgment, then granted Rogers’ motion to correct error. The court found there was a genuine issue of material fact as to how the statute of limitations applied.

The appeals judges found Rogers’ case to be similar to that of Gradus-Pizlo v. Acton, 964 N.E.2d 865, 871 (Ind. Ct. App. 2012).

“Rogers makes the same argument but does so without distinguishing the present case from Gradus-Pizlo. Rogers alleges that Physician was negligent from his first treatment of Rogers in August 2006 through at least March 6, 2009, when he did not investigate the cause of the allergic reactions, read the warning labels or medical literature, or recognize on his own that Cidex OPA was causing Rogers’s increasingly-serious allergic reactions. Rogers has failed to show an issue of material fact regarding the doctrine of continuing wrong,” Judge Margret Robb wrote.

The judges also found that Rogers did not prove that it was not reasonably possible for him to file his claim within the two-year statutory limitations period, so his claim cannot be saved.

Judge James Kirsch dissented, believing the course of conduct did not stop on Jan. 7, 2009, the last time the doctor used Cidex OPA to disinfect the urology equipment, but instead continued until at least March 6, 2009, when both Rogers and the doctor learned Rogers was allergic to the disinfectant.

Civil Plenary – Local Government/Barrett Laws

The City of Indianapolis, Indiana, and the Indianapolis Department of Public Works v. Evelyn Cox


The city of Indianapolis does not have to pay nearly $3 million in damages to residents who paid in full their share of the costs of sewer improvements. A couple sued after discovering the city had changed its financing plan and forgave future payments by those who still owed the city.

Evelyn and Owen Cox filed their class action in 2007, claiming the city acted illegally in the course of changing its method for financing sanitary sewer improvement projects. The Coxes were assessed $9,075 in fees based on Barrett Law and signed a waiver that set a 10-year payment program. They paid off their debt in two payments in 2001.

In 2005, the city developed a new financing plan that instead would have each property owner pay a one-time $2,500 connection fee, with the remaining costs covered by increased sewer fees paid by all users. As a result in the change, the city decided to forego future installment payments still owed under the Barrett Law system.

The Coxes sought a refund from the city in late 2006 after learning that some neighbors’ debts were forgiven. After it was denied, they sued in April 2007. While this case was pending, the U.S. Supreme Court ruled on a similar issue in City of Indianapolis v. Armour, 132 S. Ct. 2073, 2084,182 L. Ed. 2d 998 (2012) and found that the city didn’t violate the constitution by refusing to grant pro rata refunds to residents.

It was then that the Coxes first raised state constitution claims. The state court ruled in favor of the Coxes, determining the city violated I.C. 36-9-39-17 by not refunding a pro rata share of the Coxes’ payment. Judge Patrick McCarty ordered the city to pay $2,783,702.59 in damages to the class, plus prejudgment interest dating back to Nov. 1, 2005.

The appeals court found the Coxes did not comply with the ITCA by timely submitting a request for a refund. The Coxes discovered in late 2005 the city had forgiven neighbors’ install plan debts but didn’t submit a request for a refund until December 2006, way past the 180 days in which a claim must be filed after discovery of a loss.  

Finally, the court found the city did not violate I.C. 36-9-39-17, the statutes know as Barrett Law.

“Considering the plain language of the statute as a whole, it cannot be read to state that when a municipality forgives some or all of a property owner’s assessment, the municipality must provide pro rata refunds to neighboring property owners,” Senior Judge Randall T. Shepard wrote.

The case is remanded with instructions to grant the city’s cross-motion for summary judgment.•

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