Indiana Court Decisions — April 27-May 10, 2016

May 18, 2016

Indiana Supreme Court

April 28

Civil Tort – Medical Malpractice

Kathy L. Siner, Personal Representative of the Estate of Geraldine A. Siner, Deceased, et al. v. Kindred Hospital Limited Partnership, d/b/a Kindred Hospital of Indianapolis, et al.

The Indiana Supreme Court reversed summary judgment for a hospital and doctor after it found the doctor’s own evidence creates issues of material fact that need to be settled at trial.

Geraldine Siner, 83, was admitted to Kindred Hospital in October 2007 for treatment of aspiration pneumonia. The family asked her to be “full code” or use whatever means necessary to save her life, but the medical staff at Kindred and Dr. Mohammed Majid thought Siner’s condition was unlikely to improve and that the family had “unrealistic expectations and strong religious beliefs.” The ethics committee overturned the “full code” designation and changed it to “no code.”

When the family was told there would be a “no code” designation, they switched hospitals to Methodist. Siner required immediate treatment for a collapsed lung and was suffering from wounds on her cheeks, overwhelming infection and septic shock. She died 20 days later.

Kathy Siner filed a medical malpractice complaint with the Indiana Department of Insurance.

A review panel found although Kindred contributed to Geraldine Siner’s poor health condition, it did not contribute to her death. Kathy Siner then filed a pro se medical malpractice suit against Majid and Kindred.

The trial court granted summary judgment to both cases separately, and the COA affirmed summary judgment for Majid and against Kindred.

Chief Justice Loretta Rush wrote the decision. Majid and Kindred claim that an affidavit by a member of the panel from the Indiana Department of Insurance said there was no error in Geraldine Siner’s pulmonary care. And while there was no error in her pulmonary care, the affidavit did not cover all of the claims regarding Geraldine Siner’s care, including claims that the hospital damaged her nervous system and respiratory system. That already means there is a genuine issue of material fact, which precludes summary judgment.

Kindred and Majid also said the review panel’s decision that their care may have resulted in damages, but not the death of the patient, means they are not responsible. However, this opinion goes against the panel doctor’s affidavit.

The COA said the medical review panel’s opinion is too speculative to create a genuine issue of fact, but the COA relied on cases where testimony is insufficient to support a verdict, which is not necessary in summary judgment. There only needs to be evidence that creates an issue of material fact, and this case has that evidence.

Criminal – Battery/Family Member

Leonard L. Suggs v. State of Indiana


The Indiana Supreme Court determined the sister of a man who was once married to the defendant’s aunt is not a family or household member and changed a man’s Level 6 felony charge to Class A misdemeanor battery.

Leonard L. Suggs and his girlfriend Evelyn Garrett got into an argument at a bowling alley in 2014 that turned violent. Suggs threw a beer can at Garrett that missed, then threw a bowling ball at Garrett which grazed her and hit Vera Warren on the left side of her head. Warren’s brother had previously been married to Suggs’ aunt.

Suggs was charged with Level 6 felony domestic battery for his assault on Garrett and battery as a Level 6 felony for his assault on Warren. He was sentenced to two years for each conviction to be served consecutively. Suggs challenged the sufficiency of the evidence, in which the Court of Appeals affirmed.

Indiana Code 35-42-2-1 provides in relevant part that battery is a Level 6 felony if the offense is committed against a family or household member. Suggs said Warren was not a family member, but he does not deny the rest of the criteria in the code for felony battery.

Indiana Code 35-31.5-2-128 dictates an individual is a family or household member of another person in relevant part because the person is related by blood or adoption to the other person, or is or was related by marriage to the other person. Suggs says Warren is neither of those to him.

Justice Robert Rucker wrote the decision and said “We are not persuaded that by use of the term ‘related by marriage’ the legislature intended to include an infinite variety of relationships whose only connection is a marriage or series of marriages identified somewhere on the remote branches of a family tree.”

Rucker wrote that related by marriage is commonly referred to as affinity, the connection existing in marriage between each of the married persons and the kindred of the other. A relationship by affinity is not unlimited, he wrote, and the Legislature intended this meaning when it wrote the code.

“Suggs is the blood relative of one spouse – his mother’s sister – and Warren is the blood relative of the other spouse – her own brother,” Rucker wrote. “There is no affinity between the blood relatives of one spouse and the blood relatives of another,” he said quoting 2 Charles E. Torcia, Wharton’s Criminal Law Section 242 at 573.

Indiana Court of Appeals

April 27

Civil Tort – Due Process

Molly A. Melton v. Indiana Athletic Trainers Board, et al. and the Indiana Professional Licensing Agency


A woman was denied due process after she had her athletic trainers’ license suspended for having a sexual relationship with one of her clients, the Indiana Court of Appeals ruled. Even though she did not attend her hearing, her attorney did and the complaint she filed should not have been dismissed.

Molly Melton was hired by IU Health Paoli Hospital’s Rehab and Sports Medicine department in 2012. A few months later, she had a consensual sexual relationship with a 19-year-old patient who was a high school student. The Indiana Professional Licensing Agency filed an administrative complaint relating to the matter, alleging her actions violated Indiana Code. She did not attend the athletic trainers board’s hearing on the matter because she was embarrassed, but her attorney did. She admitted to the facts of the case but not the sanctions. Because she did not attend, the board issued a notice of proposed default.

Melton objected to the default notice, but the board upheld it and suspended her license for seven years for her sexual relationship. Melton then brought a verified complaint and petition for review of administrative ruling under 42 U.S.C. Section 1983, saying her federal constitutional rights were violated by the order. The board filed a motion for judgment on the pleadings and the trial court granted it, dismissing Melton’s Section 1983 claim.

The COA said the board should not have dismissed Melton’s claim and that the board interpreted Indiana Code 4-21.5-3-24(a) incorrectly. Indiana Code says if a party fails to do certain things, including attending a hearing, the defendants can apply for default. But the term “party” includes counsel, and Melton’s counsel attended the hearing. The COA punctuated this decision by citing a previous board decision from in which it said appearance by an attorney was sufficient.

This dismissal of her claim resulted in Melton not receiving due process. The suspension of Melton’s license is of critical importance because it allows her to do her job, the COA said. “Conversely, there is no apparent governmental interest that would justify a disregard of procedures set forth by the legislature; rather, those procedures must be followed, especially when such an important private interest is at stake,” Judge Elaine Brown wrote for the panel.

The COA remanded the decision to the board and ordered it to provide Melton with an administrative hearing.

April 28

Criminal – Failure to Identify

Corey T. Weaver v. State of Indiana


Although the majority found a defendant’s evasiveness in answering identifying questions from a police officer “reprehensible,” the judges reversed the man’s failure to identify conviction because he did eventually provide the information to the officer.

Corey Weaver was pulled over by Hendricks County Sheriff’s Deputy Samuel Chandler because his car had an inoperable plate light. Weaver told the officer he was unaware of the broken light. Weaver failed to provide any identification, leaving the deputy to ask for Weaver’s address, name and date of birth. Weaver was evasive, asking Chandler questions, or not answering the question. Eight minutes after the stop, Chandler removed Weaver from his car and handcuffed him until he could identify him. Eight minutes later, Weaver finally provided his date of birth, which led to Chandler discovering Weaver had a suspended license.

Weaver was charged with Class A misdemeanor driving while suspended and Class C misdemeanor failure to identify. He represented himself at trial and was convicted as charged.

The state had to prove that Weaver knowingly or intentionally refused to provide his name, address and date of birth to convict him of failure to identify.

“Weaver argues that our court may not require an individual to provide the requested information to the officer within a certain amount of time because Indiana Code section 34-28-5-3.5 does not impose a time requirement. We agree, but only to a point, a point that was not reached in the facts before us,” Judge Paul Mathias wrote in the majority opinion.

The majority said it may reasonably conclude the Legislature intended a person would identify him or herself promptly when an officer asks for such information. The judges looked at the conversation between the two and noted when Chandler asked for Weaver’s address, Weaver asked if he was being charged with something. Chandler never again asked about his address.

Mathias describes Weaver’s general behavior during the stop as “ridiculous” and said he behaved “reprehensibly.” But, “we do not consider Weaver’s question in response to being asked for his address to constitute refusal. Indeed, his legitimate question as to whether he was being arrested approaches constitutional magnitude under the statute.”

Weaver never technically refused to provide his address, so the state didn’t meet its burden under the statute. The majority, which included Judge James Kirsch, reversed the refusal to identify conviction.

Judge Robert Altice dissented, noting there was nothing prompt about Weaver’s answering of the deputy’s questions. It took 16 minutes from the time the stop began until Weaver provided his birth date, which a reasonable trier of fact could conclude constituted failure to identify, he said.

Small Claims – Motion to Disqualify

Alfonso M. Aguayo and William O’Connor v. City of Hammond Inspection Department


The Indiana Court of Appeals declined to decide whether a trial court erred in concluding an ex-city attorney violated the Rules of Professional Conduct when he acted as the lawyer for a defendant in a suit brought by the city.

The city of Hammond Inspection Department sued Alfonoso Aguayo in small claims court in 2015 seeking to recover rental registration fees. At first, Aguayo did not respond and default judgment was awarded in favor of the city. He then hired William O’Connor as his attorney, who spent years working as the city’s corporation counsel. He retired from this position in July 2013.

The city objected to O’Connor serving as Aguayo’s attorney, citing a conflict of interest. The city’s attorney said it wouldn’t object to Aguayo, pro se, filing a motion to set aside the judgment. O’Connor filed an appearance and the city sought to have him disqualified. At a hearing in the matter, the judge expressed disappointment with both parties, noting the animosity that the two attorneys displayed toward each other.

The judge entered an order disqualifying O’Connor in the instant case and any other private clients in similar transactions in the future involving the city. Ten days later, it dismissed the case against Aguayo.

The Court of Appeals held that the trial court’s order disqualifying O’Connor in the instant case was within the trial court’s discretion. But to the extent that the order tries to limit his ability to represent clients in other cases, this portion of the order exceeds the authority of the trial court. His ability to represent clients in future cases on similar matters will need to be decided by the trial courts hearing those cases, Judge Paul Mathias wrote.

The judges found the issue of his disqualification isn’t moot because the city had not yet filed to dismiss the case against Aguyao when the trial court entered its order.

O’Connor argued the trial court erred in concluding he violated the Rules of Professional Conduct such that he should have been disqualified from representing clients with interests adverse to the city. The COA also declined to address the issue because it is moot as it pertains to the present case, and the judges can render no effective relief.

“This does not leave O’Connor without recourse. As noted above, when and if this issue is presented again, the trial court in that case will have to determine whether O’Connor should be disqualified based on the facts and circumstances of that case. If the trial court disqualifies O’Connor, then O’Connor should seek to have the trial court’s order certified for interlocutory appeal. If the trial court denies the request to certify its order for interlocutory appeal, so long as the City does not again dismiss the case against O’Connor’s client, he may still appeal the issue in a case in which we would be able to afford the injured party effective relief,” Mathias wrote.

May 4

Criminal – Investigatory Expenses

Scott Schuck v. State of Indiana


A firm who represented an indigent man’s murder case pro bono is entitled to the costs of the investigation of his defense, the Court of Appeals ruled, even though the man pleaded guilty.

Scott Schuck pleaded guilty to voluntary manslaughter in March 2015 after he killed his girlfriend. Before the case began, Schuck told the trial court he had a relationship with the firm of Baldwin Adams and Kamish and they would represent him. Because Schuck was indigent, the firm told the court they would be willing to represent him pro bono as long as costs associated with investigating the case would be covered, including the scientific witnesses it thought it would need.

The firm made a request for public funding but it was denied five days before the trial. The firm paid the cost of an investigator to conduct interviews and locate several witnesses. After the first day of the trial, Shuck agreed to plead guilty. After the trial, the court granted deposition costs but denied investigator costs, saying an investigator was not necessary in the trial. The firm filed a motion to correct error, but that was denied as well.

In the decision written by Judge John Baker, the COA said principles of fundamental fairness entitle an indigent defendant an opportunity to present his claims fairly. Baker cited Kocielko v. State, 938 N.E.2d 243, 254-55 (Ind. Ct. App 2010) on 11 factors that should be present when the court needs to determine whether services are necessary to provide an adequate defense. Nearly every factor supports reimbursement of investigation expenses, Baker wrote.

The argument that because Schuck pleaded guilty he did not need any investigation fails because the Indiana Supreme Court has ruled defense services for indigent defendants should include investigation. “The need to factually investigate the claims made against a defendant does not begin at trial,” Baker wrote.

Baker also wrote the state’s defense “has terrible public policy implications.” He continued, “Ironically, in the name of conserving scarce public money, the State would require pro bono defenders seeking public funds to go through a full trial, which would be vastly more expensive, even when the defendant is willing to plead guilty.”

The trial court said the fees that the firm requested were too high, “But we do not believe that the process should work like a gameshow, where a request for too much money results in no money being awarded,” Baker wrote.

The COA remanded the case to the trial court and ordered it to hold a hearing to determine the amount of funding that should be awarded.

Civil Tort – Parking Ticket/Late Fees

James Gilday v. City of Indianapolis


The Indiana Court of Appeals ruled that an attorney who was given a $20 parking ticket that ended up costing him $150 in late fees only needs to pay his ticket. The attorney sought $2,500 in damages and fees over the incident.

James Gilday parked on the street instead of his normal garage when going to work in October of 2012 because the entrance to it was blocked by a charity run. After he finished his work, he came back to find a $20 parking ticket because he did not pay the meter. He paid the fine on time, he presumed.

A month later, Gilday received a letter saying his citation remained unpaid, but he ignored it. The city was actually charging him a late fee, but the letter did not say that. Another letter a few months later said there would be an administrative hearing on his ticket, but he ignored that as well and did not show up to the hearing. The administrative judge entered a $150 default judgment against him. Gilday filed an action to review the administrative decision, asking the trial court to vacate the judgment, refund his ticket and give him no less than $2,500 in damages, but the trial court found the $150 fine was appropriate. Gilday appealed.

Judge John Baker wrote the decision in the case and began by noting this was the first case in which a parking ticket had been successfully appealed to the COA.

Baker wrote Gilday must have paid his ticket on time because the date on the check was within the time frame, and the city misplaced the envelope that had the postmark. There was no other evidence that disputes the fact. Because of that, the court had no legal authority to assess the late fee or demand the hearing.

Gilday claimed that a police officer directed him away from his normal parking spot, so he shouldn’t have to pay his parking fine, but Baker wrote that nobody forced Gilday to park where he did and not pay the meter.

Gilday also claimed the city of Indianapolis should have been sanctioned by the trial court because of the difficulty he had obtaining his record for the trial and the deficiencies of the versions of the record he obtained. However, the COA said it could not find evidence of any sanctionable behavior.

May 5

Miscellaneous – Rehearing/Partition Fence

John Belork v. Robin Latimer, Davis Township Trustee and DMK&H Farms Inc.


A divided Indiana Court of Appeals overturned an earlier decision, finding residents that border a property where a man wants to build fences to keep his cattle in must help fund the fences because they are partition fences and fall under Indiana Code 32-26-9.

John Belork rebuilt portions of the fence along the eastern and southern boundaries of his property to keep his herd penned in. He felt his neighbors, Jan Ferch and DMK&H Farms Inc., should rebuild the remaining portions as required by Indiana’s partition fence statutes, Indiana Code 32-26-9.

When the neighbors balked, Belork turned to Robin Latimer, Davis Township trustee, and asked that she require Ferch and DMK&H to build or fund the uncompleted fences. Latimer refused and the Starke Circuit Court agreed, finding that statute did not apply because neither neighbor derived a benefit from the fences.

The COA issued a decision on Nov. 16, 2015, which found Indiana Code 32-26-9-1 does not require every fence on a shared boundary is used as a partition fence, but the appellate court reversed its decision on rehearing.

The neighbors argue the effect of I.C. 32-26-9-1 is to limit the application of the chapter to those circumstances in which both adjoining property owners make or would make beneficial use of a partition fence separating their properties. However, on rehearing, Judge Elaine Brown wrote that part of the code is not applicable because the fence has not been treated as a partition fence by the adjoining parcel owners.

However, just because the neighbors won’t make use of the partition fences doesn’t exempt them from other parts of Indiana Code 32-26-9, namely sections 2 and 3. Because they are partition fences and subject to these codes, the court said the neighbors must help.

Judge Patricia Riley dissented in the opinion, saying Belork did not bring up any new evidence and the only thing different is the presence of an amicus curiae brief from the Indiana Agricultural Law Foundation.

“Amicus curiae briefs are often attempts to inject interest-group politics into the appellate process by flaunting the interest of the trade association or other interest group into the outcome of the appeal. From its brief, it is apparent that Indiana Agricultural Law Foundation is not a neutral advisor, but rather is clearly in the driver’s seat in these rehearing proceedings.”

She said the COA majority should not have considered the amicus as an equal partner, so the request for rehearing should have been denied.

May 6

Civil Tort ­– Negligence

Barbara Hill, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor, et al. v. Erich E. Gephart, City of Indianapolis, et al.


A man who was walking on the wrong side of the road in dark clothes at night and was struck by a Marion County deputy driving a jail transport vehicle may pursue his negligence claim, a divided Indiana Court of Appeals panel ruled, reversing the trial court.

In late November 2011, Charles Hill and his daughter Macey were walking home from a nearby park along Fox Hill Road when he was struck by a vehicle driven by Deputy Erich Gephart. The two walked on the same side of the road as the family home is located so as not to cross traffic, according to the record. There are no sidewalks on either side of the road.

A Marion Superior court granted summary judgment in favor of the Indianapolis defendants. On appeal, the Hills argued Charles Hill’s contributory negligence was an issue to be decided by a trier of fact and not a matter of law. A majority of the appeals panel agreed.

“It is up to the jury to determine whether (Charles Hill’s walking on the wrong side of the road) was reasonable or if Charles contributed to his injuries,” Judge Paul Mathias wrote in the majority opinion joined by Judge James Kirsch. “(A) genuine issue of material fact exists as to whether Charles was contributorily negligent, and the trial court erred by disposing the Hills’ claim on summary judgment.”

Judge Elaine Brown dissented and would affirm the trial court. She noted Hill was in violation of I.C. 9-21-17-14, which requires that pedestrians walk “only on the left side of the roadway.” She wrote that because Hill also wore dark clothing at night and talked on his cell phone, no material fact exists as to his contributory negligence.•


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