Indiana Court Decisions – Jan. 18-31, 2017

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7th Circuit Courtof Appeals

Jan. 25

Civil – Appointed Counsel

Thomas M. James v. Lorenzo Eli and Nicolas P. Villanustre


The 7th Circuit Court of Appeals has vacated a district court order denying a request to help an inmate living in another state recruit counsel for an Indiana case, noting that without counsel or a medical expert, the inmate will be unable to build a strong legal case.

After being transferred into the New Castle Correctional Facility in the fall of 2007, Thomas James completed a medical request form for treatment of an ingrown toenail. When Dr. Lorenzo Eli examined James the next day, he diagnosed the nail as infected, ordered antibiotics and referred him to a foot specialist. Eli prescribed additional drugs a week later and removed the toenail a month after James’ first visit.

A month later, James fell while “hopping up the steps” to his housing unit and hurt his jaw. Three requests for emergency treatment went unanswered, and a month later James’ jaw “cracked” while he was eating. Subsequent X-rays revealed a fractured left mandible.

Rather than recommending surgery, Dr. Nicolas Villanustre, a plastic surgeon, recommended that James eat only a soft diet for two weeks. Two years later, James filed the present suit pro se, arguing that Eli’s failure to timely treat his toe resulted in a staph infection, that the decision not to perform surgery was motivated by the cost to the prison, and that he still suffers pain and joint dysfunction from the jaw injury seven years after the fact.

James asked U.S. District Court for the Southern District of Indiana Judge William Lawrence to recruit a lawyer for him because he had been moved to a prison in Arizona. He also said he would need a medical expert to assist in his case. Lawrence declined, finding that, among other things, “this does not appear to be a case in which the presence of counsel would make a difference in the outcome.”

However, in an earlier opinion, the 7th Circuit Court of Appeals reversed Lawrence’s decision and ordered the judge to try to recruit counsel and a medical expert to help James, thus settling the case. But James was never able to obtain a set of full records related to his jaw injury, and the prison staff kept taking away boxes of his legal materials. Similarly, discovery requests to Eli and Villanustre were fruitless.

Judge Richard Posner, writing for a unanimous 7th Circuit panel, noted that there is no right to an appointed lawyer in civil litigation. Further, Posner wrote that it is possible that now, nine years later, James is incorrectly attributing pain and jaw dysfunction to his earlier injury. However, without a medical expert, the judge said James can only make his arguments based on his own, non-expert opinion.

“That may be mistaken, but it definitely is possible that he has a meritorious Eighth Amendment claim if his current difficulty with his jaw is attributable to the injury and if there was some type of treatment or surgery that could have prevented it, which he would have received had he been given adequate medical treatment,” Posner wrote. “On the basis of the record compiled so far, all we know is that he may have suffered terribly because of inadequate treatment and may have sustained permanent injury.”

Thus, the 7th Circuit panel vacated the grant of summary judgment in favor of the defendants and urged the district court on remand to expedite the litigation, which is entering its eighth year.

Jan. 30

Civil – Vaping Law

Legato Vapors, LLC, et al. and Right to be Smoke-Free Coalition, Inc. v. David Cook, et al.


A federal court has struck down portions of Indiana’s controversial vaping law, holding that the “astoundingly specific provisions” related to regulations of security, cleanliness and other physical requirements imposed on out-of-state manufacturers violates federal law and seems to imply a state attempt to create a monopoly for an Indiana security firm.

After Indiana lawmakers passed the Vapor Pens and E-Liquids Act in 2015, three out-of-state manufacturers, Legato Vapors, Rocky Mountain E Cigs and Derb E Cigs, sued members of the Indiana Alcohol and Tobacco Commission in the U.S. District Court for the Southern District of Indiana, seeking injunctive and declaratory relief against the out-of-state provisions. The act required out-of-state manufacturers to meet highly specific security standards, including the requirement that they contract with independent security firms, and imposed additional regulations related to cleanliness and audits.

The parties filed cross-motions for summary judgment, and district court Judge Sarah Evans Barker awarded summary judgment to the state. However, the 7th Circuit Court of Appeals reversed that decision, holding that the 2015 legislation violated the dormant Commerce Clause of the U.S. Constitution, which prohibits extraterritorial state regulation of commerce.

Looking specifically at the Act’s “remarkably specific” security requirements, Judge David Hamilton, writing for the unanimous panel, noted that only one company, “located not so coincidentally in Indiana,” met the criteria of the vaping legislation and would get the approval of the ATC.

According to the Indianapolis Business Journal, the rules gave a single security company — Lafayette-based Mulhaupt’s — the ability to choose which firms could operate in Indiana. And the law change was championed by a Lafayette lawmaker, Sen. Ron Alting.

Further, before the provisions of the Act, Hamilton wrote that 99 percent of e-liquid revenue in Indiana came from out-of-state production. But now, only six manufacturers meet the security requirements to sell in Indiana, with four of those manufacturers based in the Hoosier state.

“These circumstances raise obvious concerns about protectionist purposes and what looks very much like a legislative grant of a monopoly to one favored in-state company in the security business,” the judge wrote.

But looking beyond the potential of a state-created monopoly, Hamilton further wrote that the state may not try to achieve its security and safety goals “by direct extraterritorial regulation of the manufacturing processes …”

Further, the 7th Circuit held that the “clean room” requirements in the 2015 vaping legislation, which regulates the environment for all mixing and bottling activity, also violate the Commerce Clause. The court noted the requirements “(go) so far as to order out-of-state e-liquid manufacturers to wash their equipment with specific cleansers in specific sinks.”

Finally, the appellate court ruled that requirements subjecting out-of-state manufacturers to random audits by the ATC “are invalid direct regulations of interstate commerce insofar as they relate to enforcement of Indiana’s requirements for facility design and production operations.”

Indiana Supreme Court

Jan. 24

Discipline – Suspension

In the Matter of: Narles W. Coleman


The Indiana Supreme Court has suspended from practice a Chicago attorney who misrepresented his abilities to a client and was convicted of battery against his wife.

A man was charged with Class C felony child molestation and, shortly thereafter, received a letter from attorney Narles Coleman seeking to represent him for a “reasonable fee.” According to the Indiana Supreme Court’s per curiam opinion, Coleman falsely told the client he was associated with The Cochran Firm of Johnnie Cochran fame.

In reality, Coleman had minimal experience in criminal law and no experience in child molesting cases, the unanimous court wrote. The client paid Coleman part of a flat fee of $4,000, but then began having trouble communicating with Coleman. The attorney failed to appear at a pretrial conference, deceived the client into signing a new fee agreement for $200 an hour, and agreed to a plea agreement without consulting his client, even though the client had previously said he would not enter a plea agreement and, thus, refused to sign.

After the client fired him, Coleman did not withdraw his representation or forward a copy of the case file to the client’s new counsel until a show cause proceeding was initiated against him. After the criminal charge was eventually dismissed, Coleman sent the client a bill for more than $9,000, predicated on the new fee agreement and filed a civil suit to collect the money.

Further, Coleman sought to collect additional money for time spent and expenses incurred in connection with withdrawing from the case and filing the civil suit. At a deposition of a witness that Coleman named, he failed to reveal that the witness was his wife.

Then in October 2012, Coleman was charged with felony and misdemeanor counts of domestic battery stemming from allegations that he hit his wife in the presence of four children. He was convicted of Class A misdemeanor domestic battery in July 2013 and the Indiana Supreme Court Disciplinary Commission filed a complaint against him one year later.

After a hearing officer’s report was filed in September 2016, the Indiana Supreme Court found that Coleman was in violation of 20 Indiana Professional Conduct Rules, including failing to provide competent representation; making an agreement for, charging, or collecting an unreasonable fee; and engaging in conduct prejudicial to the administration of justice.

Although Coleman’s misconduct was mostly limited to the client’s case, the court found that such misconduct was “wide-ranging, pervasive, retaliatory, and deceptive at multiple junctures.”

“Respondent’s systemic malfeasance in connection with his representation of Client, his criminal conduct, and his less-than-effective self–representation during most of these disciplinary proceedings reflect exceedingly poorly on his fitness to practice law,” the court wrote in its per curiam opinion.

The court noted that Coleman is already under an order of suspension for dues nonpayment and failing to fulfill CLE requirements. His misconduct led to an additional two-year suspension without automatic reinstatement. In order to be reinstated, Coleman must prove his remorse, rehabilitation and fitness to practice. The costs of the proceedings are assessed against him.

Jan. 25

Criminal – Sentence Revision

Anthony J. Wampler v. State of Indiana


The justices of the Indiana Supreme Court have revised the sentence of a Daviess County man with a history of mental illness who was convicted of burglary, drawing on the dissent of Indiana Court of Appeals Judge Paul Mathias, who advocated for treatment for offenders who are mentally ill.

Anthony Wampler, who has a history of psychiatric problems and hospitalizations, began making unusual attempts to interact with K.S., a former classmate, in the spring of 2014.

Then in June 2014, Wampler removed the window screen in K.S.’s laundry room, entered the house, watched him sleep, took a beer, photocopied a quote from his refrigerator and left him a note reading, “I love you. Sorry about the screen. There are too many as it is.” When K.S. called the police, officers questioned Wampler, who explained his obsession by saying K.S. was a “portrait in the flesh.”

After receiving treatment in order to be competent to stand trial, Wampler was convicted of two counts of Class B felony burglary and was adjudicated a habitual offender. The Daviess Superior Court sentenced him to concurrent 18-year terms on the burglary convictions, enhanced by 15 years for the habitual offender adjudication, for an aggregate of 33 years.

Wampler appealed and the Indiana Court of Appeals affirmed his sentence, with Judge Paul Mathias noting in his dissent that “the most important issue in this case is the clear failure, yet again, of our criminal justice system to adequately and properly respond to and treat those with mental health issues.” Mathias further wrote that a more appropriate result in the case would have been to find Wampler guilty but mentally ill in order to provide him with mandatory evaluation and treatment.

Calling Mathias’ dissent “insightful” in a per curiam opinion, the justices used Indiana Appellate Rule 7(B) as its authority to find Wampler’s sentence inappropriate and revise the sentence to concurrent six year terms on the burglary charges, with an additional 10 years for the habitual offender adjudication.

However, the justices affirmed all other aspects of the Indiana Court of Appeal’s opinion and remanded the case to the trial court to enter a revised sentencing order.

Jan. 26

Post Conviction – Attempted Murder

Demajio Ellis v. State of Indiana


The justices of the Indiana Supreme Court have reversed the denial of post-conviction relief to a man convicted of attempted murder and attempted burglary, holding that because the man maintained his innocence even as he pleaded guilty, the trial court erroneously denied his relief.

In November 2010, 18-year-old Demajio Ellis and his 16-year-old cousin, Shawn Alexander, were charged with four Class A felonies on two counts of attempted murder and two counts of attempted robbery resulting in serious bodily injury. The charges stemmed from an incident in which the two teenagers choked and slashed the throats of two other young men and stole a pocket knife before fleeing the scene.

Ellis entered a plea agreement with the state that called for him to plead guilty to all four charges, and although he did so, Ellis also told the St. Joseph Superior Court “I didn’t do nothing, you know, sir. I was involved to the point that I did hit somebody, but I didn’t cut nobody. I did not rob nobody, sir.” Further, Ellis told the court that he advised his cousin not to assault the victims.

Ellis again pleaded guilty but maintained his innocence at a sentencing hearing in 2011, indicating that he wanted to withdraw his guilty plea. However, the 18-year-old eventually changed his mind and he was sentenced to an aggregate 40 years executed. Alexander slashed the two victims’ throats, according to the court record in his case, and he pleaded guilty to the two attempted murder counts and lesser charges. He was sentenced in 2011 to 116 years in prison with 32 years suspended to probation, and the Department of Correction shows his earliest possible release date is in March 2061.

Two years later, Ellis filed a pro se petition for post-conviction relief, which was later amended by counsel, arguing that his guilty plea was not entered knowingly, intelligently and voluntarily, lacked a factual basis and was erroneously accepted in light of his maintained innocence. Both the post-conviction court and Indiana Court of Appeals decided that Ellis should be denied relief, but the justices of the Indiana Supreme Court disagreed, reversing the trial court’s opinion in a unanimous decision.

Ellis’ appeal to the Indiana Supreme Court focused only on the assertion that the trial court erroneously accepted his guilty plea when he repeatedly proclaimed his innocence. Although Ellis did not challenge the factual basis for his plea before the court, Justice Robert Rucker noted that the state presented no evidence establishing the elements of the crime, and Ellis was never asked to affirm the truth of the allegations against him. Thus, the evidence rests solely on the strength of Ellis’ testimony and his admission of guilt.

Additionally, Rucker wrote that although it was established that Alexander “took a substantial step toward the act of murder,” Ellis’ mere presence at the scene is not enough to prove that he aided the crime of attempted murder with “specific intent that the killing occur,” as required under Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000). Thus, the factual basis for Ellis’ plea was incomplete.

Further, relying on Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983), Rucker noted that “a judge may not accept a plea of guilty when the defendant both pleads guilty and maintains his innocence at the same time.” Thus, because Ellis maintained his innocence both at his plea hearing and at sentencing, Rucker wrote that the St. Joseph Superior Court erroneously denied his petition for relief, and the case was remanded to the trial court for further proceedings.

Indiana Court of Appeals

Jan. 18

Civil Collection – New Trial

The Estate of Gary Pfafman v. Lori Lancaster, Individually, and as Guardian of the Estate of Kole Craig


A trial court erred in ordering a new trial after a jury returned a general verdict in favor of the estate of an electrician who wired a barn where a teenager was electrocuted in 2010, the Indiana Court of Appeals ruled.

A Noble County jury ruled in favor of the estate of Gary Pfafman, who had years earlier assisted in the wiring of outbuildings on the farm of his brother-in-law, Roger Diehm. He also had wired but not connected electricity for trough de-icers that Diehm installed years later, but without code-required breakers or circuit interrupters.

Kole Craig, 16, was socializing with Diehm’s children on the farm on the evening of July 28, 2010, after a thunderstorm had struck a tree on the farm earlier, which burned outlets in the farm’s house. When a younger child found a dead cow, Craig went to investigate with another child and was fatally shocked on a gate that was electrified after the storm.

Cole’s estate sued numerous parties including Diehm and manufacturers connected to the de-icers who settled separately. But a jury ruled in favor of Pfafman’s estate, finding among other things that he had instructed Diehm about precautions he would need to take if he installed de-icers, and that Diehm incorrectly wired them and failed to properly maintain them. The court found the lightning strike caused the de-icer to malfunction and short-circuit.

But Craig’s estate moved for and was granted a new trial under Trial Rule 59(J), which allows courts to grant new trials to correct an error in prior proceedings. In its findings granting a new trial, the trial court found that Pfafman violated the national electrical code and the verdict was against the weight of the evidence.

The Court of Appeals disagreed and reversed the grant of a new trial.

“(T)he trial court’s order omits any meaningful analysis of the evidence, including testimony by Craig’s Estate’s own witnesses, that Diehm and Farm Innovators proximately caused Craig’s injuries,” Judge Edward Najam wrote for the majority joined by Judge John Baker. “Given the evidence that there were several but-for causes of Craig’s injuries attributable to the nonparties, the jury was entitled to allocate 100% fault to one or both of the nonparties and 0% to Pfafman. Accordingly, we reverse the trial court’s order and reinstate the jury’s verdict in favor of Pfafman’s Estate,” Najam wrote.

Chief Judge Nancy Vaidik concurred with the result but wrote separately in the 34-page opinion. “I respectfully disagree with the majority that a jury is allowed to find an actor proximately caused an injury, yet decline to allocate a percentage of fault to that actor.”

Jan. 19

Civil Plenary — Negligence

Dermatology Associates, P.C. and Sonya Campbell Johnson, M.D. v. Elizabeth C. White


After a dermatology appointment left a Marion County woman with facial discoloration that never went away as her doctor said it would, the woman sought damages in a negligence complaint. However, because she failed to prove that she “later learned” that her injury was worse than she thought, the Indiana Court of Appeals held that the woman’s claim cannot proceed in court because it was not timely filed.

After a visit to Dr. Sonya Campbell Johnson at Dermatology Associates P.C. for a laser hair removal procedure on her face in September 2012, a portion of Elizabeth White’s face became discolored. The discoloration eventually improved but did not completely go away, so White filed a complaint for medical negligence and sought no more than $15,000 in damages.

In October 2014, Johnson and Dermatology Associates moved for summary judgment while White moved to dismiss her complaint without prejudice because she had “learned during the pendency of her action that her bodily injury is more serious than previously believed…and therefore believed that ($15,000) will be insufficient compensation for her bodily injury.” The trial court granted White’s motion and she subsequently filed a complaint with the Indiana Department of Insurance in November 2014 that was identical to her previous complaint minus the limited damages declaration.

The providers then filed for preliminary determination and again moved for summary judgment in Marion Superior Court 10, alleging that White’s complaint before the Department of Insurance was untimely. The trial court denied that motion, so Dermatology Associates appealed.

A divided panel of the Indiana Court of Appeals agreed with the providers, writing normally a patient must file a medical negligence claim with a medical review panel through the Indiana Department of Insurance within two years of the incident.

However, Judge Margaret Robb, writing for the majority, noted that an exception to that rule can be made when a case is begun in court for damages not exceeding $15,000, then dismissed without prejudice and filed with the review panel without a damages limit if the bodily injury is worse than previously thought.

If that situation occurs and the moving party then begins a second action following the medical review panel proceedings, an additional 180 days may be added to the two-year statute of limitations. Under those circumstances, White’s complaint with the Department of Insurance, which fell outside of the two-year window, could continue through the 180-day extension.

White argued that because Indiana Code allows her to dismiss her complaint and file it with the Department of Insurance without imposing a specific cut-off period, she does not need the 180-day extension. But the majority of the panel found that if a complaint is voluntarily dismissed, it is treated as if it never existed and, thus, cannot toll the two-year statute of limitations.

Further, Robb wrote White failed to prove that she “later learned” that her bodily injury was worse than she thought because “she has not alleged she learned anything new or different about her injury after filing her original complaint.” Thus, she cannot trigger the 180-day extension using that argument.

But Judge Paul Mathias, writing in a separate dissenting opinion, argued that White did establish that she later learned that her injury was more serious through her own personal experience and, thus, was entitled to the 180-day extension.

“Under the facts and circumstances before us, I think a woman’s ultimate decision that a lifetime of facial disfiguration was worth more than $15,000 is something she could, and here did, ‘learn’ from looking into the mirror every day, trying without success to use make-up to make the scarring less noticeable.”

Jan. 31

Civil Tort – Liability/Motion to Correct Error

Harrison County Sheriff’s Department v. Leandra Ayers, Personal Representative of the Estate of Christine Britton, Deceased


The Harrison County Sheriff’s Department cannot be held liable for the death of the wife of one of its former deputies who used her husband’s gun to kill herself. The Indiana Court of Appeals held the deputy was acting as a husband, not a law enforcement official, during the incident.

During an argument in their southern Indiana home, Christine Britton told her husband, John, that he made her so mad she could kill herself. John Britton, then a sheriff’s deputy with the Harrison County Sheriff’s Department, brushed off his wife’s comments, but after they continued arguing, Christine Britton reached for her husband’s gun, which he always wore, even when he was off duty.

Deputy Britton put his wife in a bear hug to keep her from grabbing the gun and told her not to touch his weapon. Britton then told her husband she would just get a gun out of their safe and threatened to kill herself again. Deputy Britton responded with “Fine,” laid his gun on the bed, then walked out of the room and toward the front door.

Before the sheriff’s deputy was able to exit the house, he heard a gunshot and discovered that Britton had shot herself. He called police and attempted to administer first aid, but his wife died as a result of the gunshot.

Although evidence concluded that the gunshot was self-inflicted, the Sheriff’s Department recommended that Deputy Britton be terminated, and Christine Britton’s estate sued her widowed husband and his former employer. Former Deputy Britton was dismissed from the case, but the case against the sheriff’s department continued, with Britton’s estate arguing that the sheriff was negligent and liable under the doctrine of respondeat superior.

During trial, the sheriff moved for judgment on the evidence, arguing that the estate did not meet its burden of proof on any of its claims. The Floyd Circuit Court granted the motion on three counts, but allowed one of the respondeat superior theories to proceed. The jury found in favor of Britton’s estate and awarded it $1.2 million. The sheriff moved to correct error, but the trial court declined.

On appeal, the sheriff argued that as a matter of law, it cannot be held liable for former Deputy Britton’s actions because, among other reasons, he was not acting within the scope of employment during the incident that resulted in his wife’s death.

Judge John Baker, writing for a unanimous panel of the Indiana Court of Appeals, agreed and rejected the estate’s respondeat superior theory, holding that, “In all of his relevant acts, John was acting as a husband, not a sheriff’s deputy.”

Further, Baker wrote that former Deputy Britton did not commit a single act or omission that he would not have committed if he worked in an entirely different profession. Thus, none of his actions were “authorized” by his employer, as is required by the doctrine of respondeat superior, so the question of the scope of his employment should have never gone to a jury.

The case was remanded with instructions to grant the sheriff’s motion to correct error.•

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