Indiana Court Decisions - May 23-June 6, 2017

June 14, 2017

Indiana Supreme Court

May 31

Criminal – Breath Test Cooperation

Keyaunna Hurley v. State of Indiana


Indiana law requires law enforcement officers to administer a second chemical breath test if the first test produces an insufficient sample, unless the person taking the test demonstrates a clear unwillingness to cooperate, the Indiana Supreme Court ruled in an opinion reinstating a woman’s driving privileges.

When Indiana State Police trooper Joshua Graves stopped Keyaunna Hurley in October 2015, he suspected she was intoxicated and asked her to complete various field sobriety tests, which she failed. Hurley then agreed to submit to a chemical breath test at a nearby police station, but after blowing into the test three times, the results indicated an “insufficient sample.”

Though Graves conceded Hurley was “completely cooperative throughout this process,” he did not allow her to blow three more times for a second test. Instead, the trooper charged Hurley with refusing to submit to the test, and the Bureau of Motor Vehicles suspended her license for one year.

Hurley objected to the notion she had refused the test, arguing instead that Graves had not followed the proper regulations for the test and that there was insufficient evidence to support his conclusion she had refused. The Marion Superior Court upheld Graves’ decision, and the Indiana Court of Appeals affirmed in June 2016.

The Indiana Supreme Court heard the case on petition to transfer in December, when Hurley’s counsel argued Graves was required to administer a second test before determining if she was intentionally uncooperative. The high court agreed, which granted transfer to the case and reversed the suspension of Hurley’s driving privileges.

Justice Geoffrey Slaughter, writing for the unanimous court, said the case turned on the question of whether Title 260, Section 2-4-2 of Indiana’s Administrative Code, also known as the “Breath-Test Rule,” required Graves to administer a second test to Hurley before recording a refusal. The high court answered that question with a “yes,” with Slaughter writing an officer can only determine a lack of cooperation after the first test if “the subject clearly manifests an unwillingness to take the test.”

In Hurley’s case, there is no indication in the record she refused to take the test, Slaughter said. Further, the court, relying on Court of Appeals precedent, held “a person does not refuse a chemical test if the officer failed to comply with the rules for conducting it.”

Slaughter then pointed to Section 2-4-2(b)(5) of the Breath-Test Rule, which holds, “If ‘Insufficient Sample’… is printed on the instrument report, perform an additional breath test … .” That rule presumptively required Graves to offer Hurley a second test, the court held.

“But this presumptive obligation to offer a second test is not absolute,” Slaughter continued. “The Rule does not require an officer to administer a second test to a subject who obviously is not cooperating in providing one or more measurable, recordable breath samples. Officers must – and do – have discretion under the Rule to make the judgment call that the subject is being uncooperative and thus has refused the test.”

In this case, however, Hurley did nothing “clearly constituting a ‘manifest unwillingness to submit to the test.’” Thus, the suspension of Hurley’s license was vacated and her driving privileges were reinstated.

Indiana Court of Appeals

May 23

Miscellaneous – Rezoning

City of Madison, Indiana v. William L. Demaree and Betty K. Demaree


A decision by the Madison City Council to deny a local couple’s request to rezone a property was not arbitrary and capricious and, thus, must be reinstated, the Indiana Court of Appeals ruled.

In May 2010, William and Betty Demaree filed an application with the City of Madison Planning Commission to rezone their property from residential to general business. The commission voted to give the application an unfavorable recommendation, and on appeal the Madison City Council instructed the Demarees to return to the commission for a recommendation from the full board.

When the commission revisited the Demarees’ application in October 2010, its members decided to give a favorable recommendation. However, after three hearings before the council, the Demarees’ application was denied.

The couple took their complaint to the Jefferson Circuit Court, which reversed the council’s decision in January 2016. The city of Madison appealed, arguing the trial court applied the wrong standard of review, but the Demarees did not file an appellees’ brief.

The Indiana Court of Appeals agreed with the city. Senior Judge John Sharpnack wrote that the Jefferson Circuit Court relied on statutes inapplicable to the city’s case. Specifically, the trial court cited Indiana Code sections 34-13-6-4(a), (b) and (f) (1998) and sections 34-13-6-5(a) and (b) (1998).

“The whole of Indiana Code chapter 34-13-6 is inapplicable to this case because it concerns appeals from actions of municipalities where an appeal is allowed by statute,” Sharpnack wrote. “As we have noted, there is no provision in our state statutes for an appeal of a legislative body’s denial of a rezoning request.”

Sharpnack specifically noted the trial court’s reliance on section 34-13-6-4(b) was misplaced because that section provides for a de novo standard of review, when the appropriate review of a rezoning determination would have been conducted under an arbitrary or capricious standard.

“Thus, the evidence indicates the Planning Commission and the City Council received information about, heard comment on, and weighed and discussed all of the factors required to be considered by Indiana Code Section 36-7-4-603,” Sharpnack wrote. “The balancing of these factors suggested to the City Council that this rezoning was not appropriate. These concerns provide a rational basis for the City of Madison’s decision to deny the Demarees’ rezoning application, and therefore it is not arbitrary and capricious.”

The panel reversed and remanded to Jefferson Circuit Court with instructions to affirm the council’s denial of the rezoning application.

May 26

Juvenile – CHINS

Indiana Department of Child Services v. J.D., R.B., et al.


An Indiana trial court imposed an “inappropriately high” burden on the Department of Child Services to prove a presumption of a child in need of services situation, the Indiana Court of Appeals held in an opinion ordering the trial court to revisit the CHINS petition.

DCS received a report that M.B., a child, had been seen in the emergency room for multiple fractures, including several rib fractures. DCS Family Case Manager Bridget Murray spoke with R.B., the mother, and doctors at the hospital, where she learned M.B. began exhibiting symptoms of a fractured rib the after being removed from his car seat the previous day.

A physician, however, told Murray it was not feasible for M.B.’s injuries to have been caused simply by removal from his car seat, but that the pattern of the rib fractures showed signs of the child being squeezed. Murray concluded it was necessary to remove M.B. from R.B.’s care, so he was placed in foster care immediately upon his release from the hospital.

DCS then filed a petition alleging M.B. was a child in need of services, and a fact-finding hearing was held in August 2016. Murray testified to the events leading up to M.B.’s removal, and three physicians testified his injuries were very likely non-accidental and had occurred during at least two separate incidents of trauma. R.B., J.D., the child’s father, and L.M., the mother’s boyfriend, also testified at the hearing and each denied observing any injuries or odd behaviors in M.B. before he was taken out of the car seat.

DCS argued it had presented sufficient evidence to trigger presumption under Indiana Code section 31-34-12-4, or the Presumption Statute, that M.B. was a CHINS, but the St. Joseph Probate Court disagreed and ordered the child returned to R.B.’s care. After the denial of its motion to correct error, DCS appealed, arguing the trial court had committed reversible legal error “by failing to give effect to the presumption set forth in I.C. section 31-34-13-4” and by rejecting the physicians’ testimonies to the non-accidental nature of M.B.’s injuries.

The Indiana Court of Appeals agreed with DCS, with Judge Robert Altice writing in a unanimous opinion the trial court’s statements, such as the sentiment that it was “absurd” for the doctors to determine the injuries were non-accidental, were “problematic.”

For example, Altice wrote the question of whether the injuries were non-accidental was a question of fact, not law, as the trial court presumed, an error that “effectively required the court to disregard the physicians’ testimony that Child’s injuries were non-accidental.” Further, the court’s conclusion the physicians were unqualified to opine as to the nature of the injuries was the wrong approach, Altice said.

Additionally, the trial court “imposed an inappropriately high evidentiary burden on DCS to trigger the Presumption Statute,” the appellate panel said. That statute merely requires “competent evidence of probative value,” which DCS provided in the form of the evidence and testimony at the fact-finding hearing, the court said.

Because the evidence was sufficient to trigger the Presumption Statute, the appellate panel reversed the trial court’s denial of the CHINS petition and remanded the case with instructions to conduct further proceedings.

May 30

Civil Tort – Expert Testimony

Charles Aillones v. Glen D. Minton


An Evansville nurse practitioner, who has training and licensure beyond that of a nurse, may testify as an expert as to whether a patient’s injuries are consistent with injuries sustained in an automobile accident, but not as to whether the accident caused the injuries, the Indiana Court of Appeals has ruled.

A vehicle driven by Glen Minton struck the vehicle Charles Aillones was driving through Evansville. Aillones was injured and was treated by Alan Swartz, a licensed nurse practitioner in Kentucky and Indiana, for a cervical sprain and lower back pain.

Aillones then filed a negligence action against Minton in December 2013 and during discovery, Swartz was deposed and testified Aillones’ injuries were “consistent with a motor vehicle accident.” Minton’s counsel objected to the questioning of Swartz as to the cause of his patient’s injuries, alleging a lack of foundation for Swartz’s opinions.

Aillones then moved to qualify Swartz as an expert witness, which the Vanderburgh Superior Court denied based on the decision in Nasser v. St. Vincent Hospital & Health Services, 926 N.E.2d 43 (Ind. Ct. App. 2010). The trial court certified its denial for interlocutory appeal, and on appeal, Aillones argued the trial court erred in concluding Swartz could not testify as an expert witness.

The decision in Nasser held Indiana Evidence Rule 702 prevented nurses from qualifying as experts regarding medical causation, even when they serve on a medical review panel. A similar decision was reached in Long v. Methodist Hospital of Indiana, Inc., 699 N.E.2d 1164 (Ind. Ct. App. 1998).

But Aillones’ case is distinct in that it presents a tort claim, not a medical malpractice claim like in Nasser and Long, Indiana Court of Appeals Judge Paul Mathias wrote. Thus, the issue is not whether a medical provider caused a patient’s injuries, but rather whether Aillones’ injuries were caused by a car accident.

Further, Mathias pointed to the decision in Curts v. Miller’s Health Systems, Inc., 972 N.E.2d 966 (Ind. Ct. App. 2012), which held “a nurse could qualify as an expert regarding medical standards of care and causation in some circumstances.” Thus, the question in the case focuses on whether Swartz’s “knowledge, skill, expertise, training or education” is sufficient to testify as a witness.

As a nurse practitioner, Swartz has both a bachelor’s degree in nursing and a master’s degree to be a nurse practitioner, and is licensed to treat patients, interpret lab results, prescribe certain medications and refer patients to occupational and physical therapy. Thus, “Swartz has sufficient knowledge, skill, experience, training or education to testify as an expert witness,” Mathias wrote.

However, because he was not a witness to the accident, Swartz may not testify that Aillones’ injuries were proximately caused by the accident, the appellate panel found. But nevertheless, the nurse practitioner may testify as to whether the injuries were consistent with injuries from an automobile accident, the court said.

The trial court’s order finding Swartz could not testify as an expert was reversed, and the case was remanded for further proceedings.

Civil Tort – Failure to Litigate

McKinley, Inc. a/k/a McKinley Associates, Inc. d/b/a Summer Wood Apartment Homes v. Michelle Skyllas


A now-suspended attorney’s repeated failure to communicate with his client and litigate her case was a failure directly attributable to the client and, thus, made the opposing party entitled to summary judgment, the Indiana Court of Appeals ruled.

After she was injured in a January 2009 slip-and-fall on the property of McKinley Inc., doing business as Summer Wood Apartments Homes, Michelle Skyllas hired her second cousin, Samuel Vazanellis, to bring a negligence suit against McKinley. Specifically, Skyllas alleged McKinley failed to remove snow and ice, but McKinley filed a third-party complaint against Snow Pros Inc., claiming it was responsible for the property’s snow and ice removal.

Vazanellis failed to litigate the case, and Skyllas concedes she was forced to approach him at family gatherings to obtain information about her case. McKinley twice moved to dismiss the case due to inactivity, but the Lake Superior Court denied those motions.

In May 2016, the court set discovery deadlines, and McKinley served a request for admission on Skyllas through Vazanellis, which included potentially dispositive admissions to which Skyllas had 30 days to respond. Meanwhile, Snow Pros also served interrogatories on Skyllas through Vazanellis.

Vazanellis continued to avoid communication with Skyllas, forcing her to meet with his wife at his office to prepare answers to Snow Pros’ interrogatories. When Vazanellis did finally speak with Skyllas, he told her “he had filed everything that needed to be filed” and assured her everything was “under control.”

When the trial court set a deadline for dispositive motions in June 2016, McKinley moved for summary judgment against Skyllas, attaching her admissions. She did not respond with 30 days, so McKinley filed a request for a summary ruling.

McKinley’s motion for summary judgment was granted just days after Vazanellis was indefinitely suspended from the practice of law in Indiana. Skyllas then hired new counsel, which moved to correct error pursuant to Trial Rule 59, and also moved to withdraw and amend admissions. The trial court granted both of Skyllas’ motions, finding Vazanellis was “extremely negligent” and had obliterated the attorney-client relationship.

On appeal, McKinley argued Skyllas was not entitled to relief. The Indiana Court of Appeals agreed, with Judge John Sharpnack writing the grant of summary judgment was not erroneous under Indiana Trial Rule 59 because “the court had no choice but to grant the motion.” Further, Skyllas’ motion to withdraw admissions was procedurally inappropriate because it was filed after judgment had been entered, Sharpnack said.

The trial court granted relief from judgment “by determining that the failure to respond to the request for admissions … was the fault of Vazanellis and not attributable to Skyllas,” a type of relief available under Indiana Trial Rule 60(B)(1), the court said. Under a 60(B)(1) analysis, the appellate panel found while Vazanellis’ misconduct was “deplorable,” it was also attributable to Skyllas.

Thus, Skyllas did not establish she was entitled to relief, so the court reversed the grant of her motion to correct and remanded the case with instructions to enter judgment in favor of McKinley.

Civil Plenary – Breach of Contract

B&R Oil Company, Inc., Empire Petroleum Partners, LLC, and EPP-Atlas Acquisition LLC v. William E. Stoler, Kathlyn Stoler, Jeffrey A. Levy, and Con-Serve, Inc.


A dispute over contract language divided the Indiana Court of Appeals to the point where judges could not agree whether the case was one of first impression.

William E. Stoler, Kathlyn Stoler, Jeffrey A. Levy and Con-Serve Inc., filed a breach of contract complaint against B&R Oil Co. Inc. after the business decided to sell its assets to Empire Petroleum Partners LLC and EPP-Atlas Acquisitions LLC. The Stolers had signed lease agreements with B&R Oil for several parcels of land on which they operated gas stations.

As part of the lease agreements, the Stolers had rights of first refusal (ROFR) if another party wanted to purchase the properties from B&R Oil. In 2014, B&R Oil entered into a deal to sell substantially all its assets, which included the Stolers’ leased property, to Empire for about $80 million.

B&R Oil then presented the deal to the Stolers, giving them the right of first refusal to purchase the premises and all other assets for $80 million. The Stolers asserted that B&R Oil was forcing them to purchase essentially company’s entire portfolio instead of complying with the lease agreements which would have allowed them to purchase their parcels of land prior to the sale to Empire.

Before the Court of Appeals, B&R Oil and the Stolers argued over the language of the contract. The company contended the Stolers’ interpretation would require the contract to specify the ROFR applies to the leased premises exclusively. The Stolers countered B&R Oil’s reading was incorrect since the contract did not include the right of first refusal be expanded from the leased premises to include any other offered property.

The appellate majority agreed with the Stolers. Calling it a case of first impression, the majority ruled that a lease holder cannot circumvent the right of first refusal by requiring the offer to include the purchase of a package of additional properties.

“Since the leases refer only to ‘the leased premises’ and not to any other property, it follows that each ROFR in itself or the lease as a whole, we cannot say that the inclusion of any property other than ‘the leased premises’ may reasonably have been within the contemplation of the parties at the time the leases were executed,” Judge Edward Najam wrote for the majority.

Judge L. Mark Bailey dissented. He found B&R Oil complied with the plain language of the contract and described the dispute as “an ordinary matter of contract interpretation” rather than a case of first impression.

“…the contract does not define conforming or non-conforming offers, nor does it restrict the ROFR from applying to any offer that B&R Oil intended to accept,” Bailey wrote. “Rather, the defined right is the opportunity to match a third-party offer. Had the parties wished to restrict B&R Oil from passing through package offers, they could have readily done so.”

May 31

Civil Plenary – Legal Malpractice

Lucy Mundia v. Drendall Law Office, P.C.


A law firm must face a malpractice suit for failing to file a tort claim notice on behalf of a woman who was seriously injured by an attacker and whose daughter was killed. The assailant was the subject of an active protective order that authorities failed to find before releasing him from jail.

The Indiana Court of Appeals reversed summary judgment for Drendall Law Firm of South Bend and remanded Lucy Mundia’s malpractice case. Writing for the panel, Judge Rudolph R. Pyle III rejected the firm’s argument that it was not the proximate cause of Mundia’s damages and could not be sued because the South Bend Police Department and St. Joseph County Prosecutor’s Office were immune under the Indiana Tort Claims Act.

“Mundia argues that the trial court erred by granting summary judgment to Drendall on her legal malpractice claim because there is an issue of fact regarding proximate cause and damages. Because we agree and conclude that Drendall did not meet its initial burden of negating the elements of proximate cause and damages of Mundia’s legal malpractice claim, we reverse the trial court’s grant of summary judgment and remand for further proceedings,” Pyle wrote.

Mundia’s husband, Edward Mwuara, was released from jail after authorities misspelled his name when he was arrested on suspicion of violating of protective order against Mundia’s 6-year-old daughter, Shirley. A deputy prosecutor checked the protective order registry under the misspelled name, and finding no active order, declined to charge Mwuara, who was released and attacked his wife and fatally stabbed Shirley. Mundia later hired Drendall to represent her in a potential negligence suit against the public entities.

“Drendall argues Mundia cannot show that the outcome of her underlying litigation would have been more favorable but for Drendall’s failure to timely file a Tort Claim Notice. However, as non-movant on summary judgment, that is not her burden. That would be her burden at trial,” Pyle wrote.

The court also held that Drendall attempted to shift the burden to Mundia regarding her claim that the failure to file a tort claim notice negated her possibility of settlement or having her day in court.

“Our reversal of the trial court’s grant of summary judgment should not be construed as an opinion on the merits of Mundia’s case or whether she will ultimately be able to show all the elements of her legal malpractice claim,” the court noted. “However, because Drendall has failed to prove there are no genuine issues of fact regarding the issues of proximate cause and damages of Mundia’s legal malpractice claim, we reverse the trial court’s entry of summary judgment and remand for further proceedings.”

June 1

Criminal – Lethal Injection

Roy Lee Ward v. Robert E. Carter, Jr., Commissioner of the Indiana Department of Correction, and Ron Neal, Superintendent of the Indiana State Prison, in their official capacities


Read more on page 4.•


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