Indiana Court Decisions — Dec. 5-18, 2018

December 26, 2018

7th Circuit Court of Appeals

Dec. 14

Civil Plenary — Inmate Suit/Deliberate Indifference

Dylan Sinn v. Bruce Lemmon, Commissioner, et al.


Finding it is reasonable to infer that a former unit manager at the Putnamville Correctional Facility knew an inmate was in danger from gang violence but did nothing, the 7th Circuit Court of Appeals reversed a grant of summary judgment and remanded the case to the Southern Indiana District Court.

Dylan Sinn was attacked twice in 2014 while he was an inmate of the Indiana Department of Correction and housed at Putnamville. He claimed he was targeted by members of the Vice Lords because he is an “unaffiliated [w]hite, clean-cut, tall, nerdy guy with glasses.” An inmate who is not a member of any gang, he said, becomes a “pretty easy target.”

The first attack happened April 24 when Sinn was punched in the face several times in a bathroom. He was subsequently moved to a different dormitory but was threatened by members of same gang, the Vice Lords.

Sinn told John Brush, former Putnamville unit manager, about the threat the next morning. Brush knew Sinn, knew about the first attack and asked how he was doing. Sinn claimed he told Brush that he was going to get beaten again. Brush then told Sinn to send him a letter detailing his concerns for his personal safety.

In the letter, Sinn did not specifically mention “gangs” or “Vice Lords,” but he did note his physical differences with his attackers and that he was not affiliated with any gang. “I am by myself and I’m a white minority … .”

Although the court record does not establish when Brush read Sinn’s letter and Brush cannot remember receiving or reading it, he did concede at his deposition that the letter probably came to him.

Sinn was attacked again April 30, suffering a broken nose, jaw and leg. Investigators found the assailants, and one previously had been identified by the IDOC as a gang member.

After his release in 2015, Sinn filed a lawsuit against several IDOC officials, including Brush. He claimed the prison officials were deliberately indifferent and violated the Eighth Amendment by failing to protect him from gang violence at Putnamville. The U.S. District Court for the Southern District of Indiana granted summary judgment to Brush and two other defendants.

Sinn challenged to the 7th Circuit the district court’s conclusion that Brush and the two others were not deliberately indifferent. In Dylan Sinn v. Bruce Lemmon, Commissioner, et al., 18-1724, the 7th Circuit found Brush had “subjective knowledge” that Sinn was at risk of harm.

The appellate panel noted it is undisputed that Brush had a conversation with Sinn about the first attack and that Sinn followed Brush’s instructions and submitted a letter describing his concerns about being attacked again.

Also, the circuit court held “it is reasonable to infer” that Brush received the letter with enough time to respond before the second attack. And, while Sinn never referenced “gang” and “Vice Lords” in the letter, he did mention “white minority” and being unaffiliated with a gang made him vulnerable to another attack.

“Sinn’s reference to his unaffiliated status in particular shows his fear was more specific than a general complaint about racial tensions in prison,” Judge Joel Flaum wrote for the court. “In short, it is reasonable to infer, based on Brush’s admitted understanding of gang violence at Putnamville, that Brush understood Sinn’s letter as describing a fear of retaliation by the same gang that attacked him on April 24. In response, however, Brush did nothing.”

Brush insisted he did not have sufficient knowledge to act with deliberate indifference because Sinn’s complaints were not specific. However, the 7th Circuit pointed out that Sinn presented evidence that Brush was aware of the general patterns of gang violence at Putnamville and knew Sinn had been attacked. Also, Sinn talked to Brush about the attack and sent him a letter describing his fears of being attacked again.

“It is thus reasonable to infer that Brush knew about a specific risk Sinn faced of the Vice Lords attacking him again,” Flaum wrote. “This is so even though Brush may not have known who the individual attackers would be. Sinn has therefore raised a triable issue of fact as to whether Brush had subjective knowledge that Sinn faced a substantial risk of harm before the second attack on April 30, 2014.”

Indiana Supreme Court

Dec. 5

Tax — Out-of-State ‘Sham’ Transactions

Richardson’s RV, Inc. v. Indiana Department of State Revenue


A northern Indiana recreational vehicle dealer that tried to avoid paying Indiana sales tax on out-of-state transactions by moving the RVs into Michigan before handing over the keys to customers must repay those taxes after a divided Indiana Supreme Court entered summary judgment in favor of the Indiana Department of Revenue.

Justice Mark Massa, writing a majority opinion joined by Chief Justice Loretta Rush and Justice Christopher Goff, reversed an August 2017 ruling from the Indiana Tax Court in Richardson’s RV, Inc. v. Indiana Department of State Revenue, 18S-TA-22. The case centers around Middlebury-based Richardson’s RV, which sells recreational vehicles onsite and online.

Customers who lived in Indiana or in one of the 40 states with reciprocal tax exemption agreements with the Hoosier state would take possession of their RVs directly at the dealership. But the remaining out-of-state customers were given the option of either paying Indiana’s sales tax rate or their home state’s rate.

“For the non-reciprocal-state customers choosing to pay their home state’s rate, the delivery method Richardson’s employed was unorthodox,” Massa wrote. Specifically, Richardson’s would drive the RV across the state line into Michigan, a non-reciprocal state, before giving customers their keys, thereby avoiding Indiana sales tax.

After discovering this practice in an audit, the Department of Revenue issued proposed assessments of nearly $250,000 in unpaid taxes. On appeal, the Tax Court granted summary judgment to Richardson’s, but after hearing oral argument in March, the majority of the Indiana Supreme Court reversed.

“When personal property is delivered to the purchaser in a state other than Indiana solely to avoid paying sales tax — with no other legitimate business purpose — we will not ‘exalt artifice above reality,’” Massa wrote. “… Instead, we will consider these deliveries part of ‘retail transactions made in Indiana’ subject to Indiana sales tax. I.C. section 6-2.5-2-1(a).”

Because the purpose of the Michigan deliveries was tax-related, not business-related, the majority determined those deliveries were “a sham for taxation purposes.” Massa said Indiana Code section 6-2.5-5-39(c) requires non-reciprocal-state customers to pay Indiana sales tax, and “Indiana businesses cannot absorb — or completely ignore — sales tax to entice customers.”

The issue of the Michigan deliveries was, thus, remanded for the Tax Court to determine how much Richardson’s owes in taxes. The case was also remanded for the Tax Court to determine if four other non-reciprocal-state deliveries — in California, North Dakota, Nova Scotia and Buchanan, Michigan — were taxable.

“Even though these deliveries outwardly differ from the typical Michigan Deliveries, Richardson’s designated no evidence showing any independent, non-tax-related business purpose that motivated them,” Massa wrote. “So we remand to the Tax Court to determine that.”

But in a dissenting opinion, Justice Steven David said Richardson’s “followed the letter of the law” under 45 Ind. Admin. Code section 2.2-5-54(b), which holds that “(s)ales of tangible personal property which are delivered to the purchaser in a state other than Indiana for use in a state other than Indiana are not subject to gross retail tax or use tax.” David said the appropriate remedy for the DOR is not in the courts, but rather in a revised sales tax regulation.

Justice Geoffrey Slaughter joined David’s opinion and also penned his own dissent, finding similarly that the DOR “does not claim that buyers of the disputed RVs intend to use their vehicles in Indiana.”

“I would hold that complying with the law is never a ‘sham,’ even if the result is to deprive the Department of tax dollars it would prefer to collect,” Slaughter wrote in his opinion, which was joined by David.

Slaughter ended his dissent by challenging the Supreme Court’s deference to the Tax Court on matters of tax law as “unwarranted within our hierarchical judiciary.”

“In addition to the tax court, our state judiciary is replete with various specialized courts …,” he wrote. “Do we likewise owe deference to the legal conclusions of these tribunals? Surely, the answer is no, and not because the judges who populate these courts lack subject-matter expertise … .

“…As Indiana’s court of last resort, we should reaffirm our supremacy to ‘say what the law is’, and that includes Indiana’s tax law.”

Miscellaneous — Specialized Driving Privileges/Venue

State of Indiana and Indiana Bureau of Motor Vehicles v. Daniel Reinhart


Indiana Supreme Court justices ruled that trial courts have jurisdiction to grant specialized driving privileges as relief from driver’s license forfeitures imposed in other counties.

Daniel Reinhart received two driver’s license suspensions in 2012 and 2015 for habitual traffic violations that occurred in Adams County. He received a third suspension as a lifetime forfeiture after a 2015 felony conviction for driving while suspended as a habitual traffic violator in Noble County.

In 2017, Reinhart petitioned the Adams Superior Court for specialized driving privileges, seeking relief from all three suspensions under Indiana Code section 9-30-16-4. Reinhart was granted his petition, despite the argument that the Adams Superior Court lacked jurisdiction to stay or modify the lifetime forfeiture imposed by the Noble Superior Court. The Indiana Court of Appeals reversed and remanded, instructing the trial court to “vacate that portion of its order related to Reinhart’s Noble County suspension.”

But the high court affirmed the trial court’s ruling in an attempt “to provide a path forward for those in Reinhart’s position.”

First, it found that the specialized driving privileges statute established venue requirements and that the Adams Superior Court did not lack subject matter jurisdiction to stay the lifetime license forfeiture imposed by the Noble Superior Court.

It then found that absent a conviction modification, a lifetime license forfeiture under Ind. Code § 9-30-10-16 (2014) would be an administrative suspension.

“We agree with the State that only trial courts may impose criminal judgments,” Judge Mark Massa wrote. “But the ‘required forfeiture of a defendant’s driver’s license [is] a collateral consequence of a guilty plea’ and conviction, ‘not [a] punishment imposed by the court.’”

“The State’s reading of the statute, by contrast, would require individuals to petition each court from which a lifetime forfeiture arose, increasing exponentially the number of SDP petitions filed and adding to the already-congested dockets of our trial courts,” Massa continued.

Justices further concluded that a conviction modification under Section 16 would result in a court-ordered suspension.

“This conclusion fits logically with Section 3’s venue requirement that a suspended driver seek relief from the court (or courts) that modified the suspended driver’s conviction. As Reinhart notes, the ‘duration of the suspension’ imposed by the court depends ‘on the facts of that particular case, including the nature and severity of the offense, as well as the character of the defendant.’”

“A nondiscretionary lifetime forfeiture, on the other hand, depends simply on the defendant’s HTV status, not the specific facts of the case or the agreed upon conditions he must fulfill to reduce the sentence,” Massa concluded.

The high court therefore affirmed the trial court’s order granting Reinhart’s petition for relief from all three suspensions under Indiana Code section 9-30-16-4 in State of Indiana and Indiana Bureau of Motor Vehicles v. Daniel Reinhart,18S-MI-286.

Indiana Court of Appeals

Dec. 7

Criminal — Neglect Resulting in Death/Double Jeopardy

Makenzie D. Shultz v. State of Indiana


The Indiana Court of Appeals “regrettably” reversed one of a mother’s neglect convictions after her baby was found to have been dead for two days before being taken to the hospital, finding that one of the convictions violated her right to be free from double jeopardy.

In November 2015, Makenzie Shultz went to check on her daughter, B.G., who was allegedly napping. When Shultz found her, B.G. was dead. But at the hospital, a doctor realized B.G. had been dead for roughly two days as her skin was green and smelled of decomposition.

B.G.’s father, Chad Giroux, Jr., admitted to police that he and Shultz knew B.G. was dead and agreed to find her when a relative was present and to react like it just happened. Shultz was thus convicted of Level 1 felony neglect of a dependent resulting in death; Level 3 felony neglect of a dependent resulting in serious bodily injury; Level 5 felony neglect of a dependent resulting in bodily injury; Class A misdemeanor false informing; Class A misdemeanor failure to report a dead body; Level 6 felony obstruction of justice; and two counts of Level 6 felony perjury. After the Level 5 and Level 6 neglect counts were merged with the Level 3 count, Schultz received a 44-year sentence.

On appeal, Shultz argued her convictions for Level 1 felony neglect of a dependent resulting in death and Level 3 felony neglect of a dependent resulting in serious bodily injury violated her constitutional right to be free from double jeopardy. Specifically, she contended the conviction violated the “actual evidence test.”

Shultz was not formally charged, but rather indicted by a grand jury. The appellate court found that the indictments were “vague and mentioned only the elements of the crime.” It noted that the indictments did not appear to allege any facts to distinguish the act of neglect underlying each charge, nor did they inform the jury which pieces of evidence supported the charge of neglect resulting in death and which other distinct pieces of evidence supported the charge of neglect resulting in serious bodily injury.

Therefore, the appellate court ultimately found Shultz’s double jeopardy argument could stand.

“We regret that we must vacate one of Shultz’s convictions for neglect,” Judge Melissa May wrote for the court. “When the State asked the jury to convict Shultz for the four counts of neglect, the prosecutor explicitly told the jury it could rely on asphyxiation to support all of those counts.

“Thus, there is a reasonable probability the jury relied on the same evidence to find Shultz guilty of all four counts,” May wrote. “Accordingly, we vacate Shultz’s conviction of Level 3 felony neglect.”

However, the appellate court found sufficient evidence to support Shultz’s conviction of neglect of a dependent resulting in death in Makenzie D. Shultz v. State of Indiana, 790A2-1712-CR-2835. The case was remanded for resentencing.

Criminal — Possession of Cocaine/Insufficient Evidence

Jacob Lee Silvers v. State of Indiana


A man convicted on a variety of counts of drug possession will be resentenced after the Indiana Court of Appeals agreed with the state that there was insufficient evidence to convict him of possessing cocaine.

Jacob Lee Silvers was arrested after he fled the scene where his car had pulled over after police had received a tip. He was found guilty as charged of Count 1, Level 6 felony possession of cocaine, for the heroin that lab tests found also contained cocaine; Count 2, Class A misdemeanor resisting law enforcement; Count 3, Class B misdemeanor possession of marijuana; Count 4, Class B misdemeanor visiting a common nuisance; Count 5, Class C misdemeanor possession of paraphernalia, and; Count 6, Level 6 felony possession of a narcotic drug, heroin.

Silvers was sentenced to 912 days for Count 1, 365 days for Count 2 and 180 days for Count 3, to be served consecutively, for an aggregate term of just under four years in prison. He was also sentenced on the other charges to be served concurrently.

But the Indiana Court of Appeals threw out Silvers’ conviction on Count 1, cocaine possession, because the state agreed with his argument that Silvers could not have known he possessed cocaine that was found in a lab test in what he believed was heroin.

“The State concedes that the evidence does not support this conviction because there is no evidence that Silvers knew the heroin also contained cocaine,” Chief Judge Nancy Vaidik wrote for the panel in Jacob Lee Silvers v. State of Indiana, 18A-CR-1126. “The State asks us to remand this case to the trial court for resentencing on the five remaining counts. … Silvers does not ask for a different remedy. We therefore remand this case to the trial court for resentencing.”


Dec. 10

Domestic Relation — Emancipation/Child Support

Cathy Lynn Baker v. Douglas L. Grout


The Indiana Court of Appeals reversed and remanded a trial court’s order for a mother to continue paying child support for her 19-year-old son, finding the trial court did not have the discretion to go outside the parameters of the termination of child support statute in its decision.

Cathy Baker argued the Hamilton Superior Court abused its discretion when it denied her petition to terminate child support because her son, who would soon be 19 years old, had plans to attend IUPUI as a freshman with a Century 21 Scholarship Fund that would pay for all four years of his schooling. Because of the scholarship, Baker’s son did not have to take out any loans for college.

Further, Baker’s ex-husband, Douglas Grout, testified at a hearing that he was not asking for Baker to contribute to educational expenses if everything was being paid through grants and scholarships. But at the end of the hearing, the trial court denied Baker’s petition for emancipation and termination of child support, ordering her to pay $52 a week with no indication of when the payment of child support would cease.

Relying on Turner v. Turner, 983 N.E.2d 643, 646 (Ind. Ct. App. 2013), the appellate court reversed and remanded the trial court’s order, finding that Baker had shown prima facie error.

“Here, there was no evidence that the parties’ dissolution decree contained language requiring Mother to pay child support for Nicholas until the age of twenty-one. Instead, Mother petitioned the trial court to relieve her of the requirement to pay child support when Nicholas turned nineteen pursuant to Indiana Code section 31-16-6-6, which was the applicable law,” Judge James S. Kirsch wrote.

“The evidence showed that Nicholas turned nineteen on July 13, 2018 and that none of the exceptions contained in section 31-16-6-6 applied to him,” Kirsch continued. “We, therefore, conclude as in Turner, that the trial court did not have the discretion to go outside the parameters of the termination of child support statute.”

The appellate court therefore remanded the trial court to enter an order granting Baker’s petition and ordered the repayment of all child support paid by Baker since July 13, 2018.

The case is Cathy Lynn Baker v. Douglas L. Grout, 18A-DR-1572.

Dec. 14

Domestic Relation — Undisclosed Estate Interest

Peter Coles v. Mary (Coles) McDaniel


A woman who learned after her divorce was final that her former husband did not disclose his interest in his mother’s estate has gotten relief from the Indiana Court of Appeals, which found the man “made a mockery of the discovery process.”

In January 2013, Mary McDaniel filed for a dissolution of marriage from Peter Coles and served him several interrogatories. Coles answered and returned them but failed to disclose that he held a remainder fee-simple interest in real estate subject to his mother’s life estate.

Following the dissolution agreement settlement in 2015, McDaniel filed a motion for relief from judgment, alleging Coles did not disclose his interest in certain real property prior to the agreement. McDaniel claimed she was entitled to relief because she would not have entered into the agreement had she known of Coles’ interest in the property.

The Fountain Circuit Court granted McDaniel’s motion after two failed meditation attempts and entered an order distributing the relevant debts and assets. On appeal in Peter Coles v. Mary (Coles) McDaniel, 23A05-1712-DR-2817, Coles argued the trial court’s conclusion was incorrect as a matter of law because the misconduct standard under Indiana Trial Rule 60(B)(3) did not apply to the case. Specifically, he argued that the trial court’s reliance on Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65 (Ind. 2006) was “inapposite and readily distinguishable from the facts in the instant case” and that it would be impossible to evaluate the impact of his alleged “misconduct” on the “full and fair” presentation of a case at trial.

The appellate court disagreed, finding that the legal analysis in Markley directly applied to the case and, therefore, McDaniel was entitled to relief from judgment.

“Here, the trial court found that Husband’s answers to the relevant interrogatories, including the reply, ‘Investigation continues,’ … made a mockery of the discovery process, especially considering Husband did not later supplement that response and considering Husband indicated as part of the Dissolution Settlement Agreement that he had disclosed all real property interests,” Judge Melissa May wrote for the court.

The appellate court also found there was no abuse of discretion when the trial court divided Coles’ fee-simple interest in the property. Finding he provided no evidence regarding the value of the property either at the time of separation or at the time the trial court granted McDaniel relief, the appellate court found Coles was estopped from challenging the manner in which the trial court distributed the property.


Dec. 18

Civil Tort — Driver Fatal Heart Attack/Negligence

Wanda Denson v. The Estate of Delmer Dillard and Indiana Farmers Mutual Insurance Company


The Indiana Court of Appeals affirmed the grant of summary judgment to a man’s estate in a negligence lawsuit, finding his incapacity to drive due to a heart attack was not reasonably foreseeable.

While driving to Bloomington for Thanksgiving with Wanda Denson as a passenger in his vehicle, Delmer Dillard suddenly declared he was not feeling well, slumped over and passed out. The vehicle he was driving then crashed into a house off State Road 252 near Morgantown, severely injuring Denson, resulting in more than $400,000 in medical bills. Dillard died at the scene after suffering a massive heart attack while driving.

Dillard had suffered another heart attack six weeks earlier, but a follow-up appointment found he was doing well with no chest pain. He was not informed by medical professionals that he was unable to drive based on hospital records, cardiologist notes, a stress test and functional capacity.

Five months after the accident, Denson filed a negligence complaint against Dillard’s estate and sought uninsured/underinsured motorist benefits from her own automobile insurer. The estate argued Dillard had faced a sudden medical emergency which was so imminent as to leave no time for deliberation or action. The Indiana Trial Lawyers Association joined Denson as amicus.

Both sides moved for summary judgment. A trial court found in favor of the estate, finding it negated the element of breach on Denson’s negligence claim.

On appeal, Denson argued the trial court erred in its ruling favoring the estate. However, the appellate court found that under the narrow and specific circumstances of the case, designated evidence negated the element of breach in Wanda Denson v. The Estate of Delmer Dillard and Indiana Farmers Mutual Insurance Company, 18A-CT-1112.

Specifically, the appellate court found no need to formally recognize a specific doctrine or defense, determining that the application of general negligence principles adequately addressed the case. It also found that the estate made a prima facie case on the issue and that the evidence designated by Denson failed to create a genuine issue of material fact.

“While Denson designated evidence that shows that Dillard was prescribed medication for his heart, and that his prior heart attack would have put him on notice that he suffered from coronary artery disease, this evidence does not equate to knowledge of peril or create an inference that a reasonable man in Dillard’s position would have altered his behavior regarding driving,” Judge Terry Crone wrote for the court.

Civil Tort — Student Murder/School Wrongful Death Liability

Katrina Murray and Aquila F. Flynn, as Co-Personal Representatives of the Estate of Jaylan T. R. Murray, Deceased v. Indianapolis Public Schools and Arlington Community High School


The Indiana Court of Appeals reinstated a wrongful death lawsuit against Indianapolis Public Schools when it found genuine issues of material fact as to Arlington Community High School’s duty to supervise its students after a teen’s murder nearby.

In early February 2016, Jaylan Murray’s body was found at an apartment complex across the street from Arlington Community High School, where he was a student. Jaylan, a frequent runaway with an active Department of Child Services case file, of which the school was aware, had been murdered.

On the day of his murder, Jaylan had gone to Arlington around 1 p.m. and had signed in at the front desk. He left the premises without Arlington’s knowledge, without signing out, and presumably through an unlocked and unmonitored exit. Arlington’s students are expected to enter and exit through the front entrance to the building and sign in and out if arriving or leaving during the school day. The front entrance provides the only entry to the building.

Co-personal representatives of Murray’s estate, Katrina Murray and Aquila F. Flynn, filed a complaint for wrongful death against the school, alleging that it had been negligent for failing to properly supervise and monitor its students during school hours.

Marion Superior Court granted summary judgment for the school, however, finding it was immune from any failure to adopt or enforce an attendance policy under the Indiana Tort Claims Act, and that Jaylan was contributorily negligent in his own murder.

On appeal, the estate contended the school breached its duty by “failing to properly supervise and monitor their students during school hours” in accordance with Indiana Code section 20-33-8-8. Specifically, it claimed that because the school was notified that Jaylan was a runaway minor before he appeared at the front office, the school should have taken measures preventing him from returning to the street.

The appellate court ultimately reversed the trial court’s decision, finding the issue was not appropriate for summary judgment in Katrina Murray and Aquila F. Flynn, as Co-Personal Representatives of the Estate of Jaylan T. R. Murray, Deceased v. Indianapolis Public Schools and Arlington Community High School, 18A-CT-1955. Judge James Kirsch dissented without a separate opinion.

“While the designated facts could support a conclusion that the School failed to exercise reasonable care to supervise and monitor Jaylan given its presumed awareness of Jaylan’s propensity to run away, reasonable minds might differ as to the particular extent and scope of the School’s duty to ensure Jaylan’s safety under these circumstances and, as such, the issue remains a factual one, and should properly be presented to the trier of fact,” Judge Patricia Riley wrote for the court. Her majority opinion was joined by Judge Margret Robb.

The appellate court further found that the record contained issues of fact precluding summary judgment on the basis of contributory negligence.

“Minors often engage in unwise behavior but those choices do not automatically make them contributorily negligent as a matter of law,” Riley continued. “While Jaylan’s decision to leave the School’s premises was ill-advised, in light of the conflicting designated evidence surrounding the reason for his truancy and his murder, it remains debatable whether Jaylan failed to exercise the same degree of care and caution which an ordinary, reasonable sixteen-year-old would exercise in a similar situation.”•


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