INappeals

By Shannon Landreth

In Dowell v. State, the Indiana Supreme Court expressly adopted the prison mailbox rule, still “obliging the litigant provide reasonable, legitimate, and verifiable documentation” to support a claim that a “document was timely submitted to prison officials for mailing.”  However, the Court observed that Dowell failed to submit any verifiable documentation to support application of the mailbox rule.

In Varner v. Indiana Parole Board, an inmate challenged a vote denying him parole when only four of the five board members voted and the votes were split with two voting for parole and two voting against.  The inmate tried to force a vote of the full board since the applicable statute required the “full parole board” to make the decision.  The Indiana Supreme Court looked to the Legislature’s rules of statutory construction (where “joint authority” was conferred on a majority – three – of the five Board members), the Board’s administrative rule requiring a quorum of three to render decisions and vote in favor of parole, and practical considerations regarding the delay that would be caused if all members have to vote on each parole decision.  The Court held that the “‘full parole board’ delineates a majority of the Board, which may consist of less than five members.”  Otherwise, the Board, “which hears approximately 50 parole release hearings per month, would come to a standstill during the absence of one member.”
 

By Shannon Landreth

In King v. State, the Indiana Supreme Court unanimously held that “the offense of Attempted Dissemination of Matter Harmful to Minors can be committed when a defendant attempts to transmit proscribed matter by the Internet to an adult police detective posing as a minor,” thereby resolving a conflict among Indiana Court of Appeals decisions.  The Court observed that the State’s general "attempt" statute “‘focuses on the substantial step that the defendant has completed, not on what was left undone.’”  The Court further observed that the defendant in King had “disseminated matter harmful to minors to a person he believed or intended to be a child less than eighteen years of age.”  The Court held that it “matters not that his intended recipient was an adult; the Attempt statue makes clear that such ‘a misapprehension of the circumstances’ is no defense.”  To the extent the Court of Appeals opinions in Gibbs v. State, 898 N.E.2d 1240 (Ind. Ct. App. 2008), and Aplin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), may be read to prohibit convictions “where the supposed minor is in fact an adult,” the opinions were “disapproved and overruled.”

In Sibbing v. Cave, the Indiana Supreme Court reviewed a trial court’s admission of testimony by the plaintiff regarding “what she was told by her treating physician and her own beliefs about the cause of her pain.”  The Court observed that Indiana Evidence Rule 803(4) creates a hearsay exception for statements made to a medical professional for purposes of receiving a diagnosis or treatment.  The Court stated that the “rationale for the 803(4) hearsay exception is that a declarant has a personal interest in obtaining a medical diagnosis and treatment, and this interest motivates the patient to provide truthful information.”  But, “[d]eclarations made by a physician or other health care provider to a patient do not share this enhanced indicia of reliability.” 

The Court further observed the “substantial likelihood that a typical patient may fail to fully or accurately comprehend or understand” a physician’s report.  The Court held that Evidence Rule 803(4) applies “only to statements made by persons who are seeking medical diagnosis or treatment.”  However, the Court found that “substantially all of this evidence was also presented to the jury through other exhibits,” so the admission of plaintiff’s testimony was harmless error.  The Court further found that the plaintiff was properly permitted to answer the question, “What did you believe was causing your pain?”  The resulting answer, as noted by the Court, merely stated “her own personal belief about the source of her pain” and was permissible lay witness testimony pursuant to Indiana Evidence Rule 701.

The Court further clarified what is meant by the “reasonable and necessary” qualifier for damages recoverable by an injured party.  The expense must be “reasonable,” and the “nature and extent of the treatment claimed must be necessary in the sense that it proximately resulted from the wrongful conduct of another.”  An injured party is not precluded from recovery for “injuries caused by a misdiagnosis or performance of an arguably unnecessary procedure.”  The Court stated that while a defendant’s evidence as to the “scope of liability” component of proximate cause is restricted, a defendant is not precluded from challenging the “causation-in-fact” component.  “A future defendant may thus present evidence to counter a plaintiff’s claim that but for the defendant’s alleged negligence, the disputed medical treatment would not have occurred” and “a defendant may properly challenge whether a plaintiff’s medical treatment was not at all necessitated by the alleged tortious conduct but by a non-aggravated, pre-existing condition.” 

By Shannon Landreth

The Indiana Supreme Court issued four opinions in February 2010, two of which addressed related issues.

In State ex rel. Crain Heating Air Conditioning & Refrigeration, Inc., in a per curiam opinion, the Court further expanded upon a permanent writ of mandamus and prohibition it had entered in favor of the relator on December 7, 2009, to clarify the procedure “that may be used to withdraw a case from a court that fails to rule promptly after hearing a motion related to a preliminary injunction.” 

The Court addressed the interplay between Trial Rule 53.1, which permits a case to be withdrawn from a court if it fails to rule on a motion within 30 days after it is heard and Rule 65(A)(3), which sets forth a shorter, 10-day period of time for entry of an order following the hearing for a temporary or preliminary injunction.  The Court determined that these two “rules should be interpreted in conjunction with each other to mean that unless an order is entered within ten days after the hearing upon the granting, modifying, or dissolving of a temporary or permanent injunction, there has been a delay in ruling and an interested party may immediately praecipe for withdrawal under the procedure provided in Trial Rule 53.1(E).”  It is not necessary to wait the longer, 30-day period.

The Indiana Supreme Court further observed that while receiving proposed findings of fact and conclusions of law from the parties may be convenient, it “is not necessary to the court’s decision making.”  The “parties’ submission of proposed findings pursuant to an order allowing such submission [after the 10-day period provided in the rule] does not relieve the court of the obligation to rule timely,” if the parties have not stipulated on the record for a longer period for ruling.  In addition, the Court looked not to the day the praecipe was filed, but the date on which the clerk issued a determination.  Though the praecipe in this case technically was premature when filed, because the clerk made its determination later, at a time when there clearly was a delay by the trial court, the writ of mandamus and prohibition was appropriate.

In Washington Township Fire Department v. Beltway Surgery Center, the Court affirmed and adopted the Indiana Court of Appeals’ opinion holding “the employer, not the medical provider, has the burden of proving whether the charges for medical services provided to an employee exceed the employer’s liability to pay under the Worker’s Compensation Act.”  The Worker’s Compensation Board “may require an employer that fails to meet this burden to pay the medical provider’s full bill.”

The Indiana Supreme Court also entered two related, unanimous opinions to address the meaning and application of statutory provisions precluding penalty enhancement that ordinarily results from drug offenses committed close to places like parks and schools where children frequent. 

In Griffin v. State, the Court addressed whether the defendant’s sentence for possession of cocaine should have been enhanced as a result of him being stopped while pushing a moped down the middle of a street near an elementary school at 2:15 in the morning.  The Court observed that for a defense to the enhancement to apply, both conditions of the absence of children and “briefly” must be satisfied beyond a reasonable doubt.  The only evidence offered regarding the presence of children came from the police officer who testified there probably were families nearby in the residential area.  The Court found that the State failed to rebut the absence-of-children prong of the statutory defense because there “was no evidence as to the location of the residential homes along the street so as to place them, or any inferred child occupants, within 1,000 feet of the school.” 

As for the “briefly” prong, the Court found that the General Assembly’s use of “briefly” “implies that such duration must be determined in relation to other considerations, not merely an abstract, temporal component.”  It defined “briefly” to mean “a period of time no longer than reasonably necessary for a defendant’s intrusion into the proscribed zone principally for conduct unrelated to unlawful drug activities, provided the defendant’s activities related to the charged offense are not visible.”  Griffin’s class B felony conviction was reversed and the case remanded with instructions for entry of a conviction for a class D felony, with the appropriate resentencing.

In the related case, Gallagher v. State, the defendant had been convicted of Dealing in a Schedule II Controlled Substance Within One Thousand Feet of School Property, a class A felony. Citing the “briefly” definition it handed down in Griffin, the Court found that though the defendant was located in the proscribed zone for less than fourteen minutes, during those minutes “the defendant was principally engaged in conduct related to unlawful drug activities clearly visible to anyone present, and thus his thirteen and one half minutes in the proscribed zone does not quality as ‘briefly.’”  The Court upheld the Gallagher’s conviction.
 

By Shannon Landreth

In Bules v. Marshall County, the Indiana Supreme Court, in a 4-1 opinion, defined what constitutes a “period of reasonable response to a weather condition” for governmental immunity under the Indiana Tort Claims Act. 

The Court held that a reasonable response period “lasts at least until the weather condition has stabilized, and immunizes the governmental unit from liability for alleged flaws in its remedial steps.”  In this case, the Court found that the accident at issue “occurred during the period of a still evolving condition” and “the statute confers immunity at least until the condition is stabilized and the responses are completed.”  The Court held that a “‘period of reasonable response’ lasts at least until the condition stops worsening.”  The Court further held that the “fact that the County’s response in some of the affected area was completed or poorly done does not establish that the condition was no longer temporary.”  “Immunity applies even if the response is in some respects inadequate . . . .”

In Johnson v. Johnson, the Indiana Supreme Court addressed the scope of a spouse’s judgment lien following the settlement agreement related to the couple’s dissolution of marriage.   Under the settlement agreement, the husband retained the real property but had to pay his former wife a total amount in a series of phases.  In this case, the settlement agreement “undeniably assumes” the “continued operation” by the husband of the family farm. 

The Court recognized that the farm’s operation required renewed lines of credit and concluded that the wife “agreed that a bank lien securing the ordinary, continuing business operations following the pattern to which she had grown accustomed would remain priority over her judgment lien.”  This was “not a modification” of the settlement agreement “but an enforcement.”  However, the Court observed that the wife did not impliedly agree to subordinate her lien to the bank’s “in an amount sufficient . . . to finance the divorce.”  The Court found that the trial court’s order subordinating the wife’s judgment lien for amounts beyond that required to secure the annual line of credit for the operation of the farm was an impermissible modification of the settlement agreement.
 

By Mike Limrick

The Indiana Supreme Court opened the first two weeks of January with three opinions. 

In Hevner v. State, the Court addressed the claim “that the Indiana Sex Offender Registration Act . . . constitutes retroactive punishment forbidden by the Ex Post Facto Clause contained in the Indiana Constitution because it requires the defendant to register as a sex offender, when the Act contained no such requirement at the time the defendant committed the triggering offense.”

In this case, the defendant was convicted with possessing child pornography as a Class D felony, his first offense.  At the time Hevner committed his crime, a person convicted for the first time of possessing child pornography was not considered a sex offender who had to register as such.  By the time he was convicted, though, the law had changed and, at sentencing, Hevner was ordered to register as a sex offender. 

The analysis in this case built on the Indiana Supreme Court’s opinion last year in Wallace v. State.  There, the Court held that the Registration Act violated the Indiana Constitution’s Ex Post Facto Clause as applied to a defendant who committed his offense before the statute was enacted.  The same analysis, the Court concluded, applied to Hevner’s situation because “[a]s a general rule, a court must sentence a defendant under the statute in effect on the date the defendant committed the offense.”

In Matter of N.E., the issue was whether a trial court’s adjudication that a child was a “Child In Need Of Services” (“CHINS”) applied to the child’s father, when the adjudication did not specifically allege fault on the part of the father.  The Indiana Supreme Court concluded that the court was not required to make such a determination for each parent.  Rather, “[t]he question in a CHINS adjudication is not parental fault, but whether the child needs services.  Because a CHINS determination regards the status of the child, the juvenile court is not required to determine whether a child is a CHINS as to each parent, only whether the statutory elements have been established.”

In N.E., the Court distinguished a CHINS adjudication, which does not address parental fault, from proceedings to terminate a parent’s rights, which does.  On appeal, the father was successful in having N.E. returned to his home from foster care, because the trial court’s findings were not sufficient to show why placement in his home was not appropriate.

Finally, in the consolidated cases of State v. Haldeman and State v. Lawson, the Indiana Supreme Court addressed a peculiar situation.  In 1990, the legislature adopted Indiana Code § 35-33.5-3-3(a), which required a prosecuting attorney to apply to the Indiana Court of Appeals “for an ex parte de novo review” of a trial court’s issuance of a wiretap warrant under rules adopted by the Indiana Supreme Court.  The Court adopted Criminal Rule 25 for that purpose.  In 2007, the legislature repealed the statue; however, Criminal Rule 25 remained. 

The Court concluded that the repeal of the statute did not wipe away the obligations set forth in Criminal Rule 25, and that the State failed to follow those procedures in these cases.  However, the Court found that the defendants in both cases failed to demonstrate that the State’s failure to comply affected their substantial rights.  Thus, the Court reversed the trial court’s ruling granting the defendants’ motions to suppress evidence obtained as a result of the police wiretapping.

By Mike Limrick

The Indiana Supreme Court issued five criminal case opinions in December.

In Armfield v. State and Holly v. State, the Indiana Supreme Court “provide[d] the analytical framework” to resolve the issue “of when an officer has reasonable suspicion to initiate a traffic stop after a routine status check of a license plate reveals that the driver’s license of the registered owner of the vehicle is suspended.”

In Armfield, the Court set forth the rule that “an officer has reasonable suspicion to initiate a Terry stop when (1) the officer knows that the registered owner of a vehicle has a suspended license and (2) the officer is unaware of any evidence or circumstances which indicate that the owner is not the driver of the vehicle.”  The Court also explained, “This rule does not require officers to match the physical description of the registered owner from the license plate check to the driver of the vehicle before initiating a Terry stop.”  In both Armfield and Holly, the Court concluded that the officer making the stop had a reasonable suspicion to initiate a stop based on computer records indicating that the vehicle’s registered owner had a suspended driver’s license.

The two cases produced different outcomes, however.  In Armfield, the officer confirmed that the driver was the owner whose license was suspended.  In Holly, though, the officer knew upon approaching the driver that the driver (a male) was not the registered owner (a female).  Nevertheless, the officer asked the driver to produce his license.  Noting that “[r]easonable suspicion to pull a car over does not confer unconditional authority to request the driver’s license and registration,” the Court explained that nothing in the record justified any further inquiry beyond the Terry stop.  Thus, the Court concluded, evidence of drugs in the car that was discovered during a subsequent search was improperly obtained and inadmissible.

In Cooper v. State, the Court explained that the proper vehicle to challenge a trial court’s revocation of probation is through an immediate appeal of the order.  In Cooper, the trial court revoked probation without conducting a hearing – a circumstance the Court explained would have led to a reversal had Cooper timely appealed the order.  However, Cooper waited for additional facts to develop, then moved the trial court for reconsideration.  The trial court denied the motion and – on appeal from the denial of that motion – the Court concluded that the trial court did not abuse its discretion.

In Lafayette v. State, the Indiana Supreme Court reversed a rape conviction based on the State’s use of evidence of the defendant’s conviction for attempted rape ten years earlier.  The Court concluded that the evidence should have been excluded under Indiana Rule of Evidence 404(b), over the State’s contention that it was admissible to prove the defendant’s intent to commit the present rape.  The trial court had agreed that the defendant’s “intent,” for 404(b) purposes, was put at issue when the defendant challenged the alleged victim’s credibility.  The Court disagreed, holding that a “defendant’s use of the defense of consent in a rape prosecution is not, standing alone, enough to trigger the availability of the intent exception.”

In Wilkes v. State, the Indiana Supreme Court affirmed a death sentence on direct appeal, over challenges to the admissibility of confessions given by the defendant, evidence of other crimes used to prove motive for the murders, and the propriety of the sentence.
 

By Shannon Landreth

In Garcia v. State, the Indiana Court of Appeals reversed Garcia’s conviction of an enhanced sentence and habitual substance offender determination because the trial court did not obtain from Garcia a personal waiver of his right to have a jury make these determinations.  In particular the Court of Appeals found that “it is apparent that Garcia did not acquiesce in his attorney’s representation of a waiver” because “Garcia expressed a desire to have the jury hear his explanation of why those prior convictions should be disregarded.”  “Garcia did not make a ‘personal communication’ to the court that he wished to relinquish his right to have a jury determine whether the offense should be elevated to a Class D felony and whether he was a habitual substance offender.”

In Neff v. State, the Indiana Court of Appeals addressed a venue challenge raised by a defendant charged with felony child solicitation in Hamilton County when the solicitation was in the form of IM chats sent from him in Madison County to a Georgian volunteer with Perverted Justice posing as a twelve-year-old girl living near Indianapolis.  Neff did not challenge Hamilton County’s venue until closing argument.

The Court observed that Neff did not send any IMs directed to any person actually existing in Hamilton County.  Though he believed the fictitious girl lived in Hamilton County and arranged a meeting with her in Hamilton County, the Court found that Hamilton County was not the proper venue for prosecuting Neff.  Rather, “Neff completed all the conduct that was required to establish the crime of child solicitation when he sat at his computer in Madison County and typed vulgar messages that were sent to and received by someone in Georgia.”  The fact that Neff was apprehended in Hamilton County was not sufficient to support venue there.  The Court observed that the State’s view of Neff’s travels to Hamilton County to fulfill his plan to meet the fictitious girl as sufficient to establish venue was improper because it could permit “forum shopping” whereby the State could direct out-of-state volunteers helping to identify potential child solicitors to “make their child ‘victim’ a resident of whatever county they wished.’”

However, the Court found that Neff could be retried in Madison County (his county of residence) without violating double jeopardy protections.  The Court observed that “[v]enue is not an ‘element’ of a crime” and failure to prove venue “‘implies nothing’ with respect to Neff’s guilt or innocence.”  The Court of Appeals further observed that “the precise date of the alleged solicitation is not of ‘the essence of the offense’ of child solicitation, nor was Neff misled into believing” that because the State referenced a specific date in the charging information it would not rely upon evidence related to an earlier chat.

By Shannon Landreth

In Gunashekar v. Grose, the Indiana Supreme Court analyzed whether the trial court abused its discretion by denying the Gunashekars’ motion for a continuance of a half day bench trial after the trial court granted their attorney’s motion to withdraw six weeks before the scheduled trial.  The Court observed that the Gunashekars “said nothing to the trial judge to indicate whether they were diligent in trying to engage new counsel” and they were “not forced to proceed without an attorney.” (emphasis in original).  Justice Rucker dissented stating that “this case presented a level of complexity that few if any pro se litigants would have been able to navigate successfully” and the Gunashekars “needed the assistance of trained legal counsel” and “[f]airness and equity required . . . a reasonably delay to accomplish that end.”

In Bradshaw v. Chandler, the Indiana Supreme Court analyzed whether bringing a claim specifically under the underinsured motorist section of an insurance policy met the policy’s timeliness requirements when it was later determined the claim should have been brought under the uninsured motorist section.  The Court held that it did.  “Where as here the insurance company is a named defendant in a suit commencing within months of the accident, unreasonable delay in pursuing a claim is clearly not a concern.”  To require an insured to specify at the outset that he or she was suing for uninsured coverage would lead future insureds “to include a claim against the insured’s carrier for both uninsured and underinsured coverage.”  Because the insured “commenced his suit within the two-year limitation,” “the policy does not exclude coverage.”
 

By Shannon Landreth

In Donovan v. Grand Victoria Casino & Resort, L.P., the Indiana Court of Appeals held that a card counter was “entitled to summary judgment on his request for a declaratory judgment to the effect that Grand Victoria may not exclude him from blackjack because he counts cards.”  The Court observed that the Gaming Commission “did not enact a prohibition against card counting and Grand Victoria did not seek a prohibition by rule amendment.”  “Grand Victoria has no right to exclude Donovan on the grounds that he plays the game under existing rules.” 

In Howard v. Daugherty, an inmate filed a Section 1983 complaint and was ordered to pay a partial filing fee of twenty-two cents.  The inmate submitted a forty-two cent stamp as payment.  The trial court dismissed his complaint for failure to timely pay the filing fee.  The Indiana Court of Appeals found that the dismissal of the inmate’s complaint “was not error because the trial court was not obliged to accept the stamp as payment for the filing fee.”

In Bingley v. Bingley, the Indiana Court of Appeals addressed as a matter of first impression whether post-retirement health insurance premium payments paid for by a former employer qualify as marital asset “property.”  The Court affirmed the trial court’s determination that the employer-paid health insurance premiums were not marital assets subject to division.  The Court observed that the husband’s “benefit was not payable to him” and he “could not elect to have his stipend increased in lieu of the premium payments; rather, the benefit was non-elective and not subject to divestiture, division or transfer.”  The Court further observed that benefits which are “purely supplemental, i.e., not purchased/obtained using marital assets, non-elective and not subject to divestiture, division, or transfer are properly excluded from the marital estate.”  Judge Crone concurred in result stating that the “premiums are more akin to future income, and I think that they would be more appropriately treated by the trial court in the same manner as future earnings ability,” which is not subject to division.

In Brown-Day v. Allstate Insurance Co., the Indiana Court of Appeals reviewed pretrial orders that granted a motion for party substitution and a motion in limine, which collectively prohibited explicit reference to Allstate as a party.  The Court found that the trial court erred.   Following a car accident, Brown-Day sued the other driver for the bodily injuries sustained in the crash.  She settled with the other driver’s insurance company, but reserved her right to pursue an underinsured motorist claim against Allstate, her insurance company.  More than two years after the other driver had been dismissed from the lawsuit, Allstate filed a motion to substitute the other driver as the sole defendant for trial, claiming that was necessary to prevent “substantial unfair prejudice” to Allstate should a jury learn that insurance coverage applied to the damages sought. 

The Court of Appeals found that the trial court’s order on party substitution “procedurally creates a fictitious person.”  In this case liability had been conceded, leaving only damages to be determined.  “Regardless of academic argument as to whether a jury is likely to assess greater damages against a deep-pocket insurance company, [Indiana] Evidence Rule 411 simply is not a mechanism providing for an outright substitution of parties so that the identity of a party as an insurer may be shielded.”  

The Court also reviewed whether Brown-Day should be allowed to “inquire as to payments Allstate made to its examiner/expert witness.”  The Court noted that “relevant evidence is not to be excluded on grounds that an insurer is involved.”  “Brown-Day has a right to cross-examine Allstate’s examiner/expert witness regarding compensation paid to him by Allstate,” because “evidence of bias, prejudice, or interest of a witness for or against a party is admissible, and the rule may not be disregarded on grounds that the party involved is an insurance carrier.”

By Shannon Landreth

In Miller v. State, the Indiana Court of Appeals, in a 2-1 opinion, reversed Miller’s conviction for armed robbery, finding that the trial court erred when it allowed the State to us as a demonstrative aid in closing argument a YouTube video that had been “created for school administrators to see ‘how easy it was to conceal a weapon inside clothing.’”  The video was not admitted into evidence and was not part of the record on appeal.  The Court observed that the video did not reflect the facts of Miller’s case and “presumably could not have been properly admitted into evidence in light of its conceded irrelevance and obviously prejudicial effect."  Judge Barnes concurred stating he was convinced the video “was the proverbial evidentiary harpoon that skewed the ability of the jury to fairly and impartially decide the case.”  Chief Judge Baker dissented stating that he could not “conclude that the video was so inflammatory that it would have altered the way in which the jury viewed Miller and the case as a whole, and given that the video was irrelevant to Miller’s defense, I can only conclude that the trial court’s decision to permit the State to show the video to the jury was harmless error.”

In State v. Schmitt, the Indiana Court of Appeals concluded that the trial court did not err when it dismissed the charges against the defendant as a sanction for the State’s continued discovery violations.  The Court observed that “it appears that the trial court has been dealing with similar discovery disputes between the State and Schmitt’s counsel in more than just the instant case,” and that the State had been warned by the trial court that its failure to respond to the court’s order would be considered “bad faith.”  The Court further noted that the misdemeanor charges had been pending for almost one year on the date they were dismissed.

In A.K. v. State, the Indiana Court of Appeals held that a minor defendant cannot consent to a hearing date and then move to dismiss the charges for failure to hold a timely hearing.  The minor defendant had moved to dismiss the charges against him under Indiana Code § 31-37-11-2(b) because a hearing was not commenced within sixty days of the filing of the petition.  The Court affirmed the trial court’s denial of the motion, observing that “the juvenile code does not mandate dismissal of the charges when the sixty-day deadline is not met.”  The Court further observed that the setting for the hearing was made with the defendant’s agreement.  The Court drew an analogy to the adult criminal setting where speedy trial rights are deemed waived when the trial date is set beyond the designated time period and the defendant fails to object.
 

By Mike Limrick

The Indiana Supreme Court issued three opinions this week.

In Williams v. Tharp, the Court affirmed the trial court’s grant of summary judgment “which found privileged a restaurant employee’s statements to a passerby and a police officer that a customer had ‘pulled a gun’ inside the store.”  The targets of the employee’s statements did not, in fact, have a gun.  Nevertheless, when police located the plaintiffs, they were ordered out of their car at gunpoint, ordered to their knees, and detained in handcuffs for more than an hour.  The plaintiffs were released after police found no gun.

The plaintiffs sued on various theories arising from the employee’s false report to police.  The employee and his employer, Papa John’s, moved for summary judgment claiming a qualified privilege applied to the statements.  The trial court granted judgment against the plaintiffs’ on all counts.

In a 3-2 opinion, the Indiana Supreme Court affirmed the trial court’s grant of summary judgment by finding that the evidence designated by the plaintiffs did not overcome the qualified privilege that applies to such statements – i.e., the designated evidence did not create a genuine issue of material fact regarding whether the employee made the statement knowing it to be false.

In Myers v. Leedy, the Court held that a tenant’s leasehold interest in property survived a land contract vendee’s forfeiture “when the tenant is not made a party to the forfeiture action and the vendor has actual knowledge that the tenant is in possession of the property.”  To reach that conclusion, the Indiana Supreme Court first adopt the majority view that “where at the time a mortgagee files suit for foreclosure it knows, or upon reasonable diligence should have known, that a tenant is in possession of the property, the tenant’s leasehold survives the foreclosure action unless the tenant is made party to the action.”  The Court then concluded that the same principle should apply to forfeiture (in addition to foreclosure) actions.

Finally, in Clark v. State, the Indiana Supreme Court held that electronic evidence from a defendant’s entry on a MySpace page was admissible against him at trial.  In this case, the defendant was convicted of murdering a two-year-old left in his care.  Following the incident, Clark posted references to himself on MySpace as being “an outlaw and criminal” and that “if I can do it and get away . . . why . . . can’t you.”  Clark also posted: “It’s only a C Felony. I can beat this.”  The Court held that, because Clark took the stand and testified that he was guilty of only a reckless act, the MySpace postings were permissible rebuttal to that testimony.

By Shannon Landreth

In Hamilton v. Hamilton, the Indiana Supreme Court held that it was within an Indiana trial court’s discretion to issue a contempt order that required a father to pay a child support obligation on different terms than those set forth by the issuing foreign jurisdiction. 

In Hamilton, a Florida court entered an order sentencing a father to jail unless the father paid $7500 within a certain time.  Because the father moved to Indiana, the mother sought enforcement of the Florida orders in Indiana courts.  The Indiana court extended full faith and credit to the foreign orders except that it stayed the jail sentence if the father paid $3750, followed by monthly payments of $1250. 

The Indiana Supreme Court discussed the difference between the Full Faith and Credit for Child Support Orders Act (FFCCSOA) and the Uniform Interstate Family Support Act (UIFSA), observing that while both aim “to create a national regime in which only a single support order is effective at any time,” the two are not the same and “where UIFSA is silent, the FFCCSOA may help fill any gaps.” 

Applying the standards here, the Court found that the trial court’s modification of payment terms to help the father avoid incarceration constituted valid enforcement and did not impermissibly modify the foreign support order.  “The UIFSA enforcement options are permissive, not compulsory, and contemplate that not all enforcement mechanisms will demand 100 cents on every dollar owed.”

The Court further held that the Federal Consumer Credit Protection Act (FCCPA) “limits the amount of a person’s wages that may be assigned but does not limit the overall amount of support that a parent may owe.”  The Court found that to the extent the trial court’s order was based on perceived garnishment limitations, remand was required for “the trial court to render a contempt determination without reference or deference to the FCCPA.”

By Shannon Landreth

In a matter of first impression, the Indiana Court of Appeals held that the Indiana Utility Regulatory Commission (IURC) did not lose its jurisdiction by failing to promptly review, at the request of campground owners, the rates and fees charged by a regional sewage district. 

In LaGrange County Regional Utility District v. Bubb, the IURC reviewed the dispute and, almost a year after receiving notice of the fee challenge, found that an excessive fee had been charged and the owners of the campground were to receive a refund.  The regional sewage district moved to dismiss, asserting that the IURC lost jurisdiction by failing to conduct a prompt investigation and, alternatively, that the IURC lacked authority to order the relief granted. 

The Indiana Court of Appeals determined that Indiana Code section 13-26-11-2.1 (the statute that the utility argued required the IURC to complete its review of the challenge within a short time) did not apply because it referred to “sewage disposal companies.”  Here, the utility was a “regional sewage district” and - the Court concluded – the “definitions are not interchangeable[.]”  The Court of Appeals declined to extend the short review period to regional sewage districts.

The Court of Appeals further declined to find the IURC was equitably estopped, by failing to conduct a prompt investigation, from reviewing the challenged fees and rates because such a finding would frustrate the purpose of the statute.  “From the plain language of the Statute,” the Court stated, “we can reasonably infer that the General Assembly sought to establish a method of recourse for campground owners who had been overcharged by their regional sewage district.” 

The Court found that if the IURC did not have jurisdiction in this case, the campground owners would be without recourse.  The Court of Appeals observed that nothing in the statute limits the IURC’s ability to grant relief if review of the dispute is not completed within a certain time.  “Indeed, such a rule would be illogical, inasmuch as relief would be foreclosed to an overcharged campground owner through no fault of his own.”

By Mike Limrick

In Kovach v. Caligor Midwest, the Indiana Supreme Court unanimously affirmed a summary judgment in favor of manufacturer and distributor defendants in a product liability case on a rarely applied basis:  a failure of proof on proximate cause.

The plaintiffs in Kovach alleged that the medicine cup used to give a fatal overdose of pain medication to their son was defectively designed, and that the manufacturers and distributors of the cup had failed to warn that the cup was not suitable for precision measurement.

The undisputed facts, though, established that the dosage administered was double the prescribed amount, and that none of the claimed defects “would have caused an overdose of that magnitude.”

Proximate cause, the Indiana Supreme Court explained, “has two components:  causation-in-fact and scope of liability.”  Although “[c]ausation-in-fact is ordinarily a factual question reserved for determination by the jury,” the Court noted, “where reasonable minds cannot disagree as to causation-in-fact, the issue may become a question of law for the court.” 

That was the case here, the Court held, as “the undisputed facts establish[ed] that there [was] no such causal connection” between the manner in which the medicine cup was manufactured (or whether any warnings should have been given concerning its use as a precise measuring device) and the evidence that the nurse administered twice the prescribed dosage.

Bingham McHale’s Karl Mulvaney and Nana Quay-Smith represented some of the prevailing appellees in this case.
 

By Mike Limrick

The Indiana Supreme Court issued three opinions last week.

In Rovai v. Rovai, the Court addressed a recurring situation in which a trial court awards one divorcing spouse the marital residence, but requires that spouse to pay the other a share of its value at some later date.  In this case, the trial court reduced such a decree to a judgment, specifying that the judgment was to be paid without interest.

The issue on appeal in Rovai was whether the post-judgment interest statute, Indiana Code section 24-4.6-1-101, required that the trial court to assess interest on the payment to be made by the wife who received the house.  The Indiana Supreme Court reconciled the post-judgment interest statute with the dissolution statutes, which call for a “just” division of property, by holding that whether to award interest as part of its dissolution decree is within the discretion of the trial court.  Rather than compelling an award of interest in such decrees, the Court held that “the dissolution statutes confer upon trial courts the authority to order interest or not in the course of fashioning a just and reasonable division of property.”

In a second family law case, Basileh v. Alghusain, the Indiana Supreme Court addressed “the interplay between the [federal] Full Faith and Credit for Child Support Orders Act and the [Indiana] Uniform Family Support Act.”  The marriage in Basileh had been dissolved in Indiana in 2002 and the parents were assigned joint legal custody, with the children to reside with their mother in California.  In 2004, the continuing relationship between the parties soured, and the mother sought transfer of jurisdiction over the case to California.  After some wrangling between the California and Indiana courts, jurisdiction over all issues – including child support – was transferred to California.  The father appealed that transfer.

The issue on transfer in Basileh concerned the Indiana Court of Appeals’ determination that the trial court properly ceded jurisdiction of child support issues to the California court pursuant to the federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B.  Pursuant to that Act, a state trial court that enters a support order has continuing, exclusive jurisdiction unless the child or parties to the order are no longer residents of that state.  The Court of Appeals concluded that this language pre-empted what would, in its opinion, have been a different result by applying the Indiana Uniform Family Support Act, Ind. Code § 31-18-2-5(a), which also includes a requirement of written consent by both parties in order to transfer jurisdiction.  On transfer, the Indiana Supreme Court noted the discrepancy, but concluded that the two Acts could be reconciled by assuming that the Indiana legislature’s intent in enacting the Uniform Act was to make the parties’ joint consent an alternative method of transferring jurisdiction, not a prerequisite to transferring jurisdiction.

Finally, in Wagner v. Yates, the Indiana Supreme Court reversed a trial court’s summary judgment determination that an insurance policy included set-off and anti-stacking provisions.  The Court concluded that the policy provisions at issue were ambiguous, and therefore should be construed against the insurer.

By Mike Limrick

On Monday, the Indiana Supreme Court resolved a conflict among Indiana Court of Appeals decisions, and held that a defendant who pleads guilty to an offense may not appeal the denial of a motion to suppress or other pre-trial motion on direct appeal.

In Alvey v. State, the defendant’s plea agreement called for a guilty plea to dealing in methamphetamine and carrying a handgun.  Alvey also agreed to let the trial court determine his sentence.  In exchange, the State agreed to dismiss the remaining charges, and did not object to Alvey expressly reserving the right to appeal the trial court’s ruling on his motion to suppress evidence.

On appeal, the Indiana Court of Appeals affirmed the trial court’s judgment of conviction, and concluded that Alvey’s guilty plea foreclosed his right to challenge the trial court’s denial of Alvey’s motion to suppress evidence.  Alvey v. State, 897 N.E.2d 515 (Ind. Ct. App. 2008).

The Indiana Supreme Court granted transfer and, in a 4-1 decision, agreed that Alvey’s guilty plea foreclosed his appeal of the motion to suppress.  In reaching this decision, the Court relied on a number of its earlier cases that hinted around this conclusion.  In Collins v. State, 817 N.E.2d 230 (Ind. 2004), the Court held that a person who pleads guilty is limited on direct appeal to contesting a sentence not fixed by the plea agreement.  In Norris v. State, 896 N.E.2d 1149 (Ind. 2008), the Court explained that a guilty plea conclusively establishes the fact of guilt.  And, in Tumulty v. State, 666 N.E.2d 394 (Ind. 1996), the Court explained the policy reasons why a defendant cannot challenge his conviction, based upon a guilty plea, on direct appeal.

The quirk in Alvey’s case was the express proviso in his guilty plea reserving the right to appeal the trial court’s denial of his motion to suppress.  Addressing that procedural irregularity, the Indiana Supreme Court held, “A trial court lacks the authority to allow defendants the right to appeal the denial of a motion to suppress evidence when a defendant enters a guilty plea, even where a plea agreement maintains that such an appeal is permitted.”

On remand, the Court gave Alvey the choice either to accept the plea agreement without the right to appeal the suppression order or have the plea vacated.

Justice Boehm dissented, finding no reason not to enforce the plea agreement according to its terms and permit the appeal for which Alvey and the State bargained – a deal that, Justice Boehm noted, would “be honored . . . in several states and in federal court.”