Indiana Court Decisions – Feb. 2-16, 2016

7th Circuit Court of Appeals

Feb. 9

Civil – Disability Benefits

Debbie A. Stage v. Carolyn W. Colvin, Acting Commissioner of Social Security

15-1837

In vacating the denial of an application for Social Security disability benefits, the 7th Circuit Court of Appeals admonished the administrative law judge for giving more weight to the opinion of the non-examining physician than to the diagnosis of the doctors who have been treating the applicant.

Debbie Stage appealed the denial of her application for supplemental security income, disability insurance benefits and disabled widow’s benefits, arguing the ALJ’s evaluation was unreasonable and he ignored substantial evidence she could not perform light work.

Since she slipped two discs while working in a factory in 1985, Stage’s physical condition has deteriorated. Debilitating back and hip pain caused her to quit working in 2009. Her treating physicians have diagnosed a lumbar disc bulge, annular tear and degenerative disc disease as well as severe degenerative arthritis. They have also noted constant pain prevents her from standing or walking for any length of time.

However, the ALJ found her impairments did not constitute a disability. Instead, the judge determined she was capable of performing light work which would require her to stand and walk for six hours a day and would include production assembler, small-parts assembler or electronics worker. The district court affirmed.

The 7th Circuit did not agree. In particular, the unanimous panel noted the ALJ’s assessment that Stage could do light work was not supported by the medical evidence. The 7th Circuit reminded the ALJ that he must have a good reason for not giving substantial consideration to a treating physician’s opinion.

“It strains credulity to find that a claimant who needed a hip replacement and had to sit while showering and shopping for groceries was capable of standing for six hours a day in the workplace,” Judge David Hamilton wrote for the court.

The 7th Circuit remanded the case to the agency for further proceedings. It also told the ALJ to obtain medical testimony on how Stage’s need for a hip replacement impacts her ability to stand for hours and to give “reasoned assessments” of her credibility, residual functional capacity and the treating physician’s opinion.

Indiana Supreme Court

Feb. 16

Civil Plenary – Prescriptive Easement

Tom Bonnell v. Ruby A. Cotner, Douglas Wayne Cotner, Arthur J. Johnson, Jimmy J. Johnson, and Jerry L. Johnson

66S03-1509-PL-530

The Indiana Supreme Court reversed the holding of a trial court that a couple should receive a prescriptive easement for the use of their outbuildings that encroached onto a strip of land purchased at a tax sale.

Tom Bonnell purchased a 35-foot-by-100-foot section of land from the Pulaski County Board of Commissioners, which acquired the land through a tax sale. The strip of land was next to several parcels in a subdivision. Ruby Cotner purchased Lot 8 in 1997, on which a barn had been constructed in 1968. She and her husband expanded on the barn with a lean-to in 2010; a portion of these buildings encroached some distance onto the strip of land purchased by Bonnell.

Bonnell reached a deal with all of the subdivision property owners to sell each section of the strip to the property owner who had been occupying the land, except the Cotners. The Cotners asserted ownership by adverse possession and filed this lawsuit to quiet title.

The trial court found the Cotners had not perfected their claim of adverse possession because they couldn’t have reasonably believed they were paying taxes on their portion of the strip. The court also ruled that if the adverse possession claim had been perfected, the 1993 and 2011 tax sales of the strip divested them of their interest. The judge did determine sua sponte that the Cotners should receive a prescriptive easement for the use of their outbuildings encroaching onto the strip.

The Supreme Court affirmed in part and reversed in part. The justices agreed that the Cotners satisfied the adverse possession tax statute, but the subsequent tax sales of the strip of land defeated their claim of ownership by adverse possession under the plain text of the Tax Deed Statutes.

But the award to the Cotners of a prescriptive easement was clearly erroneous, Justice Mark Massa wrote. This attempt by the trial court to craft an equitable remedy was unavailable as a matter of law based on the Tax Deed Statutes. Thus, as with the Cotners’ claim of adverse possession, they cannot claim a prescriptive easement in the outbuilding because that easement was never recorded, and therefore was extinguished with the first tax sale in 1993, he continued.

Justice Steven David did not participate in the decision.

Indiana Court of Appeals

Feb. 5

Civil Plenary – Trespass/Negligence

Liter’s of Indiana, Inc. v. Earl E. Bennett and Daniel L. Bodine

39A05-1408-PL-401

The Indiana Court of Appeals affirmed a jury verdict in a trespass and negligence lawsuit brought in a dispute over water draining from a housing development into neighboring property. In doing so, the judges ordered part of a roof to come down due to trespass.

Liter’s of Indiana purchased property next to that owned by Earl Bennett and his half-brother Daniel Bodine, where Bennett lived with his wife. The roof of Bennett’s home extended over his property line by two feet into the property owned by Liter’s, which it was developing in a residential neighborhood. Liter’s erected a “spite fence” made of chain link to mark its property and also constructed a basin on its property to collect water for drainage.

Liter’s sued Bennett and Bodine seeking to enjoin and recover damages for continuing trespass on its property; the defendants counterclaimed, alleging nuisance since Liter’s had erected the spite fence. They also alleged that the company had negligently designed its subdivision and that the post-development surface water runoff from the property would flood the defendants’ property.

A jury ruled in favor of Liter’s on its trespass claim, but awarded no damages. It found for the brothers on their nuisance claim, but also awarded no damages. The jury ruled in favor of the brothers on their negligence claim, awarded more than $51,000 to each brother.

“[U]nder the common enemy doctrine, it is not unlawful for a landowner to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land, even if it causes water to stand in unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions than the water did before. In order to impose liability for surface water discharge, it must be collected on the Liter’s Property and cast off in concentrated volumes onto the Appellees’ Property. More importantly, the distinction lies in the character of the flow as it enters the adjoining property,” Judge Patricia Riley wrote.

“Admittedly, there was a lot of conflicting evidence offered by both parties. Some witnesses testified in a manner favorable to Liter’s and others favorable to the Appellees. However, as the reviewing court, we respect the jury’s exclusive province to weigh conflicting evidence.

From the evidence of the case — though not free from conflict — the jury reasonably determined that the construction of Liter’s undersized basin led to the casting off of surface water in concentrated volumes onto the Appellees’ Property. In this regard, we find that the common enemy doctrine does not preclude the Appellees’ claim of negligence against Liter’s, and we affirm the trial court.”

The judges remanded to the trial court with instructions for the issuance of a permanent injunction requiring the brothers to remove the unpermitted portion of Bennett’s roof that extends over Liter’s property. The continued existence of the roof extending to the neighboring property is a continuing trespass, the court held.
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Feb. 9

Criminal – Fourth Amendment/Search and Arrest

Nicole Miller v. State of Indiana

49A05-1507-CR-789

Indianapolis police who arrested and searched a woman after she walked away from them violated her Fourth Amendment rights, the Indiana Court of Appeals ruled.

Police responding to a report of a disturbance at a convenience store saw Nicole Miller walking away from the store, and she continued walking to her apartment after an officer exited his cruiser and said, “Hey, I need to talk to you.”

Officers knocked on the apartment door and another woman answered, but eventually Miller appeared. When asked why she didn’t stop to speak with police, she said, “I didn’t know what you wanted to talk to me about,” at which point she was immediately placed under arrest for misdemeanor resisting law enforcement. Police patted her down and found an ecstasy pill and Spice. She also was charged with Class D felony possession of a controlled substance and misdemeanor possession of a synthetic drug.

A Marion Superior trial court denied her motion to suppress evidence from the search but certified its order for interlocutory appeal.

“Reasserting the principle of Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014), we find that this arrest violated Miller’s well-established right to walk away; consequently, the subsequent search incident to the arrest violated her Fourth Amendment rights. We reverse and remand,” Judge John Baker wrote for the panel.

“Prior to Gaddie, some appellate decisions upheld convictions for resisting law enforcement even where the police had no basis to order the defendant to stop,” Baker wrote. “Our Supreme Court abrogated this line of cases, holding that the third element of the resisting law enforcement by fleeing statute ‘must be understood to require that such order to stop rest on probable cause or reasonable suspicion, that is, specific, articulable facts that would lead the officer to reasonably suspect that criminal activity is afoot.”

“Although the present case comes to us in a different procedural posture — a motion to suppress evidence rather than a conviction for resisting law enforcement — we find Gaddie’s rationale to compel a reversal. Our Supreme Court recognized that a person’s freedom to walk away is rendered illusory if she is subjected to criminal penalty for exercising that freedom. Just the same, a person’s freedom to walk away is rendered illusory if she is subjected to arrest for exercising that freedom.”
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Feb. 10

Ordinance Violation – Change of Judge

Health and Hospital Corporation of Marion County v. Dennis Foreman

49A02-1504-OV-229

Because a man failed to file an affidavit concerning why he wanted a change of judge in a code violation case, as required by statute, the Indiana Court of Appeals reversed the grant of his request for a change of judge.

Health and Hospital Corporation of Marion County filed a complaint for injunction and a fine against Dennis Foreman based on allegations a residence he owned did not meet certain HHC code requirements. Foreman filed a pro se motion for change of judge. HHC objected, citing the statute that outlines the process for HHC-related proceedings.

The trial court granted his motion, which led to this interlocutory appeal.

The Court of Appeals held that the holdings in State ex rel. Blood v. Gibson Circuit Court, 239 Ind. 394, 400, 157 N.E.2d 475, 478 (1959), and Sayeed v. Dillon, 573 N.E.2d 468, 471 (Ind. Ct. App. 1991), apply in this case.

Citing I.C. 16-22-8-31(e), Judge Melissa May wrote, “the requirements of filing, specifically that Foreman file an affidavit alleging the reason for the change of judge, are substantive because they apply to the requirements for special types of actions, such as those initiated by the HHC.”

“As in Sayeed, considering the specialized nature of HHC cases, we believe the legislature, in enacting Ind. Code §16-22-8-31(e) and requiring the extra step of providing an affidavit regarding the reason for the request for change of judge pursuant to Ind. Code § 34-35-3-3(b), intended to supersede the more lenient provision regarding change of judge in T.R. 76,” she wrote.

The case is remanded for further proceedings.
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Feb. 16

Civil Plenary – Insurance Contract/Definition

Secura Supreme Insurance Company, Tim O’Brien, and Sandra O’Brien v. Diana Johnson

64A03-1503-PL-83

The Indiana Court of Appeals held summary judgment is inappropriate for either party in a lawsuit seeking to declare a woman who was renting a home as a member of the household of the homeowners for insurance purposes.

Nicole Alarid, the sister of Sandra O’Brien, lived in the O’Briens’ second home in Valparaiso, which the couple had added to their insurance policy as a secondary residence and extended the personal liability coverage to it. The O’Briens at the time were living in Hobart and used the Valparaiso home address to enroll their children in Union Township schools. They intended to move to the township once the Hobart home sold.

Diana Johnson was walking her dogs when one of Alarid’s two dogs slipped under the chain-link fence in the backyard and attacked Johnson and her dogs, seriously injuring them.

Johnson sued Alarid and the O’Briens, and later filed a separate complaint seeking a declaratory judgment that Alarid was an “insured” under the O’Briens’ homeowners policy insuring the Valparaiso house.

The trial court denied Secura’s motion for summary judgment and granted summary judgment in favor of Johnson.

The Court of Appeals reversed because the insurance contract did not specifically define the terms “resident” and “household.”

“Indiana’s common law treatment of the term ‘household’ and Secura’s failure to define the term in the contract allow for conflicting reasonable inferences from the undisputed material facts, precluding summary judgment in favor of Secura or Johnson,” Judge Rudolph Pyle wrote.

The appeal court remanded for further proceedings.•