Indiana Court Decisions – Aug. 30 – Sept. 13, 2016

Indiana Supreme Court

Sept. 1

Discipline – Disbarment

In the Matter of: Harold E. Bean

49S00-1601-DI-2

Even though the attorney who stole town funds while serving as elected clerk-treasurer of the town of Warren Park in Marion County has attempted to address his gambling addiction that caused the theft, the Indiana Supreme Court disbarred the attorney based on his misconduct.

Harold E. Bean wrote himself checks with town funds over the course of several months in 2014, stealing $20,800 from the town on the east side of Marion County. He was charged with Class D felonies theft and official misconduct, to which he pleaded guilty and was suspended last year by the Supreme Court.

The Indiana Supreme Court Disciplinary Commission charged him with violating Professional Conduct Rules 8.4(b) by committing criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer. The hearing officer in the matter recommended Bean be disbarred.

The per curiam opinion notes that criminal action and misconduct by an attorney in public office have consistently resulted in disbarment, or a substantial period of suspension without automatic reinstatement.

“We acknowledge Respondent’s acceptance of responsibility, his efforts to address the ongoing gambling addiction underlying his misconduct, and his impassioned plea during proceedings before the hearing officer for a sanction short of disbarment. However, the seriousness of Respondent’s misconduct, and Respondent’s history of attorney and judicial discipline (the latter of which, significantly, also included willful misconduct in office), compel us to agree with the hearing officer that disbarment is warranted in this case,” the justices wrote.

Bean, who was admitted in 1974 and has been disciplined twice prior, in 2001 and 1998.

The costs of the proceedings are assessed against Bean.

Indiana Court of Appeals

Aug. 31

Criminal – Sentence

John Prater v. State of Indiana

85A02-1602-CR-344

The Indiana Court of Appeals ordered a trial court to resentence a man under the statute in place when he was sentenced, even though he committed the crime before the date noted in the statute. As a result, he is entitled to serve his Level 6 felony in jail instead of the Department of Correction.

John Prater pleaded guilty to Level 6 felony aiding in dumping a controlled substance. While driving, he had his passenger throw a bag of methamphetamine waste out the window. The crime happened in November 2015 and he pleaded guilty in December. The sentencing hearing was held Jan. 14, 2016, and the court ordered him to 1 ½ years in the DOC.

Prater argued that I.C. 35-38-3-3(d) prevented the court from ordering him to serve his sentence in the DOC. The statute says that after Dec. 31, 2015, a court may not commit a person convicted of a Level 6 felony to the DOC unless they meet certain criteria, none of which Prater did. As a result, he could be placed on probation, in the county jail, or in community corrections.

The state maintained that the statute only applies to those who are convicted after Dec. 31, 2015, but the language of the statute plainly says it applies to those committed after Dec. 31, 2015, the appeals court held.

The judges also determined that the 1-½-year sentence is not inappropriate given Prater’s criminal history.

Ordinance Violation – Indirect Contempt/Fine

Tina Herron v. City of Indianapolis

49A02-1602-OV-370

Finding the $1,000 fine imposed for indirect contempt of court after a woman continued to have animals at her home after ordered by a court not to do so was punitive in nature and impermissible, the Indiana Court of Appeals reversed.

Tina Herron was ordered after a June 2014 trial to not own or keep animals in Marion County. The city of Indianapolis alleged she had committed six violations of the city’s revised code regarding the care and treatment of her animals, although the charges are not part of the appellate record.

In a follow-up visit, Indianapolis Animal Care and Control found Herron was not complying with the court order as she had nine dogs at her residence. The city then filed a motion to find her in contempt of the June order that she not keep or own animals. The city later asked the court sanction Herron with a $2,500 fine but did not present any evidence of its costs for the action. The judge found in December 2015 that Herron had willfully violated the court order and ordered her to pay a $1,000 fine within 90 days. She appealed.

The COA agreed with Herron that the fine was not compensatory in nature because there is no evidence that it was designed to compensate the city for its actual damages. The city failed to produce evidence of its actual damages, and the court didn’t provide any basis for its determination that $1,000 would compensate the city for its losses.

In fact, Judge Rudolph Pyle noted, there’s no evidence that the fine was intended for the city as the court ordered the fine payable to the Marion County Clerk. The judge also didn’t order the clerk to later transfer the fine to the city.
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Sept. 8

Juvenile – Child in Need of Services

In the Matter of J.B. and L.B.: J.J. (Mother) v. The Indiana Department of Child Services 20A05-1510-JC-1612

The Department of Child Services lost on rehearing its argument that a custody modification ordered in a child in need of services case survives the CHINS proceeding.

The Indiana Court of Appeals ruled in June that an order during the CHINS proceeding that removed children from the custody of mother after a car crash while under the influence of methamphetamine terminated as soon as the juvenile court discharged the parties.

Chief Judge Nancy Vaidik wrote for the panel that reaffirmed the earlier decision.

“It is clear that the policy and purpose of the CHINS statutory scheme is not to remove children from their parents without giving the parents a reasonable opportunity to participate. But this goal was not furthered in this case. That is, DCS used the coercive power of the State to insert itself into a family relationship by obtaining a CHINS finding and then had the CHINS court modify sole custody to Father and close the CHINS case thirty days later — without entering a dispositional decree and giving Mother a meaningful opportunity to participate in services that DCS itself had recommended in both the petition for parental participation and the predispositional report. This is particularly troublesome given that a CHINS adjudication has adverse consequences for parents,” Vaidik wrote.

“We therefore reverse that part of the CHINS court’s order that discharged the parties and terminated the CHINS case and remand this case for further proceedings consistent with the CHINS statutes, including any appropriate services for Mother.”

Domestic Relations – Custody

Carl Wayne Montgomery v. Patricia Ann Montgomery

10A01-1511-DR-1910

A mother has lost primary physical custody of her daughter after the Indiana Court of Appeals decided to reverse and remand a decision that would have taken the daughter out of the custody of her father and instead place her in the primary custody of her mother.

The circuit court decision came after the father, Carl Wayne Montgomery, was granted sole legal custody of A.M. in June 2012 after he and the girl’s mother, Patricia Ann Montgomery, divorced. Initially, the mother was not granted any parenting time with A.M. because she had previously interfered with the father’s parenting time, but later agreed to a parenting time schedule that did not alter the father’s sole custody of the child.

The following year, Carl Montgomery filed a restraining order against his ex-wife, who was living in Wisconsin with a boyfriend, Gary Best, who had two prior battery convictions. The father also alleged that the boyfriend had assaulted A.M. The mother repeatedly denied any physical abuse by Best against herself or her daughter.

In April 2014, Patricia Montgomery took a video, without A.M.’s knowledge, of herself, her daughter and Best eating pizza together. The video showed A.M. freely interacting with Best without fear or hesitation and referred to him as “Dad” or “Daddy.” Further, in a conversation with her mother’s attorney, A.M. said that it was her dream to live with her mother and Best.

Patricia Montgomery also testified that her ex-husband was intentionally withholding important information about her daughter’s life, including school and medical information, and in May 2014 she filed a motion to modify custody of A.M. in her favor. The trial began in May 2015, and in October 2015 Patricia Montgomery’s petition to modify custody was granted, giving her legal and physical custody of A.M. and her ex-husband distance-related parenting time.

The court also ordered Carl Montgomery to pay $7,500 in attorney fees his ex-wife said she had incurred during their legal proceedings.

But in its reversal, the Indiana Court of Appeals noted that that trial court gave no indication as to what circumstance had changed under the Indiana Code that would warrant a modification of custody. Although there was evidence that Carl Montgomery had interfered with his ex-wife’s visitation rights, the appellate court wrote that such interference does not always warrant a custody change. Further, the court also wrote that A.M.’s mother had previously interfered with the father’s custody rights, which led to the initial decision to give the father sole custody.

Additionally, the court noted that he did not completely keep his daughter from her mother, and that Patricia Montgomery had never sought to hold her ex-husband in contempt.

Finally, the court wrote that there was no evidence that Carl Montgomery’s interference with Patricia Montgomery’s parenting time had any negative effect on A.M.’s mental or emotional health.

Additionally, the Court of Appeals also found that the circuit court abused its discretion when it ordered Carl Montgomery to pay his ex-wife’s attorney fees and reversed that decision as well.

Civil Collection – Statute of Limitations

V. Ganz Builders and Development Co., Inc., and Vladimir Ganz v. Pioneer Lumber, Inc.

64A03-1602-CC-432

The Indiana Court of Appeals reversed summary judgment in favor of construction supplier on its breach of contract claim against a builder to which it provided a line of credit. The appellate court agreed with the defendants’ claims that the lawsuit was time-barred.

V. Ganz Builders and Development Co. Inc. signed an application for a line of credit with Michigan-City based Pioneer Lumber Inc. The company also signed a credit account agreement and VGB president Vladimir Ganz secured the line of credit with a personal guaranty agreement.

Both the line of credit and the credit account had unpaid balances as of January and February 2006. Pioneer filed its lawsuit in November 2012 alleging VGB had breached the credit account agreement by failing to make timely payments on its purchases and that Ganz had defaulted on the guaranty agreement by failing to pay VGB’s debts.

VGB didn’t assert that Pioneer’s claims were time-barred by the six-year statute of limitation on actions on accounts and contracts not in writing under I.C. 34-11-2-7 until it filed a counter motion on Pioneer’s motion for summary judgment as to liability and damages.

The trial court granted summary judgment as to liability in favor of Pioneer. At a bench trial on damages, the court awarded Pioneer more than $61,000 in unpaid balances, finance charges and attorney fees.

VGB filed a motion to correct error, which was denied, leading to the appeal.

The COA rejected Pioneer’s claims that the VGB’s motion to correct error wasn’t timely filed and that the appellants can’t challenge the trial court’s ruling because they didn’t timely appeal after the summary judgment ruling. Judge Terry Crone pointed out that the summary judgment order was interlocutory because the court didn’t rule on every issue.

The appeals court ruled that VGB is entitled to summary judgment on its statute of limitations defense. For purposes of I.C. 34-11-3-1, the phrase “date of the last item proved in the account on either side” means the last charge to or the last payment made on the accounts governed by the line of credit. Based on the six-year statutory limitations period, Pioneer had to bring its claims by January and February 2006, but did not. And Pioneer designated no contrary evidence in its response to VGB’s counter motion for summary judgment. Crone also wrote that Pioneer’s assertion on appeal that the statute of limitations was tolled by Ganz’s oral promise in December 2007 to satisfy the debt in full is unsupported by any citation to authority, and therefore waived.

Ganz is also entitled to summary judgment on the statute of limitations defense regarding the personal guaranty claim. Even assuming that Pioneer gave Ganz several additional months to pay the debt, its claim against Ganz accrued more than six years before it filed the complaint, so it was untimely.

The case is remanded for further proceedings.

Criminal – Resisting Law Enforcement/Video Evidence

Royce Love v. State of Indiana

71A03-1511-CR-2009

The Indiana Court of Appeals has overturned convictions of mistreatment of a law enforcement animal and resisting law enforcement after finding that law enforcement officers’ testimony in the case was in direct contrast to video evidence.

A jury in the St. Joseph Superior Court had convicted Royce Love on two counts of mistreatment of a law enforcement animal and one count of resisting law enforcement as Class A misdemeanors after he ran a red light, ignored a stop sign and did not stop when he was pursued by South Bend Police Officers Paul Daley and Christopher Deak on Aug. 4, 2013.

Love’s failure to stop led to additional officers joining the pursuit. Those officers attempted to create a rolling roadblock, but Love's van struck the law enforcement vehicles and continued to lead them on a five-minute chase.

The officers were eventually able to stop Love, who was ordered to exit the van. In-vehicle police video shows that Love complied, raised his hands in the air and proceeded to place himself first on all fours, then lying face down on the ground. The video then shows that the officers used Tasers on Love and deployed a police dog on him.

At the subsequent trial, which took place on Aug. 10, 2015, the officers testified that Love did not comply with their demands after he exited his vehicle, saying Love was not listening to their orders and was attempting to walk away, which led to their decision to deploy Tasers and a police dog.

However, Love testified that after being told to “Get the F out of the car,” he exited the vehicle, put his hands up and began to lie face down. Love said the police dog was unnecessarily deployed on him and he was only trying to protect himself from the dog.

After Love appealed, the Indiana Court of Appeals found that there was insufficient evidence to support those convictions. Specifically, the court said officers’ testimonies that Love was ignoring their orders and trying to walk away were in contrast with the video evidence, which showed Love exiting his vehicle, raising his hands and lying face down on the ground.

“Under the circumstances, we cannot blind ourselves to the videotape evidence simply because the officers’ testimony may, by itself, support the guilty verdicts,” the court wrote in its opinion.

Judge Pyle dissented, writing that because he was not present at the trial to hear the witness testimony, he does not feel comfortable questioning the jury’s judgment.
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Sept. 13

Civil Tort – Statute of Limitations

Bellwether Properties, LLC v. Duke Energy Indiana, LLC

53A04-1511-CT-1880

The Indiana Court of Appeals has reversed a Monroe Circuit Court decision to dismiss a complaint against Duke Energy after finding that the trial court erred when it ruled that the statute of limitations for the complaint had expired.

Bellwether Properties filed a class-action complaint and jury trial demand in Monroe Circuit Court against Duke Energy on June 30, 2015, after Duke would not allow Bellwether to expand a structure on its property.

Duke had obtained an easement in 1957 on the land now owned by Bellwether to install overhead electric lines. The utility company said that Indiana Utility Regulatory Commission standards that were adopted in 2002 included the 2002 National Electrical Safety Code, or NESC, which prohibited Bellwether’s expansion unless the expansion allowed for a 23-foot horizontal strike clearance. The clearance was not included in Bellwether’s expansion plan.

In its class-action suit, Bellwether alleged that Duke had taken property for a public purpose without proceeding with a condemnation action or providing just compensation.

Duke filed a motion to dismiss the suit on Aug. 21, 2015, writing that Bellwether’s inverse condemnation action is barred by a six-year statute of limitations. The utility company maintained that the inverse condemnation claim accrued when the NESC standards were adopted in 2002, thus putting the 2015 claim outside of the six-year filing window.

The court granted the motion to dismiss on Oct. 29.

Bellwether appealed, arguing that the Monroe Superior Court should have applied the discovery rule and noted that no Indiana court had expressly analyzed whether the discovery rule applies to inverse condemnation actions.

Bellwether also argued that although it is charged with knowledge of the laws surrounding utility clearance requirements, its claims did not accrue in 2002, as Duke said it did, because it did not know in 2002 that Duke’s voltage was high enough to require more clearance than what was set out in the original easement.

Further, Bellwether argued that to learn about Duke’s clearance requirements and how they affected its property rights, it would have had to travel to Indianapolis to read the updated 2002 NESC standards. Even if the discovery rule did not apply to its suit, Bellwether said that although it is charged with knowledge of laws relating to its land, it should not be charged with knowledge of technical requirements for public utilities.

But Duke argued that the discovery rule is only applicable to tort cases and, even if it were applicable here, the claim fell outside of the statute of limitations.

Further, Duke said that the 2002 NESC rules could be found and read because they are part of public law, a fact that defeats the application of the discovery rule. In its motion to dismiss the suit, Duke cited multiple cases in which the discovery rule did not apply where the alleged taking occurs by passage of a law.

However, in its reversal of the decision to dismiss the complaint against Duke, the Court of Appeals wrote that the complaint against Duke was distinguishable from the cases it cited.

The 2002 NESC standards that were adopted by the IURC did not put Bellwether on notice that Duke’s control of the land surrounding the easement had widened to accommodate the requirement for the 23-foot horizontal clearance, the court wrote.

Thus, the court wrote that the circumstances were too attenuated to conclude that the extension of Duke’s control over the land through the NESC rules was ascertainable by Bellwether, so the discovery rule tolled the six-year statute of limitations until Duke informed Bellwether of the change.

That information came out within six years of the Bellwether’s complaint, meeting the statute of limitations requirement. Thus, the Court of Appeals wrote that the trial court erred when it ruled in favor of Duke’s motion to dismiss and remanded the case for proceedings.

However, Judge Melissa May dissented, writing in a separate opinion that she believes Bellwether did have notice of the change in Duke’s control over the land.

Although the majority of Court of Appeals judges found that some of the information necessary to inform Bellwether of the change was within Duke’s control, that fact alone is not enough to reverse a decision, May wrote.

“The majority points to nothing in the record that reflects the information it characterizes as ‘wholly within the control of Duke,’ such as the voltage levels and types of lines on the property, could not have been obtained by Bellwether through ordinary diligence,” May wrote.•