Indiana Court Decisions – April 23–May 6, 2020

7th Circuit Court of Appeals

April 30

Civil Tort — Home Affordable Mortgage Program/Loan Modification

Anthony G. Taylor v. JPMorgan Chase Bank, N.A.

17-3019

A 7th Circuit Court of Appeals majority affirmed the dismissal of a homeowner’s complaint against a bank that he alleged failed to honor a loan-modification offer that could have kept him from foreclosure.

Homeowner Anthony Taylor fell behind on his mortgage payments during the 2008 subprime mortgage crisis and sought help under the Home Affordable Mortgage Program to avoid foreclosure. The first step toward a permanent loan modification was for qualifying borrowers like Taylor to enter into a Trial Period Plan with their lenders and make lower payments on a provisional basis.

Taylor’s lender, JPMorgan Chase, informed him of the HAMP opportunity and sent him a proposed TPP agreement to be signed and returned to the bank. The agreement contained a provision stating that the trial period would not begin until both parties signed the TPP and Chase returned to Taylor a copy bearing its signature.

Although Taylor signed the proposed agreement, Chase never did, and Taylor’s loan was never modified.

But when Taylor sued Chase, contending the bank failed to honor its loan-modification offer, the U.S. District Court for the Northern District of Indiana granted judgment on the pleadings to the bank after finding that the facts as Taylor had alleged them in his complaint and a later proposed amended complaint did not suffice to state a claim. It also denied as futile Taylor’s request to amend the complaint.

A divided 7th Circuit Court of Appeals affirmed that decision in Anthony G. Taylor v. JPMorgan Chase Bank, N.A., 17-3019.

Starting with Taylor’s breach of contract claim, the 7th Circuit majority found there was no contract between the parties. Specifically, it noted the TPP’s language was clear, precise and created a condition precedent that required Chase to countersign the TPP and return a copy to Taylor before the trial modification commenced.

“All agree that Chase never took those steps. With the condition precedent unmet, the proposed TPP agreement never became a contract binding on the parties,” Circuit Judge Michael Scudder wrote for the majority, joined by Judge Diane Sykes.

“The countersignature was not an empty formality but rather, as (Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012)) observed, ‘[Chase’s] opportunity to determine whether [Taylor] qualified’ for HAMP relief,” the majority continued. “For that reason, the TPP reserved for Chase — in the form of a countersignature — a final say before the contract came into existence. The condition precedent was the legal mechanism for that reservation, and Chase was entitled to rely on it.”

The court majority likewise found Taylor’s allegations could not support his other claims, including promissory estoppel, fraud and intentional infliction of emotional distress under Indiana law.

“We recruited the Georgetown Law Appellate Courts Immersion Clinic to represent Taylor on appeal, and they provided outstanding advocacy,” Scudder concluded. “In the end, though, we cannot conclude that the district court erred, either in dismissing Taylor’s complaint or denying him the opportunity to amend,” the majority said in affirming.

But Circuit Judge David Hamilton dissented.

In an 18-page dissent, Hamilton said he “would reverse the dismissal of Taylor’s claims for breach of contract and promissory estoppel so that those claims could be decided on the basis of evidence rather than allegations and dueling inferences.”

“Plaintiff Taylor alleged facts that support viable claims for breach of contract and promissory estoppel. In affirming dismissal, the majority opinion departs from the generous standard that applies on a motion to dismiss or for judgment on the pleadings under Rule 12(b)(6) or Rule 12(c), denying plaintiff the benefit of favorable inferences and instead granting them to Chase on several key points,” Hamilton opined.

“The majority opinion errs in two basic ways: failing to consider the rest of the relevant documents, and failing to give Taylor the benefit of reasonable inferences from his allegations, including facts indicating that Chase itself did not treat its own formalities seriously,” he continued. “Taylor should be able to pursue his claims for breach of contract and promissory estoppel, as we found in Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012), and as our colleagues in other circuits have found in similar cases.”

Indiana Supreme Court

May 5

Juvenile Child in Need of Services — Dismissal/Successive Petitions

In the Matter of R.L. (Minor Child); J.R. (Mother) v. Indiana Department of Child Services and Child Advocates, Inc.

20S-JC-296

Criticizing the Department of Child Services for attempting to take a “second bite of the proverbial apple” by filing a successive CHINS petition, the Indiana Supreme Court has reversed a CHINS adjudication and instead dismissed the petition with prejudice.

The reversal was handed down by a unanimous court in In the Matter of R.L. (Minor Child); J.R. (Mother) v. Indiana Department of Child Services and Child Advocates, Inc., 20S-JC-296.

The child, R.L., was born Nov. 2, 2017, removed from his parents’ care and alleged to be a child in need of services on Nov. 6 of the same year. In the CHINS petition, the Indiana Department of Child Services alleged R.L.’s parents were not providing a safe and stable living environment and were involved in a separate CHINS proceeding with another child. Services in the separate proceeding, DCS said, were not successful.

The juvenile court, however, determined on March 1, 2018, that R.L. was not a CHINS. The child’s mother, J.R., had not been referred to services related to R.L., the court said, and it was “uncontroverted that Mother had a stable home and was aware of local community resources for her family.” Additionally, because DCS “failed to establish an adequate foundation for relevant testimony and evidence,” the petition was dismissed with prejudice.

The next day, DCS contacted J.R. to request a home inspection, which the mother refused. R.L. was still in foster care, but the family case management did not tell J.R. that R.L. could return home.

Then on March 6, 2018, DCS filed a subsequent CHINS petition as to R.L., once again alleging an unsafe home. The department also cited J.R.’s mental health struggles and her refusal to allow the case manager to inspect her home.

J.R. moved for dismissal on claim preclusion grounds, but her motion was denied, and R.L. was found to be a CHINS.

The Indiana Court of Appeals initially reversed and remanded, finding res judicata barred the second petition because the issues present in the subsequent proceeding were known to DCS during the first proceeding. The appellate court also wrote to say it was “troubled” by how DCS had litigated R.L.’s case.

But the June 2019 decision in Matter of Eq.W., 124 N.E.3d 1201 (Ind. 2019), changed things. In that opinion, the Indiana justices determined the doctrine of claim preclusion applies to CHINS cases.

The state moved for rehearing based on Eq.W. The COA revisited its initial decision and this time ruled that, “Eq.W. has now clarified that DCS may rely on evidence of a parent’s prior conduct in bringing a subsequent CHINS, and, therefore, contrary to this court’s decision, the trial court must be able to rely on that evidence in rendering its determination.”

But “Matter of Eq.W. stands for the proposition that when DCS attempts to bite the proverbial apple, it must do so with intentionality and cannot engage in piecemeal litigation to get subsequent bites at the same apple,” Justice Steven David wrote in the Supreme Court’s reversal. “In other words, DCS must have its house in order when it institutes a CHINS proceeding or else it risks dismissal that will bar future actions.

“In our view, DCS has attempted to take the prohibited second bite in this case after it largely failed to make its case during the first CHINS finding,” David continued. “For this reason … we agree with Mother that the second CHINS petition pertaining to R.L. should have been barred by the doctrine of claim preclusion.”

Calling R.L.’s case “the type of piecemeal litigation that Eq.W. sought to prevent,” David said the subsequent CHINS petition duplicated allegations or relied on issues that could have been resolved in the first petition. That included J.R.’s separate CHINS proceeding, uncompleted services and her mental health.

Though those allegations are serious, the justice said, DCS failed to carry its burden in the first petition.

The high court also pointed to the fact that J.R. did not know the petition had been dismissed when she refused the home inspection. To that end, the court said, “we are concerned that Mother’s refusal became part and parcel of the second filing.”

“Finally, our underlying rationale in Matter of Eq.W. is amplified in this case, especially when it comes to procedural protections for children and parents,” David wrote. “… The tactics employed by DCS in this case undermine the confidence parents have in Indiana’s child welfare system. This practice should not be condoned, especially when DCS has vastly superior resources at its disposal to properly and accurately move through each stage of the CHINS proceeding.

“… If there is to be any predictability for parents, children, and the State in these proceedings, we must hold each party properly accountable to their individual responsibilities,” he concluded. “Therefore, Mother’s motion to dismiss should have been granted because under the framework of Eq.W., the subsequent petition should have been barred by the doctrine of claim preclusion.”

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May 6

Attorney Discipline — Disbarment

In The Matter of Scott Joseph Lennox

19S-DI-00628

A northern Indiana lawyer who was indefinitely suspended in March after he pleaded guilty to multiple felony theft charges was disbarred May 6 by the Indiana Supreme Court.

Justices unanimously leveled the most severe attorney discipline sanction against Scott J. Lennox, ordering him disbarred immediately for 15 rule violations related to “neglecting client matters, mismanaging his attorney trust accounts, converting client funds, and failing to cooperate with the disciplinary process.”

In the per curium opinion In The Matter of Scott Joseph Lennox, 19S-DI-628, justices accepted the Indiana Supreme Court Disciplinary Commission’s allegations against Lennox, who did not appear or respond to the proceedings against him.

Lennox, formerly a partner with Lennox, Sobek & Buehler LLC in Warsaw, was suspended last November for noncooperation with the commission’s investigation of four grievances against him. Relatedly, Lennox had been criminally charged in Kosciusko Circuit Court with multiple felonies alleging theft of client funds, among other counts.

Lennox pleaded guilty in March to two counts of Level 5 felony fraud on a financial institution and six counts of Level 6 felony theft arising from a case investigated by Warsaw police after money entrusted to the firm went missing.

Under terms of his plea agreement, Lennox agreed to make restitution of more than $51,000 to his former law firm, clients and a bank.

The court said in disbarring Lennox that he “failed to maintain appropriate records for two trust accounts and made several unauthorized withdrawals of client funds, converting those funds for his personal use.” He also “made several unauthorized withdrawals and converted client funds from a third trust account,” resulting in criminal charges.

“Respondent also wholly neglected three client matters, failed to adequately communicate with those clients, and converted funds belonging to those clients,” the court’s opinion said.

Lennox was sentenced to seven years suspended to probation. He agreed to make restitution to clients through a surrogate attorney in the amount of $34,481. He also agreed to restitution to his former firm partners in the amount of $14,620, and $1,986 to Lake City Bank.

Under terms of his plea agreement approved earlier this month by a special judge in Kosciusko Circuit Court, Lennox will be released from probation at the time full restitution is made, and no further charges will be filed against him in this case. Lennox also may file for an expungement after full restitution is made. According to online court records through March 18, Lennox had made restitution at least to his former firm and the bank.

The court found Lennox violated 10 Indiana Rules of Professional Conduct and five Indiana Admission and Discipline Rules. Costs of the disciplinary proceeding are assessed against Lennox. Among others, Lennox was found to have violated rules regarding criminal and fraudulent acts and misconduct related to the handling of attorney trust accounts.

IndianaCourt of Appeals

April 23

Civil Plenary — Employment/Noncompete Agreement

Wayne Doug Zollinger v. Wagner-Meinert Engineering, LLC

19A-PL-01501

A former co-owner of a Fort Wayne mechanical contracting business who violated noncompete agreements by consulting for a Fishers competitor after he was fired lost his appeal and was ordered to pay more of his former employer’s legal fees.

Wayne Zollinger worked for various Wagner Meinert Engineering entities since 1996, eventually becoming a vice president and co-owner. In 2011, a new entity called Wagner-Meinert LLC bought the assets and business of Wagner-Meinter Inc., earning Zollinger a pro rata share of more than $1.8 million. At the same time, he became vice president of operations for the new entity and paid $324,000 for a 3.6% stake in the company.

In doing so, Zollinger signed noncompete agreements that restricted his ability to work for a competitor in his business area for 42 months after his termination. In 2015, Zollinger profited on his shares by more than $1 million when he and other members were bought out by WME’s majority owners. Zollinger remained a member of the board under the new arrangement until he was terminated in 2018 for submitting false expense reports.

Afterward, the company notified Zollinger, reminding him of his noncompete restrictions. After Zollinger informed the company he needed to work in his business area for a few more years, WME first sued seeking a declaratory judgment asking the Allen Superior Court to declare the noncompete agreement enforceable and applicable, which the court did, ordering Zollinger to comply.

A few weeks later, WME amended its complaint to add a breach of contract claim after learning Zollinger did consulting work for a competitor, Freije-RSC Engineered Solutions of Fishers.

After the court awarded summary judgment to WME on some issues, it concluded after a bench trial that Zollinger’s work with Freije violated the terms of his noncompete that remained in force after his termination with WME. The court awarded no damages to WME but ordered Zollinger to comply with the noncompete and pay WME $38,657 in legal fees.

Zollinger appealed, but he now will owe his former company more in legal fees after the Indiana Court of Appeals affirmed the trial court.

“WME contends that it is also entitled to an award of appellate attorney’s fees,” Judge Nancy Vaidik wrote for the panel. “We agree. … Zollinger’s only response to WME’s request for fees is that the restrictions in the Operating Agreement are not enforceable and that, even if they are, he did not violate them. Because we have rejected those arguments, WME is entitled to an award of reasonable appellate attorney’s fees, and we remand to the trial court for a determination of the appropriate award.”

The panel otherwise affirmed the trial court in all respects. The case is Wayne Doug Zollinger v. Wagner-Meinert Engineering, LLC, 19A-PL-1501.

Civil Plenary — Negligence, Breach of Contract/Property Sale Dispute

The 487 Broadway Company, LLC v. Kimberly K. Robinson, et al.

19A-PL-1499

A Lake County court ruling for a township that removed light fixtures and historical artifacts from a building it sold after the property had already been purchased was reversed by the Indiana Court of Appeals.

In 2016, a building owned by Calumet Township of Lake County was put up for sale and ultimately purchased by The 487 Broadway Company.

The township sold the property “as is” and 487 Broadway paid the purchase price of $72,100 in full. After 487 Broadway had already paid, but before the closing date, the township removed several pieces from the property, including lighted signs that had been affixed to the exterior of the building and pictures and artifacts that had been secured to interior walls.

487 Broadway argued with the township about the removals and the changed condition of the property, but the township denied any wrongdoing and the property’s closing proceeded as scheduled.

As a result, 487 Broadway filed a complaint for negligence and breach of contract in the trial court alleging that the township had “caused property damage” to the exterior of the building when it removed the light fixtures, causing the building to look vandalized and vacated. It also argued that the township had removed “historical pictures and artifacts” that 487 Broadway asserted were part of the full purchase.

The Lake Superior Court, in response to the township’s motion to dismiss the complaint, issued an order informing the parties that it would consider the motion to dismiss as a motion for summary judgment. It then gave 487 Broadway 20 days to file a reply. The trial court later granted the township’s motion for summary judgment without a hearing and rejected 487 Broadway’s motions to correct error and reconsider.

In a reversal, the Indiana Court of Appeals first concluded that the trial court misapplied the law when it gave 487 Broadway only 20 days to respond to the township’s motion for summary judgment.

“Under Rule 56(C), ‘[a]n adverse party shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits.’ Our Supreme Court has made clear that the Indiana Trial Rules impose a bright-line rule in summary judgment proceedings. … Under Rule 56(C), the trial court did not have the authority to shorten 487 Broadway’s response time to less than thirty days,” Judge Edward Najam wrote for the appellate court.

It also found a misapplication of the law when the trial court mischaracterized 487 Broadway’s motion to stay pending discovery as a Trial Rule 56(C) “response,” and when it did not rule on 487 Broadway’s motion to stay and for additional time to conduct discovery.

“Further, the Township did not designate any evidence in support of its motion for summary judgment that would be admissible at trial,” Najam wrote for the unanimous court. “Accordingly, we hold that the trial court erred when it entered summary judgment in favor of the Township and that the court abused its discretion when it denied 487 Broadway’s motion to correct error.”

The appellate panel therefore reversed the entry of summary judgment and remanded the case to the trial court with instructions for the court to vacate all orders subsequent and relevant to the township’s motion to dismiss.

“Should the Township submit a motion for summary judgment that complies with Trial Rule 56(C), including the proper designation of evidence and undisputed material facts, we further instruct the court to allow 487 Broadway, as the nonmovant, a full thirty days to respond,” the appellate court concluded.

The case is The 487 Broadway Company, LLC v. Kimberly K. Robinson, et al., 19A-PL-1499.

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April 27

Civil Tort — Indemnification/Wrongful Death

The Davey Tree Expert Company and Davey Resource Group, Inc. v. The City of Indianapolis

19A-CT-2326

A landscaping contractor for the city of Indianapolis does not have to defend the city in a citizen’s wrongful-death lawsuit, the Indiana Court of Appeals ruled, reversing in favor of the tree-services company.

While Steven Smock was driving east on West 91st Street in Indianapolis, a decomposing tree fell on his car and caused him fatal injuries. After his death, Smock’s wife filed a wrongful-death complaint alleging counts of negligence and gross negligence against the city of Indianapolis, Davey Resource Group Inc. and The Davey Tree Expert Company.

Prior to the accident, the city and Davey Tree had entered into a services contract obligating Davey Tree to inventory trees in areas determined by the city, “collect data for each individual tree inventoried using City protocol,” and “inspect all wooded right of ways and inventory any hazardous trees using inventory protocol.” The contract also addressed Davey Tree’s duty to defend and indemnify the city under certain circumstances.

But when the city asked Davey Tree to defend it under the contract in the case at hand, Davey Tree refused, prompting the city to file a cross-claim for declaratory judgment. The municipality alleged the wrongful-death lawsuit “triggered [Davey Tree’s] obligation under the contract to defend the City.”

After the Marion Superior Court granted the city’s motion for judgment on the pleadings as to its cross-claim, Davey Tree brought an interlocutory appeal alleging the trial court erred and questioning whether Davey Tree must defend the city under Section 5.10 of the parties’ contract.

“The gross negligence count alleges that the City ‘recklessly failed to perform its duties.’ The counts against the City say nothing about Davey Tree or its negligence, let alone allege that the City is ‘responsible for,’ ‘liable for,’ or ‘vicariously liable for’ Davey Tree’s negligence,” Judge Nancy Vaidik wrote for the appellate court. “… Thus, although the City claims that it ‘is not seeking a defense for its own negligence,’ the claims against the City are based entirely on its conduct.”

The appellate court wrote that the allegations against the city and Davey Tree were different, noting the negligence count against the latter alleged that it had a duty to inventory and assess the risk of trees in the area where the tree fell down — not that it had a duty to cut down any trees — and that Davey Tree breached this duty.

“The negligence count against the City alleges, among other things, that it had a duty to ‘ensure the vegetative condition of flora contained within its public right of way,’ i.e., a duty to cut down any trees identified by Davey Tree as dangerous, and that the City breached this duty. According to the complaint as it is currently drafted, the City is being sued for its conduct only, not any conduct by Davey Tree,” Vaidik wrote.

Thus, the appellate court ultimately found that because the city is being sued for its conduct only, the claims against it do not “arise out of” any act or omission by Davey Tree, so the indemnity provision of the contract was not triggered.

The panel therefore reversed the trial court’s decision in The Davey Tree Expert Company and Davey Resource Group, Inc. v. The City of Indianapolis, 19A-CT-2326.

Civil Tort — Attorney Fraud, Breach of Contract Litigation/Jurisdiction

Gregory Jacob v. Dylan Vigh

19A-CT-2719

An Indianapolis attorney being sued by a former client in a post-conviction relief case faced a reversal after the Indiana Court of Appeals found that the client’s complaint alleging violations of certain canons of the Rules of Professional Conduct did not deprive the trial court of jurisdiction over the case.

After Gregory Jacob paid Indianapolis attorney Dylan Vigh a $10,000 retainer, and after roughly four years of motions to continue a final hearing on Jacob’s petition for post-conviction relief, Vigh withdrew as Jacob’s counsel. Since that point, no hearing has been held on Jacob’s PCR petition and Vigh has not returned any of the paid retainer to his former client.

Thus, Jacob filed a verified complaint against Vigh, asserting the attorney did not perform any work on his behalf and alleging fraud, breach of contract, breach of fiduciary duty and “violation of the rules of professional conduct[.]”

Following two extensions of time to answer or otherwise plead, Vigh moved to dismiss Jacob’s complaint for failure to state a claim upon which relief can be granted under Trial Rule 12(B)(6). Vigh asserted, among other things, that the trial court “has no jurisdiction to adjudicate the claims made by [Jacob] since they are based on finding that [Vigh] purportedly violated the RPC,” and that Jacob’s claim that Vigh “impermissibly withdrew as his legal counsel” is a collateral attack barred under claim preclusion.

The Marion Superior Court granted Vigh’s motion and dismissed Jacob’s complaint, later denying Jacob’s motion to correct error.

However, the Indiana Court of Appeals reversed in Gregory Jacob v. Dylan Vigh, 19A-CT-2719, agreeing with Jacob that the trial court could review his case.

“In his motion to dismiss, Vigh characterized Jacob’s complaint as if it were based entirely upon purported violations of the Rules of Professional Conduct, and he alleged that such issues are the exclusive province of the Indiana Supreme Court and, thus, that the trial court did not have jurisdiction over Jacob’s claims. This court addressed that same argument, and rejected it, in Alvarado v. Nagy, 819 N.E.2d 520 (Ind. Ct. App. 2004),” Judge Edward Najam wrote for the appellate court.

“As we have noted, Vigh contends that the trial court ‘has no jurisdiction to adjudicate’ any claims related to his alleged misconduct. Vigh is mistaken. If Jacob’s claims are proven, Vigh may be subject to sanctions under the Indiana Rules for Admission to the Bar and Discipline of Attorneys,” Najam continued. “That is not for us to decide. But we can say that our Supreme Court’s exclusive jurisdiction over such matters does not preempt or preclude a tort or contract claim arising from the same facts.

“In sum, while Jacob’s complaint includes allegations that Vigh violated certain canons of the Rules of Professional Conduct, that does not mean the trial court lacks jurisdiction over his complaint, which alleges claims of fraud, breach of contract, and breach of fiduciary duty and supports a claim for legal malpractice,” the panel concluded, reversing and remanding the case for further proceedings.

According to the Indiana Roll of Attorneys, Vigh was admitted to practice in 1999 and currently works at the Law Offices of Dylan A. Vigh, LLC. He has nodisciplinary history.

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April 29

Civil Tort — Towing Dispute/Emergency Exception

Speedy Wrecker Service, LLC,, and Jeanne Walters Real Estate, LLC v. Daniel H. Frohman

19A-CT-2033

A driver who wheeled into an empty parking lot on a Saturday afternoon in Bloomington only to return an hour later and find his ride had been towed won the sympathy of the Indiana Court of Appeals, but his argument that his car was taken in violation of state statutes failed to gain any traction.

Daniel Frohman, represented by attorney Thomas Frohman, filed a complaint for conversion. He argued the lot’s owner, Jeanne Walters Real Estate LLC, or JW Realty, and the towing company Speedy Wrecker Service LLC disregarded Indiana code §§ 9-22-1-15 and 9-22-1-16 when they towed his vehicle without waiting 24 hours.

He sought treble damages, costs and attorney fees along with asking for punitive damages in order to deter the lot owner and the towing service from, what he called, their unlawful behavior of taking cars without 24-hour notice.

After a hearing to consider the motion and cross-motion for summary judgment, the Monroe Circuit Court found in favor of Frohman. It ruled the wrecker service and lot owner “ignored all parts of the abandoned-vehicle statutes except those that fit best with [Speedy Wrecker’s] business interest and was easier for [JW Realty] as well.”

The trial court granted Frohman’s motion on the issue of liability and set an evidentiary hearing on the remaining issues in his complaint.

However, the Court of Appeals applied the brakes and reversed the trial court’s decision in Speedy Wrecker Service LLC, and Jeanne Walters Real Estate, LLC v. Daniel H. Frohman, 19A-CT-2033.

The appellate panel did understand Frohman’s parking plight, but it noted his interpretation of state statute was flawed.

“Is it frustrating to see an empty parking lot in a convenient location but be forced to find a different spot because it is permit only? Of course,” Judge Margret Robb wrote for the court. “Is it fair to expect to park for free in a parking lot for which others have paid for a permit because you intend to park for only a short time or because it appears plenty of parking spots are available? Of course not.”

The Court of Appeals pointed out that while Indiana statutes do require a 24-hour waiting period before removing a vehicle believed to be abandoned from private property, there is an exception for emergencies.

Before the trial court, Frohman asserted the word “emergency” should be given its plain and ordinary meaning. However, the Court of Appeals noted a plain and ordinary meaning is used only when the Legislature has not defined the word or phrase.

Here, the statute itself defined “emergency situation.” According to I.C. 9-22-1-16(b), a vehicle is allowed to be removed immediately when “the presence of the vehicle believed to be abandoned interferes physically with the conduct or normal business operations of the person who owns or control the private property … .”

The Court of Appeals noted the normal business operations of JW Realty included operating a parking lot for which the company sold permits and received a monthly fee. Frohman was thus physically interfering with those normal business operations by using the parking lot without having purchased a permit.

“The trial court found the Appellants ‘have interpreted the statute in such a manner as to effectively render § 9-22-1-15 and § 9-22-1-16 meaningless.’ But Frohman and the trial court have interpreted those statutes to render the exception meaningless,” Robb wrote. “The exception protects normal business operations on private property. If the owner or operator of a for-pay parting lot cannot invoke the emergency exception when an unauthorized car parks in the lot, then essentially, there is no such business as a for-pay parking lot.

“Under Frohman’s interpretation of the statutes, anyone could park in the parking lot with impunity as long as they moved their car within twenty-four hours,” Robb concluded, “and there would be no incentive to purchase a permit and thus no business for JW Realty to operate.”

The case was remanded.

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April 29

Miscellaneous — Access to Public Records Act/Disclosure of 911 Calls

Carroll County E911 v. Aishah Hasnie

19A-MI-2682

An Indianapolis television reporter who successfully sought recorded 911 calls from an ongoing investigation into a deadly Carroll County house fire was handed a reversal. The Indiana Court of Appeals ruled that the dispatch center was entitled to withhold the calls as investigatory records of law enforcement agencies.

In 2017, former Fox 59 TV news reporter Aishah Hasnie requested the release of the 911 calls under Indiana’s Access to Public Records Act. The calls related to a November 2016 house fire in Flora that killed four children.

Hasnie’s request was declined after the dispatch center told her the investigation was still ongoing, so both the Carroll County Sheriff’s Department and Carroll County prosecutor were “exercising their discretion not to permit disclosure of such recording or recordings at this time, pursuant to [Indiana Code Section] 5-14-3-4(b)(1).”

Despite an opinion of the Indiana Public Access Counselor saying the dispatch center was required to disclose the 911 calls to Hasnie, the center continued to refuse to release them, prompting thereporter’s lawsuit.

Fox 59 later moved to substitute itself as the real party in interest for Hasnie and moved for summary judgment. Although the dispatch center objected to the substitution of parties, the Marion Superior Court granted the substitution and entered summary judgment for the Indianapolis TV station.

But a panel of the Indiana Court of Appeals reversed that decision, holding that the dispatch center was entitled to withhold the 911 calls.

“The Dispatch Center is a call relay center, not a law enforcement agency. Nonetheless, we agree with the Dispatch Center that the exception for investigatory records of law enforcement agencies applies to the 9-1-1 calls here,” Judge Edward Najam wrote for the appellate panel.

Citing Lane-El v. Spears, 13 N.E.3d 859, 871-72 (Ind. Ct. App. 2014), trans. denied, the appellate court noted 911 calls can be excepted from disclosure under the APRA when requested from a law enforcement agency directly.

“Thus, consistent with the plain text of the statute and pursuant to our holding in Lane-El, we conclude that the trial court erred when it entered summary judgment for Fox 59. It would be incongruous to hold, as we did in Lane-El, that 9-1-1 calls may be withheld from public disclosure when requested directly from the law enforcement agency that compiled them, but then to hold otherwise when the records are instead sought from the dispatch center that originally received the calls,” the appellate panel wrote.

“… Fox 59’s argument on appeal would effectively nullify APRA’s exception for the investigatory records of law enforcement agencies,” the panel added.

The appellate court also rejected additional arguments presented by Fox 59, finding that the news station was not entitled to summary judgment based on the designated evidence and that the appellate court is not bound by the PAC’s opinion, among other things.

However, the COA held that the trial court did not abuse its discretion when it permitted Fox 59 to substitute itself for Hasnie after she left her employment with the news station, finding Hasnie at the time was seeking the records pursuant to her employment with Fox 59.

The appellate court therefore affirmed in part, reversed in part and remanded for further proceedings in the case of Carroll County E911 v. Aishah Hasnie, 19A-MI-2682.

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May 5

Criminal — Battery of a Minor/Order for Pretrial Release

John Yeager v. State of Indiana

20A-CR-121

A man accused of battering a 2-year-old was ordered released from jail by the Indiana Court of Appeals after it found no evidence that he posed a threat to either the victim or the community.

In John Yeager v. State of Indiana, 20A-CR-121, John Yeager was charged with Level 3 felony aggravated battery, Level 3 felony battery on a child less than 14 years old, Level 3 felony domestic battery, and Level 3 felony neglect of a dependent.

The state specifically accused him of battering his girlfriend’s 2-year-old son, and a warrant was issued for his arrest. He was ordered held without bail until his initial hearing.

During the initial hearing, Yeager’s Indiana Risk Assessment Score was “0 (Low)” and the Jefferson County Pretrial Director recommended that Yeager “be released to pretrial supervision with the added condition of electronic monitoring.” The trial court, however, set Yeager’s bail at $250,000 cash only and issued a no-contact order for the minor child.

Yeager, who was 35 years old, unsuccessfully filed a motion to reduce his bail after asserting a variety of mitigating factors. Yeager told the court that he would like to be released on bail so he could work to pay for his defense counsel and hire an expert, adding that if the court ordered him to electronic monitoring he could pay the cost.

The trial court denied the motion, stating that the nature and gravity of the offense was “serious”, that Yeager faced a sentence up to 32 years and that it was not “confident public safety c[ould] be reasonably assured if [Yeager’s] bail were to be reduced.”

The Indiana Court of Appeals reversed in Yeager’s favor, agreeing with his assertion that the fact that he “has merely been accused, cannot constitute clear and convincing evidence that he is a danger to the alleged victim or the community.”

“As Yeager points out, besides the accusations themselves, no evidence was presented ‘as to how he could possibly constitute a threat to anyone.’ The only evidence the State cites in its brief to show that Yeager is a danger to J.G. and the community is J.G.’s injuries. But this violates the presumption of innocence to which Yeager is entitled,” Judge Nancy Vaidik wrote for the appellate panel.

“Again, the Jefferson County Pretrial Director recommended that Yeager be released to pretrial supervision with the added condition of electronic monitoring. Without any evidence to show that Yeager is a danger, we conclude that the trial court abused its discretion in denying Yeager’s motion to reduce his $250,000 cash-only bond. We therefore reverse the trial court and remand with instructions that Yeager be released to pretrial supervision with the added condition of electronic monitoring,” the panel concluded, leaving the no-contact order in place.

The appellate court also noted its result is “consistent with the new evidence-based risk-assessment system that Indiana has adopted” under Indiana Criminal Rule 26(A) and (B) effective as of January 2020.

“Notwithstanding Indiana Appellate Rule 65(E), this opinion is effective immediately, and the trial court need not await a certification of this opinion by the Clerk of Courts before releasing Yeager to pretrial supervision with the added condition of electronic monitoring,” it wrote.

__________

May 6

Criminal — Attempted Robbery/Reversal of Conviction

Romello Jevon Webb v. State of Indiana

19A-CR-01358

A student was wrongly convicted by a jury of shooting another teen during a drug deal gone bad, the Indiana Court of Appeals ruled. The panel reversed his convictions and decades-long sentence after finding insufficient evidence that he committed the crime.

During a drug deal meeting gone wrong, Jesse Speck was shot after two individuals with guns entered his parked car and a third stood outside his window. Two of the men wore hoodies and face coverings, and the third was described by Speck as having an “afro” and glasses.

A struggle ensued between the car’s inhabitants and Speck was shot in the back, prompting the three men to flee to their own vehicle and drive off. Speck’s passenger, Geoffrey Krick, drove him to the hospital but gave officers a different account of what the shooter looked like, saying he had dreadlocks.

Officers later discovered that Speck and Krick had been communicating with a Brownsburg High School student named Geoffrey Carr to purchase marijuana, prompting a search of Carr’s phone. That search revealed phone records involving teenager Romello Webb, who was “best friends” with another student, Ean Edwards, from whom Speck had previously stolen marijuana.

Webb was charged with Level 2 felony attempted robbery resulting in serious bodily injury, Level 3 felony attempted robbery resulting in bodily injury, and Level 3 felony aggravated battery. But the state did not present physical evidence linking Webb to the shooting, such as a gun, bullet, shell casing, fingerprints or DNA.

Speck also testified that he was never given an opportunity to identify the shooter before trial, but was only asked to describe what the shooter looked like. Meanwhile, Webb asserted that he had short hair at the time of the shooting and had never had dreadlocks.

For its part, the state alleged that Webb was friends with both Carr and Edwards, and admitted cellphone records from Webb’s phone on the day of the shooting that included location data. The location placed Webb about 50 meters from the scene of the crime just before it occurred and then back at his home about an hour later.

Although there was “[n]o gun, no DNA, no fingerprints, no ID” and differing descriptions of the shooter, a jury found Webb guilty of both attempted robbery counts and sentenced him to 17 and eight years, respectively, to be served consecutively.

But a panel of the Indiana Court of Appeals agreed with Webb, finding there was insufficient evidence to prove beyond a reasonable doubt that he was the shooter.

First, the appellate court noted that both Speck and Krick consistently described the assailants’ car as “burnt orange/red” and not black, and that their descriptions of the shooter did not match Webb.

“The State describes these as ‘minor discrepancies.’ We disagree,” Judge Nancy Vaidik wrote for the appellate court.

It further found no physical evidence linking Webb to the offenses, rejecting the state’s four pieces of nonincriminating evidence including the fact that Webb was friends with Carr and Edwards and the vague text messages received by Webb from an unknown sender.

“Third, the State presented evidence that the black Dodge Challenger rented by Webb’s mother had a hole in the windshield when it was returned to Enterprise on February 10 and that bullets were found in the rental car five months after the shooting. Setting aside the color differences in the Challenger (burnt orange/red vs. black) and even assuming that the hole in the windshield was from a bullet, the State presented no evidence that the hole in the Challenger’s windshield was connected to the events in this case,” the appellate court wrote.

Lastly, it noted that even if Webb was close to the location of the shooting at the time, it did not establish that he was the shooter.

“While we seldom reverse for insufficient evidence, we have an affirmative duty to make certain that the proof at trial is sufficient to support the verdict beyond a reasonable doubt,” the appellate court wrote.

Finding that proof to be insufficient, it therefore reversed Webb’s convictions in Romello Webb v. State of Indiana, 19A-CR-1358.•