Indiana Court Decisions – June 12-24, 2013

7th Circuit Court of Appeals

June 14

Civil – Excessive Use of Force

Jason Findlay v. Jonathan Lendermon

12-3881

When Tippecanoe Deputy Sheriff Jonathan Lendermon got between some long-feuding neighbors in 2009, one of them, Jason Findlay, suggested that he might have trespassed. It became clear to Lendermon the acknowledgement might have been recorded on video surveillance.

Lendermon attempted to obtain a memory card from the camera, but Findlay pulled it away and the memory card fell to the floor. Findlay claims that as he reached for the card, Lendermon tackled him, but Lendermon says he just grabbed Findlay’s arm to prevent him from picking it up. Findlay sued claiming excessive force, and District Judge Theresa Springmann of the Northern District of Indiana denied Lendermon’s motion to dismiss.

The 7th Circuit Court of Appeals reversed. “Because Findlay has not carried his burden of showing the violation of a clearly established right, Lendermon is entitled to qualified immunity,” Judge Joel Flaum wrote for the.

Lendermon arrested Findlay for obstruction of justice, but the charges were dropped. But Lendermon was within his rights under qualified immunity, the court ruled.

“Because Findlay has not identified any sufficiently analogous case clearly establishing the constitutional right he accuses Lendermon of violating, and because Findlay offers no adequate explanation for how Lendermon used force ‘so plainly excessive,’” Flaum wrote, “… we reverse the district court’s denial of Lendermon’s motion for summary judgment.”

Indiana Supreme Court

June 14

Criminal – Sentencing

Robert Bowen v. State of Indiana

08S02-1306-CR-423

A man sentenced to 14 years in prison for his convictions on multiple felony gun and drug charges will still have to serve the time, but the court must revise the sentencing order to explain why one conviction was ordered to be served consecutive to the others.

A Carroll Circuit jury convicted Robert Bowen of Class B felony unlawful possession of a firearm by a serious violent felon, Class C felony dealing in schedule IV controlled substance, Class D felony possession of a controlled substance and Class A misdemeanor possession of marijuana. He was sentenced to 10 years on the SVF charge, and the other felony counts were ordered to be served concurrently, except for the dealing sentence – four years imposed consecutively for a 14-year aggregate executed sentence.

In a two-page per curiam decision,  the Indiana Supreme Court cited the precedent of Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007), that requires the court to “include a reasonably detailed recitation of the trial court’s reasons for imposing a particular sentence.”

“The trial court did not state its reasons for imposing this sentence, either in writing or from the bench, and did not identify any reason for consecutive sentences,” the court wrote. “Accordingly, we grant transfer and remand this case to the trial court with instructions to issue an amended sentencing order that complies with the law, without a hearing.”
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June 18

Civil Plenary – Legislative Fines

Tim Berry, Auditor of State; M. Caroline Spotts, Principal Clerk of the House of Representatives; and The State of Indiana/ Brian C. Bosma, Speaker v. William Crawford, et al.

49S00-1201-PL-53 and 49S00-1202-PL-76

The Indiana Supreme Court has ruled the dispute over fines imposed on lawmakers resulting from Democratic walkouts during the 2011 and 2012 legislative sessions is outside of the court’s authority to render a decision.

The Indiana Supreme Court reversed the judgment of the trial court and directed it grant the defendants’ motion to dismiss for lack of justiciability.

However, the case split the court with Justice Robert Rucker dissenting and Justice Loretta Rush concurring in part and dissenting in part.

The case stems from the walkout by Democrats in the Indiana House of Representatives during the right-to-work debates in 2011 and 2012. Speaker Brian Bosma, R-Indianapolis, directed that fines be withheld from the legislative pay of the absent representatives.

The affected members of the House Democratic Caucus brought suit in Marion Superior Court seeking to recover the withheld pay and enjoin future action to recover the fines.

In its decision, the majority of the Supreme Court held the actions taken were within the authority granted both in the Indiana Constitution and in the House rules. Therefore, the judicial branch has no authority to decide the case.

“Although courts in general have the power to determine disputes between citizens, even members of the Indiana General Assembly, we hold that where a particular function has been expressly delegated to the legislature by our Constitution without any express constitutional limitation or qualification, disputes arising in the exercise of such functions are inappropriate for judicial resolution,” Chief Justice Brent Dickson wrote.

Dickson was joined by Justices Steven David and Mark Massa.

As part of his dissent, Rucker argued the court’s assertion that it is constitutionally limited from intervening is without precedence. He stated the House of Representatives’ constitutionally granted ability to punish its members does not include the discretion to reduce its members’ compensation.

Rush joined Rucker in arguing the case is not about the House’s authority to impose these fines but about whether it may collect the fines in the manner it did, and on that point, she wrote, “I share his understanding of Article 4, Section 29 as an ‘express constitutional limitation’ that makes this limited question justiciable.”

Bosma applauded about the court’s decision.

“I am very pleased that the Supreme Court properly respected the separation of powers and the rights of the legislative branch to manage its own internal affairs without interference from the judicial branch,” he said. “I consider this a victory for the Indiana Constitution and the proponents of limited government, and consider the matter closed.”
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June 21

Civil Tort – Expert Witnesses/Medical Malpractice

Sharon Wright and Leslie Wright v. Anthony E. Miller, D.P.M., and Achilles Podiatry Group

54S01-1207-CT-430

Four Indiana justices held that a Montgomery Superior judge erred when he struck the plaintiff’s expert witness in a medical malpractice lawsuit and dismissed the suit under Indiana Trial Rules 37(B) and 41(E).

Sharon and Leslie Wright filed their action against Dr. Anthony Miller and Achilles Podiatry Group in April of 2006, claiming two surgeries performed on Sharon Wright’s feet produced injurious results and a second surgery was performed without consent. A medical review panel found in favor of the defendants.

In an attempt to refute the review panel’s conclusion, the plaintiffs presented an affidavit from Dr. Franklin Nash supporting their claim. The Wrights didn’t include Nash on witness lists submitted to the court, but the defendants were aware he was the designated expert. The Wrights also missed several discovery deadlines and had to find a new expert witness after Nash’s illness prevented him from participating in the August 2010 trial.

In 2011, the defendants sought a dismissal on the grounds the Wrights didn’t comply with discovery deadlines and that they didn’t have an expert witness to rebut the findings of the review panel. Then, the Wrights filed notice of a new expert witness, but the trial court struck the notice as untimely and dismissed the case.

Chief Justice Brent Dickson wrote that the factors outlined in Wiseheart v. State, 491 N.E.2d 985 (Ind. 1986), on excluding a witness for discovery violations can be a valuable guide in civil cases but cautioned against a formulaic approach of the factors that may deemphasize the general discretion of the trial court.

The justices found the exclusion of the Wrights’ expert witness was inconsistent with the logic and effect of the facts and circumstances before the court. It’s clear the defendants were aware the plaintiffs intended Nash to be the expert witness and the delay in bringing the case to trial was because of Nash’s illness. The prejudice to the defendants was minimal, but the exclusion had a substantial effect on the Wrights’ ability to present the merits of their case, Dickson wrote. This case warranted lesser sanctions that would not have deprived the Wrights of their ability to present the merits of their case at trial. Because the witness exclusion was an error, the basis for the case dismissal was also an error, the high court ruled.

Justice Steven David agreed in a separate opinion that the entire case should not have been dismissed, but he believed that the Wrights’ expert witness should have remained excluded.

“Without seeking to enter the unsettled arena of whether such an expert witness is required in this type of case, I not only believe the exclusion was an appropriate exercise of the trial court’s discretion here, but I struggle to find a more appropriate sanction with which the trial court could have enforced its discovery deadlines and orders when Wright repeatedly failed to include Dr. Nash on her witness lists, filed those witness lists late (along with other delayed filings), and then failed to meet a discovery deadline that had already been extended at her request,” he wrote.

Indiana Tax Court

June 18

Tax – Income/General Partnership

Vodafone Americas Inc. and Vodafone Holdings LLC v. Indiana Dept. of State Revenue

49T10-1002-TA-7

A mobile telecommunications group was unable to convince the Indiana Tax Court that it was entitled to summary judgment on the issue of whether it should have received a refund for paid adjusted gross income tax.

Vodafone Americas Inc. and Vodafone Holdings LLC, incorporated in Delaware, appealed the denial of its claim for refund for taxable years ending March 31, 2005-2008. Vodafone asked the Tax Court to answer whether the income it received as a partner of a general partnership with Cellco, which did business as Verizon Wireless in Indiana, was income derived from sources within Indiana.

Vodafone sought the tax refund because it believed it had erroneously attributed a portion of its income to Indiana. Indiana Code requires it to pay a tax on the part of its adjusted gross income derived from sources within Indiana. Since it is not commercially domiciled in Indiana, Vodafone contended that its income – dividends it received from investing in Cellco – is not derived from sources within the state and therefore not taxable.

“The critical question is whether the income Vodafone received as a partner of Cellco had the character of operational income or investment income because if it was operational income, it was not income in the form of ‘dividends from investments’ under Indiana Code § 6-3-2-2(g),” Senior Judge Thomas Fisher wrote.

“The mere fact that Vodafone was a partner in a general partnership gives its income from that partnership the character of operational income. As such, Vodafone’s income is not income in the form of ‘dividends from investments’ under Indiana Code § 6-3-2-2.2(g).”

Vodafone argued that despite the fact it was in a general partnership, a “lack of control” placed it in essentially the same position as being a limited partner of, or a true “passive investor” in Cellco. But Vodafone participates in Cellco’s management by appointing members to the board of representatives, by appointing Cellco’s chief financial officer and it holds certain veto rights regarding business.

“Consequently, Vodafone’s ‘lack of control’ by reason of its minority interest is insufficient to show that it does not participate in the management of Cellco and thus that it was a mere ‘passive investor’ in Cellco,” Fisher wrote. He denied summary judgment and noted the court will schedule a case management conference by separate order. The appeal presented an unspecified alternative issue that wasn’t addressed in the summary judgment motion, which can now proceed to trial.

Indiana Court of Appeals

June 12

Civil Tort – Medical Malpractice Act/Jurisdiction

John H. Mooney, as Special Administrator of the Estate of Joseph S. Mooney, Deceased v. Anonymous M.D. 4, Anonymous M.D. 5, and Anonymous Hospital

32A04-1208-CT-414

Finding that a Hendricks County court didn’t have jurisdiction to dismiss a man’s proposed complaint for damages under Trial Rule 41(E) or based on noncompliance under the Medical Malpractice Act, the Indiana Court of Appeals reinstated the proposed complaint.

John Mooney filed his proposed complaint for damages with the Indiana Department of Insurance in November 2007 alleging that a group of unnamed family care physicians and a group of cardiologists committed medical malpractice that caused Joseph Mooney’s 2005 injuries and death. Mooney’s attorney, Lance Cline, informed the attorney of the family care physicians, Marilyn Young, and the cardiologists’ attorney, Peter Pogue, that he believed discovery would take a while to complete due to his schedule and the amount of evidence he sought.

Several years went by without Cline completing the discovery, which included depositions from Young’s and Pogue’s clients. He sought extensions of the 180-day deadline, to which neither Young nor Pogue objected. In 2012, the family care physicians sought to dismiss the proposed complaint for failure to comply with Trial Rule 41(E) and the Medical Malpractice Act. In July 2012, Hendricks Superior Judge Stephenie LeMay-Luken granted the request, dismissing the complaint with prejudice.

The Court of Appeals reversed after finding the trial court abused its discretion when it dismissed Mooney’s proposed complaint under I.C. 34-18-10-14. The trial court may grant relief under this section when a party, attorney or panelist has failed to act as required under the Medical Malpractice Act and good cause has been shown for the failure to act. But there was no submission schedule in place at the time of the physicians’ motion for a preliminary determination, Judge Edward Najam pointed out. When Cline objected to a proposed schedule set by the panel chairman, neither Young nor Pogue responded in any way. In addition, Young had previously agreed to extend the 180-day deadline if necessary.

Also, Cline didn’t sit idly by as Young alleged. He tried several times for more than a year to set up depositions with Pogue, who never responded, and Young also did not schedule times for depositions with her client.

The trial court also didn’t have jurisdiction to dismiss the proposed complaint under Trial Rule 41(E) because under the Medical Malpractice Act, only the commissioner of the Department of Insurance can file a motion to dismiss under this trial rule, Najam wrote.
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June 13

Mortgage Foreclosure – Tax Deeds

Anthony J. Iemma, et al. v. JP Morgan Chase Bank, N.A. Successor by Merger with Bank One, N.A.

20A03-1207-MF-326

The Indiana Court of Appeals ordered that tax deeds be reinstated and reversed summary judgment and a decree of foreclosure in favor of a bank in a combined appeal over foreclosed property in Elkhart County.

Cause No. 188 deals with Chase Bank’s grant of partial summary judgment and foreclosure of property at 1034 East Jackson Blvd. in Elkhart; Cause No. 41 deals with the setting aside of LRB Holdings’ tax deeds purchased on the same two lots at that address. Anthony and Sandra Iemma entered into a mortgage with Bank One-Merrillville in 1997. The recorded mortgage lists two addresses – one for Bank One-Merrillville in Merrillville; the other under the heading “When recorded mail to:” that was for Bank One-Indianapolis in Indianapolis. Chase Bank became successor-by-merger of Bank One in 2004.

The Iemmas defaulted on the mortgage and did not pay taxes on the property in question. Chase sought to foreclose; LRB as successful bidder at the tax sale, sent notices to Chase through its attorneys on the foreclosure case after the mail sent to Bank One-Merillville was returned as undeliverable. It did not mail notice to the Bank One-Indianapolis address.

LRB appealed the ruling in favor of Chase, arguing the trial court erred in determining the tax deeds should be set aside because LRB failed to comply with statutory notice requirements, due process requirements and statutory property description requirements.

The trial court concluded that LRB was required to send notices to mortgagee Bank One-Merrillville, but also to the bank in Indianapolis. But the mortgage did not indicate that Bank One-Indianapolis was a person with a substantial property interest of public record on the Elkhart property, Judge Rudy Pyle III wrote. As such, LRB had no responsibility under statute to give notice to the Indianapolis office.

The judges found LRB complied with due process requirements by taking the extra step of mailing notice to the attorneys involved in the foreclosure action. The trial court also erred as a matter of law by concluding that the notices were not in substantial compliance with I.C. 6-1.1-25-4.5.

“In this opinion, we have decided the Cause No. 41 tax sale deed issues in favor of LRB and against Chase Bank. LRB is the owner of the two lots with a common address of 1034 East Jackson Boulevard, Elkhart, IN 46516, and there is no longer any basis for the trial court’s grant of summary judgment and foreclosure in Cause No. 188. Accordingly, the trial court’s order should be set aside,” Pyle wrote.
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June 18

Mortgage Foreclosure – Modification/Mortgage Agreement

Nationstar Mortgage, LLC v. Jeffrey A. Curatolo, Et Al.,

45A03-1211-MF-469

A trial court doesn’t have the authority to modify a mortgage agreement without the consent of both parties participating in a settlement conference if they don’t agree to the terms of a foreclosure prevention agreement, the Indiana Court of Appeals ruled.

Nationstar Mortgage LLC appealed the trial court order modifying its mortgage agreement with Jeffrey Curatolo. Curatolo executed the $245,000 mortgage in 2006, which was assigned to Nationstar in 2010. It filed its complaint to foreclosure in September 2011.

The parties entered into a foreclosure settlement conference, as allowed under I.C. 32-30-10.5, in which Curatolo successfully completed a three-month plan set up by Nationstar. But the mortgage company wanted new financial documents because of a discrepancy in Curatolo’s stated income and then sought to have Curatolo pay an additional $300 for a three-month period.

The trial court deemed these actions as a bad faith maneuver and modified the mortgage agreement.

“[N]owhere does the statute give a trial court the authority to enter a final order modifying the mortgage agreement,” Chief Judge Margret Robb wrote. “The fact that the legislature itself could not have impaired the contractual obligations of the parties lends further support to our conclusion it did not intend to give the courts that authority. Because the mortgage agreement was based upon the parties’ mutual assent, they must both agree to any permanent modification. Nor is this a case where the court was merely interpreting or enforcing a previously entered into agreement.”

Curatolo argued that the modification was a proper sanction for Nationstar’s misconduct.

“And while the trial court found that Nationstar’s behavior evidenced bad faith, we cannot agree that requesting additional documentation in response to a change of income or requesting an additional $300 per month from Curatolo was bad faith. Curatolo was not entitled to a final foreclosure prevention agreement with terms to his liking,” Robb wrote.

The COA ordered more proceedings on the matter consistent with this opinion. Robb noted that this decision should not be read to limit the ability of the parties to enter into a mutually agreed upon foreclosure prevention agreement. In that case, the trial court may dismiss or stay the foreclosure as provided by I.C. 32-30-10.5-10(e).  

Civil Plenary – Breach of Contract

Bertram A. Graves, M.D. v. Richard Kovacs, M.D., Edward Ross, M.D., and Indiana University Health f;/k/a Clarian Health Partners, Inc.

49A05-1301-PL-1

The Indiana Court of Appeals has found that a cardiologist’s breach of contract complaint may have been “unartfully drafted,” but it still adequately stated a claim for tortious interference with a contract.

The appeals court reversed and remanded a trial court’s granting of the motion for judgment on the pleadings filed by Dr. Richard Kovacs and Dr. Edward Ross.

On March 7, 2012, Dr. Bertram A. Graves filed a second amended complaint against Clarian/IU Health. In this document Kovacs and Ross were named as defendants for the first time. Under the caption “Breach of Contract,” Graves alleged his cardiology privileges were revoked, in part, because Kovacs and Ross provided false information to peer review committees.

After Kovacs and Ross filed a motion for judgment on the pleadings because they were not party to any contract, Graves asserted the facts of the second amended complaint sufficiently stated a cause of action against the doctors for tortious interference with a contract.   

On Nov. 5, 2012, Kovacs and Ross argued that any claim for tortious interference with a contract was barred by the two-year statute of limitations. The trial court granted the motion of judgment on the pleadings that same day but its order only mentioned Graves’ alleged failure to state a claim and not the statute of limitations argument.

On Dec. 6, 2012, the trial court denied Graves’ motion to amend his complaint to more clearly state a claim against Kovacs and Ross.

The COA found Kovacs and Ross were painting with too broad a brush when they argue the only count of the complaint that mentioned them was captioned “Breach of Contract” and they had no contract with Graves.

Although Graves’ complaint may have been unartfully pleaded, the appellate court held it sufficiently put Kovacs and Ross on notice that they were alleged to have acted wrongfully and intentionally.

The appeals court declined to offer an opinion on the merits of the statute of limitations argument because it determined Graves was not given adequate opportunity before the trial court to address the issue.

“As a general rule, a plaintiff does not have to anticipate a statute of limitations defense in his or her complaint and should be given adequate opportunity to provide facts and argument in response to the raising of a statute of limitations defense,” Judge Michael Barnes wrote.

Criminal – Evidence

Duane Crocker v. State of Indiana

79A04-1210-CR-542

Although a man’s incriminating statements made while sitting in a police car should have been suppressed, the Indiana Court of Appeals ruled the error was harmless because the physical evidence seized was sufficient to sustain his convictions.

Duane Crocker was charged and convicted of Class C felony dealing in marijuana, Class D felony marijuana possession, and Class D felony maintaining a common nuisance after a traffic stop revealed 10 bales of marijuana in the trunk of his rented car.

During the traffic stop, Indiana State Police trooper Joseph Winters instructed Crocker to go sit in the front seat of his police vehicle. The trooper first administered a field sobriety test and asked Crocker questions about his travel plans, and then he produced a Consent to Search or Pirtle form.

As Crocker was reading over the form, Winters said he believed there was marijuana in the trunk. Crocker signed the consent form.

Winters next asked how much marijuana was in the trunk. When Crocker said he did not know, Winters read Crocker his Miranda warnings.

Crocker appealed his convictions contending the trial court abused its discretion in admitting evidence obtained during his traffic stop. The Indiana Court of Appeals affirmed.

In his appeal, Crocker argued Winters’ questioning was improper because it constituted a custodial interrogation and he had not yet been read his Miranda rights. The state countered that Crocker was not in custody when sitting in the police car and therefore the requirement to give him his Miranda rights was not applicable.

However, the Court of Appeals concluded Crocker was in custody because Winters had a high degree of control over the environment. Therefore, Crocker should have been given his Miranda rights as soon as he was inside the police vehicle.

The court went on to point out that Crocker had been given a written statement of his Pirtle rights which stated he had the right to refuse consent, force the state to obtain a warrant, and speak to an attorney before consenting.

The court found even though Winters did violate Crocker’s Miranda rights, the trooper’s misconduct was not particularly egregious. In addition, Crocker did not admit to knowing that he was transporting marijuana until after he consented to the search of his vehicle.
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June 24

Civil Plenary – Zoning/Jurisdiction

Michael Howard v. Allen County Board of Zoning, Appeals and Alvin Schmucker

02A04-1301-PL-27

An Allen Superior judge’s determination that the court lacked jurisdiction to hear a zoning issue, thus requiring dismissal, was erroneous, the Indiana Court of Appeals ruled. But the judges affirmed the lower court’s dismissal of the case because of a lack of supporting materials and a late request for a filing deadline extension.

Michael Howard sought judicial review of the Allen County Board of Zoning Appeals decision to grant a use variance allowing property owned by Alvin Schmucker to be used for the operation of a tire business. The men’s properties were near each other.

Howard asked the zoning board to produce a certified record of all materials relevant to its decision, and he had until Sept. 17, 2012, to file the record or seek an extension of the filing deadline. He did neither as of the deadline date, so Schmucker asked for Howard’s request for judicial review to be dismissed. Howard later filed an amended petition asking for the extension. In December, Judge Stanley Levine dismissed Howard’s petition with prejudice, holding the trial court lacked jurisdiction based on his failure to timely file the board record or timely request an extension of the filing deadline.

“Because the timing of filing the board record does not implicate matters of jurisdiction, we conclude that the trial court’s determination was clearly erroneous. But, because we interpret Indiana Code section 36-7-4-1613 to require dismissal where no materials supporting judicial review of the petitioner’s claim are timely filed and an extension of the filing deadline is not timely requested, we affirm the trial court’s judgment,” Judge Cale Bradford wrote.

The judges rejected Howard’s suggestion that under the COA’s April decision in Lebamoff Enterprises Inc. v. Indiana Alcohol & Tobacco Commission, the trial court’s discretion with regard to untimely filings allows the court to accept a belated record even where an official extension hasn’t been granted. They also rejected his claim under Trial Rule 15 that the relation back doctrine forgives the tardiness of Howard’s second belated extension request. Plus, after a filing deadline has passed, a party is not allowed to amend a petition to cure procedural defects.•