Indiana Court decisions – July 15-Aug. 1, 2018

7th Circuit Court of Appeals

July 30

Criminal — Murder for Hire, Kidnapping/Waiver, Entrapment

USA v. Renee S. Perillo

17-3436

A woman’s appeal of her federal guilty plea in a murder-for-hire case targeting a Noblesville attorney was dismissed by the 7th Circuit Court of Appeals in a case the panel said resembled “the plot of a mediocre novel.”

Renee S. Perillo pleaded guilty to conspiracy to commit kidnapping and commissioning a murder for hire and was sentenced to 27 years in prison in 2017 and was ordered to pay restitution of more than $74,000.

Federal authorities accused Perillo and her son, Richard, of targeting attorney Rebecca Eimerman in May 2015. Court documents said the Hamilton County Sheriff’s Office responded to a call from Eimerman’s home, where her husband had found the pair in the back of their SUV.

“The underlying facts here sound like the plot of a mediocre novel, focused on Perillo’s relationship with her boyfriend, Dr. Arnaldo Trabucco, and her attempts to harm Trabucco’s ex-wife and the ex-wife’s divorce attorney,” meaning Eimerman, Judge David Hamilton wrote for the panel in USA v. Renee Perillo, 17-3436.

“The Perillos had with them a loaded handgun, binoculars, a plastic bag, latex gloves, a knife, a rubber tourniquet, and a syringe that Perillo claimed contained heroin, but in fact contained a potentially lethal dose of succinylcholine, a paralytic,” Hamilton continued. “The police arrested Perillo and her son. They obtained a warrant to search Perillo’s car, where they found: ammunition, duct tape, a long blonde wig, two machetes, a tranquilizer gun and darts, alcohol pads, syringes, a ‘commando’ saw, a hammer, a shovel with dirt on it, three license plates, a walking cane, a priest disguise, and a full-headed silicone mask depicting an elderly man’s face.”

Nevertheless, Trabucco bonded Perillo out of jail in Noblesville, and she fled west. She was arrested about a month later in Montana, and when she was returned to Indiana, Hamilton wrote, “she was placed in a cell with Lisa Starr Ramos. According to the government, Perillo told Ramos about her crimes and that she still wanted to kill (Eimerman)… .” Ramos then contacted the FBI, and the bureau set up an agent to portray a hit man named “Don-Don”. Perillo contacted “Don-Don” multiple times attempting to arrange a murder-for-hire, the government alleged.

After Perillo pleaded guilty, she moved to withdraw the plea. Indiana Southern District Judge Richard Young denied the motion, and the 7th Circuit dismissed Perillo’s appeal, finding her plea agreement contained valid appellate waivers. The panel noted the plea agreement dismissed federal firearm charges in exchange for a guideline sentence. Judges also rejected arguments on appeal that Perillo’s first attorney had pressured and coerced her into pleading guilty, that she had been entrapped, and others.

“Perillo cannot plausibly argue that she lacked a predisposition to commission a murder for hire. By the time she was incarcerated with Ramos, Perillo had already tried to kill Eimerman once,” Hamilton wrote. “And when Perillo contacted the undercover agent who she believed was a hitman, she did so enthusiastically. Within 11 days of Ramos’s suggestion, Perillo called the agent on the phone and wrote a letter providing Eimerman’s home address and a vague description of her workplace, describing her physical appearance and her car, and outlining her morning exercise routine.”

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July 31

Civil Tort — Union Pension Funding/Business Alter Ego

Mark McCleskey v. CWG Plastering, LLC

17‐1980

A union lawsuit alleging that a family plastering business invented an “alter ego” to dodge a judgment against it of nearly $200,000 was reinstated July 31 by the 7th Circuit Court of Appeals.

The appellate panel reversed summary judgment granted to the employer by the late Indiana Southern District Court Judge Larry J. McKinney in Mark McClesky, et al. v. CWG Plastering LLC, 17-1980. The case was remanded for further proceedings.

CWG was the successor entity to Gianino Plastering, which closed abruptly and filed for bankruptcy in 2012 after a court entered a $196,940 judgment against Gianino Plastering. The judgment arose from a decision in a lawsuit over the company’s 2009 collective bargaining agreement that alleged Gianino had underfunded it obligation to the Indiana State Council of Plasterers and Cement Masons Health and Welfare and Pension Funds.

Chief Judge Diane Wood wrote for the panel that CWG, operated by the son of the owner of Gianino, “went into business on the same day” the judgment was entered. “CWG took on at least some of Gianino Plastering’s customers, hired its employees, and without missing a beat completed jobs that Gianino Plastering had begun,” Wood wrote.

“… The district court ruled that the Funds had not produced enough evidence to proceed to trial. Our de novo review of the record convinces us to the contrary: the Funds proffered considerable evidence that a trier of fact could use to support its case against CWG, and so we reverse and remand,” Wood said.

Judges Frank Easterbrook and David Hamilton each wrote separate concurrences in the case. Easterbrook agreed with the decision and remand, but had reservations about choice-of-law questions that the majority found had been waived.

“I agree with my colleagues that the case must be remanded, but I do not agree with them about what ought to happen next. I have reservations about choice of law and the content of federal successorship law to the extent it applies,” he wrote. “… Because the Funds seek to recover from CWG Plastering directly under two federal statutes, the district court has subject‐matter jurisdiction.

“It does not follow that federal law applies to all of the Funds’ claims,” Easterbrook wrote, noting the funds would have been worse off had the judgment been discharged in bankruptcy.

“… If Curt Gianino had consulted a good bankruptcy lawyer before taking over his father’s business, he would have been told these things. Ordering him to pay about $200,000 to the Funds is a steep penalty for the lack of legal advice and will serve as an incentive for family businesses to throw creditors, workers, and customers to the wolves,” Easterbrook continued.

Hamilton’s concurrence took exception to Easterbrook’s.

“The federal rules of successorship liability under … federal labor law evolved as equitable doctrines to address the common practice of employers trying to sell their businesses so as to avoid their obligations under federal law,” Hamilton wrote. “In developing those rules, courts have indeed kept an eye on how those rules would likely affect people to alter their decisions in buying and selling businesses or their assets.”

“(T)he case now before us … does include powerful evidence of a bad‐faith effort to continue the earlier business while favoring certain creditors and leaving these Funds unpaid,” Hamilton continued. “If bankruptcy would be a better alternative, fairer to all creditors of an insolvent business, so be it.”

The case is remanded for proceedings on the union’s claims that CWG is liable for the judgment as well as ongoing violations of the collective bargaining agreement.

Indiana Court of Appeals

July 23

Miscellaneous — Damages, Declaratory Judgment

Melodie Liddle v. Cameron F. Clark, in his official capacity as Director of the Indiana Department of Natural Resources, et al.

49A04-1707-MI-1662

A woman whose pet beagle was killed by a concealed raccoon trap in Versailles State Park has lost her bid for declaratory judgment against the Indiana Department of Natural Resources after the Indiana Court of Appeals determined the woman’s claims were moot. The court also found the dog’s sentimental value could not be considered in the calculation of damages.

The case of Melodie Liddle v. Cameron F. Clark, et al., 49A04-1707-MI-1662, began on an unseasonably warm afternoon in December 2011, when Melodie Liddle was walking her dogs, including her beagle, Copper, through the southeastern Indiana state park. At one point, the dogs led Liddle down an embankment, where she heard Copper begin to yelp.

As Liddle approached her dog, she discovered he was ensnared in a raccoon trap set by Harry Bloom, a park security officer who had been authorized to set raccoon traps pursuant to a DNR-issued emergency rule. Though she tried to set the dog free, Liddle was unsuccessful, and Copper died while still in the trap.

Liddle sued DNR representatives in their individual and official capacities, seeking various forms of relief, including declaratory judgment that the emergency rules could not be used to issue trapping permits and damages related to Copper’s death. The Marion Superior Court awarded $477 in damages, aligning with Copper’s fair market value, but declined to enter declaratory judgment. The judge found that Liddle’s challenge to the rules, which were issued from 2007 to 2013, were either time-barred or moot, depending on the year the rule was issued.

Liddle’s counsel, Anne Benaroya with the Center for Wildlife Ethics, told the Indiana Court of Appeals last month that Liddle’s claim should be allowed to proceed under the public standing doctrine. But deputy attorney general Andrea Rahman said the trial court’s mootness ruling was appropriate.

The appellate panel agreed with the state, with Senior Judge and former Indiana Chief Justice Randall Shepard writing that the 2012 and 2013 emergency rules have expired and are no longer in effect. Similarly, DNR no longer uses the emergency rules process to govern trapping in state parks, Shepard wrote.

“Further, to the extent that Liddle wishes to challenge the general practice of trapping for profit in Indiana’s public parks, if DNR continues to allow trapping under Indiana Code section 14-22-6-13, then the issue will not evade judicial review but will instead arise in the future,” Shepard continued. “For these reasons, we decline to apply the public interest exception, and we affirm the trial court’s determination that Liddle’s claim for declaratory relief is moot.”

The panel also rejected Liddle’s argument that Copper’s sentimental value should have been considered in her damages award. Relying on Lacheman v. Stice, 838 N.E.2d 451 (Ind. Ct. App. 2005), Shepard said pets are legally considered personal property, limiting damages for their loss to their fair market value.

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July 24

Criminal — Possession of Child Pornography/Snapchat

Anthony A. Keith v. State of Indiana

33A01-1712-CR-2981

The ability to take a screenshot and save images on Snapchat is probative evidence in charging a man with child pornography, the Indiana Court of appeals ruled.

Anthony A. Keith was convicted with Level 6 felony possession of child pornography involving Snapchat images after he requested via text message that a then-14-year-old girl send him nude images, saying “[n]obody will see them now.”

H.T. met Keith at Yogi Bear Jellystone Park in Knightstown while she was camping with her family. At some point, Keith asked H.T. for her cell phone number, and the two exchanged numbers. Keith and H.T. would text each other daily. They also communicated via Snapchat, a cellphone app used to message and send pictures with limited viewing times. The images disappear after a certain number of seconds.

In October 2015, Keith asked H.J. to “play with his [penis]” and if he could fondle her. He also took pictures of H.T.’s vagina with his phone. H.T continued to send pictures of herself from October 2015 to January 2016 because she believed she was in a relationship with him. She confirmed Keith sent her pictures as well.

At trial, H.T. testified that, at the time she and Keith “were becoming friends … and texting and Snapchatting each other,” Keith knew her age because they “shared the same birthday,” meaning the same month and date. She testified she did not know his birth year but that she knew he was about 46.

H.T. received Keith’s images through Snapchat and saved the photographs to her phone “[a] couple of time[s], but … deleted them” because Keith would say that she needed to delete them before his wife found out, and that he would talk about deleting items “[a]t least once a week, or every time we – he sent a picture.”

Keith argued whether there was sufficient evidence to sustain his convictions, stating that merely receiving an image sent by somebody else that is automatically deleted by the application is not possession under Indiana law. He asserted that the “issue of whether receiving child pornography through Snapchat is knowing or intentional ‘possession’ is an issue of first impression in Indiana” and that the child pornography statute in effect at the time of the offense prohibited only possession, and not viewing, of child pornography.

Keith also argued that police did not find any images on his computer or cell phone.

The appellate court found that regardless of whether Snapchat automatically deleted the photos, Keith could still control what happened to the images in the brief interim before they were deleted by saving them to his phone and reducing them to his personal possession.For those reasons, it affirmed Keith’s conviction for possession of child pornography as a level 6 felony in Anthony A. Keith v. State of Indiana, 33A01-1712-CR-2981.

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July 25

Civil Tort — Wrongful Death/Duty of Insurer

ONB Insurance Group, Inc., d/b/a Old National Insurance, and Joseph E. Kenworthy v. The Estate of Joann Marie Megel, Deceased; the Estate of Edward J. Megel, Deceased; Darcy Megel; et al.

40A01-1707-CT-1513

An insurance company owes no common law or assumed duty to parties injured or killed in a crash caused by a truck driver who knowingly operated a vehicle with faulty brakes, the Indiana Court of Appeals ruled July 25.

The panel reversed the Jennings Circuit Court’s denial of summary judgment for Old National Insurance and its representative, Joseph E. Kenworthy, in a lawsuit brought by the estates of victims of a truck crash more than seven years ago.

According to the record, a C&K Transport Inc. truck driver stopped at a weigh station in Ohio in February 2011, where he discovered the vehicle was overweight and its brakes weren’t working. He called C&K owner William Hackney, who told the driver to drive the truck to Mitchell, Indiana, on a route that did not have weigh stations. The driver refused, and Hackney drove the truck on the route himself without first making any repairs.

That night, Hackney’s truck struck a vehicle driven by Edward Megel on U.S. 50, in which his wife, JoAnn, and granddaughter, Darcy, were passengers. Edward and Darcy died in the crash and JoAnn died from injuries sustained in the crash less than two weeks later.

After a lengthy procedural history, Old National filed a renewed motion for summary judgment last year that was denied by the trial court. The Court of Appeals reversed Wednesday, applying the foreseeability test from Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384 (Ind. 2016).

“In Goodwin, our Indiana Supreme Court set forth a new standard by which a court should review the reasonable foreseeability of harm when considering whether a party owed a duty to another party in a negligence action. ONI’s motion for summary judgment argued the holding regarding foreseeability in Goodwin changed how the trial court should consider the evidence of foreseeability designated by the Accident Parties and, under Goodwin, ONI was entitled to summary judgment. We agree,” Judge Melissa May wrote for the panel.

“The broad plaintiffs here are motorists, the defendants are an insurance agency and its agent, and the type of harm involved was a multi-vehicle collision caused by faulty brakes on a large tractor-trailer,” May continued. “We hold the insurance agency and its agent, who had no role whatsoever in the decision to put the vehicle on the road in its condition, could not foresee that its actions relevant to this matter, which are only answering questions regarding whether their client had insurance coverage, would result in injury to a motorist.”

The COA also rejected the accident parties’ claims that Old National “knowingly, intentionally, and fraudulently aided and abetted C&K to become a chameleon carrier” — changing its business identity to skirt enforcement of safety regulations. “However, the Accident Parties did not identify the tort it claimed ONI aided and abetted or conspired to commit, and thus no action can accrue,” May wrote.

“ONI did not owe the Accident Parties a common law duty, ONI did not assume a duty, and no statutory duty existed,” May concluded. “… Because all those theories of liability fail, the trial court erred when it denied ONI’s motion for summary judgment. Accordingly, we reverse and remand for proceedings consistent with this opinion.”

The case of ONB Insurance Group, Inc., d/b/a Old National Insurance, and Joseph E. Kenworthy v. The Estate of Joann Marie Megel, Deceased; the Estate of Edward J. Megel, Deceased; Darcy Megel; et al., 40A01-1707-CT-1513, was remanded for further proceedings.

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July 26

Guardianship — Special Needs Trust Funding

In Re the Matter of Guardianship of Timothy A. Robbins, an Adult

18A-GU-242

The Indiana Court of Appeals found a trial court exceeded its authority and made errors of law when it ordered only $1 million into a special needs trust after a settlement of more than $17 million.

In 2013, then-42-year-old Timothy Robbins sustained catastrophic, permanent injuries when he was side-swiped by a semitruck, resulting in Timothy being ejected from his vehicle. As a result of the accident, he sustained a devastating traumatic brain injury, multiple skull and facial fractures, and additional serious injuries. He requires full-time care for the rest of his life.

Timothy’s father was appointed to be the permanent guardian over Robbins and his estate. In a lawsuit against the tortfeasors responsible for the accident, the jury awarded damages to Robbins in the amount of $18.5 million. In post-trial mediation, the parties agreed to settle the case for $17.75 million.

His guardian was concerned that Robbins would lose eligibility for his Medicaid and Supplemental Security Income (SSI) benefits.

After paying attorney’s fees and costs, the net settlement to Timothy was $11.2 million. The structured settlement provided that $4.5 million of the net would be funded through two annuities, providing Timothy guaranteed monthly payments for 25 years, and that the remaining $6.75 million would be paid in a lump sum. Robbins’ guardian sought authority to create and fund the special needs trust with that lump sum.

But the Johnson Superior Court denied that request. It allowed only $1 million of the $6.75 million to be placed in the trust, ordering the remaining $5.75 million to be paid directly to the Guardianship Estate.

It reasoned that considerable expenses would have been shifted to the taxpayer, that the amount under the mediated agreement was adequate to meet Timothy’s future needs without public assistance, and that the trust fund appeared to “be for the benefit of the Guardian and the descendants of Timothy A. Robbins as opposed to Timothy A. Robbins.”

However, the appellate court reversed that ruling, acknowledging that even if the trial court had a genuine disagreement with the policy decisions of Indiana state and federal legislators, it is still bound to abide by them.

“While the trial court is free to disagree as to the wisdom of the legislature’s policy choices, the trial court exceeded the bounds of its authority by refusing to enforce this policy choice based on that disagreement,” Judge John Baker wrote for the court.

The appellate court also noted that the trial court’s refusal to place the full amount of the settlement proceeds into the special needs trust was a mistake of law. The court called the decision erroneous and a “legal impossibility” that the special needs trust would be designed to benefit his guardian or descendants.

“The judgment of the trial court is reversed in relevant part and remanded with instructions to direct that the full, available amount of settlement proceeds be placed in Timothy’s special needs trust,” Baker concluded.

The case is In Re the Matter of Guardianship of Timothy A. Robbins, an Adult, 18A-GU-242.

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July 31

Juvenile Termination of Parental Rights — Court-Appointed Special Advocates

In the Matter of the Involuntary Termination of the Parent-Child Relationship of Z.B., D.B., L.B., Me.B., Ma.B. (Minor Children) and A.B. (Mother) v. The Indiana Department of Child Services, et al.

18A-JT-318

The Indiana Court of Appeals ruled that court-appointed special advocates have the statutory authority to prosecute a petition to terminate parental rights, even when the Department of Child Services opposes the termination.

The court affirmed the Delaware Circuit Court’s termination of a mother’s parental rights to her five children in In the Matter of the Involuntary Termination of the Parent-Child Relationship of Z.B., D.B., L.B., Me.B., Ma.B. (Minor Children) and A.B. (Mother) v. The Indiana Department of Child Services, et al., 18A-JT-318.

A.B. is the mother of five children who had been adjudicated children in need of services in 2015 due to educational neglect, substance abuse, home conditions and lack of supervision. One of the children, Ma.B. was placed in the custody of her father.

In September 2016, DCS filed a petition to terminate A.B.’s parental rights as to the four younger children. On November 2016, the CASAs filed a petition to terminate Mother’s parental rights as to Ma.B.

DCS and A.B. moved to dismiss the petition concerning Ma.B., arguing the CASAs could not prosecute a petition to terminate parental rights where DCS did not support the petition. They also argued that letting a “CASA prosecute a termination petition is tantamount to letting a child prosecute a termination case against his or her parents.”

However, the Court of Appeals determined that because the Indiana legislature specifically authorizes CASA workers to independently initiate termination proceedings, they can also independently prosecute these matters.

“[O]ur legislature specifically created a mechanism for DCS — or a guardian ad litem or a CASA — to express opposition to a petition to terminate parental rights,” Judge L. Mark Bailey wrote for the court. “That motion may be successful, but when it is not, we discern no impediment to proceeding” with a TPR petition.

A.B. received a psychological evaluation, which revealed she has cognitive disabilities that affect “her day-to-day living, including increased difficulty with problem-solving, lack of [judgment], difficulty interacting with peers in her environment, and difficulty with problem-solving on behalf of children.” It also found that she had an IQ of 64 due to a previous traumatic brain injury.

During supervised visits in November 2016, therapists noted aggressive and violent behavior among the children and that A.B. was unable to focus on more than one child at a time. During the same time, Ma.B’s visitation with mother was suspended.

Ma.B., 11 at the time, had exhibited instances of self-harm prior to October 2016, and failed to make any improvement in therapy sessions between February 2016 and October 2016. After suspending visitation, Ma.B. made “significant improvement, including being happier and more optimistic, reducing negative behavior, and progressing academically.”

Ultimately, the appellate court found there was sufficient evidence to terminate A.B.’s parental rights to all five children for their safety and best interests.

The case is remanded to correct scrivener’s errors in entering orders pertaining to children D.B., L.B., and Me.B.

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Aug. 1

Criminal — Revocation of Probation/Procedural Error

Scott A. Hall v. State of Indiana

17A-CR-3022

Errors made in a petition filing were not sufficient to reverse revocation of a man’s probation, the Indiana Court of Appeals determined Aug. 1.

In July 2011, Scott Hall was convicted of burglary and received a 20-year sentence to be served in a home incarceration program through community corrections.

Five years into his probation, Hall was charged with attempted robbery and battery, which he later pleaded guilty to. At the request of Hall’s probation officer, the deputy prosecuting attorney filed a petition to revoke Hall’s placement in the home detention program, alleging Hall had violated the terms of his placement.

Hall admitted to the alleged violation, leading the Clark Circuit Court to revoke his placement. Hall was ordered to serve the balance of his previously suspended sentence in the Department of Correction.

On appeal, Hall argued the petition was not properly before the trial court because the deputy prosecuting attorney filed the petition rather than the director of the community corrections program.

But the appellate court found that any potential error was procedural, not jurisdictional, and that Hall did not preserve the issue for review in Scott A. Hall v. State of Indiana, 17A-CR-3022.

Hall also alleged that fundamental error occurred and said he was never properly advised of the allegations against him due to “numerous factual errors and incorrect law [sic] that were contained in the petition.”

“While the petition to revoke his placement in community corrections did contain some inaccuracies, none of those inaccuracies related to the violations of the community corrections program that the State claimed Hall had committed,” Judge Edward Najam wrote.

The appellate also court noted Hall had been given notice of claimed violations in order to prepare his defense, had an opportunity to defend himself during the hearing on the petition to revoke his placement and had received a written notice of the claimed violation. Therefore, it found that Hall did not demonstrate that the trial court committed fundamental error.•