Indiana Court Decisions – April 7-20, 2022

7th Circuit Court of Appeals

April 14

Paul Palmer, Jr. II v. Indiana University and The Trustees of Indiana University

21-1634

Summary judgment awarded to IU on Title VII complaint by professor

An Indiana University Kelley School of Business professor didn’t have his Title VII rights violated by his employer when the school didn’t provide him with an early promotion or when it paid one of his white colleagues more than him, the 7th Circuit Court of Appeals has ruled.

Paul Palmer Jr. II was hired to the business school’s marketing department in August 2010.

In January 2013, Palmer inquired to department chair Hari Shanker Krishnan about his potential for early promotion to senior lecturer. Krishnan told Palmer it was rare for lecturers to apply for senior lecturer prior to their sixth year and suggested that he wait, which he decided to do.

IU promoted Palmer to senior lecturer in August 2016.

In addition to his role as a lecturer, IU had hired Palmer, who is Black, to serve as diversity coach in the MBA program. The position paid an additional $25,000 per year and permitted Palmer to teach a reduced courseload.

Also in August 2016, the marketing department hired Josh Gildea, who is white, as a new lecturer. Gildea was also hired as director of the Business Marketing Academy, for which he earned a $30,000 annual stipend plus a $7,500 annual summer stipend, but did not also receive a teaching credit.

By February 2017, IU decided the diversity coach position should focus more heavily on recruiting, and that same month Palmer sent an email saying, “I am not the person who should be responsible for driving diversity recruiting at the [Kelley School of Business], nor am I interested in being the person.” Palmer decided to resign from his position as diversity coach effective at the end of the 2016–2017 school year.

Palmer emailed the chair of the marketing department, now professor Ray Burke, in July 2018 complaining about the fact that Gildea’s base salary had risen to nearly match Palmer’s base salary.

At the time, Palmer earned $98,750 and Gildea earned $94,000, with no other lecturer or senior lecturer in their department earning more than $90,000. Though Palmer was still the highest paid in the department at this time, his email to Burke said that Gildea’s salary increase “from a URM [under-represented minority] perspective … looks very biased.”

A few weeks later, Palmer emailed IU Associate Dean Laureen Maines, sharing his belief that “there [were] a number of situations where [Krishnan] ha[d] been actively biased and/or discriminated against [Palmer] as an under-represented US minority.”

Palmer followed up in a response email reiterating his concerns that he had “a number of issues over the last 5 years, where I feel [Krishnan] has acted in a … discriminatory manner against me.”

Burke announced that Gildea was seeking an early promotion to senior lecturer in February 2019. By that point, Gildea had taught more than five years’ worth of credits and had grown the BMA into the largest academy in the MBA program.

Palmer then sent another email to Maines reiterating his concerns, saying, “On August 10, we met via phone, where I outlined to you that I had a number of significant concerns regarding racial discrimination and/or bias by IU and [Krishnan] (as my department chair) against me.”

Palmer’s email said that “[d]uring the call,” he had detailed for Maines “how racial discrimination had negatively impacted” his salary and promotion to senior lecturer. He also expressed his frustration with Gildea’s consideration for early promotion.

Throughout his time as a lecturer and senior lecturer at IU, Palmer earned the highest base salary of any lecturer or senior lecturer in the marketing department. But Palmer earned less in aggregate than Gildea between 2017 and 2019, the 7th Circuit noted. Both Gildea and Palmer earned more each year than their base salaries but neither party provided an accounting to explain all the reasons, the court continued.

The parties agreed much of Gildea’s additional pay came from his teaching “overload” classes, which are classes taught beyond the required teaching load for a lecturer and for which lecturers are paid per additional class taught, according to the 7th Circuit. Additionally, it was undisputed that Gildea received higher percentage raises than Palmer in each of the three school years from 2017–2018 through 2019–2020.

On May 15, 2019, Palmer filed a charge with the Equal Employment Opportunity Commission alleging race discrimination in violation of Title VII. In that filing, Palmer stated that he had “outlined a significant number of concerns regarding racial discrimination” in his August 2018 call with Maines.

The EEOC then issued a right to sue letter and Palmer initiated this suit on Nov. 19, 2019.

Before the U.S. District Court for the Southern District of Indiana, Palmer alleged race discrimination in two forms: (1) IU’s failure to promote him to senior lecturer after his third year and (2) unequal pay.

For both claims, he presented Gildea as his only comparator, arguing that IU had discriminated against him based on his race because Gildea was promoted early to senior lecturer and earned more than Palmer in aggregate between 2017 and 2019.

The district court granted summary judgment to IU on all claims.

On the failure-to-promote claim, the 7th Circuit found Palmer missed the statutory deadline by several years and equitable tolling couldn’t save his claim.

“Palmer provides no case that would support a finding that the length of time he waited to file his claim was reasonable — regardless of whether that delay be counted as only three months (the amount of time he waited to file after he accused IU of discrimination over email in February 2019), nine months, or six years,” Senior Judge Joel Flaum wrote.

Regarding the unequal pay claim, the 7th Circuit concluded “Palmer’s narrow argument fails because Gildea’s income does not provide a proper framework for comparison.”

“Recognizing that Palmer’s duties were not all directly comparable to Gildea’s, Palmer attempts to advance his unequal pay claim by arguing that he was denied similar opportunities to teach overload classes,” Flaum wrote. “While the denial of an opportunity may provide the basis for a Title VII claim, it provides no basis for Palmer’s unequal pay claim, which requires unequal pay for equal work. Palmer cannot establish an unequal pay claim by arguing that a requirement for a successful claim — equal work — can be excused in the event of unequal opportunities.

“… Gildea taught so many overload classes between 2017 and 2019 that he completed five years’ worth of a lecturer’s teaching load in his first three years at IU,” Flaum continued. “… In short, Gildea’s overload courses enabled him to ramp up more quickly to the experience level of a lecturer who had worked for more years, and IU was entirely permitted to steepen his raises to account for that.”

Judge Frank Easterbrook concurred with additional comments in Paul Palmer, Jr. II v. Indiana University and The Trustees of Indiana University, 21-1634.

Indiana Supreme Court

April 13

Community Health Network, Inc. v. Heather McKenzie, et al.

20S-CT-648

Community Health wins reversal in dispute over family records

The Indiana Supreme Court has ultimately found a hospital is not liable after one of its ex-employees compromised confidential health records of several former patients and another former employee in a family feud.

In November 2020, the high court granted transfer in Community Health Network, Inc. v. Heather McKenzie, et al., 20S-CT-648.

In that case, Katrina Gray, then a medical records coordinator with Community Health Network, was placed on administrative leave and ultimately fired after she accessed her ex-daughter-in-law Heather McKenzie’s medical records and those of her family members.

Gray and McKenzie had previously worked together at Indiana Orthopedic Center, where Gray was McKenzie’s direct supervisor. Gray also set up McKenzie with her stepson, and the two eventually married and had children.

But around 2010, McKenzie’s relationship with the Gray family quickly deteriorated. Heather was fired from IOC, which she attributed to Gray, and she divorced Gray’s stepson.

Meanwhile, Gray was hired and trained as a medical records coordinator after Community Health was acquired by IOC. In that role, she was provided access to Epic, an electronic medical records system, and authorized to schedule appointments and release records of the patients only within the IOC.

Following an anonymous report that Gray had accessed a personal chart in violation of Community’s policies and employee conduct rules, an investigation revealed that Gray had accessed her own chart as well as the confidential health records of McKenzie, her new husband, the children and others.

McKenzie and other plaintiffs sued Community Health, bringing claims of vicarious liability under the doctrine of respondeat superior and negligent training, supervision and retention against Community, as well as claims of negligence and invasion of privacy/intrusion against the former employee.

The Marion Superior Court denied Community’s Trial Rule 12(B)(1) motion to dismiss the complaint and motion for summary judgment. An interlocutory appeal was granted and the Court of Appeals of Indiana reversed in part, remanding with instructions for the trial court to grant summary judgment in favor of Community on the invasion of privacy/intrusion claim.

At the threshold, the justices concluded that the trial court did not err in denying Community’s motion to dismiss for lack of subject-matter jurisdiction. But the high court determined that Community is entitled to summary judgment because it negated a required element on each claim.

Justices concluded that the Medical Malpractice Act does not apply to the plaintiffs’ claims against Community relating to Gray’s unauthorized access and disclosure of electronic medical records.

“Although this case presents a close call, on this record we conclude that Community’s internal business decisions and access protocols for medical records are not professional services provided to a patient,” Chief Justice Loretta Rush wrote for the unanimous panel.

It further found that the alleged misconduct was also unrelated to either the promotion of a patient’s health or the provider’s exercise of professional expertise, skillor judgment.

Turning to Community’s negation of a required element on each of the claims, the justices first found that an employee’s conduct may fall within the scope of employment even though it is unauthorized and violates an agreed-to policy. It also found genuine issues of material fact existed on the scope-of-employment issue.

“As such, both theories under which Plaintiffs seek to hold Community liable —negligent training, supervision, and retention and the doctrine of respondeat superior — can survive summary judgment. But this conclusion does not foreclose summary judgment to Community on different grounds,” Rush wrote.

The high court also held that Community was entitled to summary judgment on the vicarious liability claim based on Gray’s alleged negligence and on the negligent hiring, retention and supervision claim.

Lastly, it found that Indiana recognizes a tort claim for the public disclosure of private facts, but the undisputed evidence negates the tort’s publicity element.

“We affirm the trial court’s denial of Community’s motion to dismiss for lack of subject-matter jurisdiction because Plaintiffs’ claims are not subject to Indiana’s Medical Malpractice Act. But we reverse the denial of Community’s motion for summary judgment because Community has affirmatively negated a required element on each of the claims against it,” Rush wrote. “We thus remand to the trial court with instructions to enter judgment in favor of Community on all claims.”

Court of Appeals of Indiana

April 7

Justin Yeary v. State of Indiana

21A-CR-1080

Trial court didn’t properly instruct jury in drug-induced homicide case

A trial court’s erroneous decision to reject a defendant’s proposed preliminary instructions has led to the reversal of the defendant’s drug dealing conviction. But the Court of Appeals of Indiana left open the possibility of a retrial due to other significant evidence, including evidence of text messages sent and received by a man who died of a drug overdose.

In 2019, Tyler Humphrey was a 23-year-old student at Indiana University Purdue University-Indianapolis. He had been diagnosed with social anxiety and depression, and doctors had prescribed Xanax and Lexapro.

On Feb. 8, 2019, Humphrey texted Bryan Kavensky that he was “fiending,” a term for experiencing drug withdrawal. Kavensky informed Humphrey he could buy heroin from Justin Yeary.

Humphrey got Yeary’s phone number from Kavensky, then agreed to visit Yeary’s home in Noblesville to buy two grams of heroin, which he would split with Kavensky. A little after 6:30 p.m., Humphrey texted Yeary, “Sniffed half a point and I have no words[.] Except for holy s*** I am high on drugs[.]”

Later, Humphrey, his sister and his mother, Geralyn, spent the evening watching television and eating cookies in the living room. Geralyn testified that her son was “fine” and acted “normal” throughout the evening. When Humphrey’s father, Michael, arrived home around 11:30 p.m., he saw his son sleeping in his bedroom.

But around 3:30 p.m. the next day, Geralyn opened Humphrey’s door and saw him slumped over.

Humphrey did not have a pulse when Zionsville police arrived. An officer began to assist with CPR and administered Naloxone, but those efforts were unsuccessful and Humphrey died at the scene.

A toxicology report indicated Humphrey had therapeutic levels of Xanax and an antidepressant in his system at the time of his death, as well as an elevated level of fentanyl. The report did not indicate Humphrey had any heroin in his system.

Dr. Thomas Sozio, a forensic pathologist who performed an autopsy on Humphrey, concluded the cause of death was “acute fentanyl, citalopram, and alprazolam intoxication … The combination of all three of those drugs together caused an intoxicated state resulting in respiratory depression and cardiac arrest or his heart stopping.”

About two months later, the state charged Yeary with Level 4 felony dealing in a narcotic drug. The charging information was later amended to include a charge of Level 1 felony dealing in a controlled substance resulting in death, known as drug-induced homicide.

Yeary filed a motion to dismiss the DIH count, arguing the state statute was unconstitutional under both the U.S. and Indiana constitutions. But the Hamilton Superior Court dismissed the motion, and the Court of Appeals refused to accept jurisdiction over an interlocutory appeal.

At a subsequent pretrial hearing, the state objected to two of Year’s proposed preliminary instructions, which addressed the definitions of “cause-in-fact,” “proximate cause” and “intervening or overriding cause.” The court took the objections under advisement.

At his jury trial in March 2021, Yeary renewed both his motion to dismiss and his request for proposed preliminary jury instructions. The trial court denied both motions.

The jury returned guilty verdicts on both counts, and the trial court entered judgment of conviction as to the DIH count. Yeary was sentenced to 35 years, with 25 years executed in the Indiana Department of Correction, three years served in community corrections and the remaining seven years suspended, with four of those years served on probation.

On appeal, Yeary raised multiple issues, including:

• Whether Indiana Code § 35-42-1-1.5, the DIH statute, violates the United States Constitution and/or the Indiana Constitution.

• Whether the trial court erred in refusing to give Yeary’s proposed jury instructions on causation.

• Whether the text messages the victim sent in the days prior to his death were relevant to Yeary’s defense.

On the first point, Yeary argued subsection (d) of the DIH statute so waters down the causation element of the DIH offense as to effectively relieve the state of the burden of proving a causal connection. The COA disagreed.

“Indiana’s DIH statute does not violate the due process clause of the Fourteenth Amendment, as Yeary has alleged, because it does not relieve the State of the burden of proving causation,” Judge Melissa May wrote, pointing to Pattison v. State, 54 N.E.3d 361 (Ind. 2016).

Yeary also asserted subsection (d) of the DIH statute unconstitutionally infringed upon his right to present a defense, but that argument was also rejected by the COA. Additionally, he failed in his argument that the DIH statue was too vague.

But on the second issue, the Court of Appeals determined the trial court erred in denying Yeary’s proposed jury instructions.

“Due to the ambiguity regarding precisely what drugs and in what quantities Tyler took over the time period leading up to his death, the jury’s verdict likely turned on its understanding of the legally required causal connection between the drugs Yeary sold Tyler and Tyler’s death,” May wrote. “Therefore, the trial court’s instructional error cannot be called harmless, and we reverse Yeary’s conviction of dealing in a controlled substance resulting in death.”

While the conviction was reversed, the COA noted the state may choose to retry Yeary due to significant evidence.

The COA also addressed Yeary’s argument regarding the relevance of the text messages Humphrey sent and received in the days preceding his death “because of the likelihood the issue will present itself on retrial.”

The appellate court determined the texts are relevant to the case.

“The text messages point to potential alternate sources of the fentanyl Tyler ingested, and therefore, they affect the probability of whether the drugs Yeary sold Tyler proximately caused Tyler’s death,” May wrote. “Consequently, at least portions of Defense Exhibits G and H are relevant to the issue of causation.”

In a footnote, the COA wrote, “Admission of the exhibits at retrial is still contingent upon a proper foundation being laid, and we do not comment on whether such a proper foundation was laid before the trial court here because we reverse Yeary’s conviction on other grounds.”

The case is Justin Yeary v. State of Indiana, 21A-CR-1080.

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April 14

Parkview Hospital Inc. v. American Family Insurance Company

21A-PL-1369

Insurance company found not liable for more than policy cap

A dispute between a Fort Wayne hospital and an insurance company over payment of medical care returned to the Court of Appeals of Indiana, which found the insurance provider’s obligation under the state’s Hospital Lien Act is not greater than its policy limits.

Parkview Hospital filed a lien under Indiana’s Hospital Lien Act, Indiana Code §§ 32-33- 4-1 to -8 (2015), after it provided $95,541.88 in medical care to Carl Willis. Although he was injured in an auto accident in Ohio, Willis was treated at Parkview.

Willis filed a personal injury lawsuit in Ohio against the parties responsible, American Family and several other defendants. Eventually, the lawsuit was settled but Parkview was not informed and its lien was not satisfied. The Ohio court then ordered American Family to issue the settlement check for $50,000 made payable to Willis and his wife and their attorney, Bolotin Law Offices.

Parkview responded by filing a complaint in Allen County against American Family and Willis. The hospital obtained a default judgment against Willis. When the trial court denied the motions for summary judgment filed separately by American Family and Parkview, the parties filed an interlocutory appeal.

In Parkview Hosp. Inc. v. Am. Fam. Ins. Co., 151 N.E.3d 1218 (Ind. Ct. App. 2020), the Court of Appeals concluded the Ohio court’s order did not justify American Family’s failure to comply with the lien act and the insurance company violated the act when it paid the settlement proceeds to the Ohio plaintiffs and their attorney without satisfying Parkview’s lien. As to whether American Family had violated the Act, the appellate panel held that Parkview was “entitled to judgment as a matter of law.”

On remand, the trial court entered judgment for Parkview in the full amount of the lien, or $95,541.88. The court tacked on additional costs including prejudgment interest of 8% per annum from April 2, 2018.

The case was again appealed to the Court of Appeals, with American Family filing a cross-appeal, arguing the trial court erred when it awarded Parkview the full amount of its hospital lien rather than capping the liability the insurance policy’s limit of $50,000.

In Parkview Hospital, Inc. v. American Family Insurance Company, 21A-PL-1369, the Court of Appeals agreed and reversed the trial court’s judgment that American Family had to pay more than the policy’s $50,000 cap.

In reviewing the hospital lien statute, the appellate panel noted the language provides for “the release or settlement of a claim with a patient by a person claimed to be liable for damages incurred by the patient … .”

The Court of Appeals also pointed out its first opinion in this case and Parkview wrongly identified American Family as insuring Joseph Gregg and Michael Gregg, the parties responsible for the accident. American Family insured Willis and provided the underinsured motorist coverage while State Farm Insurance Co. insured the Greggs.

At the outset, the appellate court noted, Parkview’s attempt to recover the full amount of its hospital lien from American Family was based on the faulty premise that the insurer provided liability coverage for the parties responsible for the injuries.

“… We conclude that because American Family insured the patient and not ‘a person claimed to be liable for the damages incurred by the patient,’ American family is not chargeable for the entire ‘reasonable cost of the hospital care, treatment, and maintenance’ that Parkview provided to the patient,” Judge Edward Najam Jr. wrote.

“Had American Family done what it should have done and included Parkview as a payee on its $50,000 settlement draft, Parkview would have received all it was due from American Family,” Najam continued. “When American Family failed to comply with the Act, it assumed the risk of having to pay the $50,000 policy limits twice, but that failure does not entitle Parkview to be placed in a better position than it would have been if American Family had simply complied with the Act in the first instance.”

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April 18

The Estate of Michael David Estridge, Sr. v. Lana Ann Taylor

21A-DN-1379

COA affirms marriage, widow gets pension

A terminally ill firefighter’s marriage days before his death to a woman who was 36 years his junior and the beneficiary of his pension was upheld by the Court of Appeals of Indiana, which found no evidence to support his children’s contention that the nuptials should be annulled because their father’s mental capacity was impaired by pain medication.

Michael David Estridge and Lana Ann Taylor, both firefighters and paramedics, had been involved romantically since 2016 and became engaged in 2018, but they did not set a wedding date. Although they shared the news of their engagement with their colleagues at the fire department, they did not tell their families because they were afraid their relatives would not accept their age difference.

About a year before they started dating, Estridge was diagnosed with cancer. Taylor assisted Estridge with his medical care and appointments and took on caregiver duties. Estridge’s condition worsened until his doctors at the University of Chicago Hospital advised him his cancer was too advanced and his best option was palliative care at home.

Taylor and some of his firefighter friends drove Estridge home to Indianapolis on May 2, 2019. Although he had been prescribed pain medication, Estridge was described by his physician as able to make complicated decisions and alert neurologically. In the car ride home, he was interacting with Taylor and his friends.

During the ride, Taylor asked Estridge if he still wanted to get married. When he said yes, Taylor and the others began calling people to make plans. The couple stopped by the Firefighters Credit Union to get their marriage license notarized, and Estridge signed a pension benefits beneficiary designation listing Taylor as his spousal beneficiary.

When they arrived at the City-County Building in downtown Indianapolis in the late afternoon, they were married by the fire chief. Estridge died four days later.

Estridge’s children were not told of the marriage prior to the wedding ceremony. After Taylor refused to get an annulment, Estridge’s estate filed a petition to annul the marriage, alleging, in part, Estridge’smental incapacity.

A bench trial was held in Marion Superior Court, with both sides presenting their own experts. Taylor’s expert maintained Estridge was competent, but the estate’s expert told the court he did not have sufficient information to even attempt to determine the groom’s mental competency during the ceremony.

The trial court denied the petition to annul, and the Court of Appeals affirmed in The Estate of Michael David Estridge, Sr. v. Lana Ann Taylor, 21A-DN-1379.

Judge Patricia Riley wrote for the appellate panel, “The trial court was presented with ample evidence and expert testimony from which it could reasonably infer that Estridge was incapable of understanding the nature of the marriage contract he was about to enter into and therefore was mentally competent at the time the marriage was solemnized. … Our review of the same evidence does not unerringly lead to a different conclusion.”

Because Taylor is the pension beneficiary, Estridge’s pension will pay her a monthly benefit of $2,711.34 for the remainder of her life, which equates to about $1.6 million. If the marriage had been annulled, the estate would have received the value of Estridge’s contribution to the pension plan, which would have amounted to about $170,000.

The estate had urged the Court of Appeals to correct the unjust result or the public pension system would be adversely affected because “[e]very single, terminally ill, unretired firefighter would have the power to bestow a great gift on others who have not been — and could not be — accounted for.”

But the appellate panel cited the judiciary’s hesitancy to “inquire into the quality of a marriage” and noted, conversely, that the Indiana General Assembly could take such action.

“Although the legislature statutorily encapsulated the rules for the firefighters’ pension funds, it did not include any limitation on who can be a spouse or the length of time of marriage,” Riley wrote, referring to Indiana Code § 36-8-8-13.8. “Therefore, in the absence of any statutory guidelines to analyze a marriage for quality and quantity attributes such as love, companionship, and length of time, we decline the Estate’s invitation to impose any jurisprudentially.”

However, the COA denied Taylor’s argument on cross-appeal that the trial court abused its discretion in denying her an award of attorney fees.

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April 19

Town of Linden, Indiana, Montgomery County, Indiana, Montgomery County Commissioners, Montgomery County Drainage Board, and Montgomery County Surveyor v. Darrell Birge and Sandra Birge

21A-PL-1811

Drainage dispute reversed

A Montgomery County couple concerned about flooding on their property due to drain improvements made for a local town faced a reversal after the Court of Appeals of Indiana found a trial court wrongly ruled in determining a permanent physical invasion had taken place on their land.

In September 2014, Darrell and Sandra Birge sued the town of Linden and the Montgomery County commissioners, drainage board and surveyor after improvements were completed to an existing regulated drain to alleviate flooding issues in Linden and the surrounding areas.

Part of the drain runs through a preexisting drainage easement on the Birge’s property, which they use for farming. The Birges claimed that once the drain was improved in 2012, they began to notice water ponding on the lower-lying areas of the property after any significant rainfall.

The flooding made it hard to farm those parts of their property, so the Birges refused to pay the $7,679.23 assessment levied against them by the drainage board.

The Birges filed an action for inverse condemnation, and the Court of Appeals reversed the town’s granted motion to dismiss on the premise that it was immune from liability under the Indiana Tort Claims Act.

On remand, the trial court denied the defendants’ motion for summary judgment. It ultimately issued a judgment and order finding that the improvements to the drain had caused repeated flooding on the Birges’ property.

But the COA reversed and remanded in Town of Linden, Indiana, Montgomery County, Indiana, Montgomery County Commissioners, Montgomery County Drainage Board, and Montgomery County Surveyor v. Darrell Birge and Sandra Birge, 21A-PL-1811.

In addressing whether the trial court erred in concluding that the effects of the drain on the Birges’ property constituted a compensable taking, the COA agreed with the defendants that the evidence did not indicate that there had been a permanent physical invasion.

“The evidence established instead frequent, periodic flooding of the land,” Judge Elizabeth Tavitas wrote. “The Defendants claim that such non-permanent flooding cannot constitute a taking. With this, we disagree.”

In applying precedent from Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 34, 133 S. Ct. 511 (2012), and Penn Central Transportation Co. v. New York City, 438 U.S. 104, 125 S. Ct. 2646 (1978), the COA concluded that the trial court erred as a matter of law when it found that the frequent but nonpermanent flooding of the property constituted a permanent physical invasion of the property and a per se taking.

As for the other issues raised, the COA noted that the trial court made no reference to the highest and best use of the property when it concluded that there had been a taking, that there was sufficient evidence to support the trial court’s finding that the flooding was caused by the drain improvements and that the trial court did consider the easement in its takings finding.

“Accordingly, we reverse the trial court’s takings determination and remand with instructions that the trial court consider the Penn Central/Arkansas Game factors in determining whether the intermittent flooding of the Property caused by the improvements to the Drain constitute a taking of the Property,” Tavitas wrote.•