Indiana Court Decisions – July 18-31, 2019

7th Circuit Court of Appeals

July 26

Civil Plenary — Employment Discrimination, Retaliation/Summary Judgment

Damon Stepp v. Covance, Inc.

18-3292

The 7th Circuit Court of Appeals has reinstated a man’s lawsuit alleging his former employer refused to hire him permanently in retaliation of prior discriminatory complaints he filed.

Damon Stepp formerly worked for medical test kit manufacturer Covance, Inc., as a temporary assistant in its kits production department. Stepp, an African-American man, had complained about mistreatment after two of his temporary co-workers hired just weeks before him were made permanent employees while he was not.

Covance generally promotes its positive performers to permanent status within four to nine months of a worker’s start date. Although Stepp had received positive performance reviews in his first nine months, he was never advanced with his co-workers. Stepp also filed complaints against his team leader for allegedly treating female and white workers better than male and African-American employees. When his claims were found to be “baseless” by a manger, Stepp filed two formal charges of discrimination with the Equal Employment Opportunity Commission.

Around the nine-month mark of his tenure and in the same month he filed his second charge, Covance initiated a freeze of new hires in Stepp’s department. A supervisor informed Stepp that he had not been promoted to permanent status because his team leader had complained that Stepp had “stared at him, shook his head, smirked, and said ‘uh oh.’”

Stepp sued his former employer after his temporary one-year term ended, alleging race and sex discrimination and retaliation in violation of 42 U.S.C. §§ 2000e-2, 2000e-3, and 1981. The Southern Indiana District Court granted summary judgment to Covance, finding Stepp had not alleged his failure-to-promote retaliation claim in his complaint and that his opposition to summary judgment was too late to raise it.

In a per curiam opinion, the 7th Circuit vacated the district court’s judgment in Damon Stepp v. Covance, Inc., 18-3292, upon finding a reasonable jury could find Covance did not promote Stepp to permanent employment in retaliation for his complaints about discrimination.

“Stepp filed a charge with the EEOC in September, the same month that he hit his nine-month anniversary and Covance refused to make him permanent. This makes the adverse action virtually contemporaneous with the protected activity. True, suspicious timing, standing alone, is not necessarily enough to support an inference of discrimination. But when suspicious timing is accompanied by corroborating evidence — as it is here — a jury, not a judge, should make the decision about retaliation,” the panel wrote.

The 7th Circuit further noted that Covance treated other employees better than Stepp when his comparable co-workers were promoted while he was not. Covance’s preferred explanation for not promoting Stepp “buttresses rather than undercuts an inference of retaliation” in that its only explanation for not promoting Stepp was the hiring freeze.

“But the freeze occurred two months after Stepp reached nine months at Covance, so it cannot explain Covance’s inaction at month nine. On the contrary, Covance’s insistence that it did not promote Stepp because of the freeze could suggest to a trier of fact that retaliation was its true motive for not making Stepp permanent,” the panel wrote.

“Finally, Ball’s statement that Covance did not make Stepp permanent before the freeze because Casteel had complained about Stepp also supports an inference of retaliation. The flimsiness of (team leader David) Casteel’s complaint (stares and smirks) and its timing (before the freeze) would permit a reasonable juror to conclude that what truly irked Casteel and motivated Covance to refuse to promote Stepp were Stepp’s charges of discrimination,” it wrote, remanding the case.

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July 30

Criminal — Sentence Enhancement/Void for Vagueness

USA v. Douglas Jackson

15-3693

The 7th Circuit Court of Appeals will stick with its initial decision to vacate and remand two men’s sentences after the United States Supreme Court concluded that the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague.

Writing in a consolidated appeal of USA v. Douglas Jackson, 15-3693 and USA v. Antwon D. Jenkins, Circuit Judge Michael Kanne noted that the 7th Circuit held in United States v. Cardena, 842 F.3d 959 (7th Cir. 2016) that the statute, which partially defines a crime of violence, was unconstitutionally vague.

In relying on that precedent, the 7th Circuit vacated both Jenkins’ and Jackson’s convictions for using or carrying a firearm to commit a federal crime of violence. Jackson had been convicted and sentenced in the U.S. District Court for the Northern District of Indiana.

The 7th Circuit consolidated the appeals and reconsidered after the Supreme Court vacated and remanded both decisions in light of its decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The Supreme Court, Kanne wrote, splintered on rationales as to the vagueness of the statute, which defined a crime of violence as a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

“Thus, after Dimaya, future residual-clause challenges faced an uncertain future. Some members of the Court were signaling increased discomfort with the use of the categorical approach. And the courts of appeals took notice. The First, Second, and Eleventh Circuits all held that § 924(c)(3)(B) could be interpreted constitutionally by rejecting application of the categorical approach,” the panel wrote. “But the circuits with pre-Dimaya precedent finding § 924(c)(3)(B) unconstitutionally vague did not reverse themselves in anticipation of the Court’s next opinion.

“In [United States v. Davis, 903 F.3d 483 (5th Cir. 2018)], the Court ended the waiting. Writing that ‘a vague law is no law at all,’ Justice Gorsuch found that § 924(c)(3)(B)’s language required use of the categorical approach and thus that it was unconstitutionally vague. Although a case-specific approach would alleviate the vagueness, the Court concluded that ‘the statute simply cannot support’ the use of that approach,” Kanne continued.

“Davis vindicates our opinion in Cardena, and so the question the Court remanded for us to consider in these appeals has now been answered by the Court itself. Nothing remains to decide with respect to Jenkins and Jackson. We will vacate and remand for full resentencing,” the panel concluded.

The 7th Circuit thus vacated and remanded both Jenkins’ and Jackson’s convictions. It likewise vacated and remanded in Jackson’s case for resentencing.

Indiana Court of Appeals

July 23

Civil Tort — Medical Malpractice/Motion to Enforce Offered Settlement

Richard L. Wallen, Individually, and as Personal Representative of the Estate of Cathy L. Wallen, Deceased v. Dr. Steven Hossler, M.D., and Radiologic Associates of Northwest Indiana, P.C.

19A-CT-40

A widower may pursue excess damages from the Indiana Patient’s Compensation Fund upon the Indiana Court of Appeals’ finding that nothing in the Medical Malpractice Act requires him to accept a settlement offer from the doctor he alleged was responsible for his wife’s death.

Not long after Cathy Wallen was diagnosed with a pulmonary embolism and was admitted to Porter Regional Hospital, she began to experience severe abdominal pain. An C-ray and CT scan interpreted by radiologist Dr. Steven Hossler revealed no internal bleeding, but rather gallstones.

There was internal bleeding, however, and Cathy ultimately died after suffering from bleeding within her abdomen, hemorrhagic shock and multi-system organ failure.

Cathy’s husband, Richard Wallen, sued Hossler for medical malpractice, alleging his negligence resulted in her death. Hossler declined an offer from Wallen to settle the claims for $250,000, the applicable statutory cap for a single medical malpractice claim, which would allow Wallen to pursue additional damages from the Indiana Patient’s Compensation Fund.

When Hossler later offered the same proposal subject to 13 conditions, Wallen refused. Hossler then argued that pursuant to the Medical Malpractice Act, the fund was the “real party in interest” once Hossler had offered to pay the statutory cap for his liability.

The Porter Superior Court ultimately granted Hossler’s motion to enforce the act upon finding one distinct act of negligence and one distinct injury, concluding the act applied and the matter should proceed against the Patient’s Compensation Fund. It subsequently certified the order as a final appealable order under Trial Rule 54(B) and Wallen appealed, arguing the trial court erred when it granted Hossler’s motion to enforce.

First, Wallen asserted that nothing in the act required him to accept the conditional settlement offer and forgo a jury trial against Hossler. He next questioned whether the two alleged separate acts of medical malpractice with two distinct injuries to Cathy were questions of fact reserved for a fact finder.

The Indiana Court of Appeals reversed and remanded the trial court’s decision in Richard L. Wallen, Individually, and as Personal Representative of the Estate of Cathy L. Wallen, Deceased v. Dr. Steven Hossler, M.D., and Radiologic Associates of Northwest Indiana, P.C., 19A-CT-40, finding that under the express provisions of the act, Wallen could pursue excess damages from the fund either after a jury trial or after he had entered into a settlement agreement with Hossler. The act, the appellate court concluded, does not require Wallen to accept Hossler’s offer to settle, and the trial court erred in requiring he do so.

“A settlement is, by definition, a voluntary agreement to resolve contested issues. In other words, a settlement cannot be compelled,” Judge Edward Najam wrote for the court. “That is especially true here, where Dr. Hossler’s offer was encumbered by thirteen conditions, which were unacceptable to Wallen. Wallen may agree to settle with Dr. Hossler, or Wallen may choose to proceed to trial.”

However, the appellate court agreed with the trial court that Hossler’s alleged misdiagnosis and failure to diagnose occurred simultaneously and, therefore, constituted “one distinct act of negligence.”

“While, on another set of facts, a misdiagnosis and a failure to diagnose might constitute two distinct acts of medical negligence, in this case the two are one and the same,” Najam wrote. The panel therefore found the trial court did not err in concluding Wallen was not entitled to recover more than one statutory cap in his claims.

Judge John Baker concurred with the result reached by the majority and concurred with its analysis as to whether a settlement could be compelled. But in a separate opinion, he parted ways with the panel as to how many statutory caps were at issue.

“In my view, there were two different acts of medical malpractice,” Baker opined. “But I do not think that it matters, inasmuch as there was only one injury — Cathy’s death.”

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July 30

Criminal — Invasion of Privacy/Admission of Text Messages

Randy Rogers v. State of Indiana

18A-CR-3023

A man convicted of battery resulting in bodily injury and invasion of privacy after he assaulted a woman failed to convince the Indiana Court of Appeals that an incriminating text he sent the victim was improperly admitted.

Randy Rogers’ conviction of the misdemeanor counts was affirmed in Randy Rogers v. State of Indiana, 18A-CR-3023. According to the record, Sierra Johnson and her best friend, Jasmine Arnold, returned from a club to Arnold’s apartment that she shared with Rogers, after which Rogers assaulted Johnson, causing her minor injuries.

After he was charged with four counts, prosecutors ultimately dropped a misdemeanor domestic violence count and a count of Level 6 felony attempted obstruction of justice, and Rogers was convicted of the battery and invasion of privacy counts.

At his trial, defense counsel initially objected to a text Rogers had sent to Johnson while she was meeting with a victim advocate, and while a no-contact order was in place. In the text, Rogers apologized, recounted their many-year friendship, and wrote, “We can talk about everything outside of court. But u DON[’]T have to testify. U know I love u like a little sister, and things got out of control that night. Do u want me to go to jail? I mean I did 3 weeks already. But if I’m convicted I’m facing jail. This is serious.”

Rogers’ counsel initially objected to the admission of the text, arguing its foundation had not been established, but on the record at sentencing, Rogers’ counsel said he no longer contested the authenticity of the text.

“We note that while Rogers’s counsel initially objected to the admission of the exhibit, he later stated ‘the Court has already found identity for the purposes of the text messages we’re no longer contesting that he sent this beyond a reasonable doubt at this time,’” Judge Elaine Brown wrote for the panel. “Rogers has waived this issue, and in any event we could not say that reversal is warranted.

“The record reveals that Johnson testified she knew Rogers for about ten or eleven years and received a text from him while there was a no contact order in place and while she was in the victim advocate’s room. When showed (the text), Johnson indicated that the exhibit constituted ‘[t]exts from Randy’ and that they accurately reflected the text messages she received…,” Brown wrote. “Johnson also testified that she received the messages via text from Randy on her phone, that he is the only Randy she has in her phone, that she knows the defendant by Randy, and that if she were receiving text messages from Randy it would be from the defendant.

“The content of the text messages referred to the relationship between Rogers and Johnson, mentioned Jasmine, who Rogers testified he lived with, mentioned the night of the offense, included an apology, informed Johnson that she did not have to testify, and referenced the prospect of jail time,” Brown continued. “Under the circumstances, we cannot say that the trial court abused its discretion in admitting the evidence.”

Miscellaneous — Tax Deed/Failure to Provide Landowner Notice

Indiana Land Trust Company, f/k/a Lake County Trust Company TR #4340 v. XL Investment Properties, LLC, and LaPorte County Auditor

18A-MI-2150

The LaPorte County auditor’s failure to check records that would have revealed the actual address of a Michigan City property owner whose land was sold without notice for back taxes was a denial of constitutional due process, the Indiana Court of Appeals ruled. The appeals court reinstated the landowner’s challenge to the tax sale results and remanded the case.

The appellate panel’s ruling in Indiana Land Trust Company, f/k/a Lake County Trust Company TR #4340 v. XL Investment Properties, LLC, and LaPorte County Auditor, 18A-MI-2150, could void the tax deed issued after 30 acres known as Trust 4340 were sold for unpaid taxes in 2015. According to the record, unpaid property taxes in excess of $230,000 dating to 2009 were owed on the land.

The owner of the land that used to be part of a municipal airport, Chicago developer Peter Dellaportas, had moved his business, Midwest Investment, over the years. Dellaportas never received notice of the tax sale until the buyer, XL Investment Properties, filed a quiet title action in December 2016, after the county had issued a tax deed.

In March 2017, Dellaportas’ entities sued XL and the LaPorte County auditor seeking to set aside the quiet title and tax deed, but the trial court affirmed for XL and the auditor. It found, among other things, that after certified and first-class mail to the owner was returned, the auditor was under no obligation to take additional steps to notify the property owner. “Due process does not require that a property owner receive actual notice before the government may take his property,” LaPorte Superior Judge Richard Stalbrink wrote as a finding of fact in his order.

The trial court also found Dellaportas’ suit was untimely filed, but the appeals panel ruled the court erred in both instances. Judge John Baker took particular aim at the LaPorte auditor’s reading of 2015 amendments to Indiana Code § 6-1.1-24-4, which the office cited for its insistence that it owed no duty to search its records for the landowner’s actual address before selling the property.

“It has long been settled in Indiana that to comply with due process in tax sale proceedings, county auditors are charged with the knowledge of their own records and are required to search those records,” Baker wrote. He added in a footnote that, “The unchallenged testimony provides that after August 7, 2015, the Auditor would have been able to locate the correct address for Trust 4340 in its internal, searchable ‘Low’ system.”

The COA also noted in this case that LaPorte auditor employees under oath said they did not attempt to notify owners of tax sales after a notice was returned. One employee was asked, “So you could (not) have cared less if notices were returned?” The employee replied, “That’s right.”

“The General Assembly does not have the authority to codify away constitutional protections. Therefore, despite the language of Indiana Code section 6-1.1-24-4, the Auditor was required to search its records for a better address for Trust 4340 after the certified mail notice was returned as not deliverable,” Baker wrote for the panel. The panel also rejected the auditor’s argument that its notice efforts were reasonable because of Dellaportas’ failure to update his office address.

The COA panel also reversed the trial court finding that the suit was untimely.

“The trial court’s rationale for finding the motion untimely filed primarily focuses on the length of tax delinquency, as well as Trust 4340’s actions, before the tax sale, rather than the period of time that elapsed after the tax deed was issued. There is no caselaw supporting this analysis,” Baker wrote. “By their very nature, tax sales always occur after a period of tax delinquency, often a lengthy one. Therefore, if trial courts could focus on the period of delinquency as opposed to the period of time elapsed after the tax sale occurred, there would be no point in the ‘reasonable time’ exception.”

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July 31

Criminal — Dealing Methamphetamine/Prosecutorial Misconduct, Double Jeopardy

Lola M Sells v. State of Indiana

18A-CR-02691

A woman’s conviction for dealing meth was upheld after the Indiana Court of Appeals found no issue with comments made by the Franklin County prosecutor in response to allegations raised by defense counsel.

Lola Sells was convicted of Level 3 felony dealing methamphetamine after one of her clients was found dead in a parking lot due to an overdose. The client, Felicia Craig, had purchased 7 grams of meth from Sells and ate all of it just before being pulled over by a law enforcement officer for a traffic violation.

Before Sells’ first jury trial began, a mistrial was declared, and the jury was discharged after the trial court concluded that the disclosure of issues in media coverage “of matters resolved on the record out of the presence of the jury before the production of evidence” so tainted the jury that no limiting instructions could cure the defect.

In the second jury trial, Sells argued that the state had failed to prove she dealt or conspired to deal meth in Franklin County. Sells’ counsel then argued that the state was “turned down everywhere else” resulting in the Franklin County prosecutor’s decision to take the case. The defense attorney then accused the state of “forum shop[ping]” and accused the prosecutor of finding facts “[t]o make [the prosecution in Franklin County] work” and to “fit the narrative … [b]ecause” otherwise “there’s no crime here … .”

At the prosecutor’s objection to Sells’ suggestion that the state suborned perjury from two witnesses, the trial court stated Sells’ attorney was “permitted to characterize the evidence.” On rebuttal, the prosecutor argued the evidence of Sells’ guilt was overwhelming and added that her attorney should not try to tell him that he is “unethical” or that he “conspired.”

The trial court then overruled an objection from Sells that the prosecutor’s use of the word “unethical” was a means to allegedly attack the defense, finding that the prosecutor was “characteriz[ing] what he heard” during Sells’ closing argument. Nonetheless, the trial court admonished the jury that the attorneys’ arguments were not evidence. Sells was ultimately found guilty.

The Indiana Court of Appeals affirmed Sells’ conviction in Lola M Sells v. State of Indiana, 18A-CR-02691, first finding that Sells did not preserve her double jeopardy argument regarding her second trial.

It further concluded there was no issue with the Franklin County prosecutor’s comments on rebuttal, which “were wholly in response to the allegations and inferences raised by Sells during her closing argument and did not go beyond such a response.” The appellate court thus found Sells opened the door for comments to be made and rejected her prosecutorial misconduct arguments.

The appellate court additionally found Sells’ argument under Article 1, Section 14 must fail and that the state met its burden to establish venue in Franklin County.

“The charges of dealing and conspiracy to deal were integrally related charges. Sells’ delivery of methamphetamine to Craig was part of a single chain of events intended to culminate in the delivery of the methamphetamine to (Adam) Wagner, and in performing those acts Craig drove through Franklin County,” Judge Edward Najam wrote for the court.

Criminal — Domestic Battery/Denial of Public Defender

Quintin D.E. Davis v. State of Indiana

19A-CR-631

A man who was convicted of domestic battery after being denied his request for a public defender has failed to convince the Indiana Court of Appeals that his 11th-hour request for counsel should have been granted.

Quintin Davis’ Class A misdemeanor conviction was affirmed in Quintin D.E. Davis v. State of Indiana, 19A-CR-631. Davis and his girlfriend, L.W., had gotten into a fight over who could have the last bottle of Pepsi in their home, leading to L.W. spilling the Pepsi and Davis taking L.W.’s bag of Skittles and smashing her phone into the side of the bed. L.W. wanted to leave after that, but Davis apologized and allowed L.W. to break his phone in retaliation.

The next morning, L.W. was preparing to move out when Davis took her cigarettes, prompting another argument. This time, Davis pushed L.W. onto her 2-year-old son, then pinned her down and began hitting her in the face. L.W.’s daughter witnessed the altercation and was crying.

L.W. called police, but the two then resumed their fight, with Davis breaking L.W.’s laptop and L.W. falling onto a glass table. When officers arrived, Davis cursed at them, balled his fists and didn’t comply with their orders.

Davis was charged with three counts, including felony battery against a public safety officer and misdemeanor counts of domestic battery and resisting law enforcement. He told the Delaware Circuit Court in January 2018 that he intended to represent himself, and after a hearing the trial court found him competent to proceed pro se.

Davis later selected a Jan. 24, 2019, trial date, but after the state began presenting evidence, he moved for a recess, claimed he didn’t know he was going to be in trial that day and asked for a public defender. The trial court denied his request, noting L.W. had flown in from California to be present at the trial, then found him guilty on the domestic battery charge.

Davis argued on appeal that the trial court abused its discretion in denying his request for a public defender, but the Indiana Court of Appeals disagreed. Relying on Koehler v. State, 499 N.E.2d 196 (Ind. 1986), Judge Patricia Riley said Davis had been “fully advised” of the difficulties of proceeding pro se a full year before his trial, and he did not waver in his decision to proceed pro se until the day of trial.

“Granting Davis’ request would most likely have resulted in a substantial continuance in order for counsel to get familiar with the facts of the case and would have required additional sacrifice from the victim who would have to make an additional trip to Indiana,” Riley wrote. “Although Davis relies on the trial court’s statement that he could request an attorney ‘at any time’ to support his contention that he should have been assigned an attorney midway through the bench trial, the trial court tempered that broad statement with the qualifier that Davis had to send the court ‘a letter or a motion.’”

“… Despite the trial court’s denial of his request for counsel, Davis effectively defended against the charges pro se,” Riley continued. “Not only did he manage to impeach the victim during cross-examination, but he also was found not guilty on two of the three charges the State brought against him.”

Thus, the appellate panel concluded the trial court did not err in denying Davis’ request for counsel.•