Indiana Court Decisions: March 22-April 5, 2023

7th Circuit Court of Appeals

March 24

United States of America v. Russell Charles Taylor

22-1925

Lower court needs to address constitutional issues, hold hearing in sex crimes case, 7th Circuit rules

A lower court will need to address constitutional concerns and look at how evidence was obtained in a case involving sexual exploitation of children, the 7th Circuit Court of Appeals has ruled, remanding the case for an evidentiary hearing.

The case involves defendant-appellant Russell Taylor, who pleaded guilty to multiple counts relating to child pornography and was sentenced to 27 years in prison.

In the autumn of 2014, Indiana law enforcement began investigating Taylor for suspected child pornography and bestiality crimes. The primary source of incriminating information against him was “Jane Doe,” a woman with whom Taylor and his wife were intimately involved, according to the appellate court.

At relevant times, Doe was also intimately involved with two members of law enforcement, one active and one retired, who were involved in the investigation.

In April 2015, law enforcement presented a warrant application to a state-court judge. The affidavit sought to establish probable cause to search Taylor’s residence for evidence of both child pornography and bestiality, but it did not disclose that two of the law enforcement officers involved in the investigation were or had been potentially competing with Taylor for Doe’s affections.

Based on that affidavit, the judge signed a typed warrant that authorized law enforcement to search Taylor’s residence for evidence of child pornography. The warrant did not mention bestiality, and no evidence of bestiality was actually found in the search.

Facing federal charges, Taylor filed two motions to suppress evidence obtained from the searches of his residence, which the Indiana Southern District Court denied.

After he was convicted and sentenced, Taylor appealed, arguing that the warrant affidavit for his case included material false statements and omissions, and that the warrant’s handwritten alterations rendered it invalid.

The 7th Circuit agreed with Taylor that the affidavit did not support probable cause to search for evidence of child pornography. However, the court also found that the affidavit did support probable cause to search for evidence of crimes of bestiality.

“The unusual problem in this case is that the crime for which the affidavit established probable cause — bestiality — is not the crime for which the typed text of the warrant authorized a search,” Senior Judge David Hamilton wrote. “We simply do not know whether the issuing judge approved law enforcement’s handwritten alterations to the warrant before it was executed.

“An evidentiary hearing is needed to figure out what happened,” Hamilton wrote. “It should then be possible to resolve the questions raised by those handwritten changes and Taylor’s other challenges to the warrant.”

In resolving the uncertainty surrounding the handwritten alterations, the district court will need to consider the good-faith exception to the exclusionary rule adopted in United States v. Leon, 468 U.S. 897 (1984). Further, Hamilton said the district court will need to consider evidence on both the alterations to the warrant and the affidavit’s false statements and deceptive omissions, and will need to address all constitutional concerns raised by Taylor’s motion to suppress.

“Whether the evidence at that hearing can cure the warrant’s constitutional problems is a question for the district court to address after finding the necessary material facts,” Hamilton concluded. “We express no view on that question at this time.”

Judge Ilana Rovner and Judge Amy St. Eve concurred.

The case is United States of America v. Russell Charles Taylor, 22-1925.

Indiana Supreme Court

March 24

Conroad Associates, L.P. v. Castleton Corner Owners Association, Inc. and McKinley, Inc.

22S-PL-307

Supreme Court affirms, reverses, remands in case involving faulty lift station that caused sewage leak

The Indiana Supreme Court affirmed a trial court’s order amending a damages award but determined the lower court lacked jurisdiction to issue two other orders because each interfered with the subject matter of a pending appeal.

The Supreme Court reversed and remanded the two orders, calling them void.

The case of Conroad Associates, L.P. v. Castleton Corner Owners Association, Inc. and McKinley, Inc., 22S-PL-307, involves a dispute about a faulty sanitary lift station that serviced “various shopping centers and stand-alone buildings” in Indianapolis.

In 2015, Castleton Corner Owners Association Inc. was the property management entity responsible for operating and maintaining the lift station when it malfunctioned, flooding a building owned by Conroad Associates L.P. with raw sewage.

As a result, Conroad sued the association.

Following a 2019 bench trial, the Marion Superior Court found in Conroad’s favor and ordered the association to pay $213,288.70 in damages.

Conroad moved for proceedings supplemental to enforce the judgment. But about two weeks later, the association moved to stay execution of the judgment.

The trial court denied that motion and the parties cross-appealed. The association, however, did not file an appeal bond that would have stayed enforcement prior to Conroad’s resolution.

Thus, Conroad filed a second motion for proceedings supplemental, and the trial court ultimately transferred to Conroad the lift station, related easement and “all other assets of the Association.” It subsequently denied the association’s motion to reconsider.

The association then filed a second appeal, but soon filed for bankruptcy, which stayed the second appellate case.

The first appeal, known as Conroad I, was resolved about three months later, reducing Conroad’s damages to $164,640.70. The association filed a check with the Marion County clerk and asked the trial court to amend the damages award pursuant to Conroad I, order the clerk to disburse the funds and vacate the proceedings supplemental order.

With the second appeal still pending — and following the lift of the bankruptcy stay and a hearing on the association’s motion — the trial court issued three orders in May 2021 granting the motion in full.

The association subsequently moved to dismiss the second appeal, known as Conroad II, and the Court of Appeals of Indiana agreed.

Conroad then filed the instant appeal, contending in part that the trial court lacked jurisdiction to issue the May 2021 orders because Conroad II remained pending at the time. The COA disagreed and affirmed in April 2022.

The Supreme Court then granted transfer and, in a March 24 opinion, affirmed and reversed in part.

Writing for the court, Chief Justice Loretta Rush said “(j)urisdictional rules ensure finality and certainty in the administration of justice. One such rule, Appellate Rule 8, erects a jurisdictional fence between the trial court and the appellate court — preventing parties from pursuing similar relief in different courts at the same time. Under Rule 8, once a final judgment is appealed and the clerk certifies completion of the record, the trial court has no authority to interfere with the subject matter of that appeal until it is terminated.

“Here, the trial court issued three orders: one amending a damages award pursuant to remand instructions from a prior appeal, and two resolving issues that were pending on appeal. The parties only dispute the validity of the latter two orders,” Rush continued. “Applying Appellate Rule 8, we hold that the trial court lacked jurisdiction to issue those orders because, in each, the court directly interfered with the subject matter pending on appeal. We therefore affirm in part, reverse in part, and remand.”

Justices Mark Massa, Geoffrey Slaughter and Christopher Goff concurred. Justice Derek Molter did not participate.

Court of Appeals of Indiana

March 23

Shalee C. Dowell v. State of Indiana

19A-CR-2623

COA reopens appeal based on missing transcript but affirms drug dealing conviction

Although the Court of Appeals of Indiana allowed a woman to reopen her previously rejected direct appeal based on a missing transcript, the court still upheld the woman’s felony drug dealing conviction.

The opinion marked the second time Shalee Dowell has taken her case to the Court of Appeals.

The case began in May 2018, when police officers initiated a traffic stop of a vehicle driven by Dowell, with Christopher Wiseman and James Tucker as passengers. The officers had the three occupants exit the vehicle while they performed a K-9 open air sniff of the vehicle.

Officer Jason Shadwick noticed Dowell acting nervous. Also, while he was handing her driver’s license and registration to another officer, he noticed her putting a stainless vial in the back of her pants. Shadwick “intercepted” the vial and also removed a cellphone from her back pocket.

Meanwhile, Officer Daymion Marsh asked Tucker to get out of the vehicle, and when he did so Marsh saw a clear Ziploc bag containing several other Ziploc bags and a crystal substance. The substance was later and revealed to be 16 grams of methamphetamine.

Dowell, Tucker and Wiseman were then arrested.

Wiseman admitted that several texts messages found between him and Dowell were about her selling methamphetamine to his friends at work. Also, Dowell called her sister from jail and asked her to dispose of drug-related items, and the sister agreed.

Dowell was charged and eventually convicted of Level 2 felony dealing in methamphetamine, Level 6 felony maintaining a common nuisance and Level 6 felony obstruction of justice. She received an aggregate sentence of 23 years.

On direct appeal, Dowell argued the state did not present sufficient evidence that she committed Level 6 felony maintaining a common nuisance.

The appellate court agreed and reversed in October 2020, vacating her conviction and sentence on that charge.

Then in 2021, Dowell filed a pro se petition for post-conviction relief. Deputy State Public Defender Adam Carter later filed his appearance on her behalf.

Almost a year later, Dowell’s mother, Stephanie Thompson, contacted Dowell’s appellate counsel informing counsel that her testimony was missing from the record submitted on appeal. Cara Schaefer Weineke, now representing Dowell, confirmed Thompson’s assertion.

Weineke petitioned the COA to reassume jurisdiction of Dowell’s case, order the trial court to prepare the missing portion of the transcript, and allow Dowell to file a supplemental brief “to raise any issues that were not previously raised and whose merits were augmented by the inclusion of the missing portions of the transcript.”

The COA granted Dowell’s petition.

The state appealed, arguing the appellate court should vacate the order allowing Dowell to reopen the direct appeal.

“However, the State did not respond to Dowell’s petition asking us to reassume jurisdiction and allow supplemental briefing,” Judge Melissa May wrote. “After we granted Dowell’s petition on April 22, 2022, the State did not ask us to reconsider our decision.

“… Plainly put, the State had multiple opportunities to assert its objection to this court’s course of action, but the State failed to do so,” May continued. “Therefore, the State has waived any challenge to our decision to reassume jurisdiction of Dowell’s direct appeal and permit supplemental briefing.

“… Waiver notwithstanding,” May added, “to the extent our decision deviates from the Indiana Rules of Appellate Procedure, we note Indiana Appellate Rule 1 allows this court, in its discretion, to ‘permit deviation from these Rules.’”

For her part, Dowell argued in her second appeal that the state did not have enough evidence for her Level 2 felony dealing conviction.

Dowell claimed the state did not provide sufficient evidence that she knew there was meth in her car and that she intended to deliver it to someone else. She acknowledged the meth was packaged in a way that suggested it would be sold, but claimed it was found “presumably out of (her) view from the driver’s seat.”

Disagreeing, the COA pointed to Marsh’s testimony that the meth was “in plain view on the floorboard of the passenger side of Dowell’s vehicle.” Also, “Dowell’s alternate explanation of the identity of the person with whom Wiseman communicated regarding the sale of methamphetamine is an invitation for us to reweigh the evidence and judge the credibility of witnesses, which we cannot do,” May wrote.

“The State’s evidence was sufficient to permit a reasonable trier of fact to find beyond a reasonable doubt that Dowell knew about the methamphetamine and intended to sell it to Wiseman,” May concluded.

The case is Shalee C. Dowell v. State of Indiana, 19A-CR-2623.

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March 24

Indianapolis Museum of Art, D/B/A Newfields v. Kathleen Hurley, et al.

22A-TR-767

Museum will not see any funds from trust, COA affirms

The Court of Appeals of Indiana has affirmed summary judgment and the denial of a museum’s motion for partial summary judgment in matters involving the beneficiary of a marital trust.

Edward Ballard’s mother, Alicia Ballard, had established a revocable trust in 1969, which was amended twice in 1981. The trust was created with Alicia’s husband, Charles, who died in 1987 and left no instructions for the trust.

The first amendment added in 1981 stated a one-time payment of $25,000 would be given to Alicia’s daughter and brother, Stanley Chimiak.

It also was to provide income to Edward and Alicia’s son Chad and their descendants, and the Indianapolis Museum of Art was designated as the beneficiary.

The second amendment directed the trustee to offer to convey certain real estate owned by Alicia to Charles.

Edward and his two siblings were beneficiaries of the trust. The only surviving member of the family is Alicia’s daughter, Sylvia Hurley, and her five children and two grandchildren.

After Edward died in 2020, an issue arose in the matter of the trust.

There was a spendthrift provision that provided periodic income to Edward and, upon his death, any undistributed income was to pass to his descendants.

However, Edward died childless.

There was another provision that stated that upon the death of Alicia’s children, brother and their descendants, any remaining trust assets would be distributed outright to Newfields, formerly known as the Indianapolis Museum of Art.

This left the current trustee, JPMorgan Chase Bank, at a loss on what to do. It believed the trust was ambiguous as to how the funds were to be distributed, so it petitioned the trial court for instructions.

Both parties filed cross-motions for summary judgment.

The trial court held a hearing at which it considered evidence and ultimately ordered the funds to be set aside, for Hurley’s children and grandchildren, because they are Alicia’s descendants.

It found that Alicia intended the funds to benefit all of her descendants before Newfields was to see any of the funds.

Newfields appealed, claiming the trial court erred in denying its motion for partial summary judgment.

One issue was brought to the appellate court: whether the trial court erred in granting summary judgment in favor of the children and against Newfields.

The appellate court found that the trial court did not err in granting summary judgment in favor of Sylvia’s children and grandchildren.

“It is clear from the terms of the Trust that Alicia’s intent was to: (1) distribute her estate paying the least amount of estate taxes; and (2) provide a benefit to her descendants before Newfields would receive any benefit,” Judge Rudolph Pyle wrote.

The case is Indianapolis Museum of Art, D/B/A Newfields v. Kathleen Hurley, et al., 22A-TR-767

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Krieg DeVault LLP v. WGT V, LLC

22A-PL-1744

COA splits in malpractice lawsuit

The Court of Appeals of Indiana affirmed the denial of summary judgment and remanded for further proceedings in a malpractice lawsuit case.

Dating back 30 years, William Gerald Throgmartin was the sole owner, chairman and CEO of H.H. Gregg, which used Krieg DeVault for legal services including real estate transactions and expanding the business.

After Gerald’s son, Jerry, became Gregg’s chairman and CEO, it was sold to a private equity firm in 2005.

During the time between 1990 and 2005, Krieg provided lawyers to assist with the family’s personal needs and Gerald’s estate planning, which included WGT and Dadus V Inc.

In 2003, Gregg purchased property in Georgia, and Krieg attorney Brian Fritts represented the transaction.

Another Krieg attorney, Paul Lindemann, wrote a memorandum to Jerry outlining a plan to combine Dadus V Inc. with WGT to make one liability company.

A different Krieg attorney, Matthew Carr, drafted documents to combine the companies as WGT V to the Indiana Secretary of State’s Office.

Jerry was designated WGT V’s manager and registered agent.

Gregg’s chief operating officer, Dennis May, spoke with Fritts about the company selling its Georgia property to WGT V, which would then lease the properties back to Gregg.

Fritts prepared the documents for the transactions and informed May that he needed to finalize the documents for closing.

WGT V wired $3.5 million to Gregg to purchase the Georgia property, and then Gregg began paying $30,000 monthly to WGT V.

Fritts claimed May never responded to him about finalizing the documents for closing, but an invoice from Krieg indicated someone revised the lease agreement the month it was signed.

Jerry died in 2012.

In 2017, Gregg filed for bankruptcy and rejected its lease with WGT V. In 2018, while attempting to negotiate a sale of the property, WGT V realized Gregg was still the record title holder of the Georgia property.

It was then sold for $2.8 million and, pursuant to a settlement agreement, Gregg’s bankruptcy creditors received $2.7 million and WGT V received $100,000.

In 2019, WGT V LLC sued the Krieg DeVault law firm for legal malpractice, negligence and breach of fiduciary duty relating to a commercial real estate transaction.

In 2021, Krieg moved for summary judgment.

WGT V responded and filed designated evidence from affidavits and transcribed depositions.

After determining genuine issues of material fact existed, the trial court denied Krieg’s motion in 2022.

Krieg then requested the trial court certify its decision for interlocutory appeal, which it did.

Krieg argued the trial court erred because no attorney-client relationship existed between Krieg and WGT V.

“In fact, during the same year that the botched Georgia transaction was to have occurred, Krieg assisted the Throgmartin family with the transfer of real property from WGT LLP into WGT V and assisted WGT V with the acquisition of another Gregg property in Ohio. Moreover, in June 2004, Krieg revised the lease agreement for the Georgia property based on input from May and Esselman, a real estate broker who sometimes assisted Gregg and sometimes assisted the Throgmartin family, and Krieg sent the invoice for those revisions to Jerry Throgmartin, who was both Chairman of Gregg and manager of WGT V,” Judge Melissa May wrote. “Thus, the designated evidence creates a genuine issue of material fact about whether Krieg was the lawyer for both Gregg and WGT V during the ultimately unconsummated Georgia transaction.”

The second issue the appellate court addressed was whether the trial court erred ruling that, without an attorney-client relationship, Krieg could not have breached any fiduciary duty to WGT V. Krieg claims the trial court erred by not granting summary judgment on WGT V’s fiduciary-duty claim because Krieg “never owned any such duty.”

“Because there are genuine issues of material fact about whether Krieg was WGT’s lawyer, genuine issues of material fact also exist about whether Krieg had a fiduciary duty to WGT that it could have breached,” May wrote.

May added that Krieg was not entitled to summary judgment.

The final issue brought to the appellate court was whether the applicable two-year statute of limitations bars WGT V’s claims filed against Krieg in 2019 for actions that occurred in 2003 or 2004.

Both May and Judge Leanna Weissmann agreed there were genuine issues of material fact existing in the record.

Judge Terry Crone wrote a separate dissenting opinion disagreeing with the majority finding that Krieg DeVault shouldn’t be held liable.

“In sum, Krieg cannot be liable for not doing something that its alleged client did not ask it to do. An attorney-client relationship exists for specific functions and only those requested by the client,” Crone wrote. “Consequently, I would reverse and remand with instructions to enter summary judgment for Krieg on WGT V’s claims for legal malpractice and breach of fiduciary duty.”

The case is Krieg DeVault LLP v. WGT V, LLC, 22A-PL-1744.

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March 29

In Re: the Adoption of W.K., IV, and I.K.; W.K. v. T.M.

22A-AD-2227

COA: Stepfather gets custody of children, father still has parenting time

An adoption and custody case has made its way to the Court of Appeals of Indiana for the second time, this time with the court agreeing that even though the father has shown growth in his parenting ability, the stepfather can have custody of two children.

The Court of Appeals ruling affirmed a lower court’s decision, which also granted parenting time to the father.

W.K., the father, and C.K., the mother, were married in 2008. They had two children together before separating in 2013. W.K. moved from where the family was living in Japan to Texas while C.K. moved with the children to California, where their maternal grandparents lived.

The mother filed for divorce in California, and the case was finalized in 2014. The dissolution order provided that the mother had physical custody of the children while the father had parenting time. Both had joint legal custody, and the children spent summers with their father in Texas.

Meanwhile, C.K. began dating T.M., and they moved with the children to Indiana, where he lived. They married in 2016, and the grandparents moved in with them the next year.

The mother and stepfather had a child in 2019, but it was discovered when the mother gave birth that she had stomach cancer. She died in March 2019.

The grandparents continued living with the stepfather and children.

One month later, T.K. came to Indiana to pick up the children and take them to Texas. On the same day, the grandmother filed for emergency guardianship, and the stepfather filed adoption petitions and an emergency petition for immediate temporary custody of the children.

Two days later, the father filed a petition to domesticate the California dissolution decree and a motion to dismiss the adoption petitions. The Hamilton Superior Court granted the father’s petition to domesticate, granted temporary custody of the children to the stepfather for the remainder of the school year, then granted temporary custody to the father until further notice.

In July 2019, the stepfather filed a “Petition for Emergency Hearing for Return of Child[ren] to Indiana,” alleging the children’s school started Aug. 6, but the father had refused to return them to Indiana. The court ordered the father to return the children to Indiana by Aug. 5, with the children to remain in the stepfather’s temporary custody until further order from the court. W.K. was given parenting time with the children during fall break.

But the father didn’t return the children. He instead initiated an action in Texas to enforce the dissolution decree and attempted to enroll the children in school in Texas. The stepfather filed a report with Indiana police, and the father was charged with two counts of Level 6 felony interference with child custody.

He was arrested in Texas, and the stepfather drove to Texas and brought the children back to Indiana. He requested that the charges against the father be dropped, and the charges were dismissed with prejudice.

A guardian ad litem interviewed the children, who reported that their father “spanked” them repeatedly with his hand or a belt and that they were scared of him. One of the children said he would hit the belt on the table to scare them and recalled an incident when the father threw a computer at the mother and hit her in the face. The children said they didn’t want to live with the father.

Meanwhile, the father filed a renewed motion to dismiss the adoption petitions, and the trial court held a hearing on the stepfather’s petition to adopt. The stepfather argued that the father’s consent to adoption wasn’t necessary, and the trial court agreed.

The father appealed, and a Court of Appeals panel reversed the trial court order, holding that the father’s consent was required, in part because the evidence didn’t establish that he was “unfit” to parent.

Following remand and a change of trial court judge, the father filed a renewed motion to dismiss the adoption petitions and a request for emergency custody of the children in July 2021. The stepfather filed a petition for custody, citing Indiana Code § 31-19-11-5.

The trial court denied the father’s motion as “premature” because neither party had “rested its case” on all the issues raised in the adoption petitions and contest of adoption. The stepfather subsequently filed a motion to intervene as a party in the dissolution action, which the court denied as unnecessary, and a request for custody as a de facto custodian of the children.

The father filed a motion for summary judgment on the issues of adoption and custody as a de facto custodian.

The trial court conducted a hearing in May 2022, and the guardian ad litem reports were admitted into evidence. Each report noted the children wanted to live with the stepfather, with parenting time to the father. The reports also indicated the father had ceased physical discipline and appeared to show growth in his parenting.

The trial court ultimately denied the stepfather’s adoption petitions, noting the Court of Appeals’ prior decision that the father’s consent was required. The trial court then granted sole legal custody and primary physical custody to the stepfather and ordered parenting time for the father.

The father appealed, maintaining the trial court erred when it denied his July 2021 motion to dismiss the adoption petitions. He argued the court committed reversible error by delaying its ruling until August 2022.

The Court of Appeals disagreed, noting the father didn’t cite a legal authority imposing a time limit for the dismissal, and the court could find none.

“Moreover, even assuming for the sake of argument only that the trial court erred by waiting until August of 2022 to dismiss the adoption petitions, Father has failed to show that he suffered any harm from that delay,” the opinion reads.

The father also appealed the custody determination, arguing the trial court erred because it didn’t base its decision on the standard articulated in Hendrickson v. Binkley, 316 N.E.2d 376 (Ind. Ct. App. 1974).

The Court of Appeals also disagreed with that argument, noting the Indiana Supreme Court has made it clear that the trial court isn’t limited to Hendrickson’s three-step approach.

The opinion cites other factors that can be found at I.C. 31-17-2-8, including the age and sex of the child, the wishes of the child, and the mental and physical health of everyone involved.

“The trial court did not abuse its discretion or clearly err in its findings applying the … statutory custody standard,” the Court of Appeals ruled, citing the children’s ages of 12 and 13 years old and their “expressed strong wishes to remain in the custody of Stepfather, with parenting time to Father.”

The opinion also noted that while the trial court found the father has ceased physical punishment, he didn’t seem to understand the impact of involving the children in the custody proceedings.

Judge L. Mark Bailey wrote the opinion. Judges Elaine Brown and Leanna Weissmann concurred.

The case is In Re: the Adoption of: W.K., IV, and I.K.; W.K. v. T.M., 22A-AD-2227.

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March 30

Indiana Board of Pharmacy, Donna S. Wall, Steven Anderson, Del Fanning, Winnie Landis, Mark Smosma, and Matt Balla v. Paul J. Elmer

22A-PL-1811

COA overturns attorney fees award in dispute between ex-pharmacist, Pharmacy Board

A pharmacist convicted of producing and distributing adulterated drugs was not entitled to attorney fees in his case against the Indiana Board of Pharmacy, which was entitled to immunity, the Court of Appeals of Indiana has ruled.

The Court of Appeals reversed the Marion Superior Court’s entry of judgment against the Indiana Board of Pharmacy and its members and an award of attorney fees, remanding with instructions to enter judgment in favor of the appellants and to vacate the award of attorney fees to appellee Paul Elmer.

Elmer, who owned and operated Pharmakon Pharmaceuticals in Noblesville, was a practicing pharmacist when he distributed and produced adulterated drugs that led to the lives and well-being of multiple patients, including several infants in neonatal intensive care units, being jeopardized.

One infant received a dose of morphine “25 times” stronger than the dose on the label. Doctors were able to save the baby by administering three different doses of Narcan.

The United States Food and Drug Administration launched an investigation, during which Elmer told his pharmacists to lie for him.

Elmer’s attempt to cover up his production and distribution of adulterated drugs brought a federal grand jury to a 10-count indictment. He was convicted in April 2019, according to the Indianapolis Business Journal, and was sentenced to more than two years in federal prison.

The 7th Circuit Court of Appeals upheld that sentence in November 2020.

Meanwhile, the state initiated a summary-suspension proceeding against Elmer’s pharmacist license in July 2017. A year later, Elmer let his license expire, and the Indiana Board of Pharmacy ultimately revoked that license.

The Marion Superior court granted Elmer’s subsequent motion for judicial review and ordered the pharmacy board to dismiss the administrative action, then later denied his request for attorney fees. The Court of Appeals affirmed in June 2021, finding no statutory basis to revoke an expired license.

The trial court later denied Elmer’s motion for attorney fees but granted the board’s motion to dismiss an underlying 42 U.S.C. § 1983 claim. It also dismissed Elmer’s claim for injunctive relief as moot, and his claims against the board and its members.

However, the trial court later granted Elmer’s motion to correct error, vacating its prior order and awarding Elmer fees and costs. The trial court determined the state had ignored Elmer’s right “to be free from government harassment” by continuing the action without any statutory basis.

On appeal, the board and its members argued the trial court erred in granting Elmer’s motion to correct error. They claimed they were entitled to absolute quasi-judicial immunity.

The Court of Appeals agreed.

“Although in Elmer I we ultimately determined that the Board lacked statutory authority to revoke an expired license, the Board has broad authority to adjudicate matters relating to pharmacists’ licenses,” Judge Cale Bradford wrote. “… Elmer has failed to establish that the Board members acted in complete absence of all jurisdiction.”

The COA also determined the trial court erred in entering judgment in favor of Elmer on his Section 1983 claims against the board, noting the board is not a “person” subject to a Section 1983 suit.

The second issue the appellants raised was whether the trial court abused its discretion in awarding Elmer attorney fees pursuant to both 42 U.S.C. § 1988 and Indiana Code § 34-52-1-1.

The COA found error in that ruling, writing, “While the Board ultimately did not prevail in its attempt to revoke Elmer’s license due to a lack of statutory authority to revoke an expired license, we cannot say that the State’s attempt to do so was frivolous. It is clear that the Board had a very compelling interest in pursuing whatever potential avenues it had available to it to ensure that Elmer would never again hold a pharmacist license in Indiana.

“Although Elmer argues that the events that led to his federal convictions are irrelevant to this discussion, we disagree, as they speak directly to the Board’s motives in the litigation, undercutting any suggestion that the Board’s intent was primarily to harass or maliciously injure Elmer,” Bradford concluded.

The case is Indiana Board of Pharmacy, Donna S. Wall, Steven Anderson, Del Fanning, Winnie Landis, Mark Smosma, and Matt Balla v. Paul J. Elmer, 22A-PL-1811.•