Indiana Court Decisions – Sept. 9-22, 2021

7th Circuit Court of Appeals

Sept. 10

Civil Plenary-Habeas Relief/Ineffective Assistance

Christopher Harris v. United States of America

19-3363

In a case presenting a “rare circumstance” that “few if any other federal prisoners face,” the 7th Circuit Court of Appeals affirmed the U.S. District Court for the Southern District of Indiana did not err in denying habeas corpus relief to an Indiana man. The 7th Circuit did acknowledge, however, the appellant’s argument that his counsel was ineffective by not challenging whether his drug convictions were predicates would succeed today.

Christopher Harris was charged in 2016 with possessing with intent to distribute 50 grams or more of methamphetamine. Due to prior drug convictions, Harris faced significant sentencing exposure.

At the time, the statutory minimum sentence for Harris’ crime was 10 years. However, the government could also enhance the potential sentence by arguing that two of Harris’ prior convictions were felony drug offenses: an Indiana conviction in 2006 for dealing cocaine and an Indiana conviction in 2001 for possessing cocaine.

One prior “felony drug offense” increased the mandatory minimum sentence to 20 years while two required a life sentence at the time.

To avoid a life sentence, Harris reached an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) with the government to plead guilty and accept a sentence of 20 years in prison. Pursuant to that deal, the government filed a notice listing only one predicate offense, the 2006 Indiana conviction for dealing cocaine.

At Harris’ sentencing, the court confirmed that he knew he was waiving his right to challenge his conviction and sentence, except as to ineffective assistance of counsel.

Acting pro se, Harris then timely moved to vacate his sentence pursuant to 28 U.S.C. § 2255. He argued his counsel had been ineffective during plea bargaining for failing to challenge the 21 U.S.C. § 851 enhancement toward the prior dealing in cocaine case and said his 2006 conviction “is not permissible to be used because of its unconstitutional nature” in light of Decamps v. United States, 570, U.S. 254 (2013).

The district court denied Harris’ motion, but soon after the judgment two legal developments clarified whether Harris’ prior convictions fit the definition of a “felony drug offense.”

First, in United States v. De La Torre, 940 F.3d 938, 952 (7th Cir. 2019), the court held that a different Indiana drug crime was not a “felony drug offense” because the state’s definition of the controlled substance involved — including, among other terms, its definition of an “isomer” — applied more broadly than federal law. Less than a year later, the 7th Circuit decided in United States v. Ruth, 966 F.3d 642, 647, 650 (7th Cir. 2020), that an Illinois conviction for possession with intent to deliver cocaine was not a “felony drug offense” because Illinois’s definition of cocaine — like Indiana’s — included optical, positional and geometric isomers, and therefore was broader than federal law.

Harris requested a certificate of appealability, which was granted, as to whether his counsel was ineffective for failing to argue that his prior conviction did not qualify as a predicate “felony drug offense” because Indiana Code §§ 35-48-1-7 and 35-48-2-8(b) (2006) defined cocaine more broadly than the federal code, 21 U.S.C. §§ 802(17)(C)(D).

In its opinion, the 7th Circuit wrote that the De La Torre decision would’ve aided Harris’ argument, but didn’t find his counsel’s reasoning for seeking the 20-year sentence unreasonable at the time.

The court wrote that to show deficient performance, it is not enough to rely on hindsight about whether a proposed challenge would have succeeded, citing Bridges v. United States, 991 F.3d 793, 802 (7th Cir. 2021). Rather, the reasonableness of counsel’s performance must be assessed “in the context of the law” at the time, citing Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993).

“We do not know whether counsel was aware of a possible categorical challenge to Indiana’s definition of an isomer,” 7th Circuit Judge Michael Brennan wrote. “… In sum, the defense essentially had a bird in the hand — the plea offer with a set 20-year sentence — with a possibility of two in the bush — the novel challenge to the predicate offenses with the risk of a mandatory life sentence. Faced with these options, it was objectively reasonable for Harris’s counsel to pursue the plea deal.”

The case is Christopher Harris v. United States of America, 19-3363.

Indiana Supreme Court

Sept. 14

Criminal-Manslaughter/Reinstatement of Conviction

John B. Larkin v. State of Indiana

21S-CR-427

In the latest appeal stemming from the prosecution of a Long Beach man who killed his wife nearly 10 years ago, Indiana Supreme Court justices split ways in overturning the acquittal of his crime. One justice would have let the acquittal stand.

John B. Larkin of Long Beach was charged with Class A felony manslaughter after being accused of fatally shooting his wife, Stacey Renee Larkin, in December 2012. Long Beach Police Department officers found his wife dead in their home from two gunshot wounds.

His case proceeded against a history of police and prosecutorial misconduct that led the LaPorte Superior Court to dismiss the charges against him, which a divided panel of the Indiana Court of Appeals affirmed in June 2017.

Supreme Court justices, however, reinstated the manslaughter charge against Larkin in June 2018, finding dismissal to be “an extreme remedy” for police and prosecutorial misconduct. The case went to trial in September 2019, where the prosecutor requested that the trial court instruct the jury on the offense of involuntary manslaughter, which was granted.

After Larkin was found guilty of Class C felony involuntary manslaughter, the lower appellate court reversed after addressing two of his arguments. It found the information did not allege Larkin shot Stacey “with an intent to batter rather than with an intent to kill” or that he “committed [a] battery by pushing Stacey.”

It also found there was, “at a minimum, reasonable doubt as to whether the State’s charging instrument provided Larkin with fair notice of the charge of which he was eventually convicted.” The appellate panel also briefly concluded there was insufficient evidence to contradict Larkin’s self-defense claim.

It therefore acquitted Larkin — a decision that divided the Supreme Court, which ultimately reversed after granting transfer in John B. Larkin v. State of Indiana, 21S-CR-427.

Chief Justice Loretta Rush and Justices Mark Massa, Geoffrey Slaughter and Christopher Goff concurred, while Justice Steven David dissented with a separate opinion, arguing that he would let the appellate court’s decision stand.

Concluding that involuntary manslaughter based on a battery was a factually included lesser offense, the high court noted that there was a serious evidentiary dispute about the elements that distinguish voluntary manslaughter from involuntary manslaughter.

“During his interview, Larkin stated that he only intended to push Stacey with the gun. If the jury believed him, then it could (as it did) convict him of involuntary manslaughter,” Justice Massa wrote for the majority. “But he also mentioned the heated verbal and physical confrontation between him and Stacey just before she was shot, his finger’s placement on the trigger at one point, and the serious marital issues between them. Larkin’s witnesses also testified about those issues.

“From this evidence, the jury could reasonably infer Larkin intentionally or knowingly killed Stacey while under sudden heat. Because there was sufficient evidence to support a conviction of either offense, there was no abuse of discretion,” the majority held.

Turning to the constitutional analysis of fair notice, the high court concluded that Larkin was not deprived of it when the information alleged a battery and Larkin himself alerted the state to a possible theory of the case that it ultimately argued at trial. It further concluded that the state presented sufficient evidence to overcome Larkin’s self-defense claim and that the trial court did not abuse its discretion by denying his motion to dismiss for prosecutorial misconduct or in treating the handgun as an aggravator.

Writing in dissent, Justice David disagreed with the majority’s analysis about battery being factually included in the offense given the charging information and the facts and circumstances at hand.

“While battery may be included where there is a murder by handgun, I’mt not sure that’s always the case,” David wrote.

“I do not believe that the State should be able to seek a lesser included instruction mid trial once it realizes things aren’t going well or use a vague charging information to ambush a defendant,” David continued. “I fear the precedent the majority opinion sets will open the door to prosecutors trying to slip in other ‘lesser included’ charges at the last minute. If the State wants to be able to seek a lesser included conviction based on involuntary manslaughter, it should clearly and plainly allege a battery in the charging information.”

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Sept. 21

Civil Tort-Duty to Motorists/Bright-Line Rule

Judy Reece, as Guardian of Walter Reece, and Judy Reece v. Tyson Fresh Meats, Inc., and Tyson Foods, Inc.

21S-CT-435

In adopting a bright-line rule, Indiana Supreme Court justices ruled that a meat plant accused of contributing to a serious crash owed no duty to the motoring public because the tall grass at issue was confined to the plant’s property.

In August 2014, motorist Harold Moistner pulled out into an intersection and collided with motorcyclist Walter Reece. The crash left Reece with catastrophic brain injuries, prompting his guardian, Judy Reece, to sue Tyson Fresh Meats Inc. and Tyson Foods Inc. Moistner was 92 at the time and has since died.

Judy Reece alleged overgrown grass on Tyson’s Cambridge City property near the location of the crash was a contributing factor to the collision. But the Wayne Superior Court entered summary judgment for Tyson, and a divided Indiana Court of Appeals affirmed, finding the company negated the element of duty in Reece’s negligence claim.

Senior Judge John Baker dissented from the COA’s August 2020 decision.

But the Indiana Supreme Court affirmed the appellate majority in a Sept. 21 ruling in Judy Reece, as Guardian of Walter Reece, and Judy Reece v. Tyson Fresh Meats, Inc., and Tyson Foods, Inc., 21S-CT-435. The justices ruled that the tall grass that inhibited Moistner’s view was wholly contained on Tyson’s property.

“Accordingly, Tyson owed no duty to the motoring public to avoid creating or maintaining the particular visual obstruction and therefore, could not be negligent,” Indiana Chief Justice Loretta Rush wrote for the high court.

“Today, we examine and synthesize decades of caselaw to determine whether the duty applies when a condition on the land imposes a visual obstruction but is confined to the land,” Rush wrote. “Court of Appeals panels have reached divergent answers to that question, and we now firmly endorse the position from Sheley v. Cross, 680 N.E.2d 10, 13 (Ind. Ct. App. 1997), trans. denied. Under these circumstances, there is no duty.”

The justices adopted the bright-line rule in Sheley, which provides that landowners owe a duty to passing motorists on adjacent highways not to create “hazardous conditions that visit themselves upon the roadway.” However, when a land use or condition that may impose a visual obstruction is “wholly contained on a landowner’s property, there is no duty to the traveling public.”

The high court explained that Indiana precedent persuaded it to adopt the bright-line rule, looking back at the line of cases beginning with Pitcairn v. Whiteside, 109 Ind. App. 693, 700, 34 N.E.2d 943, 946 (1941), which “definitively established a duty for owners or occupiers of land to prevent dangerous conditions originating on the land from intruding upon the roadway.”

But Pitcairn was interpreted narrowly in Blake v. Dunn Farms, Inc., 274 Ind. 560, 413 N.E.2d 560 (1980), which requires courts to look at the landowner’s role in causing a dangerous condition on the highway when such a condition exists.

It proceeded to cite related cases, including Snyder Elevators, Inc. v. Baker, 529 N.E.2d 855, 856–57 (Ind. Ct. App. 1988), Holiday Rambler Corp. v. Gessinger, 541 N.E.2d 559 (Ind. Ct. App. 1989), and Justice v. CSX Transportation, Inc., 908 F.2d 119, 121 (7th Cir. 1990), among others.

Ultimately, the Supreme Court found Sheley’s bright-line rule “lends itself to easy application.”

“It is also the most logical extension of Indiana precedent, particularly this Court’s decision in Blake, in which one of the negligence claims was based on the landowner’s alleged failure to maintain a fence, an obviously artificial condition,” the high court wrote.

But the court noted its holding “in no way prevents the General Assembly or local legislative bodies from enacting statutes or ordinances to impose a duty on landowners to refrain from creating or maintaining visual obstructions on land adjacent to highways in favor of the motoring public.”

“We hold only that Indiana common law imposes no such duty,” Rush wrote. “Second, our holding is confined to visual obstructions that do not come in contact with traveling motorists, and it does not address situations where a motorist comes in contact with a condition that is wholly contained on the land.”

Justice Christopher Goff concurred in result with a separate opinion, joined by Justice Steven David, who instead would have adopted the rule in Justice v. CSX Transportation, Inc.

“In my view, the rule articulated in Justice is the more practical solution, allowing our trial court judges to sensibly balance a landowner’s right to peaceful enjoyment of private property against the public’s interest in safe travel on public roads,” Goff wrote. “But, even under this rule, the Reeces’ claim falls short because they failed to designate evidence that could show the tall grass unreasonably imperiled travelers. Therefore, I concur in result.”

Indiana Court of Appeals

Sept. 10

Juvenile-Handgun Possession/Marijuana Odor

I.G. v. State of Indiana

21A-JV-479

The Indiana Court of Appeals has reversed a delinquent finding for possession of a handgun after law enforcement searched a teen during a traffic stop when they smelled marijuana, ruling the odor wasn’t enough to establish probable cause for the juvenile’s arrest.

Police officers in December 2020 pulled over a vehicle with three people inside, including 15-year-old I.G. After smelling burnt and raw marijuana, police ran the occupants IDs and discovered the driver had a warrant for his arrest for a “traffic offense.”

When asked to exit the vehicle, all three occupants were “calm” and “[a]bsolutely cooperative,” and didn’t make any furtive movements or give the officer “any cause or concern” for his safety. Regardless, a pat down of I.G. was conducted for officer “safety,” revealing a handgun and extra magazine.

I.G. was arrested and determined by the Marion Superior Court to be a delinquent child for committing what would be Class A misdemeanor carrying a handgun without a license if committed by an adult.

The trial court had overruled an objection from I.G. about the admission of the handgun on the ground that the search violated his Fourth Amendment rights. He also argued that there were no “articulable facts to support a reasonable belief by [Officer Harvey] that [I.G. was] armed and dangerous.”

In reversing the trial court’s admittance of the weapon and true finding entry for I.G., the Indiana Court of Appeals held that the smell of marijuana alone was not enough for to establish probable cause.

“Just as our Supreme Court found in (Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017)) that a canine alert, by itself, was not enough to establish probable cause, here too the odor of burnt and raw marijuana, by itself, was not enough to establish probable cause to arrest I.G. for possessing marijuana,” Judge Nancy Vaidik wrote. “The search of I.G. was not a valid search incident to arrest, and the juvenile court erred in admitting the handgun into evidence.”

In a footnote, the appellate court pointed out that the Indiana Supreme Court in Bunnell v. State, 21S-CR-139, slip op. at 4 (Ind. Sept. 2, 2021), ruled that a police officer’s detection of the scent of raw marijuana can supply probable cause for a search warrant if the detection is based on the officer’s training and experience.

“The issue in this case, however, is whether Officer (De’marquies) Harvey had probable cause to arrest I.G. for possession of marijuana based on the odor of raw and burnt marijuana in a car with three occupants,” the footnote states.

The case is I.G. v. State of Indiana, 21A-JV-479.

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Sept. 17

Criminal-Seizure of Cash/Nexus to Crime

Olympic Financial Group, Inc. v. State of Indiana

21A-CR-1017

The state must pay back more than $700,000 to a money services business who had cash seized following a traffic stop, the Indiana Court of Appeals has ruled, finding “no evidence whatsoever that a crime was committed.”

Olympic Financial Group is a money services business as defined by the Bank Secrecy Act of the Financial Crimes Enforcement Network. It physically transports currency across the U.S. to the location of its bank to serve U.S. citizens, immigrants and residents by sending money to disadvantaged and vulnerable families, friends and associates located in East African countries.

In order to transport the money to its Minneapolis headquarters, Olympic hires couriers to deliver funds. Two such couriers were pulled over as part of a routine traffic stop while on a route from Vermont to Minneapolis to deliver cash to cover wire transfers, according to the opinion in Olympic Financial Group, Inc. v. State of Indiana, 21A-CR-1017.

Mohamed Ali and Daud Weydow, both legal Somali immigrants with limited English skills, were en route to deliver the money in April 2021 when they were stopped in Jasper County by Lake County Detective Rex Ibarra. After asking where they were headed and clearing their driver’s licenses, Ibarra was set to let the men go with a warning.

But when asked if they had large amounts of money in the vehicle, the driver indicated “no,” causing the detective to suspect criminal activity. A consented search revealed a suitcase in the vehicle containing bags carrying $709,880 in U.S. currency, but no illegal substances. However, a test later conducted on the money “resulted in a positive manner for the presence of illegal narcotics residue.”

The cash was seized and the drivers were free to go, but Olympic sent the state a “Verified Claim to and Demand for Return of Property” containing a description of Olympic’s business, its money transmitters’ licenses for Vermont and Minnesota and its MSB registration. A written notice authorizing the couriers to carry and transport the money was also included. It also attested it was “not aware of, not involved in, nor facilitates criminal activity or violations of the law to sustain the confiscation of its Property and/or any forfeiture.”

But the state submitted a “Verified Petition for a Turnover Order” seeking for the money to be transferred to the federal government for forfeiture proceedings. It did not mention Olympic or that a third party was claiming ownership of the money in the petition.

The Jasper Superior Court granted the petition without holding a hearing and subsequently denied Olympic’s motion to reconsider. But the Indiana Court of Appeals disagreed with that ruling, finding that under the circumstances, the state failed to prove the cash was properly seized pursuant to Indiana Code Chapter 34-24-1.

“Therefore, it has failed to show that it is entitled to a turnover order under Indiana Code section 35-33-5-5(j), and the trial court erred by granting the State’s motion,” Judge James Kirsch wrote for the appellate court.

“However, Olympic’s money has been turned over to the federal government, which is now in possession of it, and it is unclear whether the money has yet been subject to forfeiture proceedings,” Kirsch continued. “Given the circumstances of this case, especially the fact that there is no evidence whatsoever that a crime was committed, we do not believe that it is fair to require Olympic to undertake the process of retrieving its money from the federal government.

“Therefore, as in (Lewis v. State, 125 N.E.3d 655 (Ind. Ct. App. 2019)), we reverse and remand with instructions that the State reimburse Olympic instanter, and the State may then try to recoup that money from the federal government.”

In a separate opinion, Judge Nancy Vaidik concurred with the majority’s reversal of the turnover order but not its reliance on the standard set forth in Lewis. Instead, she looked to Hodges v. State, 125 N.E.3d 578 (Ind. 2019).

“Hodges, not Lewis, sets forth the proper standard for the initial seizure of property under the forfeiture statutes: probable cause to believe there is a nexus between the property and certain criminal activity,” Vaidik wrote.

“That said, not even this lower standard was met in this case. For all the reasons laid out by the majority, I see no probable cause to believe the cash seized is related to criminal activity. Therefore, I join in the reversal of the turnover order,” she concluded.

Lastly, Vaidik agreed that the state should be required to immediately return the seized funds to Olympic, pointing out that Indiana turned the funds over to federal authorities before the time for appeal had run “at its own peril.”

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Sept. 22

Criminal-Jury Trial/Constitutional Rights

Carlton Lee Wells v. State of Indiana

21A-CR-612

The St. Joseph Superior Court violated the constitutional rights of a South Bend man when it excluded him from his jury trial after failing multiple pretrial drug tests, the Indiana Court of Appeals has ruled.

In Carlton Lee Wells v. State of Indiana, 21A-CR-612, the COA found the trial court violated both Carlton Wells’ Sixth Amendment rights under the U.S. Constitution and his rights under Article 1, Section 13 of the Indiana Constitution. The appellate court reversed and remanded with instructions to vacate his conviction due to fundamental error.

In March 2018, the St. Joseph Circuit Court issued an order for protection prohibiting Wells from contacting KenQuis Crawford. Two months after the order was signed, a South Bend Police Department patrolman investigated an alleged violation at Crawford’s apartment complex, where the patrolman saw Wells in a white vehicle outside the complex. The officer followed Wells before he accelerated at a high rate of speed and briefly went out of sight.

While the patrolman pursued Wells, a Starke County Sheriff’s Department off-duty reserve officer saw a vehicle of a similar description blow through a stop sign nearby and witnessed a baggie thrown out the driver’s side window. South Bend officers conducted a traffic stop while the Starke County officer delivered the baggie to the South Bend officers and told them he believed it was cocaine.

The state eventually charged Wells with possession of cocaine, a Level 6 felony, and Class A misdemeanor invasion of privacy.

At the outset of Wells’ initial jury trial setting in September 2020, the court was advised Wells was “being very contentious with [his counsel]” and the clerk’s office believed Wells was impaired by drugs or alcohol. The court ordered Wells to submit to drug testing, which found Wells was engaging in “high new use” of marijuana. Thus, the jury was sent home and Wells was put on pretrial supervision.

At the time, St. Joseph Superior Court Judge Jane Woodward Miller said, “And I’ll have you tested on the morning your [sic] trial when we next have it, and if you are positive, we’ll go forward with the trial without you. You’ll have waived your right to be present by continuing to use drugs while you’re on bond.”

But in October 2020, on the morning of Wells’ rescheduled trial, he again tested positive for THC. The trial court then stated, “Now, we’re going to call the jury in in five minutes. I want everyone understanding where we are which is, I’m going to order that Mr. Wells be tried in absentia. I have no caselaw, I think I’m right, obviously, but I have no caselaw. This never came up in all the time I’ve been in the Criminal Justice System and with Mr. Wells’ understanding, he’s not going to be able to be here to see what happens.”

The trial court excused Wells from the proceedings and, without objection from Wells’ counsel, conducted the jury trial in absentia. The jury elected to deliberate that evening, and the proceedings were completed in a single day, finding Wells not guilty of possession of cocaine but guilty of invasion of privacy. He was sentenced to 180 days on home detention.

On appeal, Wells argued that by trying him in absentia, the trial court violated his right to be present at trial under both the Sixth Amendment and Article 1, Section 13. He maintained the trial court “could have continued the trial and taken [him] into custody for violating [court] orders and ma[d]e sure he would not use [marijuana] before trial,” but instead “denied his ability to be present and participate at trial[.]”

The COA agreed on both allegations, pointing to the U.S. Supreme Court’s opinion in Illinois v. Allen, 397 U.S. 337 (1970), as well as the Indiana Supreme Court’s decision in Vaughn v. State, 971 N.E.2d 63 (2012), in its decision.

“The trial court here did not employ available measures to protect Wells’ fundamental right to be present,” Judge Elizabeth Tavitas wrote in the opinion for the COA. “Less stringent remedies, rather than automatic ejectment, were available to the trial court that should have been employed before the trial court excluded Wells from his trial.”

The COA concluded Wells carried his burden of establishing that his exclusion from trial “blatantly violated basic and elementary principles, involved substantial potential for harm, and effectuated a denial of fundamental due process.”

“The trial court here failed to employ less severe measures to ensure an orderly courtroom,” Tavitas wrote. “Furthermore, the trial court failed to identify Wells’ behavior that would indicate that Wells did not have the ability to behave on the day of his trial.”

Indiana Tax Court

Sept. 15

Tax-Law Firm/Refund

Gilday & Associates, P.C. v. Marion County Assessor

21T-TA-2

An Indianapolis law firm has secured a reversal from the Indiana Tax Court after the Indiana Board of Tax Review was found to have erred in declining to accept as true factual allegations that the firm was the taxpayer who paid property taxes on property it purchased.

During the 2014 through 2017 tax years, Paul Terry Batties owned a single-family residence home in Lawrence Township and entered into a residential mortgage loan transaction with Green Tree Servicing LLC. An escrow account was established from which the property taxes were to be paid, but Batties became delinquent on the loan during the years at issue.

Without reason, the property’s homestead deduction was removed even though the property had received the deduction in preceding years.

When Green Tree eventually filed a complaint to foreclose the home, Gilday & Associates P.C. purchased the property at a sheriff’s sale in July 2018 for $375,000, which included the amount of Green Tree’s mortgage foreclosure judgment of $280,467.86.

Gilday, which believed it had paid all the property taxes for the years at issue by virtue of its payment to the Marion County sheriff, filed four notices to initiate an appeal with the Marion County assessor in November 2018.

Although the law firm claimed it was entitled to a partial refund of its property tax payments because the property should have received homestead deductions during the years at issue, the assessor denied all of its forms.

Gilday later asserted in response to the Indiana board’s sua sponte motion that because it was bound by the Indiana Trial Rule 12(B)(6) standard, it must accept as true the factual allegations in its Form 131s that it was the taxpayer that paid the property taxes for the years at issue by virtue of paying Green Tree’s judgment at the sheriff’s sale.

The assessor disagreed and so did the Indiana board, which explained that it did not need to accept as true the factual allegation that Gilday was the taxpayer that paid the property taxes on the subject property because “[t]he question of whether Gilday [was] a taxpayer within the meaning of the appeal statutes [was] a mixed question of fact and law.”

It further found that neither Indiana Code § 6-1.1-15-1.1 nor § 6-1.1-26-1.1 authorized Gilday’s appeals to the Indiana board as he had alleged.

But the Indiana Tax Court reversed, concluding that the assessor proposed its standard for analyzing mixed questions of law and fact during the administrative proceedings, “but neither then nor now has he identified any legal authority in support of this novel claim.”

The court found Gilday’s third factual allegation — that it was the “taxpayer” that had paid the overstated property taxes — taken as true, was sufficient to show that Gilday is the taxpayer authorized to pursue the refund claim.

“Consequently, the Indiana Board erred by dismissing Gilday’s administrative appeals for lack of standing to claim a property tax refund for the years at issue,” Judge Martha Blood Wentworth wrote.

The case of Gilday & Associates, P.C. v. Marion County Assessor, 21T-TA-2, was remanded to the Indiana board to resolve the assessor’s motion to dismiss and, if necessary, the parties’ pending discovery motions.•