Indiana Court Decisions – Jan. 28-Feb. 10, 2021

7th CircuitCourt of Appeals

Feb. 2

Civil Plenary — Establishment Clause/Courthouse Nativity

Rebecca Woodring v. Jackson County, Indiana

20-1881

Lifting an injunction issued by a federal court, a divided panel of the 7th Circuit Court of Appeals ruled that a Nativity scene on the grounds of the Jackson County Courthouse in Brownstown is not unconstitutional under a 2019 case decided by the U.S. Supreme Court.

The case involves a Nativity scene placed on the public courthouse lawn in southern Indiana. Judge Tanya Walton Pratt issued an injunction in May that led to this appeal, which garnered interest on both sides of the issue.

The 49-page ruling in Rebecca Woodring v. Jackson County, Indiana, 20-1881, marked the latest divisive and perhaps inconclusive decision on an issue that has vexed courts for generations: where the Establishment Clause line should be drawn on religious displays on public property.

The majority of writing Judge Amy St. Eve and Judge Diane Wood found that under the Supreme Court’s decision in American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019), the Jackson County Courthouse Nativity display was allowable.

In American Legion, justices ruled that a 40-foot-tall cross that serves as a World War I memorial could remain on public property. The Bladensburg Cross, Justice Samuel Alito wrote, “is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent.”

The 7th Circuit majority found that while Rebecca Woodring had standing to bring her claim as a resident of Jackson County who claims she is offended by the Nativity display, she has not shown the display itself offends the Establishment Clause of the First Amendment.

“We hold today that American Legion displaces the purpose and endorsement tests in the context of Establishment Clause challenges to nativity scenes in passive Christmas displays on government property. Applying American Legion, we hold that Jackson County’s nativity scene as displayed in 2019 does not violate the Establishment Clause. We make no predictions as to how American Legion might affect other types of Establishment Clause cases,” the majority held.

But the majority conceded American Legion “is arguably ambiguous as to whether a specific monument, symbol, or practice must be longstanding, or whether it must simply fit into a longstanding tradition.”

Judge David Hamilton dissented and would have affirmed the injunction because the Nativity scene “sent a clear message of government endorsement of Christianity. In reversing, the majority departs from controlling Supreme Court precedent that the Supreme Court itself has left intact. It also overrules directly applicable Seventh Circuit precedent without sufficient reason.”

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Feb. 3

Civil Tort — Medical Malpractice/Certified Questions

Jeffrey Cutchin v. Stephen Robertson

20-1437

The 7th Circuit Court of Appeals has certified two questions to Indiana’s Supreme Court justices in a Feb. 3 opinion, asking for clarification in a Medical Malpractice Act dispute.

In 2017, Jeffrey Cutchin’s wife and daughter were killed in an automobile accident when another driver, Sylvia Watson, ran a red light and struck their vehicle. Watson also died from injuries two weeks after the crash.

Watson, who took two prescription pills prior to the accident, approached the intersection and informed her passenger that she couldn’t move her foot from the accelerator to the brake. Blood tests following the accident revealed that Watson had been under the care of two different health care providers who prescribed some eight different medications to Watson, including an opioid and muscle relaxers.

Cutchin, as the representative of his wife and daughter’s estates, alleged on appeal that Watson’s driving ability was impaired as the result of medications she had been prescribed. He filed a malpractice suit against Watson’s health care providers, charging them with negligence for, among other omissions, an alleged failure to warn Watson that she should not be driving given the known motor and cognitive affects of the medications she was taking.

After the providers and their malpractice insurer agreed to a settlement of $250,000, the maximum amount for which they can be held individually liable under the Indiana Medical Malpractice Act, Cutchin sought further relief from the Indiana Patient’s Compensation Fund. That fund acts as an excess insurer, but argued that the MMA did not apply to Cutchin’s claim. It further argued that Cutchin was barred from seeking excess damages from the fund.

The U.S. District Court for the Southern District of Indiana agreed, prompting the 7th Circuit appeal. However, upon finding that the important state law questions presented by Cutchin on appeal were dispositive of the case and likely to recur, the 7th Circuit noted that existing Indiana caselaw sends conflicting signals.

First, the 7th Circuit posed the following question: Whether Indiana’s Medical Malpractice Act prohibits the Patient’s Compensation Fund from contesting the Act’s applicability to a claim after the claimant concludes a court approved settlement with a covered health care provider.

Its second question asks whether Indiana’s Medical Malpractice Act applies to claims brought against qualified providers for individuals who did not receive medical care from the provider, but who are injured as a result of the provider’s negligence in providing medical treatment to someone else.

“True, the circumstances in (Spangler v. Bechtel, 958 N.E.2d 458 (Ind. 2011)) may be distinguished for precisely the reasons that (Preferred Prof. Ins. Co. v. West, 23 N.E.3d 716, 732 (Ind. 2014)) articulated. But West does not answer the question why, as a matter of logic, when a physician’s malpractice proximately causes injuries not just to his patient but also to a third party whom the patient encountered, both may not seek relief for the malpractice under the MMA,” Circuit Judge Ilana Rovner wrote for the panel, consisting of Chief Judge Diane Sykes and Senior Judge Joel Flaum.

“These questions leave us uncertain as to precisely how a negligence claim like the one that Cutchin pursues should be treated. The scenario underlying his claim may not be one that occurs frequently, but as cases like (Cram v. Howell, 680 N.E.2d 1096 (Ind. 1997)) and (Manley v. Sherer, 992 N.E.2d 670 (Ind. 2013)) reveal, it is one that recurs. The viability of Cutchin’s claim turns exclusively on Indiana law as established by both the terms of the MMA and the Indiana cases interpreting those terms. It is important to the courts and citizens of Indiana that the questions presented be answered authoritatively,” the 7th Circuit wrote.

“We submit these questions with respect and with the hope that the Court will lend us its guidance in agreeing to answer these questions. Resolution of the merits of this appeal is stayed pending the Indiana Supreme Court’s decision.”

The case is Jeffrey Cutchin v. Stephen Robertson, 20-1437.

Indiana Supreme Court

Feb. 3

Attorney Discipline — Domestic Violence/Four-Year Suspension

In the Matter of Bradley David Cooper

19S-DI-418

The former Johnson County prosecutor who was convicted of assaulting his former girlfriend and attempting to cover up his crime was suspended from the practice of law for four years without automatic reinstatement.

The sanction might effectively end the legal career of Bradley Cooper, formerly the long-serving prosecutor in the largely suburban county south of Indianapolis. The Indiana Supreme Court’s order found no reason not to subject Cooper to significant professional punishment after he was placed on interim suspension in August 2019, after pleading guilty in a felony domestic violence case.

Cooper “urges imposition of a short suspension with automatic reinstatement, likening his case to other disciplinary cases involving acts of battery committed by elected officials, deputy prosecutors, and other attorneys,” the Supreme Court wrote in a per curiam opinion.

“However, any similarity between those cases and this one ends there. Respondent’s acts of battery were more brutal and his victim more vulnerable; his criminal conduct involved not only violence but dishonesty; and he is a repeat disciplinary offender. All of these factors elevate this case into a far more serious realm requiring, at a minimum, that Respondent demonstrate his professional fitness before ever again practicing law in this state.”

Justices were unanimous in their decision but stopped short of disbarment that had been recommended by Jackson Superior Judge Amy Marie Travis, who served as hearing officer in Cooper’s discipline case. Jackson in September recommended the ultimate professional sanction, citing the actual harm Cooper had caused to his victim and the public and the potential for further harm to the public and profession.

Cooper pleaded guilty to Level 6 felony counts of criminal confinement, identity deception and official misconduct in April 2019. Cooper, who had served as the Johnson County prosecutor since 2009, struck his fiancée, causing her bodily injury, and confined her without consent when she tried to leave his home in Trafalgar, charging information states. He also pretended to be the victim in electronic messages sent to someone else and committed official misconduct by committing identity deception during a criminal investigation of domestic battery within his judicial circuit and in Johnson County.

In July 2019, Cooper confessed, “I did it … I did it all,” when Hancock Circuit Special Judge Dan Marshall sentenced Cooper to 540 days’ probation, as stipulated in his plea agreement. Cooper upon sentencing resigned as prosecutor though some in Johnson County were outraged that Cooper had continued to serve as the county’s top law enforcement official for months after he pleaded guilty to felony charges in April.

The Supreme Court issued an interim suspension of Cooper’s law license in August 2019 after his felony sentencing.

In its Feb. 3 order, the court found Cooper had violated Indiana Professional Conduct Rules 8.4(b) and 8.4(c) — committing criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness and fitness, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

The court wrote that Cooper “brutally beat and confined his girlfriend in his home. During this time he used his victim’s cell phone to send various messages while pretending to be her. Eventually the victim managed to flee Respondent’s house and summon help from a neighbor. When law enforcement officers arrived, Respondent locked the victim’s phone and refused to unlock it. Shortly thereafter Respondent made statements to the media falsely accusing the victim of having attacked him.”

Nevertheless, the court declined to agree with Travis’ recommendation that Cooper should be disbarred. The justices noted he “already has been under interim suspension for about one and a half years. Together with the four-year suspension we impose today, which is effective from the date of this opinion and not retroactive, Respondent will serve well over five years of suspension before becoming eligible to petition for reinstatement. Should Respondent seek reinstatement at that time, his petition will be granted only if he is able to prove his fitness to resume the practice of law by clear and convincing evidence, a burden that will be particularly steep given the severity of Respondent’s misconduct.”

Among other things, the hearing officer had found Cooper’s prior discipline — when he was reprimanded for critical comments he made about a judge’s rulings in a case he had prosecuted — also argued for disbarment.

“We also share the hearing officer’s concern that Respondent’s prior discipline did not prompt him to address sooner underlying factors that Respondent acknowledges predate his earlier misconduct,” justices wrote. “However, subsequent to the misconduct at issue here, Respondent has taken meaningful and substantial steps to address his alcohol use disorder and anger management issues. Respondent also has accepted responsibility in both his criminal and disciplinary proceedings for his deplorable acts, he has been compliant with the terms of his criminal probation, and his testimony at the final hearing reflects a degree of insight and remorse that distinguishes him, however modestly, from some other similarly-situated respondents.

“While these after-the-fact measures do not mitigate the misconduct itself, which was reprehensible, they do point to Respondent’s potential for rehabilitation and narrowly persuade us that the door to Respondent’s legal career should not be permanently and irrevocably closed.”

The case is In the Matter of Bradley David Cooper, 19S-DI-418.

IndianaCourt of Appeals

Jan. 28

Civil Tort — Personal Injury/INDOT Immunity

Chad Albert Staat, et al. v. Indiana Department of Transportation

20A-CT-1283

Summary judgment for the state on a negligence claim brought by an injured motorist has been reversed after the Indiana Court of Appeals rejected an immunity claim and found that material factual issues remain.

Chad and Julie Staat sued the Indiana Department of Transportation in May 2014, alleging the department was responsible for injuries Chad suffered on Interstate 74, where his vehicle struck “an accumulation of water,” hydroplaned and hit a tree. The Staats also raised a loss of consortium claim as to Julie.

INDOT moved for summary judgment, arguing it was immune for design liability and from liability related to a “temporary” road condition caused by the weather. Even if it wasn’t entitled to immunity, INDOT said summary judgment was proper because it did not have notice of the road condition.

The Staats conceded the issue of design-defect immunity but challenged the other grounds for summary judgment. The Dearborn Superior Court ultimately granted INDOT’s motion and denied the Staats’ subsequent motion to correct error.

The Court of Appeals partially reversed, affirming only the holding on the design defect claims that the Staats had conceded. But citing to Bules v. Marshall Cnty., 920 N.E.2d 247 (Ind. 2010), the panel held that INDOT did not show its entitlement to weather-related immunity.

“Although the designated evidence indicates that it had been raining for quite some time and that rainfall increased around the time of the collision, the evidence supports a reasonable inference that a puddle had formed at some point before the collision, with new rainfall displacing the puddled water,” Judge L. Mark Bailey wrote. “In other words, the designated evidence supports a reasonable inference that the road condition stabilized well before the collision.

“… Ultimately, INDOT failed to designate evidence establishing that the collision occurred during the window of reasonable response,” Bailey continued. “We therefore conclude that summary judgment based on weather-related immunity is improper.”

The panel used this Jan. 28 opinion to echo concerns raised by the same panel a day earlier in a decision dealing with similar facts, Ladra v. State, No. 20A-CT-1418 (Ind. Ct. App., Jan. 27, 2021). In that earlier case, however, the panel affirmed summary judgment for the state.

“In evaluating whether immunity applied, this Court observed that Catt and its progeny have ‘removed[d] any ability for the court to consider INDOT’s knowledge regarding the frequency at which conditions caused by weather arise in determining whether a condition is temporary or whether the result is truly from the weather or the failure to take some action prior to the weather event,’” Bailey wrote, referencing Catt v. Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1 (Ind. 2002). “We agree with Ladra that the current analytical framework ‘not only allows for the State to be negligent, it encourages it’ by giving the State ‘no incentive to attempt to implement remedial or preventative measures regarding such conditions.’

“In any case,” Bailey continued, “we are bound by this precedent and will proceed to apply it.”

In an opinion concurring in result, Judge Elizabeth Tavitas wrote separately “only to note my disagreement with the interpretation” of Catt. She penned a similar dissent in the Ladra decision, in which she dissented from the majority that affirmed summary judgment.

Turning to the issue of negligence — specifically, INDOT’s notice of the water pooling on I-74 – the COA panel wrote that the department “has provided little evidentiary support for its claim of lack of notice.”

“Furthermore, even if INDOT had demonstrated a lack of actual knowledge, the appropriate inquiry is whether INDOT knew or should have known about the road condition,” Bailey wrote. “… Ultimately, whether INDOT knew or should have known of puddling on I-74 is an issue that must be resolved by a fact-finder.”

The case of Chad Albert Staat, et al. v. Indiana Department of Transportation, 20A-CT-1283, was remanded for further proceedings.

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Jan. 29

Civil Plenary — Implied Warranty, Negligence/Reversal of Dismissal

The Residences at Ivy Quad Unit Owners Association, Inc. v. Ivy Quad Development, LLC, et al.

19A-PL-2974

Condominium owners in a South Bend complex that they allege was shoddily constructed may pursue their claims against the insolvent developer, the Indiana Court of Appeals ruled, reversing the dismissal of the condo owners’ claims.

The case involves the Ivy Quad 10-building, 68-unit condo complex in South Bend. Owners in 2017 began noticing crumbling concrete and water infiltration, among other problems, and sued defendants who eventually included Ivy Quad Development, its owner/developer David Matthews, general contractor Matthews LLC, and Matthews’ wife, Velvet Canada, who was involved in the design, construction, development and sale of units near the University of Notre Dame campus.

The condo unit owners hired an engineering firm to inspect and document defects, which ranged from improper construction of retaining walls to improperly poured concrete and numerous structural drainage problems, along with some code violations.

But in October 2019, the St. Joseph Superior Court granted the Matthews defendants’ motion to dismiss, which the COA reversed in The Residences at Ivy Quad Unit Owners Association, Inc. v. Ivy Quad Development, LLC, et al., 19A-PL-2974. The appellate panel remanded the case for proceedings after finding dismissal of the implied warranty and negligence claims against the Matthews defendants was improper.

Judge Terry Crone wrote for the panel that the trial court improperly relied on the economic loss doctrine to dismiss the claims, particularly as expressed in Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722, 727 (Ind. 2010).

“… (W)e are persuaded that the reasoning behind and sweeping holding of Indianapolis-Marion County Public Library was meant to apply only to sophisticated parties involved on all sides of large commercial construction projects and not in the typical residential construction context. Our supreme court used the term ‘major construction project’ throughout its opinion, underscoring that the use of the doctrine as a shield by a defendant without contract privity should be limited to such,” Crone wrote.

“We do not think our current supreme court would be inclined to apply the economic loss rule to leave plaintiffs remediless in cases where contract privity between the buyer and the majority of the construction professionals is understandably lacking, especially those concerning much smaller residential construction projects,” Crone continued. “The economic loss doctrine was never meant to operate as a sword to be used by defendants to attack a plaintiff’s tort claim that falls wholly outside of contract law.

“We conclude that the trial court’s application of the economic loss doctrine as a complete bar to the HOA’s negligence claim against the Matthews Defendants was both premature and unwarranted,” the panel concluded, adding in a footnote that the HOA’s claim of general negligence survives and the HOA “alleged sufficient facts in its amended complaint to support a claim of negligence per se.”

“We therefore reverse the trial court’s dismissal order, specifically as it pertains to counts I through III of the HOA’s Third Amended Complaint, and we remand for further proceedings.”

The case has drawn the attention and support of amici on both sides — the Indiana Trial Lawyers Association for the plaintiffs and the Indiana Builders Association for the defendants.

Post Conviction — Vacated Plea/Faulty Interpretation

Israel Bautista v. State of Indiana

20A-PC-1542

The Indiana Court of Appeals vacated a man’s guilty plea in a child molestation case, granting post-conviction relief on the basis that he did not receive the assistance of an interpreter to help him understand his rights.

Israel Bautista asserted the post-conviction court erred by concluding that his guilty plea to two counts of Class A felony child molesting in 2012 was entered into knowingly, intelligently and voluntarily. “Specifically, he contends that the Spanish translation he received at his guilty plea hearing did not adequately communicate the three constitutional rights that he was waiving by pleading guilty as required by Boykin v. Alabama, 395 U.S. 238 (1969),” Judge Terry Crone wrote.

“Concluding that Bautista was not adequately advised of one of the Boykin rights, namely, the right to confront the witnesses against him, we reverse the denial of post-conviction relief and remand with instructions to vacate his guilty plea.”

The appeals panel noted Bautista was presented a guilty plea that was written in English, and one was not provided in Spanish. “Here, we conclude that the Spanish translation of the right to confrontation failed to accurately reflect the trial court’s advisement and meaningfully convey the substance of that right. (The interpreter) told Bautista he had the right to ‘ask questions and call witnesses in this case, and if you want witnesses to do-help in this case, they can call you and make the witness in this case.’

“… Accordingly, we conclude that Bautista carried his initial burden of demonstrating that at the guilty plea hearing he was not properly advised of his right to confront the witnesses against him,” the panel found.

The case is Israel Bautista v. State of Indiana, 20A-PC-1542.

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Feb. 10

Miscellaneous — Civil Forfeiture/Evidence

Emery Brown v. Brent Eaton, Hancock County Prosecutor

19A-MI-1999

A Hancock County trial court must revisit the forfeiture of more than $32,000 related to a marijuana bust after the Indiana Court of Appeals found errors in various evidentiary rulings.

The case of Emery Brown v. Brent Eaton, Hancock County Prosecutor, 19A-MI-1999, began in May 2017, when Fortville Police Office Derrick Archor stopped the vehicle that was later discovered to be driven by Emery Brown. Prior to the stop, Archor observed that Brown’s Dodge had an illegible license plate and was emitting the smell of marijuana. He also saw a lit cigarette fly from the driver’s window and later observed that Brown had bloodshot and glossy eyes.

Brown admitted that he had been smoking a blunt and that he had tossed it when Archor activated his police lights. A pat-down search revealed U.S. currency in Brown’s pocket that was tightly packed with rubber bands. Later, 2 grams of marijuana were found on Brown’s person.

Brown was charged with multiple felonies and misdemeanors, and the state began efforts to unlock his iPhone, which was ringing frequently during the traffic stop. Fortville police got permission to send it to the private digital data access company Cellebrite, though the phone was not sent to Cellebrite for nine days. Eventually, Cellebrite unlocked the phone and downloaded data including pictures of marijuana, text messages and a web search for “cuts in cocaine.”

In April 2018, Brown pleaded guilty to misdemeanor counts of operating while intoxicated and possession of marijuana. A separate civil forfeiture bench trial was held in March 2019, where Brown objected to the admission of bodycam footage and other police testimony that contained pre-Miranda statements. The Hancock Superior Court overruled the objections as to the police statements but declined to allow the admission of the cellphone data. It then entered judgment for the state, ordering forfeiture of the $32,284 seized from Brown during the traffic stop.

But the Indiana Court of Appeals reversed, with Judge Melissa May first addressing Brown’s argument that his pre-Miranda statements to police should not have been admitted. The COA agreed with Brown, with May writing that forfeiture actions, while civil, are punitive in nature. Also, when deputies began questioning Brown, he had already been subjected to a pat down search, so a reasonable person would have believed he was in custody.

“Thus,” May wrote, “the statements should not have been admitted.”

Further, as to Brown’s sufficiency of the evidence argument, “At the evidentiary hearing, the State did not put forth sufficient evidence to show that drug dealing activity occurred, much less activity sufficient to yield or require over $32,000,” May wrote.

“The State did not present evidence regarding the quantity of illegal drugs allegedly being trafficked, the number of drug transactions the money allegedly facilitated, the identity of any drug purchases or suppliers, or the location where any transaction occurred or was intended to occur,” May continued. “Therefore, we hold the State failed to put forth sufficient evidence to sustain the forfeiture order because it did not establish a nexus between the currency and illegal activity.”

On cross appeal, however, the COA held that the trial court erred in denying the state’s motion to admit the cellphone evidence based on the nine-day delay in executing the Cellebrite search warrant. The court determined that retroactive application of Indiana Code 35-33-5-7(f) (2020) served the purpose of efficiency, adding that officers “cannot always anticipate the difficulty involved in de-encrypting an electronic device until after the device is seized.”

Brown had also argued that the search of his phone was in violation of Article 1, Section 11 of the Indiana Constitution. However, under Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), the COA held that “on balance, we hold the police did not unreasonably execute the search warrant.”

“Consequently, we remand this matter for a new evidentiary hearing because the trial court erred in excluding the cell phone data,” May concluded. “… During that new hearing, the trial court should exclude Brown’s pre-Miranda statements from evidence.”•