7th Circuit Court of Appeals
Civil – Class Action/Design Defects
Larry Butler et al. v. Sears, Roebuck and Co.
Two class actions claiming Kenmore washing machines sold at Sears stores were defective were reinstated by the 7th Circuit Court of Appeals after certification of the suits was vacated in June by the U.S. Supreme Court.
An Indiana man is the lead plaintiff in both classes, Larry Butler et al. v. Sears, Roebuck and Co., 11-8029, 12-8030. The suits separately claim that design defects in front-loading washers sold between 2001 and 2004 create odor-causing mold or cause the machines to stop at inopportune times.
The SCOTUS ruling vacating class certification in the cases remanded the suits to the 7th Circuit on the basis of its holding in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). There, justices determined that a suit may not be certified as a class action unless damages sought are the result of a class-wide injury.
In reinstating class certification in both cases in accordance with its November 2012 ruling, Circuit Judge Richard Posner wrote, “It would drive a stake through the heart of the class action device, in cases in which damages were sought rather than an injunction or a declaratory judgment, to require that every member of the class have identical damages. … (T)he fact that damages are not identical across all class members should not preclude class certification.
“There is a single, central, common issue of liability: whether the Sears washing machine was defective,” the 7th Circuit ruled.
Posner noted that the opinion harmonizes a Sixth Circuit ruling in light of Comcast in a similar mold class action regarding washers made by Whirlpool, which also manufactured the Kenmore machines. “The concordance in reasoning and result of our decision and the Sixth Circuit’s decision averts an intercircuit conflict,” Posner wrote for the panel.
Indiana Supreme Court
Criminal – Sexually Violent Predator
Ronald G. Becker v. State of Indiana
The Indiana Department of Correction’s motion to obligate a convicted sex offender to continue registering was blocked by the Indiana Supreme Court on the grounds that “the State is the State.”
The Indiana Supreme Court reversed the trial court’s order granting the DOC’s motion to correct error. It ruled res judicata barred DOC from bringing the motion because the department and the county prosecutor are in privity as “the State.”
After being convicted of criminal deviate conduct, a Class B felony, Ronald Becker was initially required to register annually as a sex offender for 10 years. However, after the Legislature amended the statute, Becker was classified as a sexually violent predator and required register every 90 days for his lifetime.
Becker petitioned to be relieved from the additional SVP obligations, arguing they were an unconstitutional ex post facto law as applied to him. The court agreed and ordered in 2008 that classifying him retroactively as an SVP was unconstitutional. The prosecutor did not appeal the order and the DOC did not intervene to challenge it.
Later, the state entered into an Agreed Order, saying that Becker had satisfied his registration obligations under the 10-year statute and was no longer required to register.
Less than two weeks later, the Indiana Supreme Court ruled on Lemmon v. Harris, 949 N.E. 2d 803 (Ind. 2011), which rejected an ex post facto argument. The Indiana attorney general subsequently intervened on behalf of the DOC, arguing Becker’s registration obligation from 10 years to life was not an ex post facto violation.
The trial court granted the DOC motion to correct error and ordered Becker to register every three months for the rest of his life.
In its review, the Supreme Court concluded the DOC’s interests were represented by the local prosecutor and, therefore, they are in privity for purposes of res judicata. Therefore, the 2008 Order is binding against the DOC.
“If the res judicata shoe were on the other foot in this case, Becker would be hard-pressed to avoid its preclusive effects,” Justice Loretta Rush wrote for the court. “There is, after all, only one of him, with no alter egos to intervene on his behalf if a law later changed in a way favorable to his position. Final judgments in a criminal case should be similarly binding against ‘the State’ – not just the prosecutor, but also the various alter egos of the State whose substantial interests are adequately represented by the prosecutor.”
Civil Tort – Indiana Tort Claims Act
John W. Schoettmer & Karen Schoettmer v. Jolene C. Wright & South Central Community Action Program, Inc.
Citing the reasoning in a dissenting opinion, the Indiana Supreme Court has ruled an injured driver can present his argument of why he should be allowed to file a lawsuit against a government entity even though the time limit has expired.
John Schoettmer was injured on Nov. 24, 2008, after he was involved in vehicular accident with Jolene Wright, who was working for South Central Community Action Program Inc. He underwent a series of medical treatments and filed all the paperwork needed to settle his claim with Cincinnati Insurance Co., South Central’s liability insurer.
Schoettmer declined a settlement offer and eventually sued Wright and South Central for personal injury damages.
In an amended complaint, South Central asserted that as a political subdivision governed by the Indiana Tort Claims Act, it could not be sued by Schoettmer and wife Karen because the plaintiffs had not provided a notice of their claim within ITCA’s 180-day deadline.
The trial court granted summary judgment in South Central’s favor and a split Indiana Court of Appeals upheld the ruling. However, Judge Terry Crone dissented, arguing South Central should be estopped from asserting the Schoettmers’ noncompliance with the ITCA.
Like Judge Crone, the Supreme Court agreed with the Schoettmers’ argument that equitable estoppel should prevent South Central from using the ITCA time limit as a defense. The Schoettmers were not aware the agency was a government entity covered by the act.
The Supreme Court reversed the trial court’s grant of summary judgment in favor of the defendants and remanded for further proceedings consistent with the court’s opinion.
Writing for the court, Judge Mark Massa pointed out that Schoettmer failed to act because of his reliance on the insurer’s instructions.
The insurance agent told him repeatedly to wait until all his medical treatments were complete before settling his claim. He provided a recorded statement and access to his medical records and bills by April 22, 2009. However, Cincinnati Insurance did not issue a settlement offer until Aug. 20, 2009, nearly three months after the 180-day time limit had expired.
“Thus,” Massa wrote, “we are included to agree with Judge Crone that ‘the designated evidence reveals that genuine issues of material fact remain, and the Schoettmers should be allowed to present proof of estoppel to the trial court.’”
Civil Tort – Comparative Fault Act
Mary Elizabeth Santelli, as Administrator of the Estate of James F. Santelli v. Abu M. Rahmatullah, Individually and d/b/a Super 8 Motel
The Indiana Supreme Court upheld a lower court order for a new trial in a case involving a $41,400 award made to the estate of a man who was killed at a Speedway hotel by a former employee.
“We find the trial court was well within its discretion in determining that ‘a contrary result should have been reached in the minds of reasonable men,’” Justice Robert Rucker wrote for the justices in affirming a new trial.
The jury determined 97 percent of the liability for damages lies with Joseph Pryor, the man who murdered James Santelli while he was a guest at the Super 8 Motel in Speedway. The jury apportioned 1 percent liability to Santelli and 2 percent to hotel owner Abu M. Rahmatullah, which resulted in the $41,400 award – 2 percent of the $2.07 million damages award – to the estate.
Justices, meanwhile, affirmed the allocation of fault under the Indiana Comparative Fault Act as proper. In this negligence case, the court addressed the application of the Act to the issue of fault allocation in a specific context: that in which a premises owner has a duty to protect a business invitee from the foreseeable criminal act of a third party.
Rucker wrote for the court that it had determined that “the (Comparative Fault) Act abrogates the old rule of joint and several liability in suits to which the Act applies,” citing Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129, 138 (Ind. 2012).
“We determined that the elimination of joint and several liability was a reasonable trade-off for the benefits plaintiffs receive under the Act, namely: the removal of the contributory negligence bar to recovery,” Rucker wrote.
“It would be incongruous to permit Rahmatullah to be held jointly liable for damages caused by Pryor but not to permit Rahmatullah to seek contribution from Pryor. Our view on this issue is consistent with that of other states whose legislatures, like the Indiana Legislature, have included intentional acts in the comparative fault analysis,” Rucker wrote.
The Supreme Court ruling comes after a panel of the Indiana Court of Appeals reversed the Marion Superior Court and remanded for a new trial. Attorneys said the case would be a key decision regarding premises liability.
“The Indiana legislature has the authority to expressly permit joint and several liability in circumstances such as these, but as of yet it has not done so,” Rucker wrote. “In allocating fault among multiple actors, a jury may consider ‘the relative degree of causation attributable among the responsible actors.’ Our statutory scheme thus allows a diverse array of factors to be considered in the allocation of comparative fault.”
Post Conviction – Rape/Double Jeopardy
Juan M. Garrett v. State of Indiana
A divided Indiana Supreme Court ruled that a man convicted of rape on retrial was unconstitutionally prosecuted twice for the same offense, but the court upheld denial of post-conviction relief.
The court affirmed denial of post-conviction relief from a Class B felony rape conviction, which also had been affirmed by the Court of Appeals. Garrett’s conviction in a bench trial followed a jury trial in which he was cleared of one rape count and the jury hung on a second. Garrett was accused of twice raping the same woman who claimed he and two other men held her against her will and sexually assaulted her.
“We hold that the ‘actual evidence’ test announced in Richardson v. State, 717 N.E.2d 32 (Ind. 1999) is applicable to cases in which there has been an acquittal on one charge and retrial on another charge after a hung jury. We conclude however that the post-conviction court properly denied the petitioner’s claim that counsel rendered ineffective assistance in failing to pursue this issue at trial or on direct appeal,” Justice Robert Rucker wrote for the majority, joined by Justices Steven David, Loretta Rush and Chief Justice Brent Dickson.
“We acknowledge that in a different factual context this modified test may prove challenging in its application. But here the facts are fairly straightforward. In essence on retrial the State presented the same evidence of Rape A — the first-in-time rape — on which the State relied in the first trial and upon which the jury found Garrett not guilty. And given the relative paucity of evidence on retrial concerning Rape B — the second-in-time rape — we conclude there is reasonable possibility that the evidentiary facts used by the jury in the first trial to establish the essential elements of Rape, for which Garrett was acquitted, may also have been used on retrial to establish all of the essential elements of Rape for which Garrett was convicted,” Rucker wrote.
“We conclude therefore that Garrett was twice prosecuted for the same offense in violation of article 1, section 14 of the Indiana Constitution.”
Justice Mark Massa concluded in the result but argued Garrett was not a victim of double jeopardy.
“The record is clear that, in this second trial, the trial court, prosecution, and defense all understood that the two separate rapes were charged in chronological order and that Garrett was being retried for the alleged ‘Rape B’ only,” Massa wrote. “This does not mean that the victim had to confine her testimony in the second trial solely to Rape B, omitting all details of what transpired earlier in the evening; our jurisprudence does not require such a stilted, redacted and devoid-of-context presentation. (How, for instance, could she testify she was raped ‘again’ without mentioning the first rape?)
“We trust trial judges to separate wheat from chaff, permitting them, for instance, to render a verdict even after being exposed to inadmissible evidence that would irreparably taint a lay jury,” Massa wrote. … “I am confident that the experienced trial judge in this case performed just such a threshing here.”
But the majority noted Richardson requires only the reasonable probability that the facts a trial judge relied on to convict were the same ones the jury relied on in the previous trial.
“If we were to accept the dissent’s position, then that would mean there could never be a Richardson violation where the second trial after an acquittal is before the bench rather than a jury. In our view this goes beyond ‘judicial temperance’ and borders on judicial infallibility,” Rucker wrote for the majority.
“It is ‘reasonab[ly] possible’ that even an experienced trial judge can make a mistake. That is not to say that a mistake was in fact made in this case; but there is a reasonable possibility that is so. This is all Richardson requires,” the majority held.
Indiana Court of Appeals
Criminal – Drunk & Disorderly/Rights of Renters
Jeremiah Walls v. State of Indiana
An argument that tenants of an apartment complex may not ask a drunk and threatening man to leave common areas convinced one judge, but the majority of an appeals panel found otherwise, warning that such a holding would “defy logic and lead to an absurd result.”
A divided Indiana Court of Appeals affirmed multiple convictions for which Walls was sentenced to three years in prison.
Walls, intoxicated, rambling and falling down, awoke residents of Countryside Apartments in Martinsville shortly after 5 a.m. on July 1, 2012. He began tapping on a resident’s door with his feet, which awakened the tenant who asked him to leave. Walls later knocked on the resident’s door and asked to spend the night. The resident refused and Walls began pounding on the door and yelling.
Walls later attempted to enter the apartment of another tenant awakened by the disturbance. He tried to kiss her hand and grabbed her neck, according to the record. The woman and her roommate managed to push Walls out and lock the door, after which Walls began banging on that door.
Police soon came and Walls was arrested; the intimidation charges came from his threat to kill an officer and the officer’s father.
A Morgan Superior jury convicted Walls of two counts of Class D felony intimidation and misdemeanor counts of resisting law enforcement, criminal trespass, two counts of battery and disorderly conduct. A divided appeals panel affirmed the conviction and sentence.
Dissenting Judge Patricia Riley said she would affirm all of the convictions against Walls except for criminal trespass. Citing Aberdeen Apartments v. Cary Campbell Realty Alliance, Inc. 820 N.E.2d 158, 164 (Ind. Ct. App. 2010), Riley wrote, “Our court has already established case law on this issue, and though it may seem ‘absurd’, this court has strictly interpreted the criminal trespass statute which requires that entry on property be denied by either the owner or its agent.
“Pursuant to Aberdeen,” Riley wrote, “tenants of Countryview Apartments … only had exclusive possession of the apartments they leased and not of the common areas. They could therefore not ask Walls to leave the common areas of the apartment.”
“We need not resolve the precise nature of tenants’ rights to or status when in the common areas of an apartment complex in this case,” Judge Elaine Brown wrote. “We need address only whether (the tenants) had a sufficient interest in their leased apartment units to support their requests for Walls to leave the areas immediately outside their doors.”
“Walls was not merely present in the common areas but also was positioned immediately outside the doors giving access to the leased apartment units, persistently banging on the doors to the units, and in (the roommates’) case, had his foot through the threshold of the door,” the majority held.
“Under the circumstances of this case, the tenants, while not in exclusive control of the common areas, had a sufficient possessory interest in, at a minimum, their apartment doors, the threshold of their apartments, and the immediate adjacent areas by which they accessed their leased apartment units, to request that a person leave that specific area and stop persistently banging on their doors. A rigid rule, applied without exception, that a tenant does not have a sufficient possessory interest in such property would defy logic and lead to an absurd result,” Brown wrote.
Criminal – Plea Agreement/Restitution
Adam Morris v. State of Indiana
Saying “plea agreements should be more artfully drafted,” a split Indiana Court of Appeals affirmed an award of restitution against a Daviess County man whose plea agreement was silent on the matter of restitution. The Court of Appeals issued its opinion granting rehearing on the issue of restitution only.
Morris pleaded guilty to a Class A misdemeanor operating while intoxicated after his fiancée was thrown and killed from the ATV he was driving. The trial court then ordered Morris to pay nearly $15,000 toward burial expenses.
However, the Court of Appeals ruled in Morris v. State, 985 N.E. 2d 364 (Ind. Ct. App. 2013) that the trial court lacked the authority to order Morris to pay because the plea agreement did not contain any language about restitution.
On rehearing, the Court of Appeals followed Huddleston v. State, 764 N.E. 2d 655 (Ind. Ct. App. 2002) and Gil v. State, 988 N.E. 2d 1231 (Ind. Ct. App. 2013) and determined Morris’ plea was entirely open which gave the trial court discretion to order restitution.
“Despite our grant of rehearing and ultimate affirmance of the restitution award, we still wish to emphasize that plea agreements ideally should be more artfully drafted in cases such as this if the State wishes to seek restitution,” Judge Michael Barnes wrote for the majority.
Judge John Baker dissented. He noted the trial court’s order of restitution pertained to the charge, operating a vehicle with a blood alcohol equivalent of .08 or more causing death, a Class C felony, was dismissed under the plea agreement. He asserted the Court of Appeals’ original ruling was correct and voted to deny the state’s petition for rehearing.
He did agree with the majority’s call that plea agreements should be more artfully drafted.
Civil Plenary – Drug Tests/Admissibility
Jordan Parker, a minor, individually, and by James Parker and Cheryl Parker, as Natural parents and next friends of Jordan Parker v. Indiana State Fair Board, an agency of The State of Indiana
The Indiana State Fair Board’s decision to strip a winner of his grand champion sheep prize will stand, but the 4-H’er was entitled to a hearing on penalties, the Indiana Court of Appeals ruled.
Jordan Parker was awarded 2011 Grand Champion Market Lamb and his animal raised $23,000 at the state fair Sale of Champions, but a drug screen after the sheep was slaughtered detected the presence of a feed additive for cattle not FDA-approved for sheep. Parker and his parents deny administering the prohibited feed additive.
After the positive drug test on the sheep, Parker lost not just the title, but also the auction sale prize money. He also was banned for two years from the sheep department and permanently banned from state fair 4-H sales. He faces a lifetime ban from participating in any state fair activities upon further infractions.
When Parker’s parents challenged the drug test results and sought to independently test the samples, they were informed the samples had been exhausted. They claimed among other things that Jordan had a property right in the lamb, he was deprived a due process hearing to challenge the drug test results, that the punishment was excessive, and that the fair board’s policy considering drug test results final and binding was unconstitutional.
On appeal of the fair board’s judicial review, a Marion Superior judge granted summary judgment in favor of the board, and the Court of Appeals affirmed in part, reversed in part and remanded, holding that the Parkers had agreed to terms and conditions set forth in the State Fair/4-H handbook.
But the panel ordered the trial court to conduct a further, narrow hearing.
“However, because the summary judgment motions addressed only the admissibility of the drug test results, we conclude that Jordan was entitled to an evidentiary hearing regarding the penalties imposed on him,” Barnes wrote.
Criminal – Arrest Records/Dismissed Charges
Alec Lucas v. State of Indiana
A man who sought to expunge arrest records for charges that were dismissed in a 2011 plea agreement was denied at the trial court but convinced the Indiana Court of Appeals that access to those records should be restricted.
Alec Lucas pleaded guilty to Class D felony counts of possession of a controlled substance and dealing marijuana, and the state dismissed a D felony count of dealing marijuana, a misdemeanor minor in possession of alcohol count and traffic infractions.
Lucas later filed a petition under I.C. 35-38-5-5.5 to restrict access to the dismissed charges. Marion Superior Judge James Osborn denied the request, concluding that the statute doesn’t apply in instances where some charges are dismissed pursuant to a plea agreement, but others are not.
“While the statute is not a model of clarity, we conclude that it was intended to apply to any dismissed charge and not just in cases where all charges have been dismissed,” Judge Terry Crone wrote for the panel, reversing and remanding to the trial court.
The holding is limited, though, because a new expungement law enacted this year repealed the prior section and made clear that the new law would be on the trial court’s side.
“New Section 35-38-9-1 allows a person to petition a court to seal arrest records if: ‘(1) the arrest did not result in a conviction or juvenile adjudication; or (2) the arrest resulted in a conviction or juvenile adjudication and the conviction or adjudication was vacated on appeal,’” Crone wrote. “The trial court’s approach, however, was more consistent with the new statute than with the statute in effect at the time.”
Civil Plenary – Insurance/Employee Coverage
Consolidated Insurance Company v. National Water Services, LLC.
An Orange Circuit Court judge erred when he failed to approve an insurer’s motion for judgment on the pleadings, and the Court of Appeals ordered the case remanded and such a ruling entered.
On interlocutory appeal, the panel ordered judgment on the pleadings in favor of the insurer. National Water sued CIC in an attempt to recover $497,500 under a policy for dishonest employees.
NWS sought to recover after it had sued a former employee, David Arnold, claiming that he had misappropriated $1,178,054 from the company. Arnold removed the suit to U.S. District Court for the Southern District of Indiana in New Albany. Arnold said the accusations were false, and he filed a counterclaim of libel and defamation against NWS.
The water company settled and released Arnold, who agreed to pay NWS a sum of $30,000, according to the record. But settling with Arnold voided the insurer’s coverage, and CIC therefore is entitled to judgment on the pleadings, the panel held.
“This Release ‘after loss’ destroyed CIC’s right of subrogation and was a breach of contract on NWS’s part, therefore discharging CIC from obligation under the Policy to provide coverage. Accordingly, we conclude that the court erred when it denied CIC’s motion for judgment on the pleadings.”
Trust – Capacity/Undue Influence
In the Matter of the Trust of Dorothy Rhoades; Robert Kutchinski and Shelia Graves, f/k/a Shelia Kutchinski v. Joseph Strazzante and Monty Strazzante, Co-Trustees
A family feud involving half-siblings contesting the trust bequeathed by their mother was improperly disposed of through summary judgment, a panel of the Indiana Court of Appeals ruled.
The panel reversed and remanded the case. The panel held there were issues of material fact regarding Rhoades’ capacity and whether she had been unduly influenced.
Dorothy Rhoades had been in declining health, and 11 days before she died she amended her power of attorney and made other changes affecting her will and trust. At the direction of son Joseph Strazzante, she named him sole attorney-in-fact and excluded as a beneficiary another son, Robert Kutchinski, who had been co-attorney-in-fact. She also excluded daughter Sheila Graves.
Joseph and Monty Strazzante won summary judgment from Lake Superior Judge George Paras, who ruled that there were no issues of material fact as to the mother’s capacity or undue influence. The appellate panel disagreed, noting she was heavily medicated and relied on a caretaker when she signed off on the changes. The caretaker testified her medication “resulted in her inability to fully comprehend what was fully happening to her.”
“We conclude that there is a genuine issue of material fact regarding whether Dorothy was of sound mind at the time she executed the amendments at issue,” Judge Rudy Pyle III wrote for the panel. “Accordingly, we conclude that the issue of testamentary capacity is a question of fact for a jury to determine and that the trial court erred by granting summary judgment on this issue.”
That determination undercut the defense argument that there was no issue of undue influence. “Because we have determined that there is an issue of material fact regarding testamentary capacity, we conclude that summary judgment was also not appropriate on the issue of undue influence,” Pyle wrote.
Civil Plenary – Police/Excessive Force
Peru City Police Department and City of Peru v. Gregory Martin
A police chief and city review board were within their rights to terminate the employment of an officer who repeatedly used a Taser on a 64-year-old nursing home patient. An appellate panel reversed a trial court order that had thrown out the officer’s firing.
Peru Police Chief Steve Hoover recommended dismissal of Officer Gregory Martin for excessive use of force against James Howard, a resident of the Alzheimer’s ward of Miller’s Merry Manor. The city’s Board of Works and Public Safety conducted a hearing and agreed Martin used excessive force and was fired.
Police had been called to the nursing home to assist transporting a patient to the hospital after he became combative toward a roommate and staff, but staff testified Howard had been medicated and somewhat subdued when police arrived. Howard was sitting naked in a chair and staring straight ahead when Martin and another officer arrived, according to the opinion.
Nursing home staff believed Howard could have been controlled without the use of a Taser, but officers and paramedics, including Martin’s fiancée, disagreed, according to the record. Officer Jeremy Brindle, who accompanied Martin, conceded that he and Martin likely could have gained control over Howard had each grabbed a wrist.
But when Brindle attempted to grab one of Howard’s wrists, he resisted and began “shuffling” toward Martin, who yelled “Taser.” Martin used the Taser device on Howard five times, according to the Taser’s data printout. The record indicates that Howard was exposed to 31 seconds of Taser force in one minute with five separate deployments lasting five to 11 seconds each.
“Chief Hoover recommended Martin’s dismissal due to his opinion that Martin had used excessive force and due to alleged inconsistencies between Martin’s initial report and his statements during the internal investigation,” Judge Mark Bailey wrote for the panel.
Martin appealed, and the trial court threw out his firing. Miami Superior Special Judge Richard Maughmer entered more than 100 “reasons that the decision should not be affirmed,” finding the termination unsupported by the evidence and the firing arbitrary and capricious.
But the panel found that the trial court erred in substituting its judgment for that of the city police chief and board and that it disregarded ample evidence that supported the firing for cause. The panel focused on training Martin received that limits someone’s exposure to Taser force, which can be deadly when used for extended periods or in repeated bursts in which the subject isn’t allowed time to comply.
“Although greater (cumulative) duration than 15 seconds is not absolutely prohibited, the training materials repeatedly reference 15 seconds as an important benchmark,” Bailey wrote. “… Here, the benchmark time was more than doubled – in five applications inflicted upon an elderly naked man in a nursing home, imminently destined for a hospital. Intervals to achieve compliance were very short, with only a two-second interval between the third and fourth deployments. Moreover, it is noteworthy that Howard was handcuffed after the third Taser application.
“In sum, there is substantial evidence supporting the Board’s decision. … The trial court disregarded evidence favorable to that decision, credited the testimony of witnesses that the trial court did not personally hear, and misstated evidence regarding the scope of Martin’s training,” Bailey wrote. “In short, the trial court reweighed the evidence and reassessed the credibility of witnesses. Substantial evidence supports the Board’s findings, and its decision to terminate Martin for use of excessive force and conduct unbecoming an officer was not arbitrary and capricious.”•