Indiana Court Decisions: July 22 to Aug. 4, 2015

August 12, 2015

7th Circuit Court of Appeals

July 22

Civil – State Law Claim

Charles S. Howlett v. Jeffrey Hack, et al.


An Indianapolis man who claimed he was the victim of wrongful arrest and malicious prosecution may not pursue his federal civil rights lawsuit against the city and the arresting officer, but he may go to state court to sue the neighbor who claimed the man broke into his house and assaulted him.

Charles S. Howlett was found not guilty of charges that he broke into Jeffrey Hack’s home while Hack slept, then grabbed him and threatened him. Hack had claimed Howlett fled his home after he punched Howlett.

The 7th Circuit Court of Appeals largely affirmed summary judgment in favor of the defendants. “We affirm the district court’s resolution of all claims against (Indianapolis Metropolitan Police Department Officer Stephen) Beasley, the City, and Hack,” Chief Judge Diane Wood wrote for the panel. “We conclude, however, that the court should have relinquished supplemental jurisdiction over the state-law claims against Hack, and so we remand for that limited purpose.”

July 23

Criminal – Drugs/Sentencing Guidelines

United States of America v. Emanuel T. Newman

15-1326 and 15-1474

A cocaine dealer whose prison term was reduced in accordance with changed federal guidelines won an appeal after the judge who cut his sentence by more than 10 years later reimposed the original sentence.

Judge Robert L. Miller of the U.S. District Court for the Northern District of Indiana reduced Emanuel T. Newman’s sentence for dealing 40 to 50 kilograms of cocaine from 472 months to 348 months on Dec. 30, 2014, in accordance with Amendment 782 of the sentencing guidelines.

“The order states that the judge deemed the prosecutor’s 472-month recommendation too high. The United States did not protest and did not appeal,” Circuit Judge Frank Easterbrook wrote. On Jan. 28, Miller amended his order, but the total term remained 348 months.

“But the next day the district judge amended the order yet again. The revised order rearranges which sentences run consecutively to which other sentences, and the upshot is a total of 472 months in prison,” Easterbrook wrote. “The language from the earlier orders stating that 472 months would be too high vanished. The judge did not say why he now thought 472 months the appropriate sentence and did not cite any authority allowing him to add 124 months to Newman’s sentence.

“The United States has confessed error, and for the reasons we have given we agree with its conclusion that the district court lacked the authority to increase Newman’s sentence by an order entered more than 14 days after December 30, 2014.

“The district court’s decision of January 29, 2015, is vacated, and the case is remanded with instructions to reinstate a set of terms that in aggregate cannot exceed 348 months,” the panel concluded.

July 24

Civil – Legal Fees/Unclaimed Property

Katherine Cerajeski, Guardian for Walter Cerajeski v. Greg Zoeller, Attorney General of the State of Indiana, et al.


A woman who previously won a federal lawsuit arguing she was entitled to interest on unclaimed property held by the Indiana attorney general’s office also won her claim that the state should pay her legal fees for her initial appeal.

Acting as a guardian for a relative, Katherine Cerajeski successfully argued in 2013 the state had no right to keep property her relative held in a small, interest-bearing bank account. The judgment led to a change in Indiana law, stating that claimants to Indiana unclaimed property administered by the AG’s office are entitled to interest as well as principal on money in those accounts.

“Even if our holding in the previous round that the plaintiff was entitled to just compensation … was incorrect … the plaintiff nevertheless had obtained a judgment which compelled a change in state law that gave her compensation equal to the damages she was seeking, and it was a result brought about by the efforts of her lawyers,” Judge Richard Posner wrote.  

The court reversed the District Court ruling that the case was moot because of the change in statute, and it ruled Cerajeski could pursue an award of attorney fees. Posner, though, wrote for the panel that the fees Cerajeski’s lawyers are seeking raise an eyebrow.

“We offer the tentative view that the amount sought – $258,462.50 for 375.75 hours – is excessive, both in the amount of time for which fees are sought and in the average hourly billing rate ($687.86). Remember that this was just time spent on the appeal (the first, not the present, appeal), and the high average billing rate implies that few junior members of the two law firms who handled the appeal for the plaintiff could have been assigned to work on the appeal. In fact, it appears that law-firm partners billed more than 93 percent of the total hours billed,” Posner observed.

The case was remanded with instructions for Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana to determine reasonable attorney fees.

Cerajeski was represented by Saunders Law Firm and Donaldson & Guin, both of Chicago.

July 27

Civil – Pension Plan/Withdrawal Liability

James Tsareff et al. v. ManWeb Services, Inc.


The 7th Circuit Court of Appeals has reversed a judgment against a union pension plan after finding the District Court erred as a matter of law and abused its discretion.

The Indiana Electrical Pension Benefit Plan, through its trustee James Tsareff, sued ManWeb Services Inc., for the withdrawal liability to the pension fund. When ManWeb, an Indianapolis-based company, acquired Tiernan & Hoover, an Indianapolis-based electrical contractor, in August 2009, Tiernan & Hoover stopped contributing to the multiemployer pension fund and did not make withdrawal payments.

Consequently, the pension plan assessed a withdrawal liability against Tiernan & Hoover for $661,978 and added ManWeb as a defendant under the theory of successor liability.

The U.S. District Court for the Southern District of Indiana found ManWeb was not liable to the plan. In particular, the District Court held that since Tiernan & Hoover did not enter into arbitration with the pension plan, the plan would have to establish that ManWeb knew of the liability before the acquisition.

The 7th Circuit found on this point that the District Court erred as a matter of law. The Circuit Court held the successor liability notice requirement under the Multiemployer Pension Plan Amendments Act of 1980 does not mean the pension plan had to establish that ManWeb knew Tiernan & Hoover had failed to arbitrate.

Moreover, the 7th Circuit panel ruled the District Court abused its discretion when it ignored that fact that ManWeb did protect itself against liability. ManWeb obtained indemnification from any and all liabilities and expenses by Tiernan & Hoover. Also, ManWeb had knowledge of the potential withdrawal liability.

Finally, the 7th Circuit tossed the District Court’s analysis of Tiernan & Hoover’s underlying liability. The Circuit Court agreed with the pension plan that Tiernan & Hoover should have gone to arbitration as required by the MPPAA.

In short, the 7th Circuit reiterated Clinton Engines, 825 F.2d at 422, by holding that arbitration reigns supreme under the MPPAA. Therefore, the District Court’s substantive review of Tiernan & Hoover’s underlying withdrawal liability constituted as error of law and an abuse of discretion.

July 31

Civil – Police Raid/Excessive Force

Louise Milan v. Billy Bolin, in his individual capacity as Evansville Police Department Chief, et al.


See story on page 1.

Indiana Supreme Court

Aug. 4

Estate – Breach of Contract/Wills

David J. Markey v. Estate of Frances S. Markey, Deceased; Stephen L. Routson, Personal Representative Under the Last Will and Testament of Frances S. Markey, Deceased et al


An heir was successful in asserting he had a claim to his father’s estate but has more work to convince the courts he filed his claim in a timely manner.

David Markey sued his stepmother’s estate and his two stepsiblings to enforce the contract his father and stepmother had signed regarding the division of their estate. Under the terms of the original agreement, the couple’s property would be divided between Markey and his stepmother’s granddaughter. Also, the contract mandated the wills could not be revoked or altered.

However, after Markey’s father died, his stepmother rewrote her will, leaving everything to her two children. She died in July 2012 and her son, who was named personal representative of her will, made no effort to notify Markey. Instead, Markey did not learn of his stepmother’s death and subsequent will until April 2013.

Exactly nine months after the stepmother’s death, Markey filed his lawsuit.

Both the Wayne Superior Court and the Indiana Court of Appeals found Markey was time-barred from filing his claim. Citing Keenan v. Butler, 869 N.E.2d 1284, 1289 (Ind. Ct. App. 2007), trans. not sought, the courts held Markey had only three months to act.

Markey argued the lower courts had improperly relied on the common law definition of “claim” rather than the more recent statutory definition enacted by the Legislature. As such, he held he had nine months to file.

He asserted his claim for breach of contract to make and not revoke mutual wills constitutes a “claim” as defined by Indiana’s Probate Code. Also, he maintained he was a reasonably ascertainable creditor of the estate entitled to actual notice which he did not receive.

The Indiana Supreme Court agreed, partly, and reversed the summary judgment in favor of the defendants.

In reviewing Indiana Code 29-1-7-7(d) (Supp. 2014), the justices noted that to satisfy the statute, the plaintiff must have a claim and be a reasonably ascertainable creditor. They found under the plain language of the statutory definition, Markey’s claim was governed by the probate code.

But, the Supreme Court held off finding that Markey had timely filed. The justices noted that the issue had not been fully adjudicated and the parties had not been fully briefed as to whether Markey was a creditor of the estate or whether he was reasonably ascertainable. Likely, the Supreme Court held, answering these questions would require further discovery.

The Supreme Court remanded to determine whether Markey’s claim in probate should proceed as timely filed.

Indiana Court of Appeals

July 22

Post Conviction – Early Denial

Abdullatip Osmanov v. State of Indiana


A post-conviction court which denied a petition even before the state had responded has been ordered by the Indiana Court of Appeals to go back, slow down and do it over.

Abdullatip Osmanov, a permanent resident of the United States, filed a petition for post-conviction relief after he learned his guilty plea could possibly result in his deportation.

He pleaded guilty to Class D felony theft and Class B misdemeanor failure to stop after an accident resulting in non-vehicle damage in Huntington Superior Court. In addition, he filed a “Written Advisement and Waiver of Rights” form which included a provision detailing the possibility of deportation for non-U.S. citizens with felony convictions.

Subsequently, Osmanov filed a petition for post-conviction relief, claiming, in part, his guilty plea was not entered into knowingly because he was unaware of the immigration consequences. Twelve days after he filed a petition and before the state filed an answer, the post-conviction court summarily denied Osmanov’s request for relief.

On appeal, Osmanov argued the post-conviction court erred by denying his petition without holding an evidentiary hearing. The state of Indiana countered the court properly denied the petition because Osmanov’s conduct at his guilty-plea hearing and the Written Advisement and Waiver of Rights he signed refuted his post-conviction claims.

The Court of Appeals found the post-conviction court acted so quickly that neither party had time to file a motion for summary disposition or submit affidavits or other evidence. The court issued a denial less than two weeks after Osmanov filed and before the state had a chance to respond.  

Instead, the post-conviction court relied on the waiver form and the transcript from Osmanov’s guilty-plea hearing when it disposed of his petition.

The Court of Appeals noted that when the petition is reviewed without considering the documents outside of the pleadings, Osmanov raises issues of possible merit. Consequently, the panel ruled the post-conviction court erred by summarily denying Osmanov’s petition under Post-Conviction Rule 1(4)(f).

The Court of Appeals reversed the post-conviction court’s judgment and remanded for further proceedings.

July 24

Criminal – Drugs/Firarms/Search Warrant

Antyon Buford v. State of Indiana


The Indiana Court of Appeals threw out a man’s cocaine dealing conviction, holding that a search warrant that led to charges against him should not have been issued.

A jury convicted Antyon Buford in Elkhart Superior Court of the Class A felony dealing count, Class B felony unlawful possession of a firearm by a serious violent felon, and Class D felony maintaining a common nuisance.

Police went to Buford’s home after receiving a tip from the prosecutor’s office that there might be drug activity involving another man who lived there. They smelled burned marijuana when they approached, and officers noticed marijuana residue on a table. They arrested Buford and the other man on warrants against them, and another officer went to obtain a search warrant.

The search yielded a gun, bullets, marijuana roaches, a scale with white residue that tested positive for cocaine, and a white rock that appeared to be cocaine. The trial court rejected Buford’s motion to suppress the evidence as the result of an improper search.

“As the probable cause affidavit included hearsay information that was not corroborated by the totality of the circumstances, the warrant should not have been issued,” Judge Melissa May wrote for the panel.

“In the case before us, the totality of the circumstances did not corroborate a hearsay statement that there was ‘dealing’ of drugs from Buford’s residence or that ‘a search at that address would yield fruits of the crime’ of dealing. … We must accordingly reverse and remand for further proceedings.”

July 29

Miscellaneous – Annexation/Remonstration

Town of Whitestown, Indiana v. Rural Perry Township Landowners


The Indiana Court of Appeals has reversed another annexation ruling, this time finding the town of Whitestown can move forward with plans to incorporate a portion of Perry Township.

The appellate panel held the trial court had too narrowly interpreted Indiana’s annexation statute. Specifically, the Court of Appeals reviewed Indiana Code subsection 36-4-3-13(c) and 36-4-3-13(e)(2)(B).

Remonstrators in Boone County challenged Whitestown’s plans to annex 621.87 acres in the adjacent Perry Township. In August 2014, the Hamilton Superior Court agreed with the remonstrators that Whitestown had not demonstrated it needed and could develop the proposed annexation area in the “reasonably near future,” as required by I.C. 36-4-3-13(c).

The Court of Appeals pointed out that while previous appellate panels have established the additional tax revenues cannot be the sole reason for the annexation, the annexation statutes should not be used to impede a municipality’s future plans for growth.

 “…the test prescribed under the statute is not whether the annexing municipality can make do without the territory it seeks to annex,” Judge L. Mark Bailey wrote for the court. “The statutory test, as interpreted by Indiana’s appellate courts, is whether Whitestown could use the Annexation Area for a purpose other than increased collection of property taxes in the reasonably near future. The trial court’s findings recognized that this was the case, but construed the language of the statute too narrowly in light of the deference properly accorded under our case law.”

The Court of Appeals noted the testimony about the town’s rapid growth and Whitestown’s efforts to encourage, predict and plan for that growth. The town also presented plans for the infrastructure, which would have to run through the unincorporated area in order to connect the municipality with the new waste water treatment plant currently under construction.

However, the Court of Appeals characterized the trial court as wholly adopting the remonstrators’ arguments and arriving at conclusion that did not acknowledge the evidence that Whitestown had met the statutory requirements on the need and use of the annexation area.

“…we remind trial courts of both the deferential standard accorded to annexing municipalities, and the risks associated with wholesale adoption of a party’s strongly one-sided proposed findings and conclusions,” Bailey wrote.

The Court of Appeals ruled the trial court had erred in it interpretation of the Indiana Code and in its application of the statutory provisions to its findings of fact. It remanded the case with instructions to enter judgment in favor of Whitestown.

The Whitestown reversal is similar to the statutory interpretation offered in Town of Fortville v. Certain Fortville Annexation Territory Landowners, 30A01-1410-MI-442.

This July 2, 2015, decision from the Court of Appeals concluded the Hancock Circuit Court erred by applying the wrong evidentiary standard when analyzing Fortville’s need and plans for the annexation area. The trial court ruled Fortville did not meet its statutory burden because it did not have any plans for any physical construction in the near future.

But the Court of Appeals noted, Fortville was providing water and emergency services to the unincorporated area and intended to expand utilities. In addition, the town wanted to manage the growth that was occurring in areas to the north and west of the annexation parcel.

The Court of Appeals held non-physical brick and mortar development uses should be considered when determining whether the municipality fulfills the requirements of I.C. 36-4-3-13( c)(2). Limiting the statute to physical construction or development, the court concluded, would result in bad policy and likely harm both the municipality and the area to be annexed.

Judges John Baker, Melissa May and Paul Mathias comprised the panel for the Fortville decision. Along with Bailey, the other judges on the Whitestown panel were Patricia Riley and Michael Barnes.   

July 30

Criminal – Waiver of Right to Counsel

Gabriel Kowalskey v. State of Indiana


A defendant who pleaded with a judge to try to obtain possibly exculpatory video evidence he said his public defender refused to seek did not, by his conduct, waive his right to counsel, the Indiana Court of Appeals determined.

Gabriel Kowalskey was represented by his third public defender, Eric Oliver, in one of two criminal cases against him in Hendricks County. Oliver represented Kowalskey on Class B felony charges of possession of cocaine, possession of marijuana, unlawful possession of a firearm by a serious violent felon and lesser firearms charges.

Kowalskey’s first appointed counsel withdrew citing a conflict, and a second withdrew citing a breakdown in communication. Hendricks Superior Judge Rhett M. Stuard warned Kowalskey before appointing Oliver that if his obstreperous behavior persisted, the court could find that he had chosen to represent himself.

Later, Oliver also moved to withdraw, also citing a breakdown in communication. But according to the record in this case, Kowalskey told the judge he didn’t want Oliver removed. Rather, he wanted evidence from police dash-cam video or from a CVS drugstore’s surveillance video that he said would prove police had their emergency lights activated for an investigatory stop, which Kowalskey said police denied.

“I am scheduled for a suppression hearing and without footage from the scene or an honest account from at least one of the officers I cannot ‘definitely’ prove the arresting officer made an Invalid Investigatory Stop – they claim a stop was never made,” Kowalskey wrote the judge in a letter a day after a pretrial conference. He also wrote he was not asking to fire Oliver.

A day after Kowalskey sent the letter, Oliver moved to withdraw. He told the court that Kowalskey “wants to have the best of both worlds and have the lawyer, but dictate to the lawyer how they handle the case and that just doesn’t make a feasible solution.” The trial court granted Oliver’s motion and ruled Kowalskey had waived his right to appointment of pauper counsel.

The Court of Appeals panel reversed the waiver in this interlocutory appeal.

“Oliver indicated that Kowalskey’s February 5, 2015 letter prompted his request to withdraw appearance. In the letter, Kowalskey stated that he was scheduled for a suppression hearing, that the police had denied making an investigatory stop, that he knew the police had activated their emergency lights and thus that there had been an investigatory stop, that Oliver had not attempted to contact CVS for its surveillance system footage, that without footage he could not prove the arresting officer did not make a valid investigatory stop, and that he was not asking to fire Oliver, but was hoping the court would demand the prosecutor to produce or obtain the officers’ dash-cam footage or the CVS footage,” Judge Patricia Riley wrote for the panel.

“At the February 9, 2015 hearing, Kowalskey stated that he did not want a different lawyer, that he did not have time to have a different lawyer and that he was stressed and wrote the letter because his suppression hearing was scheduled for a week later. The record does not establish that Kowalskey, in sending his letter to the court, engaged in obstreperous conduct or behavior.  The court did not make specific findings supporting the conclusion that Kowalskey, by his letter or otherwise, engaged in obstreperous conduct,” the panel concluded, citing the test for waiver of counsel under Gilmore v. State, 953 N.E.2d 583 (Ind. Ct. App. 2011).  

“The trial court did not undertake an analysis of whether, or make specific finding supporting the conclusion that, Kowalskey demonstrated obstreperous conduct after being warned that such conduct could result in the waiver of his right to counsel or made a knowing and intelligent waiver of his right to counsel,” the panel held in remanding for proceedings.

July 31

Criminal – Restitution/Police Officer Injury

Kent Akins v. State of Indiana


An Indianapolis trial court abused its discretion by ordering a man convicted in a physical altercation with police to pay more than $27,000 in restitution, despite a lack of evidence he caused injuries that resulted in those medical bills.

Kent Akins pleaded guilty to Class D felony resisting law enforcement and Class A misdemeanor resisting for punching one officer and obstructing or interfering with another outside a bar in December 2013. He received a suspended 18-month sentence and was ordered to pay restitution after a hearing.

But in this case, Senior Judge Carr Darden wrote for the panel that the record is undisputed in showing there is no evidence Akins is responsible for the damages he was ordered to pay.

“In this case, the State correctly concedes that there is no evidence in the record that Akins caused Officer (Antwon) Keyes’ injuries,” Darden wrote. “Indeed, there is no evidence that Officer Keyes’ injury occurred in connection with Akins’ arrest. Akins pleaded guilty to battering and injuring Officer (Tyler) Watson, not Officer Keyes.

“Under these circumstances, the trial court’s restitution award was against the logic and effects of the facts and circumstances, and we must reverse,” Darden wrote, remanding for a new restitution hearing at which the state must prove that Keyes’ injuries resulted from Akins’ criminal behavior.

“Restitution must reflect actual medical costs incurred by the victim and may not include recovery for duplicated medical charges, such as those covered by insurance. … Akins must be given an opportunity to test the State’s evidence and submit his own.”

Aug. 4

Civil Tort – Homeowners Insurance/Policy Reinstatement

Richard Zeller, Jr. v. AAA Insurance Company


A Porter County man won his argument that his insurer’s acceptance of a late payment kept his homeowners coverage in force, after which a garage fire caused damage exceeding $80,000. Now, the insurer also may have to pay bad-faith and punitive damages.

A Court of Appeals panel reversed Porter Superior Judge Roger Bradford’s judgment in favor of the insurer. “On appeal, Zeller argues that the trial court’s ruling is erroneous because the policy was reinstated when AAA accepted his payment. We agree. Therefore, we reverse and remand for further proceedings,” Judge Terry Crone wrote for the panel.

Zeller had coverage with AAA since 2006, but the company sent a notice saying that without a payment the policy would expire Nov. 30, 2011. Zeller mailed AAA a payment stub with his credit card information on Nov. 25, and the payment was posted to his credit card account on Dec. 7, according to the record.

Zeller’s garage caught fire on Dec. 9, but AAA denied coverage and attempted later that month to return Zeller’s premium in the form of a check with the notation, “This check is issued for the following reason – policy cancelled.” Zeller didn’t cash the check and sued instead, but the trial court ruled against him after a bench trial. The trial court found the day payment was “received” was Dec. 7, after the cancellation deadline, and that there was no evidence the insurer had reinstated the policy.

Crone wrote for the panel that Zeller’s policy specifically allows for reinstatement of a cancelled policy upon receipt of adequate payment, as was the case here.

“AAA could have protected itself by drafting more specific deadlines and requirements for reinstatement in its policy or by refusing to accept Zeller’s payment, which it had every right to do. AAA did neither of these things, however, so we must reverse the trial court’s judgment in its favor,” Crone wrote.•


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