Indiana Court Decisions — Sept. 28 to Oct. 11, 2016

October 19, 2016

7th Circuit Court of Appeals

Oct. 3

Civil – Disability Insurance Benefits

George B. Meuser v. Carolyn W. Colvin


The 7th Circuit Court of Appeals has ruled that an undisputed diagnosis of schizophrenia should be considered a “severe impairment,” an opinion that will allow an Indiana man to have another chance to receive disability insurance benefits after he was forced to quit his job because of his mental illness.

After he was diagnosed with schizophrenia in 1996, George Meuser began taking the prescription drug Zyprexa, a drug he would continue to take for 15 years to help him to manage his symptoms, maintain his moods and sleep eight to 10 hours per night.

However, Meuser’s pharmacist switched him to a generic form of the drug in late 2011, which led to Meuser suffering from insomnia and a lack of focus at work. He chose to take a leave of absence from his job working in a mailroom in December 2011.

After switching psychiatrists, Meuser was put back on the name-brand drug, and his symptoms eventually began to improve. However, Meuser still maintained that he did not feel well enough to work, so he quit.

Meuser then applied for disability insurance benefits in February 2012, but his application was rejected after two agency consultants found that his schizophrenia was not a severe impairment. During this process, Meuser’s psychiatrist reported that his symptoms “waxed and waned,” particularly in regard to his sleeping habits. Meuser’s mother also reported that her son’s symptoms were making it more difficult for him to function on a normal level and were causing him to become more withdrawn.

At a September 2013 hearing before an administrative law judge, Meuser testified to his sleeping problems, saying they prevented him from functioning properly at work. He also testified that he had trouble remembering to complete tasks, such as going to the doctor or finishing the laundry. The ALJ concluded his schizophrenia was not a severe impairment as did a magistrate judge.

The Appeals Council denied review of Meuser’s case, which prompted his appeal to the 7th Circuit.

On appeal, Meuser argued that schizophrenia on its own is enough to constitute “the severe impairment” requirement of Step 2 of five-step disability analysis to receive disability insurance benefits.

The 7th Circuit agreed, writing “we have difficulty imagining how an uncontested diagnosis of schizophrenia (which describes Mesuer’s situation) could not survive Step 2.”

Further, the 7th Circuit wrote that the ALJ made other errors that would support Meuser’s case, even if the Step 2 issue were not in question.

In his appeal, Meuser argued that the ALJ had a fundamental misunderstanding of the diagnosis and symptoms of schizophrenia when he ruled that his “negative symptoms” – such as lack of hallucinations or other thought problems – meant he had no symptoms at all.

Both Meuser and the 7th Circuit rejected that notion, saying that his “negative” symptoms actually meant that he was emotionally impaired and did not show interest in work or social activities.

“Thus, the ALJ improperly played doctor when he ignored expert opinions to arrive at his own, incorrect, interpretation of the medical evidence,” the appellate court wrote.

The 7th Circuit Court also accused the ALJ of “cherry picking” evidence, saying he ignored other reported negative symptoms of Meuser’s schizophrenia, including a blunted or flat affect and a depressed mood.

The appellate court accused the judge of giving undue credit to the agency consultant’s opinions while largely ignoring the opinions of Meuser’s psychiatrist.

Thus, the 7th Circuit Court reversed the decision to deny Meuser disability insurance benefits and remanded the case for further proceedings.

Indiana Supreme Court

Sept. 29

Criminal – Restitution

Cynthia Bell v. State of Indiana


The Indiana Supreme Court has vacated an order a defendant pay restitution as a condition of probation after finding that the trial court failed to determine that the defendant did not have the ability to pay.

Cynthia Bell was ordered to pay restitution to Kalencia Kirkland after Bell was convicted of criminal mischief as a Class B misdemeanor. In August 2014, Bell threw a brick through the window of Kirkland’s apartment and damaged her 2007 Kia Sportage.

After Bell’s sentencing, the trial court then conducted a separate restitution hearing. At that hearing, Bell told the court she had not had a job in more than 20 years and was supporting herself on monthly disability checks, which totaled $730 each month. After paying her bills, Bell testified that she had no money left over.

After Bell’s testimony, neither the state nor the court asked her further questions about her financial situation, and she was ordered to pay $20 a week or $80 a month to Kirkland up to a total of $9,230.30 in restitution as part of her probation.

Bell then appealed to the Indiana Court of Appeals, arguing that the monthly payment exceeded what she would be able to afford. A majority of the appellate court affirmed the trial court’s restitution order, with Judge Terry Crone dissenting.

The Indiana Supreme Court vacated the restitution order, writing that the trial court incorrectly determined that Bell could afford the monthly payment. The trial court was allowed to order restitution despite Bell being found indigent for other purposes, Justice Steve David wrote for the majority. However, the record did not reflect that Bell was actually able to make the ordered monthly payment, he wrote.

In her testimony during the restitution hearing, Bell told the court that she did not have a job or car and that any sort of monthly payment would be a real financial burden.

Based on that testimony, David wrote that it should have been clear to the trial court that Bell would be unable to make a monthly restitution payment. Further, David pointed to the fact that the state did not ask Bell any cross-examination questions after her testimony to refute her claims.

“While we are sympathetic to the victim of Bell’s offense, the trial court failed to engage in its statutorily required duty to determine that Bell could or would be able to pay, and Bell provided sufficient and unrebutted testimony that she did not have any additional income each month in order to make the ordered restitution payments,” David wrote.

Justices Geoffrey Slaughter and Mark Massa dissented in part with the majority opinion. Slaughter wrote that he would remand the case to allow the trial court to determine what Bell’s sentence should be if she cannot pay the restitution. However, Slaughter also wrote that he agreed that the trial court erred when it imposed the restitution order.

Oct. 4

Life Without Parole – Resentencing

Robert Lewis, III v. State of Indiana


The Indiana Supreme Court chose to exercise its “appellate prerogative” and resentence a convicted murderer to a total term of 88 years in prison after the man appealed his sentence on the basis of a Sixth Amendment violation.

Robert Lewis was convicted of murder, murder in the perpetration of criminal deviate conduct, criminal deviate conduct as a Class A felony and resisting law enforcement as a Class D felony. He was sentenced by Lake Superior Court to life imprisonment without parole on the count of murder in the perpetration of criminal deviate conduct, as well as an additional three years’ imprisonment for resisting law enforcement. The other counts were vacated.

Writing for the majority, Justice Mark Massa noted that the sentences were handed down despite the jury’s inability to decide if the state had proven its charged aggravating circumstance. An earlier appeal to the Indiana Supreme Court affirmed the convictions but remanded the case to the trial court, which also affirmed the convictions.

Lewis appealed to the Supreme Court a second time, arguing that his Sixth Amendment rights were violated because the sole aggravating factor supporting the sentence was not determined by the trier of face beyond a reasonable doubt.

In the second appeal, the state agreed to no longer seek a life without parole sentence. However, given the length of the sentences at issue and Lewis’ age, 43, Massa wrote that the Supreme Court chose to resentence Lewis to 65 years for murder, 20 years for criminal deviate conduct as a Class B felony and three years for resisting law enforcement, each to be served consecutively. The case was remanded to the trial court to impose the Supreme Court’s sentences.

All justices concurred with Massa’s opinion.

Indiana Court of Appeals

Sept. 28

Miscellaneous – Liability

Larry Myers and Loa Myers v. Bremen Casting, Inc. and Mastic Home Exteriors, Inc.


The Indiana Court of Appeals held that an electrician can sue the companies where he previously worked as an independent contractor for negligence and liability after he was exposed to asbestos.

Larry Myers worked as an electrician for Koontz-Wagner Electric from 1961 to 1980, serving as an independent contract for companies such as Bremen Casting and Mastic Home Exteriors Inc. During his time as an electrician, Myers was not trained or hired to handle asbestos, so he did not wear protective gear, which resulted in his 2014 diagnosis of malignant pleural mesothelioma as a result of asbestos exposure.

Myers subsequently filed a complaint against Bremen, Mastic and nearly 40 other companies, alleging that the defendants negligently hired Myers and were vicariously liable for his diagnosis as principals, and further liable as premises owners. The defendants knew or should have known about the dangers of asbestos, Myers claimed, and should have warned him of those dangers.

The defendants moved for summary judgment, which the Marion Superior Court granted partially in their favor. However, the court denied summary judgment on a respondeat superior claim, writing that there was a genuine issue of material fact as the whether the defendants’ actions exposed Myers to asbestos.

Myers then appealed, arguing that the defendants owed him a duty of care, even though he worked for them as an independent contractor, on the basis of the non-delegable duty doctrine, which holds that principals can be liable for negligence of an independent contractor in five instances, including in the case of intrinsically dangerous work or in the case of an act that will probably cause injury without due precaution.

In its opinion, the COA wrote that Myers could not invoke the intrinsically dangerous exception because working with asbestos is not intrinsically dangerous as a matter of law.

However, the Court of Appeals also wrote that the defendants did not establish that asbestos exposure was a common risk among electricians and, therefore, Myers could invoke the due precaution exception of the non-delegable duty doctrine. Thus, the appellate court wrote that the Marion Superior Court erred when it granted the defendants summary judgment on Myers’ non-delegable duty claim.

Bremen, Mastic and the other defendants cross-appealed the trial court’s decision to deny summary judgment on the respondeat superior claim, arguing that as a matter of law, they do not owe a duty to an independent contract who is injured by the condition he is employed to address.

But the Court of Appeals wrote that the evidence did not undisputedly show that Myers was injured by the condition he was employed to address, so the defendants did owe him a duty of care under respondeat superior, and the trial court did not err when it denied summary judgment on that claim.

Similarly, the Court of Appeals also disagreed with the defendants’ cross-appeal on the basis that they could not have breached their duty of care to Myers because he was injured by the condition he was employed to address. Thus, the appellate court found that the Marion Superior Court erred when it granted the defendants summary judgment on Myers’ premises liability claim.

The Court of Appeals’ opinion concluded that the defendants were not entitled to summary judgment on any of Myers’ liability claims and, therefore, remanded the case for further proceedings.

Sept. 30

Criminal – Attempted Obstruction of Justice

Duane Herron v. State of Indiana


A man’s conviction of attempted obstruction of justice was reversed by the Indiana Court of Appeals because the state charged him under the wrong part of the statute.

Duane Herron was convicted of the Level 5 felony as well as Level 6 battery, three misdemeanor invasion of privacy counts and misdemeanor interference with the reporting of a crime in St. Joseph Superior Court.

Herron was issued no-contact orders against his alleged victim, but he called her from jail and begged her not to testify against him, and he also called others and urged them to persuade the victim not to testify or appear at his trial.

The state charged Herron with attempted obstruction under Indiana Code 35-44.1-2-2(a)(2)(C), which refers to a defendant absenting himself from a proceeding or investigation to which he has been summoned rather than subpart (a)(1)(C), which criminalizes attempts to induce a witness to absent herself from a proceeding or investigation to which they’ve been summoned.

“Because the State chose to charge Herron pursuant to subpart (a)(2)(C), and because there is no evidence that Herron attempted to absent himself from his criminal proceeding, the record is devoid of evidence on one or more elements of the charged offense. Therefore, the trial court erred in denying Herron’s motion for a directed verdict,” on the attempted obstruction charge, Judge Terry Crone wrote for the panel. ‘His conviction for attempted obstruction of justice is reversed.”

Herron’s other convictions were not challenged in this appeal.

Oct. 6

Juvenile – Termination of Parental Rights

In the Matter of the Involuntary Termination of the Parent-Child Relationship of N.G. (minor child) and N.R.G. (mother) v. The Indiana Department of Child Services


The Indiana Court of Appeals rejected a trial court order terminating a St. Joseph County woman’s parental rights to her daughter and instead ordered the trial court to present more specific findings of fact to support the termination.

After a report of physical abuse, 4-year-old N.G. and 16-year-old D.W. were removed from the home of their mother, N.R.G., and father, D.G.W., in 2013. A short time later, N.G. was designated a child in need of services, and the St. Joseph County Department of Child Services ordered services for both the child and the mother with the eventual goal of reunification. N.G. was first placed with an aunt, then moved to a foster home in 2015.

In January 2016, the St. Joseph Probate Court terminated the parental relationship between N.G. and her mother. The trial court offered a one-page list of findings to support its decision and stated that adoption was the best course of action for the child.

N.R.G. appealed, arguing that the trial court’s findings of fact were deficient.

In its opinion, the Court of Appeals agreed, writing that the St. Joseph Probate Court decided that termination of the relationship was in N.G.’s best interests without any supporting facts other than to say that supervised therapeutic visits were in the best interests of the child.

Further, the trial court recommended adoption without any supporting facts other than N.G. was progressing in therapy with the help of her foster parents.

Finally, the appellate court wrote that although the trial court did present some facts as to N.R.G.’s prospects of remedying the conditions that led to her daughter’s removal, it did not provide a finding on the reasonable probability of the unremedied conditions. Instead, the trial court found that continuing the relationship would pose a threat to N.G.

Specifically referencing the trial court finding that N.G. had reported new sexual abuse at the hand of her brother in 2013, the Court of Appeals wrote that such a finding is not actually a finding at all, but instead a recitation. Further, the Court of Appeals wrote that there was no indication that the St. Joseph Court had adopted or substantiated N.G. accusations against her brother.

“Simply put, the trial court’s findings are so sparse that we cannot discern whether it based its termination order on proper statutory considerations,” the appellate court wrote.

The Court of Appeals panel remanded the case to the St. Joseph Probate Court with instructions to enter proper findings of fact to support the termination of N.R.G.’s parental rights.

Oct. 11

Civil Plenary – Rezoning/Belated Record

Allen County Plan Commission, et al. v. Olde Canal Place Association, et al.


The Indiana Court of Appeals has reversed an Allen Superior Court decision after finding that the trial court erred when it did not dismiss a case despite the fact that the record was not filed in a timely manner.

The case began in June 2014, when MRK II LLC filed a petition to rezone a parcel of property from commercial to residential and an application for approval of a development plan for a multi-family residential complex on the property. The Allen County Plan Commission approved the applications that July.

The following month, the Olde Canal Place Association filed a petition for judicial review challenging the commission’s approval of the applications, then requested an extension of time to file the record. However, OCPA had not filed the record by Nov. 21, prompting MRK to file a motion to dismiss. OCPA subsequently filed the record a few days later and also filed the affidavit of its attorney, Robert Westfall, who claimed he “mistakenly thought that because the … commission would be preparing the record internally, it would also file same with the court.”

The Allen Superior Court granted MRK’s motion to dismiss in December, but OCPA asked for the dismissal to be set aside on the basis that its failure to timely file was the result of a mistake and that it had a meritorious claim because it believed the commission’s decision regarding MRK’s applications was arbitrary, capricious and not supported by substantial evidence.

The trial court granted the motion to set the dismissal aside, and MRK appealed, arguing that the trial court abused its discretion under Trial Rule 60(B) when it granted OCPA’s motion for relief from judgment. Further, MRK argued that OCPA was unable to establish a meritorious claim because it cannot belatedly file the record and because the absence of the record automatically dismisses its petition for judicial review.

A panel of the Indiana Court of Appeals agreed, pointing to Indiana Supreme Court precedent and its own precedent that calls for the dismissal of a case if a record is not filed on time.

“Because OCPA is not permitted to belatedly file the record, the record is not, and it will never be, properly before the trial court,” the Court of Appeals wrote. “Without the record, OCPA’s petition cannot be considered.”

The appellate court reversed and remanded the case with instructions to vacate the trial court’s judgment setting aside its dismissal of OCPA’s petition for judicial review.

Indiana Tax Court

Oct. 5

Tax – Assessment

Hamilton Square Investment, LLC v. Hamilton County Assessor


The Indiana Tax Court decided that the Hamilton County assessor misconstrued a portion of the Residential Property Statute in 2012, forcing the assessor to reclassify a Westfield apartment complex and its surrounding property.

During the 2012 tax year, the Hamilton County assessor assigned a 200-unit apartment complex in Westfield owned by Hamilton Square Investment LLC an overall gross assessed value of $5,030,900, with 70 percent of the property classified as residential and 30 percent classified as nonresidential.

Hamilton Square filed a notice of review with the Hamilton County Property Tax Assessment Board of Appeals, saying it believed the property had been incorrectly classified. However, the board took no action on the issue, so Hamilton Square filed a petition for review with the Indiana Board of Tax Review in April 2014.

In its argument before the review board, Hamilton Square said some of the residential property had been misclassified by “limit(ing) the term ‘common areas’ to those areas shared only by the actual dwelling units, such as common hallways, and not those areas shared by residents.”

The Indiana Board of Tax Review upheld the assessor’s classification of the property in April 2015 and rejected Hamilton Square’s subsequent petition for a rehearing. The property owner then filed an appeal to the Tax Court, arguing once again that the assessor had incorrectly limited the term “common areas” to “solely the land and improvements within the footprint of a multi-unit apartment building.”

In its opinion, the Indiana Tax Court wrote that the statute regarding common areas is susceptible to more than one interpretation and, therefore, is subject to judicial construction.

In its interpretation of the statute, the Tax Court wrote that “common area” was meant to be understood as both the land and the improvements that are attached to and separated from a multi-unit apartment building, as long as the area is available for shared tenant use.

“Moreover, when the sections of the Residential Property Statute are read in conjunction with one another rather than piecemeal, it is apparent that the Assessor has misconstrued the import of the restrictive phrase, ‘not exceeding the area of the building footprint’ in…the Residential Property Statue,” the court wrote.

The Tax Court reversed the board’s determination in the case and remanded it to the board to instruct the assessor to take actions consistent with the opinion.•


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