Indiana Court Decisions — March 15-28, 2018

7th Circuit Court of Appeals

March 21

Civil Plenary — Establishment Clause

Freedom From Religion Foundation v. Concord Community Schools

17-1591, 17-1683

An Elkhart high school’s traditional “Christmas Spectacular” production that was canceled by a northern Indiana federal court because of its overt religiosity, then passed muster when Christian elements no longer took a leading role in a revival, won the reluctant blessing of the 7th Circuit Court of Appeals.

The panel — whose members variously compared their roles in deciding this case to the Grinch and producers of a high school musical — ruled that Concord Community Schools’ revised 2015 Christmas Spectacular may go on because it no longer violates the Establishment Clause.

“The parties put us in the uncomfortable role of Grinch, examining the details of an impressive high school production,” Chief Judge Diane Wood wrote. “But we accept this position, because we live in a society where all religions are welcome. The district court found that the Christmas Spectacular program Concord actually presented in 2015 — a program in which cultural, pedagogical, and entertainment value took center stage — did not violate the Establishment Clause. We affirm this judgment.”

The district court had ruled differently after a performance in 2014 that was challenged by students and parents and found to violate the separation between church and state. A new less-religious version was staged but also drew a challenge.

In consolidated appeals, the 7th Circuit on March 21 upheld the constitutional sanctity of the revised 2015 show in Freedom From Religion Foundation v. Concord Community Schools, 17-1591, 17-1683.

That show de-emphasized the 2014 show’s prominent focus on the Nativity and other Christian elements of the holiday season, though those elements remained in the more secular 2015 version. The 2015 show also introduced elements of other religious traditions, the court noted, in an opinion illustrated with numerous color photos from the various productions.

While Wood said plaintiffs may have a point that the revised play’s inclusion of other elements was just for show, she wrote that nothing in the Constitution requires each faith tradition now represented —Christmas, Hanukkah and Kwanzaa — to receive the same number of minutes onstage.

But Wood and Judge Frank Easterbrook, who wrote a separate concurrence, noted seasonal depression regarding cases such as these.

“Since ancient times, people have been celebrating the winter solstice, which occurs around the third week of December in the Northern Hemisphere,” Wood wrote. “Many of these celebrations are religious in nature, and so in the modern United States they have led to a depressingly steady stream of First Amendment challenges, in which one party wishes to express its religious views in the public sphere and the other party asserts that the Establishment Clause would be violated by the display. Our case fits that pattern to a T.”

Easterbrook, meanwhile, concurred in the judgment, but not in Wood’s opinion or some of the tests used to arrive at the conclusion. He stood by his long-held view that because nothing about the Christmas Spectacular affected anyone’s taxes or coerces any form of religious belief, there is no establishment of religion.

The school, for instance, could perform deeply religious works such as Handel’s Messiah as a work of art, he wrote, without establishing religion.

“Although the Concord Community Schools have not violated the Constitution, the judiciary’s performance is harder to defend. Federal judges have picked through a performance to choose among elements with religious significance. Preventing that sort of entanglement between the judiciary and religious expression is a main goal of the First Amendment — yet we are at it again, playing the role of producer to decide which material, representing what religious traditions, may appear in a choral performance,” Easterbrook wrote.

Indiana Supreme Court

March 23

Adoption — Parental Consent

In re the Adoption of E.B.F., J.W. v. D.F.


Despite her failure to significantly communicate with her child for a one-year period, a Greene County mother’s consent to the child’s adoption was required because she spent that year working toward recovery from a drug addiction, a majority of Indiana Supreme Court justices have ruled.

After ending her relationship with M.F., J.W. retained primary physical custody of their child, E.B.F., for 10 years. But when J.W. developed a drug addiction and became unemployed, she willingly gave M.F. primary custody of 10-year-old E.B.F. in 2013 while retaining joint legal custody and parenting time privileges.

Though she spent time with E.B.F. on Christmas Day 2013, she failed to have any meaningful contact with the child during the following one-year period. During that year, J.W. left her abusive boyfriend, found a job and housing and undertook drug dependency recovery efforts, but because of her limited contact with E.B.F., M.F.’s new wife, D.F., filed for adoption of the child in early 2015.

J.W. did not consent to the adoption, but the Greene Circuit Court granted D.F.’s petition after finding J.W.’s failure to communicate with E.B.F. meant her consent was not required. The Indiana Court of Appeals affirmed the trial court’s ruling in July, but a majority of the Indiana Supreme Court reversed after granting transfer to In re the Adoption of E.B.F., J.W. v. D.F., 18S-AD-167.

Justice Steven David — writing for the majority joined by Chief Justice Loretta Rush and Justice Christopher Goff — first wrote in a March 23 opinion that J.W.’s desire to shield her son from her addiction and her efforts toward recovery were justifiable causes of her failure to significantly communicate with him.

“We are sensitive to Mother’s predicament: returning to Child’s life too early during her addiction recovery process could have derailed both her own recovery and the child’s stability,” David wrote. “We, therefore, do not fault Mother for taking a reasonable amount of time to focus on her recovery, even if that effort resulted in a temporary failure to communicate significantly with her child.”

Further, David wrote that M.F. and D.F. frustrated what efforts J.W. did make to communicate with E.B.F. during the one-year period by ignoring her repeated requests to see E.B.F. and failing to return her phone calls. Additionally, thought D.F. claimed E.B.F. did not want to see his mother, David said custodial parents are expected to “instruct children to meet with their non-custodial parents, even if, for whatever reason, they are displeased.”

“Accordingly, if the non-custodial parent makes a significant attempt to communicate with Child, a custodial parent must take reasonable steps to facilitate that communication, regardless of a Child’s desires,” he wrote.

Thus, the majority reversed the trial court’s ruling on the consent determination and remanded the case for further proceedings. But in a dissenting opinion, Justice Geoffrey Slaughter wrote there was ample evidence to support the trial court’s findings that J.W. knew how to communicate with E.B.F., but did not try to do so. Slaughter also wrote in his dissent – which was joined by Justice Mark Massa – that he disagreed with the majority’s sua sponte determination that J.W.’s efforts toward recovery and rehabilitation justified her lack of significant communication.

“There may be good reason for concluding, on an adequately developed record and after full briefing by the parties, that the answer should be yes,” Slaughter wrote, referencing the question of whether J.W.’s personal efforts justified her lack of communication. “But I would not hold that the trial court abused its discretion here based on a legal argument the trial court never heard.”

Civil Plenary — Breach of Contract

The Care Group Heart Hospital, LLC v. Roderick J. Sawyer, M.D.


A longstanding dispute between a cardiologist and his former employer has ended with the Indiana Supreme Court overturning a $470,000 judgment against a heart hospital. The justices also had harsh words for the doctor’s counsel, cautioning him against filing additional motions after transfer briefing is closed.

As a cardiologist for St. Vincent Medical Group, Inc., Dr. Roderick Sawyer was also a member-owner of The Care Group Heart Hospital, LLC. A joinder agreement between the three parties specified that if there were “any termination” of Sawyer’s employment, the hospital was to pay out his ownership interest within 90 days.

Sawyer’s employment was terminated in 2011, but he did not receive his $196,787 payout for nearly eight months. Thus, Sawyer sued St. Vincent and the hospital, alleging, among other things, a breach of contract claim specifically against the hospital.

A jury eventually returned a $470,000 verdict against the hospital for breach of the joinder agreement, while the Marion Superior Court ordered both St. Vincent and the hospital to pay a $27,233.19 sanction to Sawyer. However, the trial court granted summary judgment to the hospital as to an operating agreement between it and Sawyer.

In a June opinion, the Indiana Court of Appeals affirmed partial summary judgment for the hospital and the $470,000 judgment but reversed the sanctions and remanded for re-evaluation and re-apportionment. After granting transfer to The Care Group Heart Hospital, LLC v. Roderick J. Sawyer, M.D., 49S05-1710-PL-671, the Indiana Supreme Court also affirmed and reversed in part in a unanimous opinion.

The court first found that the hospital breached the joinder agreement only by delaying the payout to Sawyer, not by the payout itself. Specifically, Chief Justice Loretta Rush wrote the plain language of the joinder agreement referencing “any termination” meant the hospital was required to pay out Sawyer’s interest for “any termination, for any reason,” not just termination permitted by the separate employment agreement between Sawyer and St. Vincent.

“The Medical Group’s termination of Dr. Sawyer’s employment — authorized by the employment agreement or not — thus triggered the joinder agreement’s mandatory redemption provision,” Rush wrote. “The Hospital accordingly did not breach the agreement by discontinuing and paying out Dr. Sawyer’s ownership interest.”

However, because the hospital did breach the agreement by delaying the payout of the interest, the justices determined Sawyer is entitled to $6,559.60 in interest. The court also upheld the award of sanctions to Sawyer, finding any error in the trial court’s failure to hold a hearing was harmless.

Finally, the court upheld the $27,233.19 sanction award, finding Sawyer failed to overcome the presumption of the award’s correctness, thus defeating his argument that it was too low. The case was remanded to enter judgment against the hospital in the correct amount.

In a separate order also handed down March 23, the court “disapprove(d) of repeated attempts by (Sawyer’s) attorneys to submit unauthorized supplemental merits briefs under the pretext of motions practice.”

“Such submission are not effective advocacy and do not advance the orderly disposition of an appeal; they only increase burdens on the Court and opposing counsel,” the court wrote. “In sum, such unhelpful tactics generate only heat, not light — and we sternly caution against their future use.”

The court specifically referenced a 200-page “Motion for Oral Argument,” which was actually a surreply to the appellant’s transfer briefs. Though that motion was struck, Sawyer’s counsel subsequently filed “Verified Corrections of Misrepresentations During Rebuttal at Oral Argument” that took issue with three statements made by opposing counsel.

Sawyer’s counsel also filed a “Motion for Remand to Trial Court for Consideration of Motion for Relief Based on Defendants’ Fraud on the Court,” which alleged that St. Vincent and the hospital’s discovery violations constituted “fraud” and asked the Supreme Court to consider those allegations as part of the previous sanction orders. He later filed a verified motion for remand, and a motion for leave to reply to the appellants’ responses.

“Like the ‘Motion for Oral Argument,’ the substance of the verified and unverified ‘Motions for Remand’ is little more than a more-strident continuation of arguments in Appellee’s transfer briefing and a new effort to expand the Record on Appeal outside Rule 32’s parameters – and we reject it for the same reasons,” the court wrote. “…In conclusion, we amplify (Reed v. Reid, 969 N.E.2d 589 9(Ind. 2012)’s) admonition: After transfer briefing is closed, further arguments on the merits — by any name — may be filed only be leave of this Court or in the limited form Rule 48 authorizes for notices of additional authority.”

But, noting in a footnote that the appellant’s “objections” to Sawyer’s corrections constitute a cross-motion to strike, the court granted Sawyer’s motion to accept and file his response to the opposing parties’ objections.

March 26

Civil Plenary — Cash Bail Garnishment

Dennis Garner v. Gregory S. Kempf and Clerk of Vanderburgh County (garnishee)


The Vanderburgh County Clerk is liable for a $5,000 cash bond she released in a criminal case while a related civil proceeding’s supplemental was pending, a ruling two dissenting Indiana Supreme Court justices fear could put clerks in a tight spot.

In 2013, Dennis Garner obtained a default judgment against Gregory Kempf in the Vanderburgh Superior Court and initiated proceedings supplementary to execution to collect on the civil judgment by garnishing Kempf’s bank account and tax refunds. Kempf never satisfied the judgment and was later arrested on an unrelated criminal matter, prompting him to post a $5,000 cash bond with the Vanderburgh County clerk.

Garner initiated new proceedings supplemental in civil court to garnish the cash bond, naming the clerk as the garnishee-defendant. Meanwhile, Kempf moved the criminal court to release his bond to his defense counsel for legal fees. The criminal court had not been notified of the civil proceedings supplemental, so the criminal judge granted the motion and the clerk issued a check payable to Kempf’s lawyer.

In response, Garner sought a $5,000 judgment against the clerk, arguing a judicial lien attached to the bond once she received notice of the proceedings supplemental. The Vanderburgh Superior Court ruled against Garner, relying on an internal court memo that if bonds released in criminal cases are subject to garnishment orders and must be entered on the criminal chronological case summary, but a divided Court of Appeals reversed more than one year ago.

After hearing oral arguments in June, a divided Indiana Supreme Court ruled in Garner’s favor, with Justice Geoffrey Slaughter writing in the majority opinion in Dennis Garner v. Gregory S. Kempf and Clerk of Vanderburgh County (garnishee), 82S01-1705-PL-334, that Indiana law allows judgment-creditors like Garner to garner cash bail bonds posted by judgment-debtors like Kempf that are held by the clerk in unrelated criminal matters. Slaughter pointed to Indiana Code section 35-33-8-7(b) (Supp. 2012), which he said “merely limits the authority of criminal courts to forfeit bond proceeds when the underlying civil judgment derived from the judgment-debtor’s crime.”

“Stated differently, Section 7(b) delays forfeiture when the criminal court learns a crime victim is simultaneously seeking a civil judgment against the defendant for injury resulting from the crime,” Slaughter wrote in the majority opinion joined by justices Mark Massa and Christopher Goff. “Section 7(b) thus stands as a narrow exception to the general rule that a court may declare a bond forfeited and order the funds transferred to the state common school fund when the criminal defendant fails to appear. But this provision is not a broad rule generally exempting cash bail bonds from garnishment.”

Thus, because I.C. sections 34-25-3-1(a)(1)(A), 1(b) (2008 Repl.) subjects clerks to garnishment, the majority determined there is no prohibition against garnishing bail bonds, and that cash-bond proceeds held by clerks are garnishable. Given that holding, the Vanderburgh County clerk should have held Kempf’s cash bond until the civil court determined what right Garner had to the proceeds, Slaughter wrote, and her failure to do so makes her liable for the $5,000 bond proceeds.

The majority reversed the trial court’s judgment and remanded with instructions for a $5,000 judgment in favor of Garner, but Justice Steven David and Chief Justice Loretta Rush dissented. Writing separately, David said he was not convinced that bail bonds are subject to garnishment in the same way other money held by a third party is.

David interpreted section 7(b) to mean that bail bonds can be used to satisfy a civil judgment only when the civil case arose from the underlying criminal matter, the same argument put forth by the clerk. Further, David said I.C. 35-33-8-3.2(a)(2) provides several exceptions in which bail money can be taken, and none of those exceptions included satisfying an unrelated civil judgment. The dissenting justices also found that under I.C. 35-33-8-7(f), bail money must be returned to the defendant.

“In sum, I believe a reading of the statute as broad as our majority has allowed … departs from the way we treat criminal statutes,” David wrote. “I also fear the majority overlooks the tension within our statutes that this holding creates and the impossible predicament it places our court clerks in.”

Addressing the dissent’s argument, Slaughter disagreed with the statement that the majority’s interpretation would impose irreconcilable differences on clerks.

“Under our approach, bond proceeds presumptively belong to the defendant and are to be returned to the defendant unless — and it’s an important unless — someone else has a claim to that property,” Slaughter wrote. “… This dissent’s view would effectively overrule appellant precedent holding that a bond posted by a third party is to be returned to the third party. We believe that precedent to be correct and disagree with the dissent’s implicit rejection of it.”

Indiana Court of Appeals

March 20

Criminal — Conditions of Probation

Dustin McCarty v. State of Indiana


The Vigo Superior Court must provide a man convicted of resisting and spitting on local law enforcement officers with a written list of his specific probation conditions after the Indiana Court of Appeals found discrepancies and vagueness in the conditions provided.

In Dustin McCarty v. State of Indiana, 84A04-1707-CR-1599, a Terre Haute police officer encountered Dustin McCarty while responding to another call and arrested him after discovering an outstanding warrant. While being transported to the Vigo County Jail, McCarty spit on the officer, Philip Ralston, and twice and put up a fight when other officers attempted to remove him from the vehicle and place him in a mobile incarceration unit.

After McCarty was found guilty of Class D felony battery by bodily waste and Class A misdemeanor resisting law enforcement, the Vigo Superior Court sentenced him to 2½ years, with credit for 290 days served and the remainder sentenced to probation. The court imposed standard terms of probation, including terms that required him to “avoid persons and places of harmful character,” and to “(not) consume alcohol in a lawful manner unless ordered to abstain …”, with the word “not” handwritten into the term.

McCarty appealed his probation terms, and the Indiana Court of Appeals agreed with his argument that the trial court erred in failing to provide him with written probation conditions at his sentencing. Judge Paul Mathias wrote Tuesday that McCarty did not receive written notice of his conditions until a meeting with his probation officer four days after sentencing. Mathias also noted that the conditions McCarty was provided erroneously imposed a complete alcohol ban.

Rather than a complete ban, Mathias said the trial court had orally ordered McCarty to undergo an alcohol and drug evaluation, but that condition was not included in the written statement. Considering those discrepancies, the appellate court remanded the case with instructions to correct the altered alcohol-related probation condition and to provide a new listing that explicitly requires McCarty to undergo the evaluation.

“Although the trial court erred when it failed to provide McCarty with written conditions of probation at sentencing, the record does not indicate that McCarty violated, or was arrested and charged with violating, any terms of that probation in the four-day period between sentencing and his first appointment with the probation department,” Mathias wrote. “For this reason, we can find that error to be harmless error.”

McCarty also challenged the relevance of the order for him to undergo the evaluation, but considering his subsequent conviction of Class B misdemeanor public intoxication, the appellate panel determined the condition was reasonably related to his rehabilitation. However, the panel agreed that the prohibition on his association with “persons and places of harmful character” was impermissibly vague and, thus, remanded for the trial court to provide clarity.

March 21

Mortgage Foreclosure/Release of Mortgage

R. Kinsey Brooks, Susan K. Brooks v. Bank of Geneva


An Adams County couple will be released from the mortgage on their farmland after the Indiana Court of Appeals determined the bank altered the terms of the promissory note secured by the mortgage, entitling the couple to release.

In August 2015, Matthew and Ginger Summersett executed a $398,000 promissory note with the Bank of Geneva, while Ginger’s parents, R. Kinsey and Susan Brooks, executed a mortgage on their farmland to partially secure the Summersetts’ debt. The Summersetts also mortgaged four parcels of their property to secure the debt, and the Brookses’ mortgage specified that they would not be personally liable for the debt.

The bank then issued four additional loans to the Summersetts without the Brookses’ knowledge and modified the terms of the $398,000 note to provide for semiannual, rather than monthly, payments, without their knowledge. The Summersetts eventually sold their mortgaged real estate, but put the proceeds toward their other four loans, not the loan the Brookses were involved with.

Then in May 2016, the bank filed a foreclosure complaint against the Brookses’ mortgage, alleging a balance of more than $407,000 was due on the $398,000 promissory note. However, the bank filed a “Satisfaction of Mortgage” with the Adams County Recorder in June 2016 that showed the Summersetts’ mortgage on the note had been paid in full and was released.

A bank officer later stated that the document filed with the county recorder had “inadvertently” said the loan was paid in full. The Brookses responded with an abuse of process counterclaim, and both parties filed cross-motions for summary judgment. The Adams Circuit Court ultimately ruled in favor of the bank, ordering sale of the Brookses’ property if the $462,772.89 judgment was not paid.

After reducing the appeal bond from $285,000 to $25,000, the Indiana Court of Appeals reversed the grant of summary judgment to the bank in a Wednesday opinion. Judge Michael Barnes first wrote for the appellate panel that the court reduced the appeal bond — which was based on a $250,000 property valuation — because the trial court issued only an in rem judgment, and because the Brookses’ mortgage explicitly held that they would not be personally liable for the debt.

“Thus, in reducing the appeal bond here to $25,000, we considered that the Bank has incurred approximately $15,000 in appellate attorney fees, and the Brookses’ mortgage contains an attorney fee provision that would allow the Bank to recover those fees from the Brookses if they lost this appeal,” Barnes wrote. “To this we added $10,000 in potential interest at an 8 percent per annum on $250,000, confident in our ability to decide this case in much less time than the trial court or the Bank thought we would.”

Turning then to the merits of the case, the appellate panel determined the bank materially altered the promissory note by changing the payments to a semiannual schedule and by releasing the Summersetts’ mortgage. Thus, the Brookses should have been released, meaning there was nothing for the bank to foreclose on, the court held.

Summary judgment to the bank was reversed, and the case of R. Kinsey Brooks, Susan K. Brooks v. Bank of Geneva, 01A05-1709-MF-2174, was remanded for release of the mortgage on the Brookses’ property and for consideration of the Brookses’ abuse of process claim.

March 22

Criminal/Motion to Suppress

Carl T. Wilson v. State of Indiana


Indianapolis police who approached a vehicle with guns drawn after a man exited lacked probable cause, the Indiana Court of Appeals ruled, suppressing evidence of drugs found in the vehicle.

The appeals court ruled that evidence of heroin and methamphetamine found in the car was fruit of the poisonous tree stemming from a search that violated the Fourth Amendment, and that the trial court abused its discretion in admitting the evidence.

The opinion on interlocutory appeal in Carl T. Wilson v. State of Indiana, 49A04-1706-CR-1201, found that even though Wilson gave his consent to officers to search his vehicle, the consent came after officers had effectively arrested him by approaching with guns drawn and placing him in handcuffs without probable cause.

The incident began when a resident in a duplex called 911 to report an unrecognized vehicle parked in the yard of the unoccupied part of the duplex. Indianapolis Metropolitan Police Officers Joshua Stayton and Jeremy Miller responded to the call in what they called a high-crime neighborhood. Using a spotlight, they saw two people inside a car parked in an apartment parking lot in the same block as the 911 caller’s residence, and they approached.

Stayton said they recognized the passenger as someone with a history of prostitution and drug use. As they approached, Wilson exited the driver’s side but immediately went back in and reached toward the center console.

“Because of his knowledge of crime in the area and Wilson’s movements inside the vehicle, Officer Stayton drew his weapon and ordered Wilson to show his hands. Wilson complied. When asked if he was hiding anything, Wilson replied, ‘[T]here is nothing in the vehicle, and [officers] could search the vehicle. … The officers patted Wilson down and handcuffed him ‘for [officer] safety,’” Judge Melissa May wrote.

Officers popped loose a part of the center console and found a bag containing heroin and meth, and Wilson was charged with Level 2 felony counts of dealing in a narcotic drug and dealing in methamphetamine as well as Level 3 felony possession counts. Wilson moved to suppress the evidence, arguing the search and seizure was illegal. The Marion Superior trial court denied the motion last March without issuing findings.

The COA reversed that denial and ordered the evidence suppressed.

“Officers Stayton and Miller were responding to a dispatch regarding a suspicious vehicle in the backyard of the unoccupied portion of the caller’s duplex home. The vehicle they eventually approached was not parked in the duplex yard but rather, in the parking lot of a nearby apartment complex,” May wrote for the panel.

“Without minimizing the officers’ testimony that they observed Wilson lean into the car and they were concerned about a possible firearm or narcotics, such behavior is not enough, by itself, to support reasonable suspicion, let alone probable cause. … What may have begun as an investigatory stop quickly transformed into an arrest. Wilson complied with all of the officers’ orders. The officers approached Wilson at gunpoint and then handcuffed him. Wilson remained handcuffed and guarded by one or the other officers while two searches of his vehicle were conducted. A reasonable person would not believe himself free to leave.

“Under the facts presented, Officer Stayton’s approach with a gun drawn and the subsequent handcuffing of Wilson was more than required to either confirm or dispel the officers’ suspicion Wilson had been parked at the duplex. The officers’ actions exceeded the scope of an investigatory stop and became an arrest without probable cause. As the arrest was without probable cause, the admission of evidence obtained from the search was in error,” the panel held.

March 27

Civil tort/Indiana Product Liability Act

Angela Brewer, Individually and as Personal Representative of the Estate of Rickey A. Brewer, Deceased v. PACCAR, Inc. d/b/a PETERBILT MOTORS CO.


The Indiana Court of Appeals has overturned summary judgment for a national motor company on a defective design claim stemming from a construction foreman’s death after finding sufficient evidence to rebut the presumption that the product in question was not defective.

In February 2015, Ohio-based W&W Transport ordered a glider kit from Peterbilt Motors Co., requesting a truck cab, chassis, wiring, drive axles, suspension system and partial braking and steering systems. W&W planned to assemble a full semi-tractor by combining the glider kit parts with an existing engine, transmission and exhaust system.

W&W did not request a rear window or backup camera with its glider kit, and those features were not included as part of Peterbilt’s standard package. Though W&W did request wiring to install a beacon/strobe light, it ultimately chose not to install the light.

After constructing the truck, W&W deployed Raymond Miller to drive the truck to an Indianapolis Power & Light plant under construction in Martinsville in March 2016. While backing up the truck, Miller failed to see Rickey Brewer, the construction foreman, standing behind the truck and, thus, pinned Brewer between the truck and a trailer, killing him.

Brewer’s widow, Angela Brewer, filed multiple claims against multiple parties, including a claim against Peterbilt that alleged the glider kit was unreasonably dangerous and defective because it lacked safety features for backing up. Peterbilt moved for summary judgment and argued that it did not manufacture the truck, nor did it provide defective parts.

In response, Brewer designated an expert report opining that the glider kit was defective, then cross-moved for partial summary judgment on the issue of the duty owed to her husband. The Morgan Circuit Court ruled in Peterbilt’s favor on both motions, then denied a subsequent motion to correct error.

But the Indiana Court of Appeals disagreed with the trial court’s ruling and reversed the grant of summary judgment to Peterbilt. Judge Michael Barnes wrote for the unanimous panel that Brewer’s expert report presented sufficient evidence to rebut any presumption that the glider kit was not defective.

Considering the glider kit lacked only a powertrain, Barnes wrote that “in any conceivable use, the completed semi-tractor would have a large blind spot directly behind it that foreseeable could lead to precisely the type of tragedy that occurred here.” Further, even if W&W knowingly rejected the optional safety features, that does not necessarily mean Peterbilt was absolved of all responsibility for those missing features.

“In other words, it should be a question of fact as to whether it was reasonable for PACCAR to put a product into the stream of commerce that lacked one or several or all of those features,” Barnes said. “… It would all depend upon a fact-finder’s determination of whether (Peterbilt’s) decision to make a certain feature optional rather than standard was a reasonable decision under the circumstances.”

The panel also found that under Indiana’s Comparative Fault Act, responsibility for the truck’s safety or Brewer’s death could fall to both Peterbilt and W&W. The assignment of fault is also one for the jury, Barnes said, particularly as it relates to the question of proximate cause.

Thus, the court reversed the grant of summary judgment to Peterbilt and remanded the case for further proceedings. The appellate panel also noted that Rickey Brewer was considered a “consumer” and “bystander” of Peterbilt’s product, making the IPLA applicable to his widow’s claims against the company.

Though Judge Paul Mathias concurred with Barnes’ opinion, he wrote separately to note that Peterbilt’s argument actually amounted to a sophisticated user defense.

“… (I)n my view, W&W, a sophisticated user, was well aware of any potential danger posed by (Peterbilt’s) glider kit when it assembled the semi-tractor,” Mathias wrote.

The case is Angela Brewer, Individually and as Personal Representative of the Estate of Rickey A. Brewer, Deceased v. PACCAR, Inc., d/b/a Peterbilt Motors Co., 55A05-1709-CT-2168.

March 28

Criminal/Battery Jury Instruction

Christapher Batchelor v. State of Indiana


A man convicted of resisting law enforcement has successfully appealed his conviction to the Indiana Court of Appeals, which determined the jury instruction on the “fleeing” element to his conviction was fundamental error warranting reversal.

After noticing that Christapher Batchelor was driving without wearing a seatbelt, Clay County Deputy Sheriff James Switzer attempted to initiate a traffic stop. Batchelor, however, continued to drive for nearly two minutes, then finally stopped when Switzer shined an LED spotlight on Batchelor’s mirrors.

Batchelor then got on the ground on Switzer’s order, but he resisted the officer’s attempts to handcuff him and kicked the deputy into his truck. Switzer injured his ankle, while two responding officers sustained a jammed finger and black eye.

During the ensuing trial on Batchelor’s resisting law enforcement and battery charges, his attorney maintained that Batchelor had not fled because there was no high-speed chase. The jury instructions defined “fleeing” as, among other elements, conduct that is different than what a “reasonable driver” would have done to ensure safety.

Batchelor did not object to the instruction, and a jury found him guilty of Level 6 felony resisting law enforcement by fleeing in a vehicle, Level 5 felony battery on a law enforcement officer and Class A misdemeanor resisting law enforcement. Batchelor then appealed in Christapher Batchelor v. State of Indiana, 11A01-1707-CR-1574, arguing the jury instruction on “fleeing” was erroneous.

Relying on Cowans v. State, 53 N.E.3d 540 (Ind. Ct. App. 2016), the Indiana Court of Appeals agreed and determined the Clay Circuit Court erred in giving the “fleeing” instruction because Cowans requires the defendant – not the state, as was done here – to request such an instruction. Further, Judge Michael Barnes wrote the instruction constituted fundamental error because the instruction misrepresented the mens rea in the applicable statute, Indiana Code section 35-44.1-3-1, which requires proof that a defendant “knowingly or intentionally” fled.

“Although there is no question Batchelor knew of Deputy Switzer’s wanting to pull him over, there is also no evidence that there was a ‘high-speed chase’ here,” Barnes wrote. “It was for the jury to decide whether such a chase that lasted approximately a minute-and-a-half was a knowing or intentional fleeing by Batchelor, not whether it was something a ‘reasonable’ person would have done.”

“We conclude that this misstatement of the mens rea for a resisting law enforcement conviction was sufficient by itself to make the instruction fundamentally erroneous, mandating reversal of Batchelor’s conviction for Level 6 felony resisting law enforcement by fleeing in a vehicle,” Barnes continued.

Though Batchelor challenged all three of his convictions, the court noted in a footnote that he did not put forth an argument as to how the instructional error affected his Level 5 felony and Class A misdemeanor convictions. Thus, those convictions were affirmed, and the case was remanded for proceedings, including a possible retrial.•

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