Indiana Court Decisions — May 9–21, 2019

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7th Circuit Court of Appeals

May 9

Civil Plenary — Immigration Enforcement/Motion to Intervene

Antonio Lopez-Aguilar v. State of Indiana


The 7th Circuit Court of Appeals has reversed and remanded a district court’s denial of Indiana’s motion to intervene in a federal immigration case that prohibited the Marion County Sheriff’s Department from cooperating with U.S. Immigration and Customs Enforcement detention requests, finding the district court did not have jurisdiction to strike the motion.

The appeal dates to July 2017, when Indiana Southern District Judge Sarah Evans Barker entered a consent decree between the American Civil Liberties Union of Indiana and the city of Indianapolis in the case of Antonio Lopez-Aguilar v. Marion County Sheriff’s Department, et al., 1:16-cv-2457.

That agreement prohibited the sheriff’s department from detaining immigrants for the federal government, unless ICE could produce a signed warrant or probable cause.

Lopez-Aguilar filed a complaint in September 2016, claiming the sheriff’s department violated his Fourth Amendment rights by arresting and holding him in the local jail without being charged with a crime. Local law enforcement had detained him only at the request of federal immigration officials.

After Barker struck down the Indiana Attorney General’s Office’s motion to intervene in the case in January 2018, the AG’s office filed a notice of appeal with the 7th Circuit, arguing that under Indiana Code section 5-2-18.2, state and local law enforcement officials have a “duty to cooperate” with federal immigration efforts.

In a 40-page opinion, a 7th Circuit panel concluded that the district court erred in its denial of the state’s motion to intervene. In its decision, the appeals court noted that the stipulated judgment granting declaratory and prospective injunctive relief would directly impair Indiana’s ability to protect its substantial interest in cooperating with federal immigration enforcement efforts.

It additionally concluded that the district court’s interpretation of the statute, although not a total declaration of unconstitutionality, significantly restricted the statute’s vitality. It therefore found that Indiana demonstrated it “suffered a cognizable injury sufficient for standing to appeal.”

The 7th Circuit also found that the injunction’s terms obliged “the Sheriff’s Department of Indiana’s most populous county to disregard, in a significant way, what the State believes is a legislative command to cooperate with the federal government.”

“Because the State has demonstrated a direct, significant, and legally protectable interest in this litigation, which will be impaired absent intervention and is not adequately represented by the existing parties, the State is entitled to intervention as of right,” Circuit Judge Kenneth Ripple wrote for the unanimous panel.

“Mr. Lopez-Aguilar simply fails to demonstrate a ‘likelihood of substantial and immediate irreparable injury,’ a prerequisite for equitable relief,” the panel continued. “Without a ‘showing of any real or immediate threat that the plaintiff will be wronged again,’ Mr. Lopez-Aguilar lacked standing to request, and the district court lacked jurisdiction to award, the declaratory judgment and permanent injunction set forth in the Stipulated Judgment.”

Thus, the 7th Circuit concluded that the parties’ agreement to resolve Lopez-Aguilar’s claims by stipulated judgment did not relieve the district court of its obligation to confirm that it had Article III jurisdiction to enter the declaratory judgment and permanent injunction.

It further concluded that Lopez-Aguilar did not have standing to request equitable relief, and at no point during litigation of the case maintained standing to seek the prospective injunctive relief awarded by the district court.

It therefore reversed and remanded the case, finding district court erred when it entered the Stipulated Judgment without regard to Lopez-Aguilar’s standing to seek equitable relief.

The AG’s office celebrated the decision as a “win for common sense, state sovereignty and public safety,” according to a statement.

“When federal authorities ask an Indiana police agency to detain a person in the agency’s custody, Indiana law requires the agency to cooperate,” Indiana Attorney General Curtis Hill said in a statement. “To establish any contrary policy at the local level not only violates Indiana law but jeopardizes the safety and security of Hoosiers.”

“We are obviously disappointed in the decision, and are in the process of evaluating our options with our client,” said Gavin Rose, ACLU attorney and counsel for Lopez-Aguilar.

May 14

Civil Tort — Excessive Force/Motion to Dismiss

Anthony Gant v. Daniel Hartman


The 7th Circuit Court of Appeals declined to end an excessive force lawsuit against a Fort Wayne police officer, finding a review of the video of the shooting and arrest does not “utterly discredit” the plaintiff’s contentions that he was shot while trying to comply or did not have time to respond to the officer’s commands.

Anthony Gant claimed constitutional violations and sought damages under 42 U.S.C. section 1983 against Fort Wayne officers Daniel Hartman, Bradley Griffin and Jason Palm after he was shot during a robbery of a Dollar General store. Police arrived while the robbery was in progress and stationed themselves around the outside of the store.

When Gant was exiting through the front entrance, Hartman fired, striking him in the abdomen. The officer explained he believed Gant was holding a gun and preparing to shoot. However, Gant was not holding a gun or any object in his hand and, he asserted, he was either trying to follow officers’ instructions or was not given the opportunity to respond to orders.

The U.S. District Court for the Northern District of Indiana granted summary judgment for Griffin and Palm but not for Hartman. In particular, the court found there were genuine issues of material fact and a jury would need to decide whether it was reasonable for an officer in Hartman’s position at the time of the incident to believe Gant had a gun.

Hartman appealed, but the 7th Circuit dismissed for lack of appellate jurisdiction in Anthony Gant v. Daniel Hartman, 18-1287.

The unanimous appellate panel accused Hartman of attempting a “back-door effort to contest the facts” and trying to get the 7th Circuit to “second-guess the district court’s conclusion that material facts are disputed.”

“Officer Hartman has consistently relabeled certain facts as ‘undisputed,’ and he asks this court to challenge the district court’s determination that material facts are genuinely disputed,” Judge David Hamilton wrote for the court. “… Office Hartman cannot pursue an interlocutory appeal by arguing that the evidence is insufficient to support the district court’s conclusion or by relabeling the disputed as ‘undisputed.’”

Indiana Supreme Court

May 16

Court Business — Mandate of Funds/Attorney Fees

In the Matter of Mandate of Funds for the Lake Superior Court; Lake County Council and Lake County Auditor v. The Hon. John R. Pera, et al.


Indiana Supreme Court justices affirmed a special judge’s ruling that 14 Lake Superior Court judges are entitled to recover nearly $176,500 to pay court staff, ending a two-year dispute.

In a per curiam opinion May 16, the Supreme Court affirmed appointed Special Judge W. Tobin McClamroch’s decision in In the Matter of Mandate of Funds for the Lake Superior Court; Lake County Council and Lake County Auditor v. The Hon. John R. Pera, et al., 18S-CB-442.

The case began in early 2017 when judges of the Lake Superior Court issued an Order for Mandate of Funds under Indiana Trial Rule 60.5, finding “valuable court employees were underpaid,” therefore endangering the court’s ability to continue operating in an efficient manner.

The order required the Lake County Council and the Lake County Auditor to provide funding, including scheduled raises, for more than 170 court employees across 12 job classifications. According to the council, complying with the order would cost Lake County between $1.5 million and $2.3 million.

After failed mediation attempts, the parties eventually agreed to settle the matter and that the county would pay “the reasonable legal fees and expenses incurred by the Superior Court in prosecuting the Mandate Action prior to the dismissal of the Mandate Action.”

Thus, it was agreed that the council had no further obligation for attorney fees in the matter. But the council found the judges’ request for $223,234.17 in legal fees and expenses to be excessive.

Those fees stemmed from 237.2 hours billed by attorney Jeffrey C. McDermott at a rate of $430 per hour; 309.4 billed hours of attorney William J. Barkimer at $245 an hour; 30.4 billed hours of attorney Matthew C. Branic at $245 per hour; 133.6 billed hours of a paralegal at $195 an hour; and expenses totaling $11,935.17.

McClamroch concluded that the judges’ expenses and attorney time entries were all reasonable in light of the case’s complexity, but that they shouldn’t recover any more than the reasonable and customary hourly rate for an attorney in Lake County.

He thus limited the hourly rate to $240 an hour per attorney, ordering the council to pay the judges $176,467.17 for fees and expenses.

Supreme Court justices affirmed that determination, disagreeing with the council’s contention that the amount was “excessive” due to the lack of results obtained by the judges.

“Likewise, we find no merit in the Council’s argument that the award should be reduced because the case was not complex and the Judges’ attorneys overstaffed it and incurred unnecessary expenses,” the per curiam opinion states.

“The Council’s own submission of approximately sixty pages of appellate briefing indicates the case was complex. And while the Special Judge acknowledged the Council’s objections, he found ‘the Judges’ counsel’s time entries and expenses are reasonable in light of the complexity of the Mandate Matter.’”

It further rejected the judges’ cross-appeal, among other things denying their request for an opportunity to submit evidence of their appellate legal fees and expenses.

“The agreement does not explicitly provide for payment of appellate fees and expenses. And, in any event, we conclude that an additional award for such expenses is unwarranted here. The amount already awarded — $176,467.17 — is substantial,” the justices continued. “The Judges have not incurred any appellate filing fee or costs for a transcript.

“Their appellate briefs largely repackaged the written arguments made to the Special Judge, and those briefs contain a cross appeal that lacks merit,” the justices concluded. “And the case has been pending for two years; further litigation over fees and expenses would increase the case’s costs to taxpayers and delay final resolution.”

Indiana Court of Appeals

May 9

Criminal — Driving While Suspended/Reversal

Kenneth Davis v. State of Indiana


Evidence of a gun found inside a truck during a traffic stop was not suppressed despite a man’s appeal, but his conviction for driving while suspended was vacated by an appellate court after both parties agreed there was insufficient evidence to support it.

After Kenneth Davis was stopped for a traffic violation, the police officer who conducted the stop suspected the vehicle was stolen based on Davis’ suspended driver’s license and inability to prove the vehicle was his.

Davis stepped out of the vehicle when asked and affirmatively answered that he had a weapon in the car, prompting the officer to handcuff him for safety concerns.

The officer later confirmed that the car was not stolen, but rather in the process of being purchased by Davis. He also found that Davis’ gun license was pending and had not yet been issued. The officer confiscated the gun and let Davis go, but Davis was later charged with Class A misdemeanor carrying a handgun without a license and Class A misdemeanor driving while suspended.

Davis moved to suppress evidence of the gun at trial, arguing that the officer “had no reason to search th[e] truck” for officer safety because Davis was “in handcuffs at the back of the truck.” The trial court later found Davis guilty of the carrying conviction, and although it did not discuss the suspended driving conviction, Davis’ sentencing order listed both convictions.

As a result, the Indiana Court of Appeals reversed Davis’ driving while suspended conviction after noting that both parties agreed insufficient evidence was provided regarding the status of his license.

However, the appellate court found the search of Davis’ truck was lawful under Michigan v. Long, 463 U.S. 1032 (1983) based on the officer’s reasonable belief that the vehicle might have been stolen and that Davis was dangerous after answering affirmatively to having a weapon in the vehicle.

It further denied Davis’ argument that he could not gain immediate control of the gun because he was handcuffed and standing at the end of the truck.

“If Davis had been placed under arrest, we might agree with him. But Davis was not placed under arrest. He was merely detained temporarily while Officer (Christopher) Morgan was waiting to hear back whether the truck was stolen,” Chief Judge Nancy Vaidik wrote for the panel.

“Because Davis was not arrested, it was possible that he would regain access to the truck. And in fact, Officer Morgan eventually learned that the truck was not stolen, Davis was not arrested on the scene, and when the owner arrived to pick up the truck, Davis’s girlfriend was with him.”

The appellate court therefore concluded that the search was lawful under Long, and that there was no error in admitting the officer’s testimony. The case of Kenneth Davis v. State of Indiana, 18A-CR-2313, was thus remanded to the trial court with instructions to issue an amended sentencing order based on his vacated conviction.

May 15

Protective Order — Reversal/Evidence

L.O. v. D.O.


There wasn’t enough evidence to prove a woman in the middle of a divorce need a protective order, the Indiana Court of Appeals ruled, finding there was no evidence her husband was stalking her.

In the process of their dissolution of marriage, D.O. filed a petition for an order of protection against her husband, L.O., alleging she was a victim of stalking. She accused him of threatening to take their children, and D.O. argued he threatened her regarding money and erroneously told her to give him checks from Social Security.

D.O. requested the trial court prohibit L.O. from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with her.” But L.O. testified that he had only threatened his wife about the money and Social Security, not about running off with their children.

Regardless, the trial court found L.O. had committed stalking pursuant to Indiana Code 35-45-10-1 and subsequently denied L.O.’s motion to correct error.

The Indiana Court of Appeals reversed the Wells Superior Court’s decision in L.O. v. D.O.,18A-PO-2118, finding insufficient evidence to support the order issued in favor of D.O., specifically in regard to stalking.

“The reality is that tensions and emotions during a dissolution often run high. Argumentative or annoying behavior is not uncommon, but it does not rise to the level of threatening behavior,” Judge Elizabeth Tavitas wrote. “Although D.O. referenced ‘threats’ in her petition and testimony, simply calling the interactions ‘threats’ does not make them so.

“The text messages between the parties reveal a contentious dissolution with multiple disagreements over money and time with the children. Both parties initiated text messages regarding the children and Social Security money. Our review of the testimony and the text messages, however, reveals no evidence that D.O. felt terrorized, frightened, intimidated, or threatened or that D.O. suffered emotional distress as a result of the text messages,” Tavitas continued.

Given the sparse record in the case, the appellate court concluded that there was insufficient evidence presented at the hearing to support a finding that the contacts would cause a reasonable person — and in fact D.O. — to feel terrorized, frightened, intimidated, or threatened or to suffer emotional distress. Thus, the order was reversed.

Juvenile CHINS — Fact-Finding Hearing/Timeliness

In the Matter of M.S.; A Child in Need of Services: A.C. (Mother) v. Indiana Department of Child Services


A child in need of services case has been dismissed after an appellate panel concluded that a mother’s motion to dismiss because the fact-finding hearing was not completed within the statutory time frame was incorrectly denied by the trial court.

When the Indiana Department of Child Services petitioned that A.C.’s then 6-year-old daughter was a child in need of services, DCS was reminded that the CHINS fact-finding hearing needed to be concluded within 120 days of filing the petition.

During that time frame, both respective parties were granted a motion to continue the hearing. The fact-finding hearing was ultimately completed at the end of April 2018, although it was initially set to be completed by March 15.

A.C. asked the trial court to dismiss the CHINS case in October 2018 because the fact-finding hearing had not been held within 120 days of the filing of the CHINS petition. She cited Matter of T.T., 110 N.E.3d 441, 443 (Ind. Ct. App. 2018), which held that the statutory time frame set forth in Indiana Code § 31-34-11-1 was a “certain deadline.” However, the trial court denied her motion.

The Indiana Court of Appeals took issue with that denial, interpreting the statute to read that “a fact-finding hearing shall be completed within” the statutorily mandated time frame, and failure to do so was “grounds for dismissal.”

It further rejected DCS’s argument that A.C. herself had requested a motion of continuance, noting its ruling in Matter of T.T. explained that the statute’s lack of allowance for an additional extension of time indicated that the Legislature intended to require that a fact-finding hearing “[had to] be completed within 120 days of the filing of a CHINS petition regardless of any act or agreements of the parties.”

That ruling also held that to “allow the parties to agree to dates beyond the maximum 120-day limit would thwart the legislative purpose of timely rehabilitation and reunification of families that are subject to CHINS proceedings.”

“Here, as in Matter of T.T., we reverse the trial court’s denial of Mother’s motion to dismiss and remand to the trial court with instructions to dismiss the CHINS case without prejudice,” Judge Rudolph Pyle III wrote for the unanimous panel. “In addition, if DCS refiles the petition, it will also have to submit new evidence regarding current conditions.”

The case is In the Matter of M.S.; A Child in Need of Services: A.C. (Mother) v. Indiana Department of Child Services, 18A-JC-2843.

May 21

Civil Tort — Personal Injury/Jury Instruction

Latoya Torrence v. Courtney Gamble


The Indiana Court of Appeals affirmed a jury’s judgment for a woman whose vehicle rear-ended another, despite the appellate panel’s acknowledgement that the trial court failed to properly instruct the jury.

While waiting to turn left as oncoming traffic cleared, Latoya Torrence was rear-ended by Courtney Gamble, leaving both women’s vehicles substantially damaged and Torrence injured.

Torrence sued, alleging negligence and seeking property damages, as well as damages for lost wages and medical expenses. But Gamble denied liability for the accident and asserted a comparative fault defense.

A Clark Circuit jury was presented with numerous instructions and jury verdict forms, including a general verdict form offered by Gamble that Torrence objected to. The form — which stated that the jury would “decide in favor of the Defendant, [Gamble], and against the Plaintiff, [Torrence]” and that no further deliberation would be necessary — was based on Indiana Model Civil Jury Instruction Verdict Form 5017.

The jury was not instructed on that form’s applicability, and the trial court therefore allowed the parties to address the use of the form in closing argument. Ultimately, the jury returned a verdict in Gamble’s favor using that form.

On appeal, Torrence argued that the trial court abused its discretion by allowing the jury to consider a general verdict form in violation of the Comparative Fault Act. Specifically, she alleged that by giving the general instruction and the general form, the trial court violated Indiana Code section 34-51-2- 7(b).

Torrence further noted that the Comparative Fault Act does not allow the jury to enter a general verdict in favor of a defendant without first determining and apportioning fault. The Indiana Court of Appeals also found issue with the trial court’s action of leaving the respective parties to educate the jury on the general form.

“As a result, undue emphasis was placed on a single instruction. We find that the better practice would have been to have either provided the jury with Verdict Form D and written instructions — similar to the other verdict forms — or not to tender Verdict Form D at all,” Judge Patricia Riley wrote for the court.

“However, to receive a new trial, Torrence must show a reasonable probability that her substantial rights have been adversely affected by the undue focus on Verdict Form D,” the panel continued.

It ultimately concluded that her rights were not adversely affected in Latoya Torrence v. Courtney Gamble, 18A-CT-2695, based on contradictory evidence presented by both parties.

“By returning the general verdict form in favor of Gamble, the jury credited the evidence in her favor and determined that Torrence had failed to satisfy her burden of proof,” Riley concluded. “It was within the province of the jury to determine and weigh the credibility of the parties and evidence admitted and reach a verdict thereon. Therefore, we find that any error in jury instruction was harmless and we affirm the trial court’s judgment.”

Indiana Tax Court

May 8 (reported IN IL DAILY May 9)

Tax — Final Determination/Real Estate Assessment

Wigwam Holdings LLC v. Madison County Assessor


Anderson Wigwam high school basketball arena owners have lost their appeal of a final determination upholding the assessment of its real property for the 2015 tax year at more than $2 million.

In Wigwam Holdings LLC v. Madison County Assessor, 18T-TA-15, Wigwam Holdings failed to convince the Indiana Tax Court that it was entitled to an injunction against the collection of property taxes based on a valuation in the amount of $2.12 million.

That figure had already been reduced from an initial assessment of $11.42 million when the Madison County Property Tax Assessment Board of Appeals reclassified the property as utility and storage.

Wigwam Holdings previously argued to the Indiana Board of Tax Review that the correct assessment should be $68,500, and that the Wigwam’s “highest and best use” was as vacant land due to the facility’s asbestos contamination, noncompliance with the Americans with Disabilities Act and lack of air conditioning and sprinkler system.

But the tax court denied Wigwam Holdings’ petition to enjoin in December 2018, and after fully briefing the matter in March 2019, ultimately affirmed the Board’s final determination upholding the $2.12 million assessment.

Wigwam Holdings unsuccessfully appealed that final determination, requesting the tax court reverse the final determination for being “arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, and in excess of its statutory authority.”

It specifically alleged that the board erred in upholding the assessment because it made a prima facie case by introducing into evidence a Uniform Standards of Professional Appraisal Practice-compliant appraisal; established that it acquired the property for $0 in a market transaction in September 2014; and demonstrated that the assessment failed to account for the significant abnormal obsolescence that diminished the value of its property.

On the first issue, Judge Martha Blood Wentworth initially noted, among other things, that none of the numerous cases Wigwam Holdings cited indicated that “there is a per se rule that presenting a USPAP-compliant appraisal automatically establishes a prima facie case for reducing an assessment under Indiana’s market value-in-use assessment system.”

She further found that the undisputed and unique facts of the case indicated that Wigwam Holdings’ appraisal estimating the Wigwam’s market value, without something more, failed to accurately reflect the property’s market value-in-use at first blush.

Wentworth additionally found the holding was not erroneous because a reasonable mind could find the final determination was supported by substantial evidence in the record and that Wigwam Holdings provided no evidence to quantify the purported obsolescence.

The tax court thus affirmed the Indiana Board’s final determination.

May 13

Tax — Final Determination/Tax Liability

Kokomo Urban Development, LLC v. Mindy Heady, in her official capacity as Howard County Assessor


The Indiana Tax Court has affirmed the property tax liability assessed against a Howard County urban development company, finding issue with the company’s argument concerning Indiana’s definition of gross assessed value.

Kokomo Urban Development LLC owns a moderate-income apartment complex in an economic revitalization area, or ERA, of Kokomo. As a result, Kokomo Urban was entitled to 100 percent ERA deduction for the 2015 tax year and a 50 percent deduction for the 2016 tax year.

In 2016, the Howard County auditor determined Kokomo Urban’s property tax liability was $47,720.46, which did not exceed the calculated 2 percent tax cap amount of $49,134. Kokomo Urban, however, argued its liability should have been capped at $25,000 under Indiana Code section 6-1.1-20.6-7.5. The issue, the company argued, was whether the 2 percent tax cap under that statute should have been applied to the property before or after the ERA deduction.

The Indiana Board of Tax Review issued a final determination in favor of the Howard County assessor, so Kokomo Urban appealed to the Indiana Tax Court. On appeal, the development company argued the board’s final determination must be reversed because the 2 percent cap should have been applied to the gross assessed value of its real property after, not before, the ERA deduction was applied.

Kokomo Urban asserted the Indiana Legislature defined “gross assessed value” under I.C. § 6-1.1-20.6-1.6 with the intent of finding the term “exemptions” to include “deductions.” However, Judge Martha Blood Wentworth was unpersuaded by that suggestion.

Pursuant to Indiana code, deduction is defined as “a situation where a taxpayer is permitted to subtract a fixed dollar amount from the assessed value of his property.” Exemption is defined as “a situation where a certain type of property, or the property of a certain kind of taxpayer, is not taxable.”

“Indeed, for purposes of Indiana’s whole property tax statutory system, the Legislature provided discrete statutory definitions for the terms ‘exemption’ and ‘deduction,’” Wentworth wrote. “… Given these independent and substantively distinct definitions, the Legislature could not have intended the term ‘exemptions’ to include the differently defined term ‘deductions’ or to use the two terms interchangeably for purposes of Indiana Code § 6-1.1-20.6-1.6.”

Wentworth instead found the Legislature’s plain language demonstrated its intent to exclude deductions from the formula for calculating “gross assessed value” and, therefore, from the resulting maximum property tax to be imposed under I.C. § 6-1.1-20.6-7.5.

Wentworth further rejected Kokomo Urban’s argument that the intent of the phrase “or any other provision” meant “any other provision that reduces a property’s gross assessed value.” She declined to add words to the definition “that simply are not there” and said Kokomo Urban’s argument ignored the statute’s actual grammatical structure.

The case is Kokomo Urban Development, LLC v. Mindy Heady, in her official capacity as Howard County Assessor,18T-TA-20.•

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