Indiana Court Decisions – Feb. 25-March 10, 2021

7th Circuit Court of Appeals

March 5

Civil Plenary – Medical Malpractice/Statute of Limitations

P.W., a minor, by Dominque Woodson, his mother and guardian, et al. v. United States of America

20-1142

A mother whose son was injured in a “traumatic” birth experience cannot proceed with her tort claims against the federal government because her claims were untimely, a divided panel of the 7th Circuit court of Appeals has ruled. A dissenting judge, however, warned of setting an “extraordinarily harsh” standard.

The case of P.W., a minor, by Dominque Woodson, his mother and guardian, et al. v. United States of America, 20-1142, dates back to May 2013, when mother Dominque Woodson began receiving prenatal treatment from Dr. Keith Ramsey at NorthShore Health Centers. NorthShore is a federally qualified health center that receives federal funding and grant money from the United States Public Health Service, meaning any claims brought against the clinic’s employees are covered against malpractice under the Federal Tort Claims Act.

Though Woodson and Ramsey had agreed to deliver the child via C-section, Ramsey decided to deliver the baby vaginally. According to Woodson, the birth on Dec. 7, 2013, was traumatic, with the child, P.W., having to be “yanked out.”

Once P.W. was born, Woodson noticed his left arm “just sagged down to his side.” Ramsey said that issue “may get better,” but it did not, leading Woodson to sue Ramsey, NorthShore and the hospital where she gave birth.

Woodson hired lawyer Walter Sandoval and in December 2014 filed a proposed complaint with the Indiana Department of Insurance, which remains pending. One year later, counsel for NorthShore informed Sandoval that the clinic was federally funded and Ramsey was a federal employee, leading to the filing of administrative tort claims with the Department of Health and Human Services. Those claims were denied.

Then in October 2017, the plaintiffs filed the instant complaint in the U.S. District Court for the Northern District of Indiana, raising negligence claims against the United States and the hospital. The U.S. moved to dismiss or for summary judgment, the latter of which was granted on the grounds that the claims were untimely.

A majority of a 7th Circuit panel affirmed the grant of summary judgment on March 5. The plaintiffs’ claims were presented to HHS on Feb. 19, 2016, so the majority determined those claims would be untimely under the two-year statute of limitations if they accrued before Feb. 19, 2014.

“Contrary to her suggestion, Ms. Woodson’s retention of Sandoval on May 30, 2014, has no automatic significance, as the mere hiring of a lawyer is not a triggering event. Particularly here, where Ms. Woodson did not require Sandoval’s review of the medical records to understand the traumatic delivery as a potential cause of P.W.’s injury (nor does she argue otherwise), the date that Ms. Woodson retained Sandoval is of little importance to our analysis,” Judge Amy St. Eve wrote, joined by Chief Judge Diane Sykes. “Instead, we apply the ‘discovery rule’ and ask when Ms. Woodson discovered or should have discovered the cause of her injury. Applying this rule, we agree with the district court that Plaintiffs’ claims accrued shortly after P.W. was born.”

The majority likened Woodson’s case to Blanche v. United States, 811 F.3d 953 (7th Cir. 2016), where a mother’s cause of action accrued shortly after the birth of her child, who weighed more than 11 pounds, got stuck in the birth canal and went home in a splint. Woodson likewise “had enough information shortly after she gave birth to P.W. to prompt her to inquire whether the manner of delivery caused P.W.’s injury.”

While a traumatic birth alone does not automatically trigger the statute of limitations, there were “other circumstances” in this case — the deviation from the birth plan, P.W.’s traumatic delivery and his visibly injured arm — that would “prompt a reasonable person to investigate the potential cause of the injury,” St. Eve wrote.

“Plaintiffs further argue that even if Ms. Woodson had knowledge of the injury and suspected that Dr. Ramsey may have contributed to the injury on the day she gave birth, she could not have known at that time that Dr. Ramsey was a government employee,” St. Eve wrote. The majority rejected that argument under Arteaga v. United States, 711 F.3d 828 (7th Cir. 2013), which held that “when a plaintiff is ‘armed with such knowledge’ of injury and a likely cause of that injury, ‘the prospective plaintiff should be able to discover within the statutory limitations period the rest of the facts needed for drafting a complaint that will withstand a motion to dismiss.’

“… Plaintiffs did not present their claims to HHS until February 19, 2016, more than two years after the claims accrued,” the majority held. “Plaintiffs’ claims are therefore untimely. This is a sympathetic case, but the district court did not err.”

Woodson’s claims also cannot survive under the “savings provision” of the Westfall Act, the majority held, because the claims filed with the Indiana Department of Insurance were never dismissed. Finally, the majority held that the plaintiffs’ claims do not qualify for either equitable estoppel or equitable tolling.

Judge David Hamilton, however, would have reversed the grant of summary judgment, writing in dissent that “(t)he factual uncertainty in this case is evident in the majority’s vague holding that plaintiffs’ claims accrued ‘shortly after’ P.W.’s birth.”

“A reasonable trier of fact could find that plaintiffs’ medical malpractice claims did not accrue within scarcely ten weeks after P.W.’s birth,” Hamilton wrote. “More generally, we should not apply the statute of limitations so that a poor medical outcome immediately puts a patient on ‘inquiry notice,’ meaning that she should quickly consult a lawyer to investigate a possible claim of malpractice.

“The majority denies it is adopting this rule, but the denial is not consistent with the majority’s logic,” he continued. “I respectfully dissent.”

The majority “applies the inquiry notice standard in an extraordinarily harsh way, and on summary judgment, no less,” Hamilton wrote. “… For jaded lawyers and federal judges, perhaps the need for investigation seems obvious — especially with the benefit of hindsight. Yet that is not the standard. We need to focus on the reasonable patient, in the situation she faced just after giving birth. And we need to keep in mind the trust at the heart of the doctor-patient relationship.”

Civil Plenary – CHINS/Right to Counsel

Nicole K., by next friend Linda R., et al. v. Terry J. Stigdon, Director of the Indiana Department of Child Services, et al.

20-1525

The question of whether children in CHINS proceedings should be appointed counsel is best left for state court resolution, the 7th Circuit Court of Appeals has ruled, finding no “civil Gideon” principle requiring counsel in child welfare cases.

That ruling comes in a case involving 10 Hoosier children who are the subject of children in need of services litigation. Parents in CHINS proceedings are automatically appointed counsel, but the children are not.

However, the children in the instant case, represented by next friends, argued they also have a constitutional right to appointed counsel at public expense, seeking a “civil parallel” to Gideon v. Wainwright, 372 U.S. 335 (1963). That issue went before the U.S. District Court for the Southern District of Indiana, but Judge James Patrick Hanlon ruled that Younger v. Harris, 401 U.S. 37 (1971), required abstention.

“When Younger applies, participants must raise their federal arguments in the state proceeding, with review by the Supreme Court of the United States if the state judiciary ultimately rejects the constitutional arguments,” 7th Circuit Judge Frank Easterbrook wrote March 5. “Plaintiffs contend on appeal that they are not the kind of parties, and CHINS proceedings are not the sort of ‘quasi-criminal’ litigation (their language), to which they believe Younger is limited.”

The 7th Circuit, however, upheld Hanlon’s abstention, writing that “(t)he variety of goals and outcomes in this kind of proceeding makes us reluctant to decide categorically whether Younger does, or does not, apply across the board.”

“… We also conclude that it does not matter whether Younger applies to all CHINS proceedings,” Easterbrook wrote. “Although, when Younger applies, abstention is compulsory, a federal court has discretion to put any federal proceeding on hold while a state works its way through an administrative process that was under way before the federal suit began. … Principles of comity entitle the states to make their own decisions, on federal issues as well as state issues, unless there is some urgent need for federal intervention.

“… Withholding peremptory federal adjudication of a single issue in the state proceedings is the appropriate disposition,” the judge continued. “Indiana represents, and plaintiffs do not deny, that state judges have the authority to appoint counsel for children. What’s more, most children have adult representatives — either guardians ad litem or special advocates.

“… Unless there is a ‘civil Gideon’ principle requiring counsel in every case,” Easterbrook wrote, “the state’s procedures suffice — at least in the sense that they permit an adult to argue, to the state judiciary, that a lawyer is necessary in a particular case.”

The U.S. Supreme Court approaches the right to counsel on a case-by-case basis in certain instances, including child welfare proceedings, the 7th Circuit panel noted. “In other words,” it held, “there is no ‘civil Gideon’ principle for child-custody or child-welfare proceedings.”

“Because children are not automatically entitled to lawyers — as opposed to the sort of adult assistance that Indiana routinely provides — it would be inappropriate for a federal court to resolve the appointment-of-counsel question in any of the ten plaintiffs’ state proceedings,” the panel concluded. “A state judge may appoint counsel, if that seems necessary, or may explain why that step is unnecessary under the circumstances.

“In the absence of a ‘civil Gideon’ analog, that question is a proper part of the state proceeding, subject (as all federal issues are) to the possibility of review by the Supreme Court once a final decision has been rendered.”

The case is Nicole K., by next friend Linda R., et al. v. Terry J. Stigdon, Director of the Indiana Department of Child Services, 20-1525.

Indiana Supreme Court

March 2

Adoption – Parental Consent/Failure to Communicate, Support

In the Matter of the Adoption of I.B. (Minor Child): J.P. v. V.B.

21S-AD-90

An Indiana trial court properly allowed an adoption to proceed without a mother’s consent, the Indiana Supreme Court has ruled, reinstating an adoption petition for the child whose mother failed to communicate or pay child support.

Justice Christopher Goff wrote for the unanimous court in In the Matter of the Adoption of I.B. (Minor Child): J.P. v. V.B., 21S-AD-90.

The case involves J.P., the mother of minor child I.B. J.P. had legal and physical custody of the child for a time, but when she began to struggle with drug use, custody was transferred to I.B.’s father.

J.P. was given supervised parenting time with I.B. and was ordered to pay child support. While she did visit another one of her children, J.P. did not exercise her parenting time with I.B., nor did she pay child support.

Thus, in 2019, stepmother V.B. petitioned to adopt I.B., with the consent of the child’s father. J.P. contested the adoption, arguing she was in “constant contact” with the child, though the father said that contact only included about 13 minutes on the phone per month. The Hamilton Superior Court ultimately granted V.B.’s adoption petition, finding J.P.’s consent was not necessary based on her failure to pay child support or communicate regularly with the child.

The Indiana Court of Appeals reversed, finding a lack of evidence to support the trial court’s ruling. The Supreme Court, however, granted transfer and reinstated the adoption order on March 2.

“In this case, we confront the limited question of whether the trial court committed clear error when it determined that Mother failed for one year to (1) significantly communicate with Child without justification, or (2) support Child when able to do so and required by law,” Goff wrote. “We find that ample evidence supports both determinations and that the trial court did not err in granting Stepmother’s petition for adoption.”

Pointing to the cases of E.B.F. v. D.F., 93 N.E.3d 759 (Ind. 2018), In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), and In re Adoption of T.L., 4 N.E.3d 658 (Ind. 2014), Goff identified a “familiar theme.”

“A parent who meets society’s expectations by maintaining a connection with her child and by financially supporting her child cannot have her legal relationship with the child severed without her consent,” he wrote. “Conversely, when a parent fails to maintain a meaningful relationship with, or fails to financially support, that child, she loses her right as a natural parent to withhold consent to adoption. Of course, what constitutes failure is a fact-intensive inquiry.”

Turning to the facts of J.P.’s case, the court held, “While Mother did struggle with substance abuse, and while she argued that her troubles and efforts at recovery excused her lack of financial support, she advanced no such argument related to her lack of communication before either the trial court or the Court of Appeals. Instead, the evidence shows a paucity of conversations between Mother and Child and that Mother couldn’t provide basic information about Child’s life, such as who her friends were and where she attended school.”

As to the issue of her failure to pay child support, the court noted J.P.’s annual income, though small, “was nearly enough to satisfy her annual support obligation. … And it was earned when many of her own expenses were paid by others.” J.P. argued her recovery efforts, including treatment and schooling, justified her failure to pay child support, but the justices disagreed.

“Between her schooling, which arguably could have prevented her from working, and her incarceration, Mother was not able to work for twenty-five of the fifty-two weeks at issue. That means she was available to work for twenty-seven weeks,” Goff wrote. “… While Mother didn’t have a license, she owned a car during the year at issue and testified that she drove the car without a license. While we certainly don’t condone her illegal method of transportation … Mother’s decision to drive without a license in other circumstances further supports the trial court’s determination that her unemployment was voluntary.”

Finally, the high court declined to address J.P.’s challenge to the finding that she abandoned I.B., noting the mother “didn’t engage in a separate analysis related to abandonment.”

Indiana Court of Appeals

March 3

Civil Tort – Sexual Abuse/Damages

K.G., by her Parent and Next Friend, Melody Ruch, and Melody Ruch, Individually v. Morgan Smith, New Augusta North Public Academy, and Metropolitan School District of Pike Township

20A-CT-1802

The mother of a child with severe mental and physical disabilities cannot recover emotional distress damages from the school where her child was sexually abused because the mother did not witness the abuse, the Indiana Court of Appeals has affirmed. However, the mother’s claim for economic damages can proceed.

Melody Ruch is the mother of K.G., who was born in 2004 with several mental and physical disabilities that limit her to nonverbal communication. K.G. was enrolled in the New Augusta North Public Academy from October 2015 to January 2016, when school employees provided the child with special assistance including changing her diapers. Morgan Smith, an instructional assistant at the school, sexually abused K.G. while changing her diaper, but Ruch did not witness the abuse or learn about it for another two years.

In August 2019, Ruch sued Smith, the academy and the Pike Township school corporation individually and on behalf of K.G., alleging negligence resulting in emotional distress, the loss of Ruch’s ability to care for K.G. and the expenses of placing K.G. in a chronic care home. Pike Township and the academy moved for summary judgment, arguing Ruch could not recover for emotional trauma, and the Marion Superior Court granted summary judgment as to all claims Ruch brought individually.

On appeal, Ruch acknowledged she was not entitled to relief under the traditional “impact rule,” the modified impact rule laid out in Shuamber v. Henderson, 569 N.E.2d 452 (Ind. 1991), or the bystander rule laid out in Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000). Instead, she urged the Court of Appeals “to adopt a bright-line rule in cases ‘where the tort will never happen if there is a witness, and emotional distress is a veritable certainty even though the wrong was not witnessed[.]’”

“However, we rejected a similar claim in Perkins v. Stesiak, 968 N.E.2d 319 (Ind. Ct. App. 2012), trans. denied., where a grandmother sued her attorney for legal malpractice because he did not file suit alleging negligent infliction of emotional distress against the school district after her grandson was abused by a teacher’s assistant,” Judge Melissa May wrote in a March 3 opinion. She continued, “We held the attorney did not commit malpractice because, as a matter of law, the grandmother could not recover for her emotional distress under the modified impact rule or the bystander rule.

“In accordance with Perkins, we decline to expand a tortfeasor’s liability for the intentional infliction of emotional distress beyond the traditional impact rule, the modified impact rule, and the bystander rule.”

Likewise, Ruch’s argument under Article 1, Section 12 of the Indiana Constitution failed. Citing McIntosh v. Melroe Co., a Div. of Clark Equip. Co., Inc., 729 N.E.2d 972, 979 (Ind. 2000), May wrote, “[i]f the law provides no remedy, [Article 1,] Section 12 does not require that there be one.”

However, the appellate panel partially reversed the grant of summary judgment after finding a trial court error.

“The School Defendants were entitled to summary judgment on Ruch’s claims for emotional damages, but the School Defendants did not seek summary judgment on Ruch’s claims for economic damages,” May concluded. “Therefore, we reverse that portion of the trial court’s order and remand the case for further proceedings.”

The case is K.G., by her Parent and Next Friend, Melody Ruch, and Melody Ruch, Individually v. Morgan Smith, New Augusta North Public Academy, and Metropolitan School District of Pike Township, 20A-CT-1802.

__________

March 4

Adoption – Parental Consent/Reversal

In re: The Adoption of W.K. IV and I.K., W.K. III v. T.M.

20A-AD-1455

The adoption of two children by their stepfather after their mother died cannot proceed without their father’s consent, the Indiana Court of Appeals ruled March 4, reversing a trial court order.

Mother C.M. and Father W.K. III were married while both were on active duty in the military, and the couple had two children. Father left the military in 2011 and moved from Japan to Texas, while mother left the military in 2013 and moved from Japan to California with the kids.

After their divorce in March 2014, mother and father shared legal custody of their children, with father getting parenting time and mother having physical custody. The mother and children eventually settled in Indiana and the kids began spending their summers with their father in Texas.

Father had been informally paying child support since 2014, but in 2016 he was officially ordered to make regular support payments. Also in 2016, mother married T.M. However, C.M. died in March 2019.

After C.M.’s death, T.M. moved to adopt the children. Meanwhile, the children moved to Texas with their father, but T.M. petitioned the Hamilton Superior Court to order the children’s return. The court agreed but the father refused to comply, leading to his arrest on felony charges of interference with custody.

The case proceeded to a hearing on whether the father’s consent to adoption was necessary. During the hearing, a guardian ad litem testified about father drinking, smoking, using corporal punishment and committing acts of domestic violence against C.M. while she was alive.

The trial court ultimately determined the father’s consent to the adoption was not necessary, finding that he had failed to communicate or support the children in 2013 and 2014 and that he was unfit.

Father appealed, and the Indiana Court of Appeals reversed in In re: The Adoption of W.K. IV and I.K., W.K. III v. T.M., 20A-AD-1455.

Citing to E.W. v. J.W., 20 N.E.3d 889 (Ind. Ct. App. 2014), trans. denied, Judge Nancy Vaidik wrote, “It would defy logic to allow Father’s alleged one-year period of no communication in 2013 to overcome his more recent regular exercise of parenting time with the children, including from 2014 to 2019.” The appellate court reached the same holding on the issue of father’s alleged failure to support and care for the children in 2013 and 2014.

“… Father started exercising summer parenting time with the children in 2014, and he supported the children while they were with him,” Vaidik wrote. “In addition, Father started informally paying child support in 2014 and was ordered to pay child support in late 2016. Similar to above, it would defy logic to allow Father’s alleged one-year period of not supporting the children in 2013 and 2014 to overcome his more recent support of the children, including from 2014 to 2019.”

As for the finding that the father was unfit under Indiana Code § 31-19-9-8(a)(11), the COA noted the felony charges against him “are wrapped up with the merits of this case.”

Specifically, Vaidik said T.M.’s motion to return the children to Indiana was based on the premise that the children were only supposed to spend the summer in Texas, but “the court’s April 2019 order says nothing of the sort.”

“Although keeping the children in Texas despite the court’s order was a stupid thing for Father to do,” she wrote, “under these circumstances it does not make him unfit.”

What’s more, Vaidik continued, the guardian ad litem never relayed the concerns she shared in court to authorities in Texas or Indiana.

“While Father is not perfect, none of the concerns relayed by the GAL rise to the level of unfitness required to essentially terminate Father’s parental rights to the children. And tellingly, the only cases Stepfather cites to support the finding that Father is unfit under Section 31-19-9-8(a)(11) are cases where the parents had a significant criminal history and were serving lengthy sentences,” Vaidik concluded.

“… The trial court erred in finding Father is unfit. We therefore reverse the court’s determination Father’s consent is not required for Stepfather’s adoption of the children.”

__________

March 5

Criminal – Sentencing/Substance Abuse

Christopher M. Hubbert v. State of Indiana

20A-CR-1617

A man sentenced to 18 years after being convicted in a drug sting operation will only serve four of those years in prison, the Indiana Court of Appeals has ruled, reversing a sentencing order that did not allow for probation or substance abuse treatment.

In Christopher M. Hubbert v. State of Indiana, 20A-CR-1617, appellant-defendant Christopher Hubbert was charged in January 2020 with three felonies after he participated in three controlled methamphetamine buys, selling drugs to a confidential informant working with the Columbus Police Department. Hubbert agreed to plead guilty to Level 2 felony dealing in meth in exchange for the dismissal of the two other charges against him in the instant case as well as charges filed in a separate cause. Sentencing was left to the Bartholomew Superior Court.

At his sentencing hearing, Hubbert testified that he got into dealing to support his “habit” and that he was visually impaired. He requested that a portion of sentence by assigned to community corrections or another addiction treatment program.

In a presentence investigation report, the local probation department likewise recommended Hubbert be assigned to community corrections and substance abuse treatment. The prosecutor, however, said Hubbert’s visual impairment should not be a “get out of jail free card” and urged the trial court to impose a fully executed sentence.

Agreeing with the prosecutor, the trial judge sentenced Hubbert to 18 years executed in the Indiana Department of Correction. The court recognized Hubbert’s visual impairment as a “significant” mitigator but identified multiple aggravators, including his prior criminal history and his previous unsuccessful stints on probation and in treatment.

The Indiana Court of Appeals, however, agreed with Hubbert that at least part of his sentence should be served on community corrections. The unanimous appellate panel reversed and ordered Hubbert to serve only four years of his 18-year sentence in the Department of Correction.

“Regarding the nature of the offense, we are obviously troubled Hubbert conducted a drug deal in a public library, although we note the amount of methamphetamine sold was only a small amount over what was needed to make this a Level 2 felony,” Judge Nancy Vaidik wrote in a March 5 opinion. “But as to Hubbert’s character, we believe the record supports his contention that his addiction is the underlying source of his criminal behavior.

“… He is considered at a low risk to reoffend according to the Indiana Risk Assessment System. And while the trial court is correct that Hubbert previously had one opportunity to receive substance-abuse treatment while on probation and failed, we do not believe one such failure should preclude future opportunities to reform,” Vaidik continued. “… Finally, Hubbert is visually impaired, which the trial court found to be a ‘significant’ mitigator. And the record indicates his impairment substantially affects his opportunities while incarcerated.

“… For these reasons, Hubbert has convinced us that an eighteen-year executed sentence is inappropriate,” the judge concluded. “Accordingly, we reverse and remand to the trial court to impose a sentence of eighteen years, with four years executed in the DOC. The remaining years are to be served on probation with substance-abuse counseling and placement in community corrections.”

__________

March 9

Expungement – Misdemeanor Convictions/Reversal

Pranav Mishra v. State of Indiana

20A-XP-1726

A man whose misdemeanors were expunged in two of three counties where he was convicted will now receive an expungement in the third county after the Indiana Court of Appeals reversed the trial court’s expungement denial.

In Pranav Mishra v. State of Indiana, 20A-XP-1726, Pranav Mishra was convicted of three misdemeanors in three Indiana counties over a nine-year period: Class A misdemeanor public indecency in 2007 in Tippecanoe County, Class B misdemeanor reckless driving in 2009 in Hamilton County, and Class A misdemeanor operating while intoxicated in 2016 in Monroe County. The Monroe County prosecutor in March 2020 agreed to allow Mishra to petition for expungement outside of the five-year statutory waiting period, prompting Mishra to file for expungement in all three counties.

The Tippecanoe Superior Court denied Mishra’s petition in July 2020 because he had been convicted of a crime within the last five years — specifically, the Monroe County conviction, which at the time had not yet been expunged. The Monroe Circuit Court granted Mishra’s petition in August 2020, and Mishra refiled the Tippecanoe County petition, but the Lafayette court again denied the expungement.

In a footnote, the Indiana Court of Appeals noted the Hamilton Superior Court agreed to the expungement after the Monroe County ruling. Likewise, in a March 9 opinion, the Indiana Court of Appeals ordered the Tippecanoe Superior Court to grant Mishra’s petition, noting both he and the state endorsed that outcome.

“As both Mishra and the State note, Indiana Code section 35-38-9-10(e) generally provides that a ‘person whose record is expunged shall be treated as if the person had never been convicted of the offense,’” Chief Judge Cale Bradford wrote. “Recognizing that there are a few enumerated exceptions to this general rule, the State further notes that ‘[n]one of the enumerated exceptions authorize a court to consider an expunged conviction in the context of an expungement proceeding for purposes of determining whether the person has a conviction within the previous five years.’

“We further agree with the State that under the doctrine of expressio unius est exclusio alterius, the specification of some exceptions in a statute means that other matters not specified are excluded, and courts are not free to graft additional exceptions onto a statute,” Bradford wrote, referencing A.A. v. Eskenazi Health/Midtown CMHC, 97 N.E.3d 606, 614 (Ind. 2018). “The trial court therefore erred when it considered Mishra’s previously-expunged 2016 Monroe County conviction in relation to Mishra’s petition to expunge his 2007 Tippecanoe County conviction.”

Bradford also pointed to I.C. 35-38-9-2(e), which holds that a trial court “shall” grant an expungement if the statutory period has elapsed or the prosecutor has agreed to an earlier filing, no charges are pending, the person has paid all fees, fines, costs and restitution, and the person has not been convicted of a crime within the previous five years. Those requirements are satisfied in Mishra’s case, the chief judge wrote, so the use of the word “shall” means the grant of an expungement is compulsory.

The case was thus remanded with instructions for the trial court to expunge Mishra’s 2007 Tippecanoe County conviction.

__________

March 10

Civil Plenary – Settlement/Breach

Jetz Service Company, Inc. v. Ellis Ventures d/b/a Cherry Street Apartments, Michael Ellis, and Highland Quarters, LLC

20A-PL-1461

A settlement offer received via email between a former apartment owner and a service vendor was an enforceable contract, a majority of the Indiana Court of Appeals has affirmed. A dissenting judge, however, would reverse the order requiring the parties to be bound by the terms of a March 2016 email exchange.

Appellant-plaintiff Jetz Service Company Inc. in September 2015 entered a lease with Ellis Ventures to install three pay-to-use washers and dryers in the Cherry Street Apartments in Terre Haute. The following February, however, Michael Ellis of Ellis Ventures told Jetz that the lease would be terminated because Ellis was considering eliminating the apartment complex.

Michael Ellis and Brad Applegate, a Jetz representative, agreed via email in March 2016 to an $8,000 settlement to break the lease. However, after several months without contact, Ellis in June 2016 told Applegate that the apartments had been sold, rescinded the previous offer and offered to pay $120 a month to keep the units in storage until the lease was terminated.

When further settlement discussions failed, Jetz sued Ellis and Highland Quarters LLC, which had bought the apartments, for breach of contract. Two years into the litigation, Ellis moved to enforce the original settlement agreement that called for an $8,000 payment. The Vigo Superior Court entered an order enforcing the settlement, finding that even though Jetz wanted a greater amount and Ellis wanted to pay less, “both are forgetting that both agreed on March 17, 2016 to settle.”

Jetz appealed, arguing the March 2016 agreement was not a valid settlement agreement because there was no “meeting of the minds.” An Indiana Court of Appeals majority, however, affirmed in Jetz Service Company, Inc. v. Ellis Ventures d/b/a Cherry Street Apartments, Michael Ellis, and Highland Quarters, LLC, 20A-PL-1461.

“Here, as the trial court found, on March 16, 2016, there was an offer, acceptance, and consideration. The parties agreed that Ellis would pay Jetz $8,000, that their lease would be terminated, and that Jetz would remove its equipment from Cherry Street Apartments,” Judge Patricia Riley wrote, joined by Judge Edward Najam. “The essential terms of the settlement agreement were reached on that day without any qualification. Their exchange of emails created a contract, and the execution of a more elaborate written agreement to memorialize the contract was not required.

“As there is evidence in the record to support the trial court’s judgment that there was a meeting of the minds on March 16, 2016, we conclude that the trial court did not err in granting Ellis’s motion to enforce the settlement agreement,” Riley wrote.

But Judge Terry Crone dissented, writing separately that “the majority has disregarded the critical second step of the analysis: determining whether the parties ‘intended that they would be bound only after executing a subsequent written document.’ Wolvos v. Meyer, 668 N.E.2d 671, 675 (Ind. 1996).”

“Based on the parties’ conduct and correspondence, I believe that the answer is yes,” Crone wrote, pointing to Ellis’ request that Jetz forward him a termination agreement and Ellis’ later desire to revise the terms of the agreement. “… Because the parties intended that they would be bound only after executing a subsequent written document that was never executed, I would reverse the trial court’s order granting Ellis’s enforcement motion.”•

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