Indiana Court decisions – Feb. 27-March 11, 2020

7th CircuitCourt of Appeals

March 4

Civil Plenary — Inmate Litigation/Medical Care

Leonard Thomas v. Nicholas P. Wardell, et al.


A prisoner’s case has been reinstated after the 7th Circuit Court of Appeals found the Indiana Northern District Court’s denial of his three requests for appointed counsel prejudiced him.

While serving his 40-year sentence for voluntary manslaughter in the Westville Correctional Facility, Leonard Thomas sued, pro se, numerous correctional officers for a host of claims, alleging his requests for medical care — especially concerning his mental health treatment — were improperly denied or ignored.

Thomas, whose mental illness history began before his incarceration, has been diagnosed with epilepsy, antisocial personality disorder and anxiety. Prior to his incarceration, his symptoms included suicidal ideations, paranoia and hallucinations.

Thomas also complained about the effects of psychotropic medications he had been taking that were discontinued and alleged that correctional officials failed to protect him from self-harm, including three suicide attempts in the span of roughly one year and an incident when he was pepper sprayed.

Thomas was denied his first two requests for appointed counsel, with the Northern Indiana District Court, citing Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc), concluding he had not made a reasonable effort to obtain counsel on his own. It determined his 14 letters to various attorneys seeking representation did not provide information about the claims he was pursuing, and some pre-dated certain events in his complaint.

Additionally, the district court found the claims he would pursue were unclear given the 26 defendants Thomas initially had listed in the complaint.

The trial court also cited Thomas’ medical records that showed average intellect, intact memory and a logical thought process, as well as his numerous coherent requests for medical care. Thus, even without assistance from other inmates, Thomas could prepare an amended complaint and move for appointment of counsel again, the court ruled.

A third request for appointed counsel was also denied when the district court found Thomas himself could ask an attorney who represented him in another case to represent him in the case at hand. It also found Thomas’ failure to approach that attorney showed he had not reasonably attempted to obtain counsel on his own, as required under Pruitt.

The case was ultimately dismissed pursuant to Federal Rule of Civil Procedure 41(b).

But the 7th Circuit reversed and remanded for the prisoner in Leonard Thomas v. Nicholas P. Wardell, et al., 17-2582, finding that Thomas made reasonable attempts to obtain counsel and that the district court did not assess whether he appeared competent to litigate his case given its difficulty.

The 7th Circuit found as insufficient the district court’s order denying Thomas’ third request for counsel, noting it “cursorily dismissed Thomas’s 2016 request on the grounds that Thomas did not personally reach out to that lawyer.”

“Thomas’s working relationship with that attorney and the district court’s failure to take that relationship into account calls into question the district court’s conclusion that Thomas did not reasonably try to get a lawyer,” Circuit Judge Michael Brennan wrote for the 7th Circuit. Brennan likewise noted the district court failed in its third denial to consider or mention Thomas’ competence to litigate the case himself, as required by Pruitt.

Additionally, the 7th Circuit pointed out that the first two denial orders failed to cover Thomas’ literacy, communication skills and litigation experience. It similarly noted that neither of the district court’s orders denying counsel contended with the complexities of Thomas’ medical evidence or grappled with his allegations that certain defendants deviated from the standard of care.

“Thus, the district court abused its discretion in denying Thomas’s motions for counsel, and this erroneous denial prejudiced Thomas because it most likely resulted in his case being dismissed,” the 7th Circuit wrote, reversing and remanding for counsel to be appointed to Thomas.

The 7th Circuit further found the district court provided insufficient grounds on which to dismiss Thomas’ case for failure to prosecute, noting that “dismissal for failure to prosecute as a result of one missed deadline is arbitrary and an abuse of discretion.” It therefore vacated the dismissal, reinstated the case and remanded it to the district court for further proceedings.

Indiana Supreme Court

March 3

Civil Tort — Trooper Personal Injury Crash/Scope of Employment

Bryce A. Burton v. Martin Benner and Indiana State Police


An off-duty Indiana State Police trooper was not “clearly outside” the scope of his employment during an incident that injured a motorcyclist when the trooper was riding in his unmarked ISP vehicle, the Indiana Supreme Court has ruled.

Justices agreed to hear the case of Bryce A. Burton v. Martin Benner and Indiana State Police, 19S-CT-549, in October following a reversal from the Indiana Court of Appeals.

The lower appellate court reversed the Benton Circuit Court’s summary judgment ruling for Indiana State Police Trooper Martin Benner after the trial court agreed with Benner that the trooper was driving in the scope of his employment.

Benner had attempted to pass oncoming motorcyclist Bryce Burton on the road. At the time of the accident, Benner was off duty but driving his state-issued police vehicle as allowed under state police policy.

In attempting to avoid a head-on collision with Benner, Burton sustained injuries after his bike left the roadway.

The COA disagreed with the trial court’s decision, finding reasonable minds could disagree on whether the trooper was outside the scope of his employment and that summary judgment was thus inappropriate.

But Indiana Supreme Court justices affirmed the trial court, concluding that although there was some evidence that Benner was not in strict compliance with state police policy at the time of the accident, it was not enough to place him “clearly outside” the scope of his employment through the Indiana Tort Claims Act.

“The undisputed evidence in this case indicates Trooper Benner complied with the vast majority of State Police procedures for operating his police commission while off duty,” Justice Steven David wrote for the Supreme Court, which further disagreed with Burton’s assertion that Benner’s violation of traffic laws exposed him to personal liability under the tort claims act.

“True, State Police policy expressly prohibits violation of traffic laws, but in our view, the violation in this case did not move Benner ‘clearly outside’ the scope of his employment. Recall that the scope of employment ‘may include acts that the employer expressly forbids’ or ‘that violate the employer’s rules, orders, or instruction,’” David wrote, quoting Cox v. Evansville, 107 N.E.3d 460 (Ind. 2018). “While State Police policy forbids speeding in non-emergency situations, speeding could ‘naturally or predictably arise’ from driving a commission even while off duty. The ‘clearly outside’ standard set forth in Indiana Code section 34-13-3-5(c)(2) represents a high bar and, in this case, we are not convinced that bar has been cleared.”

Noting there is “no precise formula to determine whether an act is ‘clearly outside’ the scope of employment,” the justices therefore found no genuine issue of material fact as to the disputed issue and affirmed the trial court’s decision in the trooper’s favor.

Civil Tort — Premises Liability/Bar Parking Lot Fight

Cavanaugh’s Sports Bar & Eatery, Ltd. v. Eric Porterfield


A split Indiana Supreme Court reversed in a northern Indiana bar’s favor, finding the establishment did not owe a duty to a man who was blinded after a bar fight took place in its parking lot.

As he was leaving Cavanaugh’s Sports Bar & Eatery one night, Eric Porterfield was left permanently blind after a fight broke out in the bar parking lot, prompting him to sue the eatery for negligence. Cavanaugh’s moved for summary judgment, arguing it owed Porterfield no duty because the incident was unforeseeable.

After the Lake Superior Court denied the bar’s motion, the Indiana Court of Appeals, in an interlocutory appeal, affirmed.

The case of Cavanaugh’s Sports Bar & Eatery, Ltd. v. Eric Porterfield, 20S-CT-88 then divided Indiana Supreme Court justices in a split decision that ultimately reversed and remanded in the bar’s favor.

Writing for the majority, Justice Mark Massa cited Rogers v. Martin, 63 N.E.3d 316, 325 (Ind. 2016), and Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 390 (Ind. 2016), noting that “(w)hen evaluating the broad class of plaintiff and broad type of harm in these cases, we acknowledged a key factor is whether the landowners knew or had reason to know about any present and specific circumstances that would cause a reasonable person to recognize the probability or likelihood of imminent harm.”

“In the years since Goodwin and Rogers, courts have thoughtfully applied this framework, finding duty only when landowners had this contemporaneous knowledge,” the majority, including Chief Justice Loretta Rush and Justice Geoffrey Slaughter, held. “… But without notice of present and specific circumstances that would cause a reasonable person to recognize the risk of an imminent criminal act, our Court of Appeals has consistently held since Goodwin and Rogers — until now — that landowners cannot foresee these sudden attacks.”

Thus, the majority found Cavanaugh’s had no reason to foresee that a bar patron would blind another patron during a sudden and “without warning” fight in its parking lot. Unlike the cases where courts have found a duty when a landowner knew or should have known about likely looming harm, the majority concluded Porterfield did not show that Cavanaugh’s had any reason to believe the fight would occur.

Additionally, it found Porterfield improperly substituted evidence of the bar’s past raucousness for contemporaneous knowledge of imminent harm by pointing to police runs made to the bar during the year before the fight.

“Because we hold that the criminal attack at issue here was unforeseeable, the duty of Cavanaugh’s to protect Porterfield did not extend to this particular scenario,” the majority concluded. “We reverse and remand with instructions for the trial court to enter summary judgment for Cavanaugh’s.”

Dissenting in a separate opinion joined by Justice Steven David, Justice Christopher Goff argued he would resolve the case differently by “focusing on the general, common-sense nature of this foreseeability inquiry … .”

Goff said the majority’s opinion added new requirements to the foreseeability inquiry, elevating the standard to impose a duty by requiring contemporaneous evidence of imminent harm. He also said the majority focused on the particular facts of the case, contrary to the standard provided by precedent.

“By raising the bar for finding a duty, the majority’s opinion will lead to summary judgments in close cases, impeding Hoosiers’ right to a trial. And by focusing on the facts in determining whether a duty exists, the majority takes from the factfinder at trial the ability to consider and weigh facts,” Goff opined.

The dissenting justices thus stated they would hold that Cavanaugh’s owed a duty to protect Porterfield from the foreseeable fight and affirm the trial court’s denial of summary judgment.

March 11

Civil Plenary — Gravesite Ownership Dispute/Order for Exhumation

Kathy Salyer v. Washington Regular Baptist Church Cemetery, and Kristy Sams


A divided Indiana Supreme Court is ordering a cemetery to exhume a man from his burial place after the gravesite was accidentally sold to two buyers. The 3-2 majority of justices reversed in the original owner’s favor, ordering for the grave to be restored for her future use.

The Washington Regular Baptist Church Cemetery was sued by gravesite owner Kathy Salyer in May 2015 after she discovered that a man named Lowell Johnson had been buried on a plot intended for her mother that Salyer had purchased more than 30 years prior. Salyer purchased four contiguous gravesites in 1982 that comprised Lot 14 of the cemetery and later purchased a fifth contiguous plot.

The cemetery admitted its mistake in inadvertently selling the gravesite twice, first to Salyer and later for Johnson’s burial, but refused Salyer’s demand to move Johnson’s remains. Salyer then sued, seeking damages, attorney fees and an order for the cemetery to remove Johnson’s remains from the gravesite and restore it to her.

However, the Ripley Circuit Court held that the cemetery did not commit wrongful burial and awarded Salyer a free vacant gravesite instead, also denying her request for damages and attorney fees. The Indiana Court of Appeals affirmed, but Judge James Kirsch dissented, finding that the judgment should be reversed and remanded for an order that the cemetery correct the wrongful burial.

Indiana Supreme Court justices split in reversing the trial court’s decision in Kathy Salyer v. Washington Regular Baptist Church Cemetery, and Kristy Sams, 20S-PL-102, with the majority agreeing with Kirsch about the relief Salyer should receive. Justices Mark Massa and Christopher Goff dissented without an opinion.

“(I.C. § 23-14-59-2) Section 2 provides that when a wrongful burial described in Section 1(1) occurs, ‘the cemetery owner shall … correct the wrongful burial … after becoming aware of the error[.]’ A dictionary published a few years after Section 2 was enacted in 1997 defines the verb ‘correct’ to include ‘to make right or set right[;] to alter or adjust so as to bring to some standard or required condition.’ Thus, Section 2 requires that a wrongful burial be made right or set right, altered so as to bring it to some required condition,” the majority consisting of Chief Justice Loretta Rush and justices Steven David and Geoffrey Slaughter held in a per curiam opinion.

“The condition required by our statutes is one in which the burial is no longer ‘in the wrong lot, grave, grave space, burial space,’ etc. The statutory language … does not contemplate a court’s weighing of equities to fashion an alternative form of relief.

“The trial court and the Court of Appeals recognized Salyer is entitled to relief. But we agree with Salyer that she is entitled to ‘correct[ion of] the wrongful burial,’” the majority continued. “Accordingly, while we affirm the denial of damages and attorney’s fees, we reverse in part and remand for the trial court to order the Cemetery to correct the wrongful burial by removing Johnson’s remains from the Gravesite and restoring it for Salyer’s use.”

IndianaCourt of Appeals

Feb. 27

Protective Order — Reversal/Insufficient Evidence

R.H. v. S.W.


A man seeking to be rid of a protective order brought against him by his ex-girlfriend convinced the Indiana Court of Appeals that insufficient evidence supported the order.

Several months following their breakup after dating for more than one year, S.W. filed a petition for a protective order against R.H., alleging she is or had been a victim of domestic or family violence and of stalking. S.W. also alleged that she and R.H. lived together in an intimate relationship, and R.H. attempted to and did cause physical harm to her, placed her in fear of physical harm, caused her to involuntarily engage in sexual activity by force, threat of force, or duress, and committed stalking against her.

The woman asserted two separate instances in her petition, including an incident that occurred in May 2018 during the couple’s vacation, as well as in February 2019 after they had ended the relationship.

“Regarding the May 2018 allegation, S.W. presented testimony that R.H. started yelling at her, cussing at her, and calling her horrible things, that he grabbed her wrist when she ‘tried to get away,’ and that she asked him to stop ‘because it hurt really bad, and — and that’s it.’ The record reveals that the parties immediately reconciled. Further, this incident occurred ten months before S.W. filed for the protective order,” Judge Elaine Brown wrote for the appellate court.

“Regarding the February 2019 allegation, S.W. presented testimony that she was driving to work in Hanover after dropping her daughter at school when she noticed he was in front of her and that he ‘ended up getting off to the other side, the other lane, and then slowing down to where he was behind me’ and he ‘would stick behind me all the way to work.’ This single incident is insufficient to establish stalking, and the record does not contain evidence that S.W. suffered emotional distress,” the appellate court wrote.

“(W)e conclude R.H. has presented a case of prima facie error that there was insufficient evidence to support the issuance of a protective order,” Brown wrote for the panel that reversed the Jefferson Circuit Court’s decision in R.H. v. S.W., 19A-PO-2244.

Feb. 28

Criminal — Motion to Suppress/Roundabout Traffic Stop

State of Indiana v. Cliffton W. Davis


Does a motorist violate current Indiana traffic law by not signaling a turn when exiting a roundabout? The answer is no, the Indiana Court of Appeals ruled in affirming a suppression ruling.

In State of Indiana v. Cliffton W. Davis, 19A-CR-1650, Cliffton Davis was pulled over after a Warsaw police officer saw him fail to use a turn signal when exiting a roundabout. When the officer approached the car, he noticed Davis was acting nervous and tried to conceal something in the vehicle.

A subsequent search of the vehicle revealed a digital scale with residue of methamphetamine, as well as other drug-related items.

Davis was charged with Level 6 felony possession of methamphetamine, Class C misdemeanor possession of paraphernalia and Class C misdemeanor operating while intoxicated. However, he filed a motion to suppress the evidence seized as a result of the traffic stop and argued the stop was unlawful, with which the Kosciusko Circuit Court agreed.

Granting his motion, the trial court concluded the state failed to prove Davis violated the Indiana statute regarding turn signals, Indiana Code § 9-21-8-25, and therefore the officer did not have reasonable suspicion to initiate a traffic stop of Davis’s vehicle.

An appellate panel affirmed that decision, finding Davis’ failure to signal out of the roundabout did not violate the statute at issue.

“Indeed, although Indiana Code Section 9-21-8-25 would presumably apply to all roadways, including roundabouts, as roundabouts are not specifically excluded from its ambit, we must recognize that this signaling provision was drafted well before roundabouts became widespread in our state. Moreover, any assumption that the signaling statute specifically applies to roundabouts fails to withstand scrutiny when the reality and logistics of roundabouts are considered,” Judge Terry Crone wrote for the appellate panel.

“… (W)hen the act of exiting a roundabout, as involved here, is considered, application of our current signaling law becomes even more problematic,” Crone continued. “As noted by the State, exiting a roundabout requires the driver to deviate from the natural circular flow of the roundabout. The driver must make a choice between various points of exit, a choice to which other motorists should arguably be notified.

“But, based upon our current turn signal law, how and when would a motorist be required to signal his exit from a roundabout? This simple question only generates more questions which demonstrate that our current turn signal statute is completely unworkable in this context.”

Likening I.C. 9-21-8-25 to a “square peg that cannot fit into the roundabout hole,” the appellate court concluded that, as the law now stands, roundabouts are intersections to which the current turn signal statute simply cannot and does not apply.

“With the foregoing considerations in mind, we observe that it is for the Indiana General Assembly, and not this Court, to promulgate specific rules and regulations regarding the use of turn signals in roundabouts, and we encourage it to do so. Because Indiana Code Section 9-21-8-25 is inapplicable to roundabouts, we hold that Davis did not violate that statute when he did not signal a turn when exiting the roundabout in this case,” the court concluded.

Deferring to the trial court’s decision, the appellate panel rejected the state’s assertion that even assuming the officer was mistaken in his belief that Davis violated I.C. 9-21-8-25, his mistake of law was objectively reasonable.

March 4

Civil Tort — Negligent Confinement/Personal Injury

Robert Gacsy v. Todd Reinhart


A LaPorte County man who tried to legally close the barn door after his horses allegedly got out and injured his neighbor must stand trial, the Indiana Court of Appeals ruled. The panel also found the trial court erred by closing the courthouse door to evidence that it wasn’t the first time these horses went on the lam.

Robert Gacsy sued Todd Reinert in LaPorte Superior Court after Gacsy claimed he was injured when Reinert’s horses got free from their enclosure, bumped into Gacsy and knocked him to the ground. Gacsy claimed this was not the first time Reinert’s horses had gotten free, but Judge Richard Stalbrink approved Reinert’s motion in limine excluding all evidence related to prior escapes of Reinert’s horses.

A mistrial was declared in the first trial after Gacsy’s counsel was found to have repeatedly violated the order in limine. Stalbrink warned Gacsy’s counsel that further violations in a second trial would result in dismissal of his client’s case.

At a second trial that began in May 2019, Gacsy’s counsel relied on Reinert’s deposition when he told jurors during opening statements, “You’re going to learn (Reinert’s fence) wasn’t built very well and that about two months before (Gacsy) was injured it found a failure. That’s the words (Reinert) will tell you. The fence found a failure … .”

Reinert’s counsel again moved for a mistrial, which Stalbrink granted. The judge made findings that Gacsy’s counsel “was reminded several times of the importance of complying with the Court’s orders. They were also repeatedly reminded that this meant there could be no reference to prior or subsequent escapes by the horses. Yet not even five minutes into (Gacsy’s) Counsel’s opening statement they referenced a prior escape by the horses … .”

The trial court also found “that the conduct of (Gacsy’s) Attorney was intentional and reckless. Based on the forgoing, the Court finds that (Gacsy’s) Attorneys engaged in egregious misconduct and caused a mistrial making the imposition of sanctions just.” As a sanction, the trial court dismissed the case with prejudice.

The Indiana Court of Appeals reversed entirely in Robert Gacsy v. Todd Reinhart, 19A-CT-1345.

“By stating that the fence ‘found a failure,’ it is apparent that counsel was twisting himself into proverbial knots to try to make his case while also abiding by the trial court’s order,” Judge John Baker wrote for the panel. “Counsel tried to explain to the trial court that he was faced with an impossible task: ‘I’m now tasked with showing the confinement was inadequate, yet they’re saying [I] can’t put on evidence that it was inadequate. I mean, that’s what I’m trying to do.’”

The panel found counsel’s statement that the fence “found a failure” did not violate the order in limine and that the trial court therefore erred in declaring a mistrial. The COA remanded for a new trial, but it didn’t stop there.

“… The alleged prior escapes of Reinert’s horses, as well as the condition of the fence, are directly relevant to Gacsy’s claim. Therefore, evidence related to those escapes should be admitted in a new trial,” the panel held. “Additionally, we note that the trial court imposed sanctions upon Gacsy for the failures to abide by the order in limine in the first trial. Because we find that the order was improper and placed Gacsy’s counsel in an impossible position, we direct the trial court to strike the sanctions on remand.”

March 6

Domestic Relation — Contempt/Reversal

Michael A. Ferrill v. Susan E. Ferrill


The goal of harmonizing conflicting provisions in a divorce settlement led the Indiana Court of Appeals to find a military veteran should not have been held in contempt for discontinuing support to his ex-wife.

Michael and Susan Ferrill divorced in 2004 after more than 30 years of marriage. As part of their divorce agreement, Michael split with Susan his monthly Voluntary Separation Incentive payment. He was receiving this benefit because he agreed to forgo his military pension and leave active duty prior to accumulating 20 years of service.

However, following the 9/11 terrorist attacks, Michael was recalled to active duty and, eventually, the time he served reactivated qualified him for a military pension in 2011. He continued to pay Susan $11,000 after he stopped receiving VSI payments while also having his monthly pension payment reduced because the military was requiring him to repay all the money he had previously received as part of the VSI.

When Michael stopped making the payments in 2016, Susan filed a petition for rule to show cause, asking the St. Joseph Circuit Court to hold Michael in contempt.

The trial court agreed Michael was in contempt for stopping payments. Looking at the settlement agreement’s provision that stated, “Should this VSI account be converted to any other form of payment, (Michael) will pay this $11,000 obligation from this source prorated as received,” the court determined he was still obligated to pay because the VSI had been converted to a pension.

In Michael A. Ferrill v. Susan E. Ferrill, 18A-DR-2013, the Court of Appeals reversed. The unanimous appellate panel found the divorce settlement agreement contained a VSI provision and a pension provision. Susan argued, and the trial court agreed, that Michael’s VSI payments “converted to” military retirement pension, so she was still entitled to the annual $11,000.

But citing Jernas v. Gumz, 53 N.E. 3d 434, 444 (Ind. Ct. App. 2016), trans. denied, the Court of Appeals noted the goal is to harmonize provisions and not render any portion ineffective. Consequently, the appellate court found the trial court’s ruling invalidated the pension provision that expressly gave Michael his military retirement pension as his sole and separate property.

“First, it seems logical to us that the ‘converted to any other form of payment’ language in the VSI provision refers to the time when Michael’s monthly paychecks would have come from active duty compensation, rather than VSI,” Judge Melissa May wrote for the COA.

“… Furthermore, in light of the fact that Michael had been deployed at least once between his voluntary separation from the military in 1995 and the parties’ petition for divorce in 2003, Susan would have known to ask for payments from Michael to continue during such time as he might be deployed and receive active duty pay,” May wrote. “…(I)t is illogical to have written the Agreement to give Michael his pension as his separate property if a conversion could occur that would entitle Susan to part of his pension.”

The Court of Appeals thus ruled the trial court had abused its discretion for finding Michael in contempt for discontinuing his payments to Susan.

March 9

Mortgage Foreclosure — Reversal/Exclusion of Evidence

Wells Fargo Bank, N.A. v. Judith A. Hallie


A Lake Superior judge who threw out a bank’s mortgage foreclosure lawsuit against a homeowner and entered judgment in her favor was reversed by the Indiana Court of Appeals, which found the court abused its discretion in ordering a “near-blanket exclusion” of the bank’s evidence.

Judge Calvin Hawkins awarded judgment on the evidence for the defendant in Wells Fargo Bank, N.A. v. Judith A. Hallie, 19A-MF-2183. Hallie had purchased property in Schererville in 2004 from Washington Mutual, which later was acquired by Wells Fargo. The bank sued in 2013, alleging that as of July 2013, Hallie owed about $55,600 on the note plus costs and fees. But Hallie’s counsel at trial argued Wells Fargo was not the true client and countersued.

At a hearing last year, Wells Fargo produced an employee — a business initiatives consultant who previously had worked at Washington Mutual. She testified Wells Fargo owned the mortgage and she had reviewed Hallie’s file and payment history and the bank’s demand letter and collection notes, among other documents that the bank proffered as evidence.

But the court excluded nearly all exhibits “Wells Fargo has shown prima facie reversible error in the trial court’s purported entry of a ‘judgment on the evidence.’ On remand, Wells Fargo should be permitted to proffer exhibits consistent with the Indiana Rules of Evidence, without a heightened personal knowledge requirement,” the court held.•

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