Indiana Court Decisions – July 16-29, 2020

Keywords Court opinions

Indiana Court of Appeals

July 16

Civil Plenary — Defamation/General Release Agreement

Lee Johnson v. Hassan Shanehsaz

19A-PL-02866

Judgment for the Hamilton County Convention Center’s owner was upheld by a divided appeals panel in a former employee’s defamation suit. It’s the latest chapter in a long-running litigation saga involving cross-claims of unpaid wages and employee theft.

A majority of an Indiana Court of Appeals affirmed in part summary judgment for convention center owner Hassan Shanehsaz in a case brought by Lee Johnson, who worked for Shanehsaz in 2010-11. Johnson resigned, claiming Shanehsaz owed her more than $10,000 in wages.

She ultimately sued him, the convention center and related entities and was awarded more than $46,000 in actual and liquidated damages and $25,000 in attorney fees, a ruling that was affirmed on appeal in 2016.

That same year, Shanehsaz’s brother, Ali, sued Johnson in federal court, alleging she had stolen several Iranian notes he had entrusted to Shanehsaz. The parties then entered into a settlement agreement and general release “from any and all manner of actions, causes of action, suits, accounts, contracts, debts, claims and demands whatsoever, at law or in equity, arising out of claims that that were asserted, or could have been asserted in the Lawsuit by any of the Parties. … But, this release shall have no effect upon conduct in connection with or based upon a federal lawsuit known as Shanehsaz v. Johnson, currently pending in the U.S. District Court for the Southern District of Indiana.”

Shanehsaz paid Johnson $50,000 plus the balance on a secured promissory note, as well as attorney fees and costs as part of the settlement.

This case then arose in 2017 after Shanehsaz had been in discussions with prospective restaurateur Jacquie Bols, whose Jacquie’s Cafe & Gourmet Catering in Carmel had catered functions at venues he owned. Johnson claimed that Shanehsaz’s communication to “Ali and statements made to law enforcement officials in April of 2015 accusing her of theft were defamatory per se,” Judge Robert Altice wrote. Bols became concerned about potentially becoming entangled litigation, the opinion says, and terminated any restaurant plans with Shanehsaz.

Shanehsaz argued Johnson’s suit was barred by the 2016 agreement and counterclaimed he was entitled to damages for lost profits from the failed restaurant venture. The Hamilton Superior Court granted Shanehsaz judgment on Johnson’s defamation claim, rejected his cross claim and awarded him attorney fees of $27,981.

Altice and Judge L. Mark Bailey largely affirmed the trial court in Lee Johnson v. Hassan Shanehsaz, 19A-PL-2866, but Judge Terry Crone dissented. The panel divided on whether the meaning of the terms in the agreement barred Johnson’s claim.

“Although the dissent maintains that it is without dispute that the alleged defamatory statements constituted conduct in connection with the federal lawsuit, we must conclude that the ‘in connection with or based upon’ the federal lawsuit language in the Agreement cannot be read to encompass acts or omissions prior to the commencement of the federal litigation,” the majority wrote in a footnote. “The harmonious reading of the Agreement is that the language therein contemplates the existence of the referenced federal lawsuit. Put another way, to read those phrases independently to include the alleged 2015 defamation would not give those words their plain and ordinary meanings in their connection to the federal litigation.”

Crone read the agreement differently. “In my view, it cannot reasonably be disputed that Shanehsaz’s allegedly defamatory statements to Ali regarding Johnson’s alleged theft of the notes constitute ‘conduct in connection with’ the federal lawsuit.” In his own footnote, the dissenting judge wrote, “In concluding otherwise, the majority reads ‘in connection with’ out of the Agreement.”

The majority also found that the trial court had improperly awarded Shanehsaz attorney fees for 1.8 billed hours for unrelated litigation and remanded for a revised order on attorney fees.

Criminal — Reversal/Knowing Waiver of Jury Trial

Jason Wiley v. State of Indiana

19A-CR-3062

A Pulaski County man will now have a jury trial after the Indiana Court of Appeals reversed his driving-related convictions July 16, finding he did not knowingly waive his right to a jury trial.

Jason Wiley was granted three years of specialized driving privileges that required him, among other things, to operate a vehicle equipped with a certified ignition interlock device. An IID is a miniature DUI breath test instrument installed in a vehicle’s dashboard that prevents the vehicle from operating unless the driver can provide an alcohol-free breath sample.

Wiley was also required to carry on his person or in the vehicle he is driving the order for specialized driving privileges and to produce it upon the request of a law enforcement officer. But when Wiley was pulled over in a traffic stop while driving someone else’s truck without a copy of the order, he was ultimately charged with Class B misdemeanor operating a motor vehicle without an ignition interlock device and Class C misdemeanor violation of driving conditions.

In February 2018, Wiley’s counsel orally requested a jury trial that was later rescheduled after Wiley requested for the withdrawal of his appointed counsel. However, the state moved to strike the jury trial and set the matter for a bench trial, arguing that Wiley was charged with only misdemeanors and had never filed a written request for a jury trial as required by the trial rules.

Wiley’s objection was overruled, and the Pulaski Superior Court later found him guilty of the charges and referred him to the Veterans Treatment Court. After two months, Wiley moved to terminate that enrollment and convictions were entered for his charges.

The trial court then sentenced him to 180 days with 60 days served, 120 days suspended, and 305 days of supervised probation, as well as a concurrent term of 60 days executed.

But the Indiana Court of Appeals reversed in Jason Wiley v. State of Indiana, 19A-CR-3062, finding that Wiley did not knowingly waive his right to a jury trial.

“The statement of Wiley’s attorney and the actions of the court led Wiley to believe that the necessary steps had been taken to ensure a jury trial. Indeed, Wiley appeared for the first scheduled jury trial and agreed to pay the costs associated with securing a jury pool to obtain a continuance of the jury trial. It was not until the State filed a motion to strike the jury trial five months later and three weeks prior to the second jury trial date that Wiley was made aware that no such written demand was ever made. Under these circumstances, it cannot be said that Wiley knowingly waived his right to a jury trial,” Judge Robert Altice wrote for the appellate court.

“Further, we note that by the time the court struck the jury trial, Wiley could no longer comply with the requirements of Crim. R. 22 as the time for filing a written demand for a jury trial, i.e., ‘not later than ten days before his first scheduled trial date,’ had already passed. We find that under the circumstances, Wiley has established that his implied waiver of his right to a misdemeanor jury trial was not knowing and is therefore invalid,” the panel concluded.

The appellate court thus remanded Wiley’s case for a jury trial.

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July 20

Adoption — Reversal/Mother’s Consent

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

20A-AD-229

A Hamilton County adoption was reversed after a trial court wrongly found the biological mother’s consent to her child’s adoption was not required. The Indiana Court of Appeals found the trial court lacked evidence to support its findings.

The case involved a mother who had legal and physical custody of her now-9-year-old child from the time the parents divorced in May 2014 until July 2017. Father won legal and physical custody of the child after that time over mother’s alleged drug use and instability. The Hamilton Superior Court also ordered mother to pay child support and have supervised visitation.

Last July, father’s wife, V.B., filed a petition for step-parent adoption, alleging mother’s consent was not required under Indiana Code §31-19-9-8(a)(1), (2) and (11). The petition alleged mother had abandoned the child, failed to communicate with or pay support for the child for at least one year and was unfit to parent the child. After a hearing, the court last December ruled mother’s consent was not required and entered an adoption decree.

The trial court found mother had abandoned the child for at least six months before the adoption petition was filed and failed to pay child support for at least a year. Because the trial court found mother’s consent was not required due to her abandonment or failure to communicate and her failure to pay child support, it found it unnecessary to consider whether mother was unfit.

However, the COA found the trial court disregarded evidence that mother had called the child dozens of times over a span of months since she lost primary custody. “The only evidence in the record establishes that Mother spoke with Child multiple times by telephone during the relevant time periods, even as she participated in services to obtain sobriety,” Judge L. Mark Bailey wrote for the panel. “And V.B. presented no evidence that there was not one ‘significant’ communication in Mother’s admittedly multiple telephone calls to Child within the relevant six-month and one-year time periods. Therefore, the trial court’s finding to that effect is not supported by the evidence.”

Likewise, the trial court erred in finding that mother was able to pay child support, citing only brief periods of employment during the period in which she also took an online legal course through Purdue University. And though she testified to taking a student loan for the course, the COA noted there was no evidence the money could be used for anything other than education.

“V.B. did not provide clear and convincing evidence to support the trial court’s findings … ,” Bailey concluded for the panel in reversing. “… And those unsupported findings do not support the trial court’s conclusions that Mother abandoned Child, failed without justifiable cause to communicate significantly with Child, and knowingly failed to pay child support when required and able to do so. The trial court clearly erred when it determined that Mother’s consent was not required for V.B.’s adoption of Child.”

The case is In the Matter of the Adoption of I.B. (Minor Child): J.P. v. V.B., 20A-AD-229.

Civil Plenary — Insurance/Summary Judgment

Parkview Hospital Inc v. American Family Insurance

19A-PL-02201

The Indiana Court of Appeals has affirmed in part the denial of an insurance company’s motion for summary judgment against a hospital. But it reversed a denial of the hospital’s own motion after finding its was entitled to judgment as a matter of law.

While in Ohio, Carl Willis sustained injuries in a 2015 car crash that led him to be transferred to Parkview Hospital in Fort Wayne for treatment, where he incurred $95,541.88 in medical bills. American Family Insurance insured the parties responsible for the accident.

Parkview filed and recorded a hospital lien in 2016 and served a copy on the relevant parties, including American Family, Willis and Willis’ attorney. But after Willis filed a personal injury action in Ohio against the parties liabible for the accident — American Family and others — Willis settled his claim without informing Parkview, and Parkview’s lien was not satisfied from the settlement.

Willis then filed a motion to enforce the settlement agreement with the Ohio court, which ultimately ordered Willis to “execute a hold harmless agreement with respect to any remaining valid liens …,” however, the motion and order were not served on Parkview. The Ohio action was then dismissed with prejudice.

Parkview eventually filed a complaint in Allen County against American Family and Willis, and although it obtained a default judgment against Willis, the trial court denied American Family’s motion for summary judgment. It likewise denied Parkview’s motion for summary judgment.

In a consolidated interlocutory appeal, the appellate court noted American Family’s citation of Underwriters Nat. Assur. Co. v. N. Carolina Life & Acc. & Health Ins. Guar. Ass’n, 455 U.S. 691, 102 S. Ct. 1357(1982) and declined to find that Underwriters mandates a conclusion that the Ohio court’s order is entitled to full faith and credit by the Allen Superior Court.

Further noting that there was “no indication that ‘the Ohio court even considered the controlling Indiana statutes with regard to the Indiana Hospital Lien Act,’” the appellate court concluded that the subject matter jurisdiction issue was not fully and fairly considered by the Ohio court. It therefore found the Ohio court order to be “void ab initio and [has] no effect whatsoever.”

On the issue of justification as a defense, the appellate panel disagreed with the trial court that a genuine issue of material fact exists, observing, “the issue is a legal issue that the trial court was required to resolve.”

“American Family argues that Parkview is not entitled to damages under Indiana Code Section 32-33-4-6(b) after the settlement of Willis’ claim without obtaining a release of Parkview’s lien because American Family was required to follow the orders of the Ohio court. We have determined, however, that the Ohio court’s order is void ab initio,” Judge Elizabeth Tavitas wrote for the appellate court.

“Parkview established that the Ohio court’s order regarding Parkview’s Hospital Lien is void and that American Family violated the Hospital Lien Act when it paid settlement funds without satisfying Parkview’s lien. As such, the trial court properly denied American Family’s motion for summary judgment. With respect to Parkview’s motion for summary judgment, the trial court properly concluded that the Ohio court did not have subject matter jurisdiction,” it continued.

“The trial court, however, erred when it found genuine issues of material fact regarding American Family’s justification for paying the settlement proceeds without satisfying the Hospital Lien. Given the Ohio court’s lack of subject matter jurisdiction, there are no genuine issues of material fact, and Parkview was entitled to judgment as a matter of law,” the appellate court wrote.

It therefore affirmed in part the denial of American Family’s motion for summary judgment, reversed the trial court’s denial of Parkview’s motion for summary judgment, and remanded for proceedings consistent with its opinion.

The case is Parkview Hospital Inc v. American Family Insurance, 19A-PL-02201.

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July 23

Juvenile Paternity — Reversal of Custody/Parenting Time Coordinator Advocacy

Virginia Madden v. Robert Phelps

19A-JP-2630

A trial court’s order in a protracted feud between a divorced mother and father over the care of their child brought a partial reversal of custody from the Indiana Court of Appeals and a warning in a concurring opinion about the bias the parenting coordinator admitted to having against the mother.

Virginia Madden, the mother, appealed the Henry Circuit Court’s order that awarded legal custody of her youngest child to Robert Phelps, the father. The pair had decided to co-parent, but conflicts kept arising, often involving the court, over the care of B.P.

In February 2018, the trial court appointed Dr. Erica Kane as the parenting coordinator to help the parents resolve their issues without court intervention. The following month, the father requested the parenting time agreement be modified so that the child would spend two-week blocks of time at each parent’s home. The mother objected.

At a hearing in August 2019, father asked for primary custody of his child. On cross-examination, he understood that even if he got primary custody, he would still have joint legal custody with the child’s mother.

The trial court awarded primary physical and sole legal custody to the father.

On appeal, the appellate panel reversed the award of legal custody and affirmed award of primary custody in Virginia Madden v. Robert Phelps, 19A-JP-2630.

The Court of Appeals found the trial court had abused its discretion when it modified legal custody because neither party had consented to try the issue during the hearing. Before the appellate court, the mother asserted that argument, saying the parties did not agree the issue of joint legal custody would be contested. Father countered the legal custody was put at issue by the filing of open-ended requests to modify custody.

“Although Father asserted during the hearing that he wanted to legally change who made most of the decisions about B.P., when Mother’s counsel observed that Mother would still have joint legal custody of B.P. even if Father received primary physical custody, Father affirmed that was his understanding,” Judge Patricia Riley wrote for the court. “Thus, Mother did not believe that legal custody was in play, and Father did not indicate that he sought sole legal custody. Neither party submitted proposed findings of fact and conclusions requesting sole legal custody.”

However, the Court of Appeals was unconvinced by the mother’s argument that the trial court’s order modifying primary physical custody in favor of the father was clearly erroneous. In part, the mother argued the trial court should not have considered Kane’s recommendations that the father have physical custody because of Kane’s admitted bias toward Phelps.

In July 2019, the trial court had a hearing on the mother’s motion to have Kane removed as parenting coordinator. Kane testified that she had a personal bias against the mother.

The appellate noted the trial court found the trial court limited Kane’s involvement by not allowing her to serve as a custody evaluator in the case or offer a binding recommendation for a change in the child’s primary physical residence.

“There is no indication in the record that Dr. Kane acted as a formal custody evaluator in this matter or that the trial court considered the recommendation contained in Dr. Kane’s report to be binding on it or the parties. In addition, the same trial court judge presided over both the hearing on Mother’s petition to remove Dr. Kane and the final hearing in this matter,” Riley wrote. “The trial court judge was, therefore, aware of the interaction of the parties with Dr. Kane and what Dr. Kane had said at the hearing about her personal bias against Mother. It was within the trial court’s discretion to credit or discredit Dr. Kane’s recommendation regarding physical custody in light of any potential bias on Dr. Kane’s part….”

Judge Elizabeth Tavitas wrote a concurring opinion, warning of a “slippery slope” created by Kane not only exceeding the scope of her duties but also advocating for the father.

“When parties work with a court-appointed parenting coordinator, they expect to be aided by a neutral official in resolving their disputes. The parties do not expect the parenting coordinator to simultaneously assess the parties for the court or to advocate regarding such matters as custody,” Tavitas wrote. “This is the first step down a slippery slope because such conflation of roles can sabotage the parent coordination process.”

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July 27

Civil Plenary — Breach of Contract/Use of Email Subscriber Data

ShermansTravel Media, LLC v. Gen3Ventures, LLC

19A-PL-3024

An appellate panel split July 27 in reversing on whether an online travel media company substantially performed its obligations under its settlement agreement with a marketing technology company regarding the use of subscriber data.

ShermansTravel Media, LLC v. Gen3Ventures, LLC, 19A-PL-3024, concerns a dispute between travel media company Shermans and Gen3, a marketing tech company that provided Shermans with subscriber email addresses. The two companies had entered into an email delivery agreement together where the parties would share revenue generated from email advertisements sent to subscribers collected and identified by Gen3 and its affiliates. Meanwhile, Shermans would send emails both to its subscribers and to Gen3’s subscribers.

At some point, Gen3 filed a complaint for breach of contract against Shermans, and the parties eventually entered into a settlement agreement. Shermans agreed to make periodic payments to Gen3 and to delete Gen3’s subscriber data, and each party would dismiss its claims. However, Gen3 refused to dismiss its claims against Shermans after asserting that Shermans had not completely performed its obligation to delete Gen3’s subscriber data.

A trial court ultimately entered summary judgment for Gen3, finding Sherman’s had breached the settlement agreement. But an appellate majority consisting of Judge James Kirsch and Judge Elaine Brown sided with Shermans, reversing after finding that summary judgment should not have been granted to Gen3.

Although it agreed with Gen3 that the settlement agreement required Shermans to satisfy specified conditions before Gen3 was required to dismiss the complaint, the appellate majority disagreed with Gen3 that substantial performance does not apply to the conditions.

It therefore concluded that substantial performance is applicable to the parties’ obligations under the settlement agreement, further concluding that the trial court failed to recognize that material, factual disputes existed with respect to whether Shermans materially breached the settlement agreement.

First, the appellate majority noted that during the 13-day period relevant to April 5 and April 18 files that Shermans sent Gen3 data concerning all Gen3 Subscribers, Shermans sent “over 22 million emails” to its subscribers and that the 68,521 emails sent to Gen3 subscribers “made up less than a third of one percent, 0.3%, of the volume of emails sent by Shermans during that time.”

It further found that there is a dispute regarding the status of the subscribers in the June 13 files, whether the subscribers are independently acquired Shermans subscribers who overlap with Gen3 subscribers or whether they are Gen3 subscribers.

Lastly, the majority noted that there is a disputed factual question as to whether Shermans’ efforts to delete the data was substantial performance of that obligation. It therefore concluded that the designated evidence leads to the conclusion that there was a factual dispute as to whether Shermans substantially performed under the settlement agreement.

Concluding that there were genuine issues of material fact precluding summary judgment, the majority reversed the award of summary judgment to Gen3 and remanded for further proceedings. Judge Brown, concurring in a separate opinion, agreed that the summary judgment award to Gen3 was improper.

But Judge Terry Crone, writing in dissent, argued that Shermans failed to substantially perform under the agreement as a matter of law and “overpromised regarding its ability to delete and cease utilizing Gen3’s subscriber data, and it woefully underdelivered.”

“The concurring opinion posits that ‘[u]tilize’ connotes a benefit[,]’ but the only thing that one ‘utilizes’ an email address for is to send an email. To say that Shermans did not ‘utilize’ Gen3’s subscriber data by sending emails is like saying that I did not ‘utilize’ my phone by making a phone call with it. The lead opinion adopts Shermans’ sleight-of-hand focus on percentages, noting that the 68,521 emails sent to Gen3 subscribers in April 2017 ‘made up less than a third of one percent, 0.3%, of the volume of emails sent by Shermans during that time,’” the dissenting judge wrote.

“The total number of emails that Shermans sent to its subscribers is irrelevant; the critical fact is that Shermans breached its Settlement Agreement with Gen3 68,521 times. In no rational universe would this constitute substantial performance,” Crone concluded.

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July 29

Civil Tort — Negligence/Fertility Doctor Fraud

Anonymous Physician 1, and Indianapolis Fertility, Inc., d/b/a Reproductive Endocrinology Associates v. Elizabeth White and Matthew White

19A-CT-1262

A former Indianapolis fertility doctor who used his own sperm to impregnate dozens of women through artificial insemination must face a negligence complaint brought against him by the son of one of his patients, the Indiana Court of Appeals affirmed July 29.

When Elizabeth White sought artificial insemination from fertility doctor Donald Cline in 1981, she was told he would artificially inseminate her with donor sperm from an anonymous medical school resident. Cline also informed Elizabeth that the donor sperm would be used in no more than three successful artificial insemination procedures in a well-defined geographic area.

But that didn’t happen, she later learned. Elizabeth was among dozens of women whom authorities came to believe Cline impregnated with his sperm between the 1970s and 1980s at his Indianapolis clinic, without the women’s consent.

Cline was criminally charged with obstruction of justice and handed a one-year suspended sentence in 2017 after pleading guilty to charges that he lied to investigators when he denied wrongdoing. After his expired license was eventually surrendered to the Indiana Medical Licensing Board, the panel voted to bar Cline from ever applying for a license in Indiana again.

Last year, Indiana lawmakers made fertility fraud a Level 6 felony after finding no law on the books specifically prohibited what the doctor did. The Legislature also created a civil cause of action for fertility fraud, which enables the plaintiff to be awarded compensatory and punitive damages, or liquidated damages of $10,000.

Elizabeth’s son, Matthew White, learned as an adult that the “anonymous” sperm donor who impregnated his mother was actually Cline.

The mother and son filed a proposed medical malpractice complaint against Cline in 2016 with the Indiana Department of Insurance, and later filed a joint multi-count complaint for damages against the appellants in the Marion Superior Court.

Cline and the defendants then filed an Indiana Trial Rule 12(B)(6) motion to dismiss Matthew’s claims for breach of contract, medical malpractice, and negligent hiring and retention, alleging that Matthew had failed to state claims for which relief could be granted. But after a hearing, the trial court concluded that Matthew had sufficiently stated breach of contract and negligence claims.

A panel of the Indiana Court of Appeals affirmed in an interlocutory appeal, finding that Matthew sufficiently stated breach of contract and tort claims for which relief can be granted. It thus concluded that there was no error in the trial court’s denial of the physician’s motion to dismiss in the case of Anonymous Physician 1, and Indianapolis Fertility, Inc., d/b/a Reproductive Endocrinology Associates v. Elizabeth White and Matthew White, 19A-CT-1262.

At the outset, the appellate court noted that it did not need to determine whether Matthew was a third-person beneficiary to the contract. Rather, it looked at Matthew’s allegations to determine whether they establish any set of circumstances under which he would be entitled to relief as a third-party beneficiary. Additionally, it sought to uncover whether plaintiffs “stated some factual scenario in which a legally actionable injury has occurred.”

Based on Matthew’s allegations and taking them as true, the appellate court ultimately concluded that a set of circumstances was established under which Matthew would be entitled to relief as a third-party beneficiary.

“Matthew has therefore stated a claim for which relief can be granted, and the trial court did not err in denying Appellants’ motion to dismiss Matthew’s breach of contract action,” Judge Rudolph Pyle, III wrote for the unanimous appellate court.

It decided similarly on Matthew’s tort claims, concluding that Matthew has pleaded the operative facts necessary to establish that the appellants owed him a duty of care.

“In other words, because it does not appear to a certainty on the face of the complaint that Matthew is not entitled to relief, a dismissal of Matthew’s complaint would have been improper,” the appellate court wrote.

Lastly, the appellate panel found that Matthew also established a set of circumstances under which he would be entitled to damages proximately caused by the appellants’ breach of duty. Addressing whether he is entitled to damages for emotional distress, the appellate court found Bader v. Johnson, 732 N.E.2d 1212, 1216-17 (Ind. 2000) to be instructive.

“Here, because Matthew has stated a damages claim for which relief can be granted and placed Appellants on notice as to why he sues, Appellants may ‘flesh out’ specific evidentiary facts regarding Matthew’s damages through the discovery process. Whether Matthew can prevail on a claim for emotional distress damages will depend on those facts,” the panel concluded.

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July 29

Criminal — Special Prosecutor/Deputy’s Conflict of Interest

State of Indiana v. Tammy R. Herrmann

20A-CR-00307

A court order appointing a special prosecutor in an estate theft case was overruled July 29 by the Indiana Court of Appeals, which found that despite a deputy’s apparent conflict of interest with the defendant, the entire prosecutor’s office did not need to be disqualified.

The appellate panel reversed the order appointing a special prosecutor and remanded State of Indiana v. Tammy R. Herrmann, 20A-CR-00307, to the Franklin Circuit Court.

Tammy Herrmann was charged with Level 5 felony theft and Level 6 felony forgery stemming from a grand jury indictment. Herrmann, a home health care worker, was accused of stealing more than $50,000 between 2012 and 2018 from the account of Evelyn Anthony. Her niece and personal representative, Maria Hensley, grew suspicious about several checks written from the account, and the prosecutor’s office undertook an investigation that led to the grand jury.

Anthony’s estate is represented by Eugene Stewart, a 50-year attorney who maintains a private practice in Brookville and is a part-time deputy in the prosecutor’s office, where he primarily handles child-support matters, though he has appeared in some criminal cases.

Herrmann moved for a special prosecutor under Indiana Code section 33-39-10-2(b)(2), and the trial court after a hearing granted the motion and appointed the Dearborn County Prosecutor to the case. The trial court found “clear and convincing evidence has been presented establishing that the Franklin County Prosecutor’s Office has an actual conflict of interest[.]”

But the COA reversed on the state’s interlocutory appeal, noting that Herrmann cited no cases where the conflict of a deputy required the disqualification of the entire county prosecutor’s office.

“It is well settled that if the elected prosecutor has a conflict of interest, the whole office is disqualified,” Judge Nancy Vaidik wrote for the panel. “However, it is not necessary to disqualify the whole office if one deputy has a conflict of interest. Here, it is not necessary to disqualify the whole office, since the deputy prosecutor who has the conflict is a part-time deputy who primarily handles child-support matters and has had no involvement in the criminal case against Herrmann.”

The panel likewise rejected in a footnote Herrmann’s argument that Stewart “stands to gain more attorney’s fees in the Estate case if she is convicted and ordered to pay restitution to the Estate. At the hearing, Stewart testified that he was paid a flat fee in the Estate case, that his fee had been paid, that his involvement in the Estate case was over, and that if Herrmann was ordered to pay restitution to the Estate he would not get any of it and it would go straight to the beneficiaries. … The record does not support Herrmann’s claim that Stewart has a financial interest in the outcome of this case,” the panel noted.•

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