Indiana Court Decisions — May 20-June 3, 2020

7th Circuit Court of Appeals

June 1

Civil Plenary — Estate/ Dismissal of Evidence Dispute

Logan Owsley v. Mark Gorbett

19-1825

The 7th Circuit Court of Appeals has vacated dismissal of a federal estate lawsuit and remanded a case brought by a Bartholomew County man who claims his father’s wife and her children murdered his father.

In 2013, Cary Owsley died from a gunshot wound that public officials believed to be a suicide. But Owsley’s son, Logan, argued that Cary’s wife, Lisa Owsley, and her two sons murdered Cary. In response, Logan filed a federal civil-rights suit, invoking 42 U.S.C. sections 1983, 1985, and 1986, arguing that the Bartholomew County Sheriff and his deputies lost or destroyed evidence that would help Cary’s estate to pursue claims against Lisa and her sons.

Lisa was administrator of Cary’s estate, and a trial court denied Logan’s request to replace her, with the Indiana Court of Appeals affirming the denial of Logan’s motion to open a separate estate in 2017.

The estate decided not to pursue litigation, but assigned to Logan “[w]hatever interest the Estate of Cary A. Owsley has in the federal lawsuit.” The state’s appellate court implied that “whatever interest” the estate had is worthless but left final determination to the federal court, which ultimately dismissed Logan’s suit for lack of standing.

In a June 1 decision, the 7th Circuit Court of Appeals noted that dismissal of the federal claims on jurisdictional grounds was “a misstep.”

“Logan asserts injury and seeks damages. Decedents’ relatives may have damages claims against tortfeasors, and Logan also has the benefit of the assignment from the estate. Federal law permits assignees to sue on assignors’ claims. The right to sue as representative of an estate depends on state law, and the district court properly recognized that the state court’s decision to retain Lisa as the estate’s representative is not subject to collateral attack,” Circuit Judge Frank Easterbrook wrote for the 7th Circuit.

“Logan contends that, by concealing or destroying evidence that the estate could have used to sue Lisa and her children — or perhaps to persuade a state judge to replace Lisa as the estate’s administrator — defendants deprived the estate of access to the courts, thus violating the Constitution. Like the state court, we have doubts about this ‘access’ approach,” it wrote.

The 7th Circuit found that Logan “does not contend that the defendants did anything that blocked the estate from filing a wrongful-death suit.” Instead, Cary’s estate decided not to sue because it believed that he committed suicide, not because the federal suit’s defendant’s “closed the courthouse doors.”

“None of the Supreme Court’s ‘access to the courts’ cases hints that a potential discovery problem can be the basis of a federal suit, when the state courts are open. Just as a federal defense does not allow a federal court to decide a suit founded on state law, a potential federal issue during discovery in a suit founded on state law should not spawn a separate federal suit,” the 7th Circuit wrote.

“The district court did not consider this subject, and perhaps Logan has a line of argument, not articulated in his appellate briefs, that would overcome our skepticism.”

The first order of business on remand, the 7th Circuit noted, should be to decide whether an access-to-courts claim can be based on an assertion that the defendants concealed or destroyed evidence that could have been relevant, had suit been filed in state court.

The case is Logan Owsley v. Mark Gorbett, 19-1825.

Criminal — Firearms/ Elements for Conviction

USA v. Carlos Maez

19-1287

In what it called its first precedential decision concerning convictions upon jury verdicts in federal firearms cases after a key US Supreme Court decision, the 7th Circuit Court of Appeals has affirmed the convictions of three men who argued that their indictments and jury instructions were missing an element.

In separate cases consolidated by the appellate court, Carlos Maez robbed a South Bend bank at gunpoint in 2015. Firearms and ammunition were discovered in Matthew Jones’ bedroom in 2018 when police executed a search warrant for his Illinois home. And when federal agents arrested Cameron Battiste and his girlfriend outside their Illinois apartment complex in 2017, two firearms were found inside a laundry bag she was carrying.

All three men stipulated at their respective trials that prior to the charged possession of a firearm, they had been convicted of a crime punishable by imprisonment for a term exceeding one year. Each man was found guilty by a jury on one count of violating 18 U.S.C. § 922(g)(1) and sentenced under § 924(a)(2).

In appeals prompted by a 2019 decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), Maez, Jones and Battiste all argued that Rehaif requires reversal of their § 922(g) convictions. In that case, the United States Supreme Court held that the statute requires the government to “show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”

Before that, however, the federal courts of appeals had all held that § 922(g) required the government to prove a defendant knowingly possessed a firearm or ammunition, but not that the defendant knew he or she belonged to one of the prohibited classes.

In their appeals, the men argued that their indictments were defective because they failed to allege that they knew of their felon status and that the jury instructions erroneously omitted this same element of knowledge.

None of the men objected to the indictment or jury instructions in the district courts, on any grounds, but Jones did move for a judgment of acquittal at the close of evidence without giving specific grounds to support it. His motion was ultimately denied without the court asking for an elaboration.

Questioning the scope of the Supreme Court’s holding on appeal, Jones and Battiste posed whether defendants must know that it was a crime to possess a firearm as a result of their prohibited status. The 7th Circuit Court of Appeals affirmed, noting that it does not read Rehaif as imposing a willfulness requirement on § 922(g) prosecutions.

Next, the 7th Circuit considered three distinctive errors argued on appeal: a defective indictment, an element omitted from jury instructions, and a denied Rule 29 motion. Ultimately, it concluded that the Rehaif errors alleged did not require reversal of any of the § 922(g) convictions.

Starting with Maez, it noted that the jury heard several pieces of undisputed evidence that strongly supported an inference that Maez knew he was a felon based on his previous felony convictions and decades spent in prison. It additionally found no plain error in Maez’s indictment.

Battiste, also challenging his jury instructions and indictment, was likewise affirmed with a few variations on the 7th Circuit’s reasoning in Maez’s case. It noted that Battiste’s indictment was phrased differently from Maez’s with the word “knowingly” coming after the fact of the prior felony conviction.

“We assume there was a plain error here,” Judge David Hamilton wrote for the 7th Circuit. “But even assuming a plain error in the indictment and even assuming an effect on Battiste’s substantial rights, we still decline to exercise our discretion to correct the error. As with the missing element in the jury instructions, it is clear that the wording of the indictment did not undermine the fairness or integrity of judicial proceedings. Considering the evidence heard by the trial jury and Battiste’s extensive prior criminal history laid out in detail in his PSR, ‘we can be confident in retrospect that the grand jury (which acts under a lower burden of persuasion) would have reached thesame conclusion.’”

Lastly, the 7th Circuit similarly affirmed for Jones on the same issues, but remanded his sentence upon finding the district court committed a Tapia v. United States, 564 U.S. 319, 334 (2011) error.

“Jones argues, and the government and we agree, that the judge’s explanation for his sentence showed a Tapia error. When a term of imprisonment is improperly imposed for rehabilitative purposes, remand for resentencing is the appropriate remedy,” the 7th Circuit concluded.

The Indiana case is USA v. Carlos Maez, 19-1287.

Civil Plenary — Contract/Sales Commission Dispute

R3 Composites Corp. v. G&S Sales Corp.

19-2290

A divided panel of the 7th Circuit Court of Appeals has reinstated a sales commission dispute, though the dissenting judge would hold that the Northern District of Indiana’s grant of summary judgment was proper.

The dispute in R3 Composites Corp. v. G&S Sales Corp., 19-2290, involves R3 Composites Corporation, a manufacturer of fiberglass parts, and G&S Sales Corporation, an independent sales representative. The parties began a business relationship in 2011, operating under a nondisclosure agreement that included a commission provision in Paragraph 12.2, holding that “(i)f G&S obtains jobs for R3, the parties will attempt to develop an agreement whereby G&S is paid a commission with a guideline being a 5% commission with the precise commission rate to be negotiated on a job-by-job basis.” Even if the NDA was terminated, the commission provision would remain in effect.

In 2013, G&S cofounder Mark Glidden took a plant manager job with R3 while continuing his work for G&S. After that move, commission disputes began between the parties, with G&S alleging Glidden, in his role as R3 plant manager, would decide “how much commission he wanted to pay G&S each month, then instructed R3’s CFO to doctor the underlying sales figures to produce the desired result.”

R3 eventually terminated the NDA in 2015 and stopped paying commissions to G&S in September 2016. G&S alleged that Glidden’s actions resulted in insufficient commission payments through as late as August 2016.

R3 then sued G&S in October 2016, seeking declaratory judgment that the NDA was enforceable and that all commission had been paid, and that it would not be liable for any additional payment even if the NDA was unenforceable. G&S responded with counterclaims for breach, damages and fees under the Indiana Sales Commission Act, as well as a declaration that R3 was liable for continuing commissions.

The case was initially before Indiana Northern District Chief Judge Theresa L. Springmann, who partially ruled in R3’s favor with a determination that the NDA was illusory. But the case was later moved to Judge Holly Brady, who granted R3’s motion to amend or modify Springmann’s decision because “G&S had not expressly pleaded the existence of implied and/or oral commission contracts, which R3 argued was the only basis for any claim by G&S after the NDA was deemed illusory.”

The 7th Circuit reversed Brady, focusing on the portion of Paragraph 12.2 that allowed for “job-by-job” commission determinations.

“The grant of summary judgment to R3 was based on an abuse of discretion in not allowing G&S to rely on the later job-by-job commission agreements under the umbrella of Paragraph 12.2 of the NDA,” Judge David Hamilton wrote for the majority, joined by Chief Judge Diane Wood. “That is a perfectly viable theory under contract law, and G&S did not need to amend its complaint to pursue that theory. … We agree in essence with Chief Judge Springmann’s original decision (a) that Paragraph 12.2 of the NDA was of course not enforceable standing alone to establish any commission rates, but (b) that the rest of the case is rife with genuine issues of material fact.”

Specifically, Hamilton said, the allegations and responses in G&S’s court filings were sufficient to put R3 on notice that the job-by-job agreements were part of the case under the umbrella theory. Further, “(i)f that were not enough, and it is, R3’s won allegations reflected that approach to the NDA and the job-by-job agreements,” the judge said.

“Much of the dispute hinges not on the particulars of the NDA or the later job-by-job agreements between R3 and G&S, but rather on whether Glidden — the purported managing partner of G&S and simultaneous manager of R3 — had the actual or apparent authority to bind either party or both to modification as to any particular customers,” Hamilton continued. “… It is for the jury to decide under Indiana law the extent of Glidden’s authority and the proper interpretation of any commission agreements that were negotiated pursuant to the NDA. Accordingly, summary judgment in R3’s favor across the board was erroneous.”

The appellate panel also reversed Brady’s denial of G&S’s motion for leave to amend its countercomplaint “to allege ‘the existence and details of an implied and/or oral contract between the parties, and to include alternative theories of recovery in its Counter-Complaint based on contract implied in law and contract implied in fact.’”

“In denying leave to amend, the district court should not have relied on G&S’s supposed lack of diligence,” Hamilton wrote for the majority. “Its request was prompted only because the issues for summary judgment were erroneously narrowed in the first place.”

The majority thus remanded for further proceedings.

In a dissenting opinion, however, Judge Diane Sykes wrote that the majority’s concept of “this contract claim … bears little resemblance to the claim G&S Sales Corporation actually raised and litigated below.” She would hold that Brady properly rejected G&S’s “major pivot” after Springmann’s ruling to “amend its complaint to add claims premised on the existence of an enforceable oral contract or, alternatively, an implied-in-fact contract … .”

Indiana Supreme Court

May 22

Criminal — Waiver of Right to Appeal

Brandon L. Johnson v. State of Indiana

20S-CR-61

A man convicted of felony drug dealing will now be able to appeal his 12-year sentence after the Indiana Supreme Court on May 22 determined his appellate waiver was not knowing and voluntary.

The four majority justices ordered the Orange Circuit Court to grant Brandon Johnson’s motion to file a belated notice of appeal, reversing both the trial court and the Indiana Court of Appeals in Brandon L. Johnson v. State of Indiana, 20S-CR-61.

Johnson pleaded guilty in April 2017 to Level 4 felony dealing in methamphetamine. One of the terms of his plea agreement provided, “DEFENDANT WAIVES RIGHT TO APPEAL AND POST CONVICTION RELIEF.”

The trial court then sentenced Johnson to 12 years, with the same waiver included in the written sentencing order. Thus, the trial judge declined to appoint appellate counsel for Johnson, believing the waiver of his “right to appeal” included the right to appeal his sentence.

But in October 2018, Johnson sought permission to file a belated notice of appeal, claiming he had only recently learned of his right to appeal the sentence. The trial court denied his motion.

The Indiana Court of Appeals affirmed in November 2019, though the panel said it was “concerning” that the plea agreement purported to waive Johnson’s PCR rights, a “patently void and unenforceable term.” Additionally, the COA urged the county prosecutor’s office to “update its outdated plea agreement form so that it more clearly explains the effect of the waiver of the right to appeal … .”

Even so, the COA held, because Johnson accepted the agreement, the waiver of his right to appeal was valid.

“We share the Court of Appeals’ concern about the vagueness of the waiver provision at issue here,” the majority justices — including Chief Justice Loretta Rush and justices Steven David, Mark Massa and Christopher Goff — wrote in a per curiam opinion. They cited to Collins v. State, 817 N.E.2d 230 (Ind. 2004), and Creech v. State, 887 N.E.2d 73 (Ind. 2008), the latter of which emphasized the need for a knowing and voluntary waiver.

“Under these circumstances, we find the general waiver of Johnson’s ‘right to appeal,’ particularly when contained in the same sentence as an unenforceable waiver of post-conviction relief, insufficiently explicit to establish a knowing and voluntary waiver of Johnson’s right to appeal his sentence,” the justices wrote. “We therefore remand to the trial court with instructions to grant Johnson’s motion for permission to file a belated notice of appeal.”

Justice Geoffrey Slaughter, who dissented without a separate opinion, would have expressly adopted the Court of Appeals ruling.

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May 29

Civil Plenary — Billboard Zoning Dispute/Attorney Fees

River Ridge Development Authority v. Outfront Media, LLC, David Watkins, No Moore, Inc., the Schlosser Family Limited Partnership, the Town of Utica, and the Utica Board of Zoning Appeals

19S-PL-645

The Indiana Supreme Court threw out an award of more than $237,000 in attorney fees in a lawsuit over seven billboards outside Utica, Indiana. Justices found the Clark Circuit Court lacked a basis for awarding fees to the parties who sued a regional development entity that sought to restrict billboards along State Road 265 just north of Louisville.

The unanimous ruling in River Ridge Development Authority v. Outfront Media, LLC, David Watkins, No Moore, Inc., the Schlosser Family Limited Partnership, the Town of Utica, and the Utica Board of Zoning Appeals, 19S-PL-645, found the trial court abused its discretion in its award of fees in a case dating to 2017.

After Outfront Media LLC received local zoning permission to put up seven billboards along the roadway, River Ridge Development Authority sued to block the signs. While the litigation was pending, the Indiana Department of Transportation designated the road a scenic byway, which restricted billboards. River Ridge voluntarily dismissed its suit after the scenic byway designation.

Outfront and the other defendants moved to recover attorney fees. The trial court granted them $237,440.63 in fees, finding the award of fees warranted under a common-law obdurate behavior exception to the American Rule, Indiana’s statutory General Recovery Rule and the court’s inherent authority to sanction parties.

But the justices agreed with the Indiana Court of Appeals, which previously also reversed the award of fees.

“… (O)n this record, the parties seeking fees failed to show that any exception applied,” Chief Justice Loretta Rush wrote for the court. “We thus find that the trial court’s decision to award attorney’s fees was an abuse of discretion and reverse.”

In doing so, the court held that the obdurate behavior exception and the General Recovery Rule do not allow an award of attorney fees when a party voluntarily dismisses its complaint. And while courts have inherent authority to award fees against a party as a sanction, defendants didn’t show River Ridge’s conduct warranted an award of fees.

“The common-law obdurate behavior exception and the General Recovery Rule cannot authorize a trial court to award attorney’s fees when a party voluntarily dismisses its suit with prejudice. But a court can, at any point in litigation, exercise its inherent authority to sanction a party’s bad behavior by shifting fees,” Rush wrote.

“Still, the guardrails of zealous advocacy are set wide, while exceptions to the American Rule are narrow. A party must clear a high hurdle to show that a court could exercise its inherent authority to award attorney’s fees. Here, the hurdle was not cleared because the record lacks evidence that RRDA acted outside the boundaries of acceptable advocacy. Therefore, the trial court’s findings in this regard were clearly erroneous and its conclusions unsupported. It thus abused its discretion when awarding attorney’s fees, and we reverse.”

Indiana Court of Appeals

May 21

Civil Tort — Defamation/Malicious Prosecution

Melvin Hall v. Bradley Shaw, Giovanni Narducci, and Central Indiana Protection Agency, Inc.

19A-CT-2533

The Indiana Court of Appeals has partially reversed in favor of a man who claimed his former employers defamed him after he started his own company, leading to a criminal proceeding that resulted in his acquittal.

Upon leaving his supervisor position at Central Indiana Protection Agency Inc. in June 2013, Melvin Hall began operating his own security company, Urban Tactical Response Agency LLC.

For the next two years, Hall claimed his former CIPA employers, Bradley Shaw and Giovanni Narducci, engaged in a coordinated campaign with others to defame and drive him out of business. Specifically, Hall alleged they made false allegations that he was impersonating a police officer to the Indiana Attorney General’s Office, various state licensing boards, a local news station and local law enforcement.

Hall was eventually charged by the Marion County Prosecutor’s Office with multiple counts of impersonating a law enforcement officer, but he was acquitted of all charges after a 2017 criminal trial. During that trial, Gerald Alexander and Guillerma Lolla-Martinez testified for the state, allegedly at the direction of Shaw, Narducci and CIPA.

After Hall in May 2018 sued the defendants for defamation, abuse of process, malicious prosecution and intentional infliction of emotional distress, Narducci initiated a consumer complaint with the Attorney General’s Office against Hall and his new security agency in July 2018. The consumer complaint was eventually dismissed.

Also in July 2018, Narducci left an allegedly explicit voicemail for Hall, prompting Hall to add defamation and abuse of process claims to his complaint related to the consumer complaint and an IIED claim based on the voicemail, among other things.

The Marion Superior Court granted the defendants’ motion to dismiss all of the claims against Shaw and CIPA but denied their motion regarding defamation and abuse of process claims against Narducci based on his 2018 complaint and the IIED claim based on his voicemail. It also denied their request for attorney fees from Hall.

On cross-appeal, the Indiana Court of Appeals agreed with the defendants that Hall may not pursue defamation or abuse of process claims against Narducci based on his July 2018 consumer complaint because Hall did not dispute that the evaluation of a consumer complaint with the Attorney General’s Office qualifies as a quasi-judicial proceeding.

But as to Hall’s defamation claims based on allegations of communications made before May 22, 2016 — two years before he filed suit — the COA determined those claims did not represent a course of conduct that led to one injury from defamation. Rather, they make out a course of conduct that, if true, led to several distinct injuries, the appellate court noted.

It therefore concluded the trial court properly dismissed those claims in Melvin Hall v. Bradley Shaw, Giovanni Narducci, and Central Indiana Protection Agency, Inc.,19A-CT-2533.

However, the appellate court did find that the trial court erred in dismissing Hall’s malicious prosecution complaint.

“Hall alleges that ‘Shaw and Narducci, individually, and in their capacity as agents of CIPA, maliciously caused the Marion County Prosecutor’s office to initiate a felony prosecution against Hall by conspiring with [ ] Alexander, [ ] Lolla-Martinez[ , and others] to provide false testimony to try to incriminate Hall for impersonating a public servant.’ If this claim is true — and we stress that we must assume as much at this stage — it is sufficient to allow a finding that Defendants were the ‘proximate and efficient cause’ of Hall’s prosecution,” Senior Judge Ezra Friedlander wrote for the appellate court.

Next, the appellate panel concluded Alexander’s and Lolla-Martinez’s trial testimony was protected by absolute privilege and could not be used to support a defamation action against anyone. But it also found that Hall’s allegations regarding out-of-court statements by Alexander and Lolla-Martinez were sufficiently specific to survive a Trial Rule 12(B)(6) motion to dismiss and to support claims of a civil conspiracy to defame Hall.

Finally, the appellate court found Hall met his threshold after he asserted that the trial court erred in dismissing IIED claims against Shaw and CIPA related to Narducci’s voicemail.

“Hall alleges that Narducci left the July of 2018 voicemail as part of a conspiracy with Shaw and others, as agents of CIPA, to intentionally inflict emotional distress on Hall in furtherance of their interest in eliminating Hall as a business competitor. We conclude that these allegations are sufficient to state a claim upon which relief may be granted,” it wrote.

The case was remanded for further proceedings.

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May 27

Juvenile Termination of Parental Rights — Reversal/Due Process

In re the Termination of the Parent-Child Relationship of: Tre.S. and Tra.S. (minor children) and A.S. (Mother); A.S. (Mother) v. Indiana Department of Child Services

19A-JT-2915

Indiana trial courts and the Department of Child Services continue to deprive parents of their due process rights after years of warnings, the Indiana Court of Appeals said May 27, reversing the termination of a mother’s parental rights when the termination hearing went on without her or her lawyer present. In doing so, appellate judges strongly restated that courts and DCS have a duty to ensure parents’ rights aren’t violated.

Judge Nancy Vaidik used the reversal of a parental-rights termination to point to what the court characterized as a persistent problem in court proceedings that permanently remove children from their parents. The COA noted trial courts have been on notice of such concerns since an order in July 2018 that reprimanded DCS and trial courts for due process violations.

“Nearly two years after we issued this order, DCS continues to file motions to remand conceding that parents’ due-process rights have been violated. This unfortunately means that throughout this state, there continues to be significant violations of parents’ due-process rights in termination-of-parental-rights cases,” Vaidik wrote. “This case is just one example.”

In In re the Termination of the Parent-Child Relationship of: Tre.S. and Tra.S. (minor children) and A.S. (Mother); A.S. (Mother) v. Indiana Department of Child Services, 19A-JT-2915, the panel reversed the termination of mother A.S.’s parental rights by Madison Circuit Judge George Pancol, who did so after a termination proceeding in which mother’s attorney was not present and was denied an emergency motion to continue.

“The trial court set the termination hearing for October 1, but the case was moved up because the pre-adoptive parents wanted it finalized sooner,” Vaidik wrote for the panel. “On August 6, the court rescheduled the hearing for approximately two weeks later, August 21. On the day of the hearing, Mother’s attorney filed an emergency motion to continue because she thought the hearing was still set for October 1 and was at an all-day mediation training. Indeed, the record is unclear whether Mother’s attorney was even notified of the August 21 hearing date.”

According to the opinion, when neither the mother or her attorney appeared, Pancol told the DCS attorney, “(I)f we don’t have the attorney here and we proceed I’m fairly confident that the appellate court is going to give her a new hearing so I’m going to have to continue it to October first.” But the judge agreed to proceed with the hearing anyway after DCS said Oct. 1 would not work because the family case manager would be on vacation then. The hearing proceeded after DCS said notice had been provided. Mother’s parental rights were terminated at the end of the hearing.

“The court denied the motion to continue and held the hearing without Mother or her attorney present, knowingly disregarding Mother’s rights. Both the court and DCS knew that they were committing due-process violations and proceeded with the hearing anyway. This must stop,” the panel noted, remanding the case.

“We therefore reverse the termination order and issue yet another reminder to trial-level DCS attorneys and trial courts that they have a duty to ensure that parents’ due-process rights in termination cases are not violated.”

Indiana Tax Court

May 23

Tax — Voluntary Dismissal/Abuse of Discretion

CVS Corporation #2519-01, taxpayer v. Jerome Prince, in his official capacity as Lake County Assessor and CVS Corporation #0434-01, taxpayer v. Jerome Prince, in his official capacity as Lake County Assessor

19T-TA-4 and 19T-TA-5

CVS’ voluntary dismissal of two Lake County property tax assessment appeals should have been granted, the Indiana Tax Court ruled May 23, ordering the Indiana Board of Tax Review to dismiss the cases and reinstate original assessed valuations for a span of years for drugstores in Hobart and Schererville.

The drugstore chain had appealed eight valuations of CVS stores in Lake County in 2017, but in May of that year, CVS moved to voluntarily dismiss its appeal of the valuations of the stores in Hobart and Schererville. The Indiana Tax Review Board granted that motion before the assessor responded, but then after the assessor responded in opposition, the board issued an order vacating dismissal. The assessor argued dismissing the appeals “will not promote or encourage discussions of value, but will actually discourage negotiations and suggest [an] uneven playing field.” The cases then proceeded to arguments on the merits and a final determination valuing the properties.

CVS appealed to the Indiana Tax Court, arguing the Board of Tax Review abused its discretion in not permitting its voluntary dismissal, and the Tax Court agreed in CVS Corporation #2519-01, taxpayer v. Jerome Prince, in his official capacity as Lake County Assessor, 19T-TA-4, and CVS Corporation #0434-01, taxpayer v. Jerome Prince, in his official capacity as Lake County Assessor, 19T-TA-5.

First, The Tax Court found the Lake County assessor had offered no persuasive evidence that the assessor incurred a substantial expense in the litigation, simply because he said appraisals were expensive.

“The Indiana Board is not authorized to ride in on a white horse to save the day when the Assessor fails to provide relevant evidence, legal authority, or persuasive argument for his cause,” Judge Martha Blood Wentworth wrote in the companion opinions. “… By finding indirect claims to be facts and making arguments for the Assessor, the Indiana Board exceeded its statutory mandate.”

Second, the assessor would not have been legally prejudiced had CVS’ motions to dismiss been granted, the judge ruled. In doing so, Wentworth batted down a new legal right she said the board “conjured up”: allowing an assessor to seek a higher assessed value in a taxpayer appeal.

“The Indiana Board failed to cite any legal authority in support of its conclusion that the Assessor had a legal right to seek an increased assessed value in a taxpayer-initiated appeal,” the judge wrote.

“Accordingly, the Court finds that the Indiana Board erred in finding the Assessor had a legal right that would be prejudiced by the voluntary dismissal of this matter because it did not provide a legal basis for its determination, but instead exceeded its statutory authority by making the Assessor’s case for him,” Wentworth concluded.

In finding the board exceeded its authority and acted contrary to law in vacating CVS’ voluntary dismissals, the Tax Court remanded both matters with instructions to dismiss the cases and reinstate the original assessed values for CVS’ Schererville store for the 2007-2014 tax years and for the Hobart store for the 2012-2016 tax years.•