Indiana Court Decisions: Nov. 15-29, 2023

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Indiana Supreme Court

Nov. 21

Keller J. Mellowitz v. Ball State University and Board of Trustees of Ball State University, and State of Indiana

23S-PL-60

IN Supreme Court affirms for Ball State in student’s COVID breach case

The Indiana Supreme Court has unanimously ruled in favor of Ball State University in case in which a student sued for breach of contract and unjust enrichment when classes switched to only-online instruction during the COVID-19 pandemic.

In spring 2020, Keller Mellowitz was a student at Ball State University who had paid tuition and mandatory fees for student services, university technology, student recreation, student health and student transportation.

About halfway through the semester, COVID-19 was declared a public health emergency in Indiana. Gov. Eric Holcomb issued an executive order that ordered individuals to remain at home with limited exceptions and ordered nonessential businesses to close.

Ball State, like many other higher education intuitions nationwide, was permitted to continue educating students, but only through distance education. All in-person classes were canceled, campus facilities were closed and students were sent home.

When the spring semester ended, Mellowitz filed a lawsuit against Ball State and its board of trustees alleging they breached a contract to provide him in-person instruction, and that even if they hadn’t breached a contract, they were at least unjustly enriched by retaining tuition and fees for services they stopped providing. He requested recovery of tuition and fees and sought to represent a class of similarly situated students.

About a year later, Holcomb signed Indiana Code § 34-12-5-7, which prohibits class actions against covered entities like Ball State for breach of contract or unjust enrichment for losses arising from COVID-19.

Ball State filed a motion under Indiana Trial Rule 23(D)(4). Mellowitz argued the Marion Superior Court should deny the motion because Section 7 is unconstitutional either because it is a procedural law improperly usurping the judicial power, it takes his property without just compensation or it impairs his contract with Ball State.

The attorney general intervened to defend the constitutionality of the statute, and following a heaaring, the trial court granted Ball State’s motion and rejected Mellowitz’s arguments.

The trial court ordered Mellowitz to file an amended complaint removing any allegations related to other class members, and it denied class certification.

On appeal, the Court of Appeals of Indiana reversed the trial court’s order and agreed that Section 7 was a procedural statute conflicting with Trial Rule 23 and, therefore, a nullity.

The high court later granted transfer and held oral argument at the University of Indianapolis.

Mellowitz first argued that Section 7 runs afoul of the constitutional separation of powers because it limits class actions, which he contends is the prerogative of the judiciary.

The justices disagreed and found shielding postsecondary educational institutions from pandemic-related class-action claims is within the General Assembly’s legislative authority.

“Without running afoul of our Indiana Constitution’s separation of powers, our judiciary may accommodate statutes altering judicial processes when the statutes predominantly further public policy objectives rather than judicial administration objectives, so long as the statutes do not undermine the truth-seeking function of litigation, and they do not otherwise interfere with the judiciary’s ability to fulfill its constitutional obligations,” Justice Derek Molter wrote, citing Church v. State, 189 N.E.3d 580 (Ind. 2022).

The justices further held that Section 7 is a valid legislative enactment and does not encroach on judicial power.

The constitution generally precludes the Legislature from micromanaging court procedures, Molter wrote, but the judiciary may accommodate statutes altering procedures if the statutes predominantly further public policy objectives and do not interfere with the orderly dispatch of judicial business.

The second issue on transfer was whether retroactively applying the statute to Mellowitz’s claim has the effect of taking his property without just compensation in violation of the state and federal constitutions.

The court held that Section 7 is not an unconstitutional taking and that the General Assembly didn’t take away all legal means for Mellowitz’s contract claims.

“Just the opposite, the General Assembly preserved Mellowitz’s right to sue Ball State on his own behalf, which the trial court is permitting him to do,” Molter wrote.

Lastly, Mellowitz argued that the statute impairs his contract with Ball State in violation of the state and federal constitutions.

He argued that precluding him from representing a class deprived him of his only effective remedy to enforce his own individual rights under his alleged contract with Ball State.

“But we must reject that argument for the same reason we rejected it in the takings context — we cannot accept the invitation to simply assume Mellowitz is without an effective contract remedy because Section 7 is presumed constitutional unless Mellowitz demonstrates otherwise, and he has not demonstrated that his suit against Ball State to recover his own tuition and fees is an inadequate means for enforcing his alleged contract rights,” Molter wrote.

All justices concurred in Keller J. Mellowitz v. Ball State University and Board of Trustees of Ball State University, and State of Indiana, 23S-PL-60.

Court of Appeals of Indiana

Nov. 15

John E. Moriarity, Mae E. Moriarity, and C-A-R-E Auto Auction, Inc. v. State of Indiana, Indiana Natural Resources Commission, and Indiana Department of Natural Resources

22A-PL-2899

State not responsible for compensating couple that built illegal dam on property, COA affirms

A Grant County couple cannot “rely on the state to bail them out” and are not entitled to compensation for damages related to the construction of a massive dam on their property, the Court of Appeals of Indiana affirmed.

According to court records, in the late 1990s, John and Mae Moriarity built a dam on their Grant County property that rose more than 20 feet in certain spots, creating a roughly 30-to-40-acre pond that contained over 100 acre-feet of water.

After learning about the dam, the Indiana Department of Natural Resources ordered the Moriaritys to make changes, fearing safety deficiencies could cause the structure to burst and endanger nearby homeowners.

The Moriaritys first litigated, and lost, a claim that their dam did not fall within DNR’s jurisdiction. A split Indiana Supreme Court concluded that the Moriaritys must either modify the illegal dam to comply with Indiana Code Chapter 14-27-7.5, the Dam Safety Act, or remove it.

While that case worked its way through the courts, the Moriaritys also pursued an inverse condemnation action. They claimed the DNR’s action in forcing them to modify or remove their illegal dam constituted a regulatory taking that entitled them to just compensation.

The Grant Circuit Court dismissed the Moriaritys’ inverse condemnation complaint, finding that the facts “[did] not support a finding of a regulatory taking by the DNR.”

The Moriaritys appealed and claimed they met the low bar necessary to survive dismissal of their inverse condemnation claim.

The Court of Appeals affirmed the trial court’s dismissal of the complaint, finding the Moriaritys’ complaint did not successfully plead a regulatory taking.

Judge Leanna Weissmann wrote the opinion for the appellate court.

According to Weissmann, given that no physical invasion occurred, the Moriaritys largely allege the second category of a per se taking: the loss of all economic or productive use of their property.

“But even if such a loss occurred, the Moriaritys’ claim fails because the government may affect a total regulatory taking without compensation where ‘‘background principles of nuisance and property law’ independently restrict the owner’s intended use of the property,’” Weissmann wrote, citing Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005).

The Moriaritys never possessed a right to build an illegal dam, Weissmann continued, and they are not entitled to compensation because the state forced them to remove or modify it.

According to the appellate court, DNR is requiring the Moriaritys to fix or remove the dam because of the hazard it poses to them and their neighbors.

“To find for the Moriaritys here would be like endorsing the lake-bed owner’s unpermitted landfilling operation and then — once the threat of flooding arises — forcing the State to pay the owner to undo his own actions that created the danger in the first place. Such a result is absurd,” Weissmann wrote.

She added that the character of the government action supports finding no regulatory taking occurred.

“In regulating the Moriaritys’ dam, the DNR is acting to promote the common good and ensure public safety from the risk that a potentially deficient dam will fail and flood nearby landowners. These facts are the hallmark of a permissible government action,” Weissmann wrote, citing Duke Energy Ind., LLC v. Bellwether Props., LLC, 192 N.E.3d 1003 (Ind. Ct. App. 2022).

Judges Patricia Riley and Cale Bradford concurred.

The case is John E. Moriarity, Mae E. Moriarity, and C-A-R-E Auto Auction, Inc. v. State of Indiana, Indiana Natural Resources Commission, and Indiana Department of Natural Resources, 22A-PL-2899.

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Nov. 16

L.R. b/n/f H.R. v. M.H. b/n/f N.H.

23A-PO-366

Teen’s limited contacts with ex after breakup not threatening, COA rules in reversal of protection order

Wading into a dispute over a middle school romance gone wrong, the Court of Appeals of Indiana has reversed a protective order issued against a teen who tried to contact his ex while the two were at school.

In August 2021, L.R. and M.H. began seventh grade at the same middle school. M.H. was 13 years old when school started, and L.R. turned 13 that October.

According to court records, in late September 2021, L.R. and M.H. began an “intense” dating relationship that lasted approximately two weeks.

L.R. then ended their romantic relationship, which upset M.H. But they were part of the same friend group, so they tried to remain friends.

However, in January 2022, M.H. messaged L.R. and indicated that M.H. was not comfortable being friends with L.R. and that M.H. did not want L.R. to contact M.H. anymore.

L.R. allegedly violated that request in four ways in the spring of 2022: by approaching M.H. in the school hallway, trying to contact M.H. through mutual friends, purportedly tripping M.H. and asking M.H. face-to-face if the two “could just move on.”

M.H. discussed the situation with M.H.’s father, who filed a petition for a protective order on May 4, 2022. The Monroe Circuit Court issued an ex parte order of protection that same day.

On May 23, 2022, L.R. filed a motion to vacate the ex parte protection order, a motion to set the matter for a hearing and a motion to transfer the case to juvenile court. That same day, the trial court denied the motion to transfer the case to juvenile court and set the other matters for a hearing on July 18, 2022.

On June 1, 2022, L.R. filed a motion for change of judge, which was granted.

On Jan. 23, the trial court entered a final order granting protection to M.H. because L.R. had been stalking M.H. The order extended to Dec. 20, 2024.

L.R. appealed the trial court’s protection order, arguing there was insufficient evidence from which the trial court could determine that stalking occurred.

The Court of Appeals reversed, finding that a reasonable person would not have felt terrorized, frightened, intimidated or threatened by L.R.’s four contacts with M.H. in four months and noting that M.H. testified to not feeling physically threatened.

Judge Melissa May wrote the opinion for the appellate court.

Citing Indiana Code § 35-45-10-1, May noted that harassment becomes “stalking” only if it is a repeated and continuing course of conduct that causes the victim to feel, and would cause a reasonable person to feel, “terrorized, frightened, intimidated, or threatened.”

“There is no evidence in the record that L.R. ever threatened M.H. or M.H.’s family verbally,” May wrote. “Between the request for no communication in January and the filing of the petition for a protective order in May, M.H. alleged only four ‘impermissible’ contacts, even though the teens presumably were in the same hallway at the same time multiple times a day, five days a week, for most of those weeks.”

The appellate court did not doubt that a 13-year-old would experience, and might still experience two years later, emotional distress around a former romantic partner following rejection by that partner, May acknowledged.

“But not all emotional distress is equivalent to the sort of terror and fear of violence that justifies an injunction against another person’s behavior,” she concluded. “While we sympathize with M.H.’s circumstances and understand M.H.’s desire to not see or interact with L.R., M.H.’s desire to avoid a former romantic partner does not justify a protective order against L.R.”

Chief Judge Robert Altice and Judge Peter Foley concurred.

The case is L.R. b/n/f H.R. v. M.H. b/n/f N.H., 23A-PO-366.

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Nov. 17

In Re: The Adoption of P.J.W. James D. DeClerck and Marilyn J. DeClerck v. Ronald J. Walters

23A-AD-1254

Father deserves more time to build relationship with child, split COA affirms in adoption denial

A man with an extensive criminal history has made significant steps through his participation in drug court and has shown that he clearly desires to act as his child’s father, a split Court of Appeals of Indiana ruled in affirming a trial court’s denial of an adoption petition filed by the child’s great-grandparents.

According to court records, James and Marilyn DeClerck are the maternal great-grandparents of 7-year-old P.J.W.

Ronald Walters is the father of the child. The mother is deceased.

The child lived part-time with the grandparents until 2019, when he moved to Illinois to live with them on a full-time basis.

The grandparents established permanent guardianship over P.J.W. in September 2020, without objection from Walters.

Walters has an extensive criminal history dating back to 2003, which includes felony convictions for strangulation of his own mother in 2019 and possession of methamphetamine in 2021. He has been incarcerated for most of P.J.W.’s life.

In April 2022, the grandparents petitioned to adopt P.J.W.

Walters filed a timely objection and motion to contest the adoption.

In February, the Montgomery Superior Court held a hearing to determine whether Walters’ consent to the adoption was required.

Walters testified that he was participating in drug court, had sent letters to P.J.W. and messaged Marilyn over Facebook asking to see P.J.W.

The grandparents never responded to any of Walters’s attempts.

The trial court ruled that Walters’ consent to the adoption was not necessary and that he had not provided financial support when he was able to do so.

However, the trial court did not find Walters was unfit to parent P.J.W.

During the final adoption hearing in April, the grandparents testified that they have raised P.J.W. since 2019 and have provided significant and consistent care since the child’s birth.

They admitted to receiving communication from Walters but never passed them along to the child. They stated they have kept the letters to show the child when he is older.

Walters testified that he had stable employment, a home, close ties to his community and that he wanted to be a father to P.J.W.

The trial court denied the grandparents’ petition for adoption, finding that Walters had made significant improvements to his life and that the grandparents were asking to be the parents of P.J.W. well into their 80s.

On appeal, the grandparents argued that the trial court abused its discretion when it found that adoption was not in the child’s best interests based on their advanced ages and Walters’ purported rehabilitation.

The Court of Appeals found the trial court judge was clearly convinced that Walters appeared to have changed his life for the better.

According to the appellate court, the trial court found the father’s testimony compelling in opting to not terminate his parental rights, and his credibility cannot be reassessed on appeal.

“Importantly, the Grandparents’ guardianship remains in full force and effect. We may not have made the same decision as the trial court, but that is not our standard of review,” Judge Paul Mathias wrote.

Judge Patricia Riley concurred with the majority opinion, but Judge Terry Crone dissented with a separate opinion.

Crone wrote that he agreed with the majority’s general presumption of correctness afforded to trial court decisions in family law matters.

However, Crone disagreed with the trial court’s conclusion that it was “inherently” in the child’s best interest to be raised by a biological parent.

“That does not constitute a proper legal conclusion. If it were so, the mere existence of a biological parent would preclude adoption in every instance,” Crone wrote.

Crone noted that Walters had committed a new criminal offense between the consent hearing and the best-interests hearing, where he attempted to downplay it as “just a driving while suspended” charge.

“Such disregard for the law does not demonstrate reformation from his long, violent history,” Crone wrote.

Crone also noted that Walters has four other children, but only sees two of them.

“Today, on average, people live longer, healthier, more productive lives than just a few generations ago. And, we trust people in their seventh and eighth decade with extraordinarily difficult responsibilities, including running our country. To cavalierly dismiss, simply because they will be in their eighties when Child becomes an adult, two ‘healthy and active,’ fully committed relatives as adoptive parents when they are essentially the only parents that Child has known strikes me as being the opposite of the best interests of Child,” Crone wrote. “If at some point our legislature sees fit to set a maximum age for adoptive parents, then I will reconsider. Until then, I cannot concur with utilizing clear age bias to justify denying Child the stability, financial support, and love of the DeClercks, particularly given Father’s history.”

Crone stated that he would reverse with instructions to grant the petition for adoption.

The case is In Re: The Adoption of P.J.W. James D. DeClerck and Marilyn J. DeClerck v. Ronald J. Walters, 23A-AD-1254.

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Nov. 21

Stevie Bradley v. State of Indiana

22A-CR-2317

Attempted murder, battery convictions vacated after speedy trial request not met

A man’s attempted murder and battery convictions have been vacated by the Court of Appeals of Indiana, which determined that his speedy trial request was not met.

In September 2021, Stevie Bradley was arrested for attacking his then-girlfriend.

At his first post-arrest hearing, Bradley proceeded pro se and orally moved for an early trial. The magistrate judge ordered Bradley to file the motion in writing and set a bond.

At his second post-arrest hearing, Bradley again orally moved for an early trial. The St. Joseph Superior Court granted the motion and set his trial to begin on Dec. 6, 2021.

On Nov. 29 of that year, the trial court sua sponte ordered Bradley to undergo a competency evaluation. He was deemed competent in March 2022, and his trial was reset to begin on May 4, 2022.

Bradley objected to the new trial date being set outside of the Criminal Rule 4(B) 70-day period.

But before the May trial began, Bradley moved for a continuance based on a discovery issue and also requested that the court appoint him counsel. The trial court granted the continuance and found the delay was attributable to him.

The trial was reset for July 18, 2022.

A month before the trial was set to begin, Bradley moved for discharge pursuant to C.R. 4(B). The trial court denied the motion a month later and, due to a change in Bradley’s appointed counsel, the trial was reset for Aug. 8, 2022.

Bradley again moved for discharge based on his trial being set after the C.R. 4(B) 70-day period had expired. The trial court again denied the motion.

Following the three-day jury trial, the jury convicted Bradley of Level 1 felony attempted murder, Level 5 felony domestic battery resulting in serious bodily injury, Level 5 felony battery by means of a deadly weapon, Level 5 felony intimidation and Level 3 felony aggravated battery. He was sentenced to 40 years.

On appeal, Bradley raised the issue of whether his C.R. 4(B) 70-day period expired before he was brought to trial.

The appellate court agreed with Bradley, finding there wasn’t evidence in the record showing that his trial could not be scheduled until May 4, 2022, due to some delay caused by Bradley, court congestion or an emergency.

“Accordingly, Bradley should have been discharged after his C.R. 4(B) 70-day period expired on March 23, 2022,” Judge Paul Felix wrote.

Judges Terry Crone and Elaine Brown concurred in Stevie Bradley v. State of Indiana, 22A-CR-2317.

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Nov. 28

In re the Paternity of L.J. and L.M. (Minor Children) Erin Jackson (Mother) v. Nikolas A. McElroy (Father), and David and Angela Jackson

23A-JP-776

Reversal: Mother’s previous abandonment of children doesn’t rebut parental presumption in grandparent custody case

A mother’s abandonment of her children five years ago does not mean the children’s grandparents should get custody, a split Court of Appeals of Indiana has ruled.

Erin Jackson and Nikolas McElroy are the parents of L.J. and L.M.

From the time the children were born until 2018, Jackson and the children lived with her parents, David and Angela Jackson. In 2018, she moved out to live with her boyfriend while the children remained with her parents until December 2019.

During the time the children lived with Jackson’s parents, she did not have consistent parenting time, and she also had substance abuse issues. But in March 2019, she retrieved the children and moved them into an “appropriate and safe” home.

In March 2020, the grandparents intervened in paternity cases and sought custody of the children as de facto custodians.

The parties subsequently reached an agreement under which Jackson would maintain custody of the children while the grandparents were awarded visitation. The children were also ordered to undergo an evaluation by a counselor and to follow the counselor’s recommendations.

The Vanderburgh Superior Court approved the agreement.

But in December 2021, the grandparents filed a motion claiming Jackson had not taken the children for the evaluation. A court-appointed guardian ad litem also reported in May 2022 that the children weren’t enrolled in therapy, nor did Jackson ensure they attended parenting time with their father.

The GAL recommended that the grandparents have primary physical custody of the children.

The grandparents then petitioned to modify custody of the children, and McElroy consented.

The trial court ultimately found that the grandparents were de facto custodians of the children, that Jackson had abandoned the children, and that it was in the children’s best interests for the grandparents to have custody. The court thus awarded custody of the children to grandparents, with both Jackson and Elroy receiving parenting time.

On appeal, Jackson argued that the trial court erred in modifying custody of the children to the grandparents, and the Court of Appeals agreed.

“By the time Grandparents sought to modify custody of the children in May 2022, the children had lived with Mother for two-and-a-half years,” Judge Nancy Vaidik wrote. “Although Mother abandoned the children from June 2018 to December 2019, it was so far in the past that it can’t be relied on to rebut the parental presumption favoring Mother.

“… In short, third parties should not be allowed to ‘bank’ long-past periods of poor parenting to be wielded against parents after circumstances have improved significantly,” Vaidik wrote. “Because Grandparents did not rebut the natural-parent presumption by clear and convincing evidence, the trial court’s judgment is clearly erroneous.”

The case was remanded with instructions to award Jackson custody of the children and to reinstate the prior orders giving the grandparents visitation and McElroy parenting time.

Judge Elaine Brone concurred in In re the Paternity of L.J. and L.M. (Minor Children) Erin Jackson (Mother) v. Nikolas A. McElroy (Father) and David and Angela Jackson, 23A-JP-776.

But Judge Cale Bradford dissented, writing, “(T)he record contains more than enough evidence to rebut the presumption that Mother should have custody of the Children.”

“Even if the abandonment is taken off of the table, we are left with findings, supported by evidence, that Grandparents’ residence is considered the Children’s ‘home base’; Maternal Grandfather saw to it that L.J. received the therapy he requires; Grandparents enrolled the Children in school and got them involved in basketball, baseball, fishing, Cub Scouts, and hiking; and Grandparents provided Children with a stable home,” Bradford wrote. “In contrast, when the Children resided with Mother, she failed to obtain therapy for them for approximately nineteen months, told both of them that Father was not their ‘real’ father, thwarted Father’s visitation with them, and facilitated L.M.’s relationship with a registered sex offender.

“… After hearing this evidence, the trial court was justified in concluding that the best way to ensure that the Children receive the mental-health care they need and reestablish a relationship with Father is to award custody to Grandparents,” Bradford concluded.

Addressing Bradford, the majority wrote, “The dissent concludes that Mother is unfit, thereby rebutting the parental presumption favoring her. But in its order, the trial court did not find that Mother is unfit. And neither Grandparents nor Father claim that Mother is unfit.”

“In any event, other than facts showing that Grandparents are fit (such as that Grandparents’ home was the children’s home base and Grandparents enrolled the children in extracurricular activities), the dissent cites Mother’s tardiness in seeking counseling for the children, which she has since remedied, and thwarting Father’s parenting time,” Vaidik wrote. “Both of these noncompliance issues should be dealt with through the trial court’s contempt powers.

“In fact,” Vaidik wrote, “in this proceeding, the trial court denied Father’s petition for contempt.”

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State of Indiana v. Franciscan Alliance, Inc. f/k/a Sisters of St. Francis Health Services, Inc.; The Market Place at State Road 37, LLC; Hook SupeRX, LLC; SCP 2010-C36-018 LLC; and Johnson County, Indiana

22A-PL-2969

Damages based on traffic flow were too high in I-69 takings case, COA rules

The Indiana Supreme Court’s precedent holding that damages associated with traffic flow variations are not compensable is controlling in a case where the state seized a parcel of land in Johnson County for the I-69 project, the Court of Appeals of Indiana ruled in a reversal.

To transform State Road 37 into part of the Interstate 69 corridor, the state needed to acquire a 0.632-acre commercial strip of land in Greenwood owned by Franciscan Alliance.

According to court records, the seizure consequently altered the traffic flow to Franciscan’s remaining land, which was undeveloped, and to an adjacent CVS pharmacy owned by SCP.

Originally, the property owners had direct access to State Road 37 via Fairview Road. But after the construction project, Fairview Road will be turned into a dead-end cul-de-sac. Consequently, northbound traffic needs to travel another mile to reach the owners’ properties, and southbound traffic just over three extra miles.

As part of the condemnation proceedings, multiple appraisers weighed in on what the state owed the owners for the seizure. The strip of land was valued at either $40,500 or $47,400, and according to the state’s appraiser, this taking was the only compensable damage.

But the owners’ appraisers found the inconvenient access changed the properties’ viable uses from commercial to residential — significantly reducing their values.

Franciscan’s appraiser calculated a $3 million loss. And SCP’s appraiser landed on a value of $4.4 million because CVS’s income derives from “spontaneous buyers” who need the “quick, in and out” that access to a major roadway provides.

Franciscan and SCP convinced a jury that the state owed them compensation not just for the seized land, but also for the impact from the less convenient access.

A joint report from the appraisers calculated damages at about $1.9 million for both Franciscan and SCP. From those bases, the jury awarded compensation of $680,000 for Franciscan and $1.5 million for SCP.

The state appealed and asked if inconvenience associated with traffic flow, as opposed to ingress-egress loss of access, is a compensable injury.

It maintained it is not and asked the appellate court to reduce the damage award entered against it to $47,400.

The Court of Appeals reversed and remanded for a reduction in the damages award, with instructions that the Johnson Superior Court vacate the judgment in favor of SCP, enter judgment for Franciscan and recalculate the prejudgment interest.

Judge Leanna Weissmann wrote the opinion for the appellate court.

As an initial matter, the appellate court disagreed with the owners’ contention that the state waived any challenge to the jury award by failing to properly object to their valuation evidence.

Turning to the merits, Weissmann noted that the state’s argument relies on deep-rooted Indiana Supreme Court precedent holding that damages associated with traffic flow variations are not compensable. She pointed to State v. Ensley, 164 N.E.2d 342 (Ind. 1960).

Although the appellate court must follow the precedent from Ensley, Weissmann wrote, she acknowledged that society has shifted dramatically since the first applications of the rule.

“In 1960, customers had no choice but to drive the more circuitous traffic route to obtain necessary goods and services. Today customers can, and often do, avoid inconvenient trips by shopping online,” she wrote.

The COA also pointed to Green River Motel Mgmt. of Dale, LLC v. State, 957 N.E.2d 640 (Ind. Ct. App. 2011), and State v. The Mkt. Place at State Road 37, LLC, No. 22A-PL-2765, 211 N.E.3d 539, *3 (Ind. Ct. App. 2023) (mem.), trans. denied, to support the reversal.

“In summary, this case cleanly fits within the ambit of our existing caselaw on circuity of travel and traffic flow, and thus the $2.2 million judgment is erroneous,” Weissmann wrote.

As for attorney fees, the appellate court ruled that, as only the value of the strip of land is compensable, and the strip was solely owned by Franciscan, there are no longer any damages for SCP to recover and SCP may no longer recover attorney fees under Indiana Code § 32-24-1-14(b).

Finally, Weissmann addressed the state’s argument that the trial court applied the wrong statute in setting the amount of prejudgment interest.

The trial court applied 8% interest as allowed by Indiana’s eminent domain statute. But the state argued the court should have applied 6% interest as set forth in a more general statute governing government interest payments on final judgments.

The COA found the trial court did not err.

“But on remand, the amount of prejudgment interest owed will need to be recalculated due to the change in the underlying jury award,” Weissmann concluded.

Judge Patricia Riley and Senior Judge Margret Robb concurred.

The case is State of Indiana v. Franciscan Alliance, Inc. f/k/a Sisters of St. Francis Health Services, Inc.; The Market Place at State Road 37, LLC; Hook SupeRX, LLC; SCP 2010-C36-018 LLC; and Johnson County, Indiana, 22A-PL-2969.•

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