INDIANA COURT OF APPEALS
Opinion issued February 28, 2022
Washington Township: 49K07-2011-SC-002011
Court of Appeals: 21A-SC-01337
Martin v. Krise, 2022 WL 588720 (Ind. Ct. App. Feb. 28, 2022)
Homeowner brought action against limited liability company (LLC), alleging that LLC breached contract for installation of chain-link fence at homeowner's residence. The trial court concluded that LLC breached contract and entered judgment in homeowner's favor but declined to hold LLC's individual members personally liable. The Court of Appeals,179 N.E.3d 536, affirmed. Homeowner filed petition for rehearing. Martin’s petition for rehearing is granted for the limited purpose of responding to appellant's petition for rehearing.
Martin claims that our opinion failed to address “the Trial Court's significant departure from the trial rules.” Pet. for Reh'g, p. 10. Specifically, he believes that he is entitled to a default judgement against Tina Krise because she failed to appear. Applying Indiana Small Claims Rule 10(B), Tina Krise did not need to appear, and, quite properly, she was not defaulted. Martin chose to do business and contract with Top Quality Professional Construction, LLC. While the record shows that Tina may have interacted with Martin at times, she is not liable for the action or inaction of the LLC. Therefore, her appearance was not required as a matter of substantive law and entry of default judgement against her would have been improper. the transcript clearly shows that Martin did not have a prima facie case against either of the Krises individually.
Opinion issued February 25, 2022
Tippecanoe Circuit Court: 79C01-1811-CT-000173
Court of Appeals: 21A-CT-00378
Willis v. Dilden Bros., Inc., 2022 WL 571062 (Ind. Ct. App. Feb. 25, 2022)
Homeowners brought action against well-drilling company for violation of Senior Consumer Protection Act (SCPA), the Crime Victims' Relief Act (CVRA), the Deceptive Consumer Sales Act (DCSA), and the Home Improvement Contracts Act (HICA) for removing and replacing homeowners' well pump and other plumbing without their consent and without written contract, and by attempting to collect invalid debt. After company's motion for partial summary judgment was granted, jury returned verdict in favor of homeowners and awarded damages on all counts, including the count that was disposed of on partial summary judgment. The trial court sua sponte vacated the damages award on that count, denied company's motion to correct error, and denied homeowners' motion for recusal. After a bench trial on statutory damages and attorney's fees, homeowners were awarded additional damages and attorney's fees. Homeowners appealed, and company cross-appealed. The Court of Appeals affirmed in part and reversed in part.
On Count 2, the Court of Appeals found that not only did Defendant's employees destroy the Plaintiffs’ plumbing, but in doing so they also ruined a perfectly good well, which would cost $7,000 to replace based on Defendant's own estimate. Under these circumstances, the Court of Appeals determined that that the jury's award was not outrageous, and therefore could not conclude that the trial court abused its discretion in denying Defendant's motion to correct error as to Count 2. Accordingly, it affirmed the verdict and final damages award on that count.
On Count 3, the Court of Appeals determined that the trial court did not abuse its discretion in awarding damages for an incurable deceptive act as to Robert on Count 3, but it did abuse its discretion in awarding damages for an uncured deceptive act as to Cindy. Defendant argued that the trial court abused its discretion in awarding $500 in damages for an uncured deceptive act as to Cindy. The Plaintiffs did not respond to this argument in their reply brief, which allowed the Court of Appeals to reverse if Defendant established prima facie error, which in this context means “at first sight, on first appearance, or on the face of it.” Atkins v. Crawford Cnty. Clerk's Off., 171 N.E.3d 131, 138 (Ind. Ct. App. 2021) (quoting Salyer v. Washington Regul. Baptist Church Cemetery, 141 N.E.3d 384, 386 (Ind. 2020)). This less stringent standard of review relieved the Court of Appeals of the burden of refuting arguments advanced in favor of reversal where that burden properly rests with the opposing party. Id. “[The Court of Appeals is] obligated, however, to correctly apply the law to the facts in the record in order to determine whether reversal is required.” Id. The Plaintiffs’ closing argument at trial regarding the uncured deceptive act was light on specifics, to say the least, and the Court of Appeals state that they were aware of no law or facts that refute Defendant's argument. Therefore, the Court of Appeals found that the trial court abused its discretion in awarding damages for an uncured deceptive act, and therefore reversed that award.
On Count 4, the Court of Appeals noted that the jury's verdict was not subject to impeachment based upon the juror's statement which led the trial court to believe that the jury had included attorney's fees in its damages award. However, the trial court was convinced that the jury had included an improper element in its calculation of damages, and a trial court is not obliged to accept a verdict that was “clearly erroneous as contrary to or not supported by the evidence[.]” Ind. Trial Rule 59(J)(7). The evidence supporting the verdict established that Defendant’s employees showed up at the Plaintiffs’ home unannounced and ripped out their functioning well pump and tank without their knowledge or consent and without a written contract for the work. The replacement pump and tank that Defendant’s employees installed significantly reduced the household water flow and negatively affected the Plaintiffs’ daily activities for over two and a half years, as described by the foregoing testimony.20 We agree with the trial court's determination that Defendant’s actions were knowing and willful, that providing the Plaintiffs with a written contract beforehand would have “prevented this entire ordeal[,]” and that the Plaintiffs actually suffered $5,000 in damages as a result of Defendant’s failure to do so. Thus, the Court of Appeals affirmed the trial court's damages award.
On Count 5, the Plaintiffs failed to demonstrate actual personal bias by the judge, and merely suggested that the trial court must have been biased because it reduced their fee request by essentially $50,000. However, the mere fact that the award is not as large as the Plainitffs’ counsel requested is not conclusive evidence of personal bias. The Court of Appeals found that the Plaintiffs failed to establish a prima facie abuse of discretion.
On Count 6, the Court of Appeals found that the trial court did not abuse its discretion in determining the amount of the attorney's fees award. Because Defendant failed to respond to the Plaintiffs’ argument on this issue, the prima facie error rule applied. The Court of Appeals found that the trial court observed that local attorneys did not command $400 to $445 hourly, and the matter in controversy lacked such complexity as to bring it within the realm of a specialty practice of law. The Court of Appeals noted that the determination was well within the trial court's discretion and concluded that the Plaintiffs failed to establish a prima facie abuse of that discretion, and affirmed the fee award.
Opinion issued February 21, 2022
Allen Superior Court 1: 02D01-1903-PL-000112
Court of Appeals: 21A-PL-00591
Apuri v. Parkview Health Sys., Inc., 2022 WL 509874 (Ind. Ct. App. Feb. 21, 2022)
Physician brought action against hospital, hospital owner, and medical director of hospital's cardiac catheterization lab alleging that non-renewal of his hospital privileges constituted breach of contract, intentional interference with a business relationship, and intentional interference with a contract. The trial court granted defendant's motion for summary judgment and Physician appealed.
Dr. Apuri is a cardiologist who practices medicine in Fort Wayne, Indiana. He maintained privileges at all Fort Wayne area hospitals, including privileges at Parkview Hospital from 2001 to October 15, 2014. But on that date, Parkview Hospital decided not to renew his privileges. At a staff meeting in May 2013, relevant hospital personnel addressed their concerns about Dr. Apuri's practice. Dr. Robertson, Medical Director of Parkview Hospital's Cardiac Catheterization Lab, was invited to speak at the meeting to discuss concerns involving Dr. Apuri's performance. After his presentation, Dr. Robertson was excused from the meeting, and the remaining staff decided whether to investigate Dr. Apuri's practice. Dr. Apuri was soon informed of this decision, and an Inquiry Body met in July 2013. Dr. Apuri was twice warned that noncompliance (including failure to adhere to staff bylaws) could lead to the revocation of his hospital privileges. 2014, Parkview Hospital's quality department documented at least fourteen more incidents where Dr. Apuri failed to round on his patients or communicate promptly. Consequently, on October 15, 2014, Parkview Hospital's Medical Staff Executive Committee decided not to renew Dr. Apuri's hospital privileges. The Ad Hoc Committee held a hearing in early 2015, and one committee member was replaced at Dr. Apuri's request. Additionally, at the hearing, Dr. Apuri was represented by counsel, presented his own witnesses (including an expert witness), and cross-examined witnesses. The Ad Hoc Committee, on March 25, 2015, upheld Parkview Hospital's non-renewal of Dr. Apuri's privileges. Dr. Apuri appealed the Ad Hoc Committee's determination but after considering Dr. Apuri's written and oral arguments and the evidence presented, the Appellate Review Committee of the Parkview Hospital Board of Directors upheld the non-renewal of Dr. Apuri's hospital privileges.
On October 14, 2016, Dr. Apuri sued Appellees in the United States District Court for the Northern District of Indiana, raising a federal claim and various state claims. His federal claim was for the violation of his civil rights, alleging race discrimination in violation of 42 U.S.C. § 1981. The District Court granted summary judgment for Appellees and dismissed Dr. Apuri's state claims without prejudice.
Dr. Apuri then filed a state court complaint initiating the lawsuit here in March 2019. He asserted claims for the non-renewal of his hospital privileges, breach of contract, intentional interference with a business relationship, and intentional interference with a contract. Appellees later moved for summary judgment, and the trial court granted their request. Relevant here, the trial court determined Appellees were immune from suit based on the Health Care and Quality Improvement Act,1 and therefore entitled to judgment as a matter of law. Dr. Apuri now appeals.
The Health Care and Quality Improvement Act, provides “a professional review body” “shall not be liable in damages under any law of the United States or of any State” for a “professional review action” (except that there may be liability for civil rights claims). 42 U.S.C. § 11111(a)(1); W.S.K., 922 N.E.2d at 689. The immunity covers not only the professional review body, but also “(1) any person acting as a member or staff to the body, (2) any person under a contract or other formal agreement with the body, and (3) any person who participates with or assists the body with respect to the action.” Graves v. Indiana Univ. Health, 32 N.E.3d 1196, 1210 (Ind. Ct. App. 2015); 42 U.S.C. § 11111(a)(1). The only requirement in section 11112(a) Dr. Apuri challenged was the third one—adequate notice and hearing procedures. The Court of Appeals noted that because Dr. Apuri did not designate evidence of a material factual dispute over whether he can overcome the presumption of adequate notice and hearing procedures, the trial court was correct to grant summary judgment against him.
Dr. Apuri's first basis for arguing the requirement for adequate notice and hearing procedures should not be deemed satisfied was that he did not receive all the information he requested before the hearing. Dr. Apuri did not identify which aspect of section 11112 was allegedly violated by the failure to produce these documents. The Court of Appeals interpreted the argument as relating to his right “to present evidence determined to be relevant by the hearing officer.” 42 U.S.C. § 11112(b)(3)(C)(iv) (emphasis added). But the Court of Appeals noted that Dr. Apuri does not point to anything in the record suggesting the evidence was determined to be relevant by the hearing officer. Dr. Apuri did not respond to the reasons Appellees contend whatever unidentified documents Dr. Apuri failed to receive were irrelevant, or at least immaterial. Besides failing to address this argument, Dr. Apuri did not explain how he was prejudiced by these unavailable documents considering his other opportunities to present his own evidence and cross-examine witnesses.
Dr. Apuri next argued the requirement for fair notice and hearing procedures should not be deemed satisfied because the hearing was not “before a panel of individuals who are appointed by the entity and are not in direct economic competition with the physician involved.” 42 U.S.C. § 11112(b)(3)(A)(iii) (emphasis added). He was a cardiologist and conceded that none of the members of the Ad Hoc Committee were cardiologists, but he argued they were competitors because three of the five members of the Ad Hoc Committee were employees of Parkview Physicians Group, and a portion of the incentive compensation for those members is based on the overall growth of the Parkview Physicians Group, which includes cardiologists. The Court of Appeals stated that this argument failed because the type of potential competition Dr. Apuri identified was indirect, and what the statute prohibits is participation by someone who is “in direct economic competition with the physician involved.” 42 U.S.C. § 11112(b)(3)(A)(iii) (emphasis added).
In short, if the growth incentive makes committee members economic competitors of Dr. Apuri, they are only indirect competitors at most. Dr. Apuri further contends that the peer review process was procedurally unfair under the Act because the Ad Hoc Committee's report and recommendation was untimely under the Medical Staff Bylaws. This argument failed for three reasons. First, Dr. Apuri did not point the court to a provision in the Act providing that the adequate notice and hearing requirement is not deemed satisfied if a panel's report and recommendation is late under the Medical Staff Bylaws. Second, Dr. Apuri's designated evidence did not support his argument and fails because the Ad Hoc Committee's report and recommendation was timely under the Medical Staff Bylaws. Third, Dr. Apuri did not explain how a slightly overdue report and recommendation would have deprived him of adequate notice and fair hearing procedures.
Lastly, Dr. Apuri made a brief argument that summary judgment on his claims against Dr. Robertson for intentional interference with a business relationship and intentional interference with a contract was inappropriate because those claims originated outside the context of the peer review process and were therefore not subject to immunity. The Court of Appeals disagreed and found that Dr. Apuri was placed on 100% chart review a month before Dr. Robertson was invited to speak at the Medical Staff Officers meeting and affirmed the trial court.
Opinion issued February 15, 2022
Lake Superior Court, Civil Division 1: 45D01-1811-CT-000803
Court of Appeals: 21A-CT-02150
Henry v. Cmty. Healthcare Sys. Cmty. Hosp., 2022 WL 454044 (Ind. Ct. App. Feb. 15, 2022)
Patient brought action against hospital after radiologic technician employed by hospital allegedly wrongfully disclosed X-rays of patient's broken finger to patient's former employer, technician's spouse, bringing claims for invasion of privacy by intrusion into emotional seclusion, invasion of privacy by public disclosure of private facts, and negligent retention. The trial court granted summary judgment to the hospital and Patient appealed.
Henry injured the tip of her ring finger on her right hand while closing a sliding glass door. Henry showed her swollen finger to Linda Piljak-Laski, her employer, who then openly took a picture of Henry's finger with her cell phone. Henry shared with Linda that she planned to go to the emergency room to have her finger examined after work that day. Henry received a text message from Linda. The text message was a screen shot of a text exchange between Linda and her husband, Ken Laski. Ken was employed as a radiologic technician with Community Hospital-Munster (the Hospital). The exchange contained the photo of Henry's swollen finger and Ken's assessment of and suggestions for treatment of Henry's injury. Henry reported to the emergency room at the Hospital. The emergency room physician did not show Henry her x-rays even though she requested to see them. The doctor told her that she had broken the tip of her finger. Ken was not a part of Henry's care team and did not perform the x-ray. Henry asked Linda how her husband had learned the details of her fracture.
Linda explained that Ken had accessed the images at the Hospital. She then pulled up the x-ray images on her phone and showed them to Henry in the presence of another co-worker, who also saw the x-ray images. Henry made both oral and written requests with Community Hospital's Privacy Officer for an investigation into the confidentiality breach. On September 8, 2018, Community performed an audit of accesses to Henry's electronic health record. The audit revealed that at 3:11 p.m. on March 2nd Ken accessed and viewed Henry's x-ray images. Henry filed her complaint against Community Health Network, Inc., alleging negligence in its failure to protect the “privacy, security, and confidentiality of health records generated or maintained by providers within its network.”
Community filed a motion to dismiss under Indiana Trial Rule 12(B)(6), which the trial court granted. After hearing oral argument in the appeal from that order, we reversed the trial court's decision and remanded the matter for further proceedings. See Henry v. Cmty. Healthcare Sys. Cmty. Hosp., 134 N.E.3d 435 (Ind. Ct. App. 2019). On remand, Community filed a motion for summary judgment. After a hearing on the motion and response, the trial court entered its order granting Community's motion. This appeal ensued.
The Restatement (First) of Torts § 867 (1939) acknowledged the tort of interference with privacy, finding a cause of action where “[a] person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.” Indiana does not recognize intrusions that occur anywhere outside one's home. but see, Terrell v. Rowsey, 647 N.E.2d 662, 667 (Ind. Ct. App. 1995) (no wrongful intrusion of worker's car because legitimate interest existed and invasion not unreasonable in light of rule against drinking on company property). Henry urged the Court of Appeals to recognize intrusion into emotional seclusion or solace. Henry's claims were ones for emotional injuries related to her intrusion claim, which are not recognized in Indiana appellate decisions involving invasion of privacy by intrusion into emotional seclusion or solace. The Court of Appeals acknowledge that certain health information is meant to remain private and that there are laws protecting against their disclosure and noted that Henry made a good argument as to why intrusion into emotional solace in general should be recognized, especially in terms of medical breaches. However, the Court of Appeals determined that in her particular case, they cannot grant her the requested relief because invasion of privacy by intrusion into emotional seclusion or solace is not recognized. Thus, the trial court did not err.
“Public disclosure of private facts occurs when a person gives ‘publicity’ to a matter that concerns the ‘private life’ of another, a matter that would be ‘highly offensive’ to a reasonable person and that is not of legitimate public concern.” Munsell v. Hambright, 776 N.E.2d 1272, 1282 (Ind. Ct. App. 2002), trans. denied; see also, Restatement (Second) of Torts § 652(D). “A communication to a single person or to a small group of persons is not actionable because the publicity element requires communication to the public at large or to so many persons that the matter is substantially certain to become one of public knowledge.” Munsell, 776 N.E.2d at 1282. “[T]he release of the information to even two co-workers does not satisfy the publicity requirement articulated in the Restatement.” Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958, 966 (Ind. Ct. App. 2001). our Supreme Court in Felsher v. University of Evansville, 755 N.E.2d 589, 595 (Ind. 2001), when discussing its prior decision in Doe, explained that “[o]ur discussion of this history and the Second Restatement served as a prelude to our decision not to recognize a branch of the tort involving the public disclosure of private facts.”
Following that “precedent,” the Court of Appeals, in F.B.C. v. MDwise, Inc., 122 N.E.3d 834 (Ind. Ct. App. 2019), held that because PDPF had not been recognized in Indiana, the trial court did not erroneously dismiss that plaintiff's PDPF claim. Assuming that PDPF is not yet recognized in Indiana, the Court of Appeals affirmed the court's order granting summary judgment in favor of Community on this issue. Henry shared the fact that she had injured her finger and was going to seek treatment at the Hospital. She texted a photograph of her injured finger in a splint to Linda from the Hospital. Therefore, the fact of Henry's particular injury was not private as to Linda. The information that Ken shared with Linda was merely cumulative of the information Henry had already shared with her. Henry shared the fact that she had injured her finger and was going to seek treatment at the Hospital. She texted a photograph of her injured finger in a splint to Linda from the Hospital. Therefore, the fact of Henry's particular injury was not private as to Linda. The information that Ken shared with Linda was merely cumulative of the information Henry had already shared with her.
Negligent hiring and retention claims consist of the traditional elements found in negligence actions: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by the breach of that duty. See Clark v. Aris, Inc., 890 N.E.2d 760, 763 (Ind. Ct. App. 2008), trans. denied. As for the duty element, Indiana courts begin with the test set out in the Restatement Second of Torts section 317. The determination whether a duty of care is to be imposed also involves a consideration of three factors: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns. In Clark v. Aris, Inc., 890 N.E.2d 760 (Ind. Ct. App. 2008), The Court of Appeals distinguished between foreseeability in terms of duty and foreseeability in terms of proximate cause and explained that, [i]mposition of a duty is limited to those instances where a reasonably foreseeable victim is injured by a reasonably foreseeable harm. Thus, part of the inquiry into the existence of a duty is concerned with exactly the same factors as is the inquiry into proximate cause. Both seek to find what consequences of the challenged conduct should have been foreseen by the actor who engaged in it.
The trial court's analysis correctly involved an examination of the types of misconduct that were evident in Ken's disciplinary record to determine if a duty should be imposed on Community. Whether the acts were the same or similar was pertinent to whether Community reasonably could have foreseen that Ken would access Henry's medical records and share them such that a duty was imposed on Community. The court did not graft a new requirement onto the elements of the claim as Henry suggests. Evidence of prior similar actions or misconduct committed by an employee is pertinent to consideration of the employer's actual or constructive knowledge of the employee's propensity to commit a later act, i.e., foreseeability in the duty context. Even Ken's worst offense as reported in his disciplinary history reveals that he performed an x-ray on the wrong patient. This misconduct would not have alerted Community to the behavior at issue here, nor would his history of tardiness and parking violations. The Court of Appeals conclude that the trial court correctly entered summary judgment in favor of Community.
Opinion issued February 9, 2022
Kosciusko Superior Court 4: 43D04-1904-PL-000040
Court of Appeals: 21A-PL-01138
Thalls , Tr. of M. Todd Thalls Revocable Tr. v. Draving, 182 N.E.3d 260 (Ind. Ct. App. 2022)
Landowner filed quiet title against adjacent neighbors across a public street, alleging adverse possession and prescriptive easement over a narrow strip of land that provided a walkway from the street to a lake. The trial court denied the adjacent neighbors’ motion for judgment on the evidence, entered judgement for the Landowner and adjacent neighbors appealed. Court of Appeals affirmed
Two elements are required for a common law dedication: (1) the intent of the owner to dedicate and (2) the acceptance of the public of the dedication. Sagarin v. City of Bloomington, 932 N.E.2d 739, 747 (Ind. Ct. App. 2010) (citing Jackson v. Bd. of Comm'rs of County of Monroe, 916 N.E.2d 696, 704 (Ind. Ct. App. 2009), reh'g denied, trans. denied), reh'g denied, trans. denied. Dedication may be express or implied, which arises by the acts of the owner. Id. Express dedication typically involves a deed, a plat, or some other document specifically using the word “dedication.” Jackson, 916 N.E.2d at 704. “The intention must clearly appear, and the acts and declarations of the owner relied on to establish it must be clear, convincing, and unequivocal.” Id. (quoting Town of Poseyville v. Gatewood, 65 Ind. App. 50, 52, 114 N.E. 483, 484 (1916)). The burden of proof is on the party asserting a dedication. Id.
The Court of Appeals noted that the trial court had rejected Appellants’ claim and found that they did not prove the intent for a common law dedication by clear, convincing, and unequivocal evidence and that the original plat referred to a public road but did not contain any language or reference to dedication of any other portion of the plats to the public or for public use and there was no evidence the Kosciusko County Commissioners accepted the walk as dedicated to the public.
The Court of Appeals also determined that the trial court did not err in finding that the Landowner had acquired title by adverse possession because the trial court was able to consider evidence that the Landowner’s family exercised control over the walk, that their acts showed an intent to claim full ownership, they provided sufficient notice of their intent and exclusive control, and their activities were sufficiently regular for the prescribed period.
Opinion issued February 3, 2022
Court of Appeals: 21A-PL-00928
Waller v. City of Madison, 2022 WL 320764 (Ind. Ct. App. Feb. 3, 2022)
The Mayor of Madison revoked Plaintiff’s appointments to both the City of Madison Plan Commission (Plan Commission) and the Board of Zoning Appeals (BZA) after a heated exchange at a meeting of the Madison Board of Public Works and Safety (Board of Public Works). Plaintiff believed he was wrongfully removed from those positions, and wanted them back. The trial court denied Plaintiff’s request for a preliminary injunction, and Plaintiff appealed. The Court of Appeals found that the trial court applied the wrong meaning of “for cause” in determining whether the mayor properly removed Plaintiff from the two appointed boards. The Court of Appeals also found that the trial court misapplied the law related to Plaintiff’s free speech claims and thus reversed and remand for further proceedings.
On December 21, 2020, the Board of Public Works conducted a public hearing during which it discussed the revision of the Madison Police Department's standard operating procedures (SOPs). The current Mayor, Bob Courtney (the Mayor), sits on this board. Plaintiff appeared before the Board of Public Works, apparently on behalf of the Police Merit Commission, to “stop a vote” on revisions to the SOPs. A lengthy and argumentative exchange ensued between Plaintiff and the Mayor, in which they squabbled over the proper name for the Police Merit Commission and whether Plaintiff had previous opportunities to comment on the revision of the SOPs.
About three weeks later, Plaintiff received a letter from the Mayor rescinding Plaintiff's appointments to the BZA and the Plan Commission rescinding Plaintiff’s appointments and listing six causes for removal: (1) Combative conduct; (2) Making false allegations about other appointees, (3) Condescending attitude toward the civilian formed Public Steering Committee, (4) False allegations that the Mayor possesses a “disdain” for the City of Madison Police Merit Board, (5) Lack of involvement and interest in providing meaningful feedback to the process despite multiple opportunities; and (6) Loss of trust that Plaintiff could competently and fairly carry out his duties to these boards.
Plaintiff claimed that as an officer under Chapo v. Jefferson Cty. Plan Comm'n, 164 N.E.3d 131, 133-34 (Ind. Ct. App. 2021), trans. denied, he could only be removed pursuant to the Removal Statute, which outlines removal procedures for officers guilty of specific acts of misconduct. The Court of Appeals noted that although this is one path to removal, it is not the only one. As Plaintiff's “appointing authority,” the Mayor could follow Indiana Code §§ 36-7-4-218(f) and -906(f).
Plaintiff’s case hinges on the meaning of “for cause.” Indiana Code §§ 36-7-4-218(f) and -906(f), which govern the Plan Commission and the BZA, respectively, state: “The appointing authority may remove a member ... for cause.” But “for cause” is not defined anywhere in the relevant Title, nor has The Court of Appeals had occasion to define the term previously in this context. Plaintiff argued that these provisions prohibit a board or commission member's removal for anything except a “miscarriage of his obligations as a member.” The City argues that the provisions are not so narrow.
“For cause” expresses “a common standard governing the removal of a civil servant or an employee under contract.” For Cause, Black's Law Dictionary (11th ed. 2019). Indiana has historically recognized two basic forms of employment: (1) employment for a definite or ascertainable term where, unless otherwise specified, the employment relationship can only end before the specified term for cause or by mutual agreement; and (2) at-will employment, meaning an employee is “presumptively terminable at any time, with or without cause, by either party.” Orr v. Westminster Vill. N., Inc., 689 N.E.2d 712, 718 (Ind. 1997). In employment law, “good cause,” “just cause,” and plain old “cause” are often used interchangeably. Cause, Black's Law Dictionary (11th ed. 2019) (citing Mark A. Rothstein et al., Employment Law § 9.7, at 539 (1994)). Because appointees serve set terms, their appointments resemble employment for a definite term. See Ind. Code §§ 36-7-4-218(a), -906(a). It is therefore reasonable to conclude that the legislature intended local appointee removal “for cause” to mirror the meaning in employment law.
The Court of Appeals stated that there are three tiers of removal for municipal appointees that aid in understanding how “for cause” removals work. Tier One – At-Will Removal where appointees serve at the pleasure of some entity and may be removed for any reason or no reason at all. Tier Two – For Cause Removal where appointees can be removed after a finding of cause, or for cause. Tier Three – Statutory Removal where appointees can be removed for specific causes specified by statute, with varying levels of discretion.
The Court of Appeals declined to adopt the trial court's distinction between “for cause” and “good cause” and the conclusion that “for cause” merely requires some reason for removal. The Court noted that if any reason is acceptable cause, “for cause” removal becomes almost indistinguishable from removal “at the pleasure” of the appointing authority and because “good cause” and “for cause” can be used interchangeably in the employment context, are not defined by statute, and are used similarly within the relevant Title. The Court of Appeals concluded that an appointee removable “for cause” could be removed only for acts or omissions that diminish the appointee's ability or fitness to perform the duties of the appointment. The cause must be sufficient under law and not merely any reason that the removing authority in the exercise of unlimited discretion may deem sufficient. Because this was not the standard applied by the trial court, the Court of Appeals reversed and remanded.
Opinion issued February 1, 2022
Gibson Superior Court: 26D01-1911-CT-001653
Court of Appeals: 21A-CT-00752
Estate of Bichler by Ivy v. Bichler, 2022 WL 289298, at *1 (Ind. Ct. App. Feb. 1, 2022)
Jennifer Ivy and Tyler Bichler sued their stepmother, Wanda Bichler, alleging she killed their father, Jeffrey Bichler. Wanda then died, and her estate (“Wanda's Estate”), through its personal representatives, intervened in the lawsuit. Wanda's attorney, purporting to act on her behalf rather than on behalf of Wanda's Estate or its personal representatives, moved to dismiss Jennifer and Tyler's complaint under Trial Rule 12(B)(2) (lack of personal jurisdiction), Trial Rule 12(B)(6) (failure to state a claim), and Trial Rule 12(B)(7) (failure to join a necessary party) based on their failure to add the personal representatives of Wanda's Estate as defendants. The trial court granted the motion and dismissed the case. The Court of Appeals reversed because dismissal following a defendant's death is evaluated under Trial Rule 25 and Trial Rule 41(E), not Trial Rule 12.
When the sole defendant in a personal injury or wrongful death suit dies, that individual ceases to be a party. The cause of action does not abate. Indiana Trial Rule 25 largely tracks Rule 25 of the Federal Rules of Civil Procedure. But there is one difference that is important in this case. Rule 25 in the federal rules provides that if the motion to substitute “is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.” Fed. R. Civ. P. 25(a)(1). There is no such deadline in our Trial Rule 25(A)(1). Although Indiana did not adopt the deadline for filing a motion to substitute, the obligation to substitute the proper defendant may still be triggered by filing a Suggestion of Death, which puts everyone on notice that the defendant has died. The trial court may impose a deadline to file the motion, as some federal courts do, see, e.g., Russell v. City of Milwaukee, 338 F.3d 662 (7th Cir. 2003) (involving case in which the trial court set a deadline for substitution), and a party may move for an extension of that deadline when warranted under Trial Rule 6, see, e.g., Atkins, 547 F.3d at 871 (“[T]he 90-day deadline for making the motion [to substitute] may be extended pursuant to Rule 6(b).”). If the plaintiff does not comply with the trial court's order, then the trial court can consider dismissal under Trial Rule 41(E)’s framework for dismissing cases based on the failure to comply with court orders. Otherwise, if there is no scheduling order, when a plaintiff is put on notice that the sole defendant has died, and the proceedings are therefore suspended, dismissal based on the plaintiff's failure to revive the proceedings with appropriate haste may be evaluated under Trial Rule 41(E)’s framework for failing to prosecute a claim.
Wanda's Estate intervened, and the plaintiffs understood the intervention to act as a substitution of the personal representatives of Wanda's Estate for Wanda as the defendants. Although intervention and substitution are not necessarily the same thing, there is no reason an intervention cannot operate as a substitution when the sole purpose for intervening is to replace the defendant. Thus, the Court of Appeals found that although the plaintiffs were required to substitute as defendants the personal representatives of Wanda's Estate, there was no suggestion in the trial court that they failed to adhere to any deadline for substitution under Trial Rules 25 or 41(E), so their claims should not have been dismissed.
Additionally, the Court of Appeals noted that Wanda's Estate had urged the trial court to dismiss the plaintiffs’ claims pursuant to Trial Rule 12, but that Trial Rule 12 does not govern the failure to substitute the personal representative for a deceased defendant. Thus, the trial court erred by granting the motion.
