Indiana Courtroom Selections – June 3-16, 2021

7th CircuitCourt of Appeals

June 3

Civil Plenary-Disability Discrimination/Academic Dishonesty

Justin Castelino v. Rose-Hulman Institute of Technology


A former Rose-Hulman student who sued the school after he was suspended and whose attorney was warned for criticizing a magistrate judge did not succeed in getting summary judgment turned around in his favor. The 7th Circuit Court of Appeals also handed down an additional warning to the lawyer.

Justin Castelino enrolled as a transfer student at Rose-Hulman Institute of Technology in 2012 and received accommodations for his ADHD and a learning disability. Specifically, Castelino was granted an accommodation that allowed him to receive 100% extended time on tests and quizzes, which he was allowed to take in a distraction-free environment.

Castelino was reprimanded several times for academic misconduct during his time at the school, including copying another student’s work, submitting duplicate work in a course with another student and using unpermitted notes on an exam and lying about it. Following his third act of misconduct, the Rules and Discipline Committee found Castelino guilty of repeated acts of academic misconduct. He was suspended for one quarter, after which he could apply for readmission.

Although Castelino later applied for readmission multiple times, he was denied by the Admissions and Standing Committee.

Thus, in March 2017, Castelino sued Rose-Hulman in federal court, alleging disability discrimination in violation of Title III of the Americans with Disabilities Act as well as state-law claims for breach of contract, defamation, false advertising, invasion of privacy and harassment. He later amended his complaint, alleging malice and requesting punitive damages.

A magistrate judge recommended granting Rose-Hulman’s motion for sanctions and denying Castelino’s, which the Indiana Southern District Court adopted. It later granted summary judgment to Rose-Hulman in the case.

In the meantime, Castelino’s lawyer, John Thrasher, was handed two written warnings for his claims that Judge William T. Lawrence and Magistrate Judge Mark Dinsmore were both biased against his client or in favor of Rose-Hulman.

On appeal, Castelino sought reversal of the district court’s grant of summary judgment to Rose-Hulman, but the 7th Circuit Court of Appeals affirmed in Justin Castelino v. Rose-Hulman Institute of Technology, 19-1905.

As to the ADA claim, the 7th Circuit found summary judgment for Rose-Hulman was proper because Castelino’s time-barred claims included two unpersuasive arguments. The first such argument was that his claims were governed not by Indiana’s two-year personal injury statute of limitations but by the four-year catch-all statute of limitations for federal claims found in 28 U.S.C. § 1658. Second, he argued Indiana’s continuing wrong doctrine should apply to toll the statute of limitations because Rose-Hulman engaged in a “course of conduct” that began while he was a student and continued to injure him after his suspension.

Additionally, the 7th Circuit found that the alleged “breaches of contract” Castelino discussed fell well within the bounds of Rose-Hulman’s academic judgment. It noted Castelino’s remaining arguments about defamation, harassment and false advertising were “even more insubstantial, and we consider them only briefly, bearing in mind his failure to develop them in any meaningful way.”

“Indeed, we are inclined to sanction Castelino’s attorney John Thrasher for his brief and arguments on appeal. Rose-Hulman, however, has not requested sanctions, so we will close with an observation and warning to Castelino’s counsel that the brief he submitted was deficient, and that future filings of this sort will result in an order to show cause why he should not be sanctioned,” Circuit Judge Ilana Rovner wrote for the unanimous 7th Circuit panel.


June 11

Criminal-Child Molesting/De Facto Life Sentence

United States of America v. Jeffrey Esposito


A man convicted of “horrific” sexual and other abuse against his son failed to convince the 7th Circuit Court of Appeals that a federal judge erred in imposing a de facto life sentence.

In United States of America v. Jeffrey Esposito, 20-1124, defendant Jeffrey Esposito sexually assaulted and abused his adopted son from Guatemala from the time the child was 7 or 8 until he was about 14. The 7th Circuit called Esposito’s crimes “repetitive, shocking, and horrific,” describing sexual abuse as well as choking the child, urinating on him and putting a collar on him, among other forms of abuse, which were documented in photos and videos.

Those photos and videos were shared on the dark web. Esposito also downloaded hundreds of thousands of other child porn files before he was arrested and charged with 20 counts of sexually exploiting a minor and one count of possessing child pornography.

Esposito pleaded guilty to the charges without a plea agreement. The federal probation department recommended a sentence of 600 years and the government argued for 620 years, but the defense suggested only 420 months.

The Indiana Southern District Court ultimately imposed a de facto life sentence, sentencing Esposito to six consecutive 30-year sentences followed by 15 concurrent 20-year sentences. Esposito appealed his sentence, but the 7th Circuit affirmed.

After deciding de novo review was the appropriate standard for Esposito’s appeal, Judge Michael Brennan, writing for a unanimous appellate panel, rejected Esposito’s argument that the district court should have determined his correct overall punishment, then conformed his sentences on the individual counts to reach that total.

“Esposito’s argument here is technical, and it imports a methodology that the (Sentencing) Guidelines do not require. If, before delving into imposing sentences count by count, the district court had stated that it thought the correct total punishment was 200 years — rather than merely saying that the correct total punishment was a de facto life sentence — then, per Esposito, the district court would not have erred,” Brennan wrote. “After its sentencing remarks, the district court imposed sentences count by count and noted that the total was 200 years. To the defendant, this suggests the court did not come up with the 200-year number first and then set the count-by-count sentences, but did the opposite, setting the count-by-count sentences and then adding them up to total 200 years.

“The difficulty with Esposito’s argument,” Brennan continued, “is that before imposing sentence, the district court effectively determined that Esposito’s total punishment should be life imprisonment. The court’s sentencing comments evince that it was pronouncing prison terms on each count.”

The appellate panel pointed to the district court’s consideration of Esposito’s life expectancy, the severity of his crimes and its statement that he could never be around children again. Based on that, the panel held, “we can conclude that the court meant to impose what is effectively a life sentence.”

Further, Brennan wrote, the district court used consecutive sentences to achieve an effective life sentence, because the highest statutory maximum was less than life in prison.

“The text of § 5G1.2(b) provides that the court shall determine the total punishment ‘and’ shall impose that total punishment on each such count. That provision does not say ‘and then’ or explicitly set out the calculative process the defendant contends” Brennan wrote, referencing the Sentencing Guidelines.

“… This case fits better under § 5G1.2(d), as the defendant presented with no prior criminal history, so without any single count expressly providing for life imprisonment, the court meted out a term of de facto life imprisonment by means of the consecutive and concurrent sentences imposed here.”

Indiana Supreme Court

June 3

Criminal-Drug Possession/Warrantless Search

James Combs v. State of Indiana


Indiana Supreme Court justices split in a decision concerning a Boone County man’s drug-possession convictions that were previously reversed by an appellate court that found the warrantless search of his car following a crash violated his Fourth Amendment rights.

Justice Mark Massa wrote the majority opinion that affirmed the trial court’s original judgment on the search.

The Indiana Supreme Court granted transfer in the state’s appeal of a Boone County case involving James Combs, whose drug possession convictions were partially reversed by the Indiana Court of Appeals last summer. The lower appellate court found that the warrantless search of Combs’ van violated his Fourth Amendment rights. Officers found drugs when they searched Combs’ van after they followed a fluid trail from the site of a crash that led to the damaged van in his driveway.

After that search, Combs was subsequently charged with numerous drug possession and operating while intoxicated counts. The Boone Superior Court denied Combs’ motion to suppress after concluding the officers had probable cause to believe the van was connected to criminal activity and therefore could seize the van without a warrant.

Indiana Supreme Court justices were divided on the issue presented in Combs’ case, with Justice Geoffrey Slaughter concurring in judgment with a separate opinion and Justice Christopher Goff dissenting.

The majority justices agreed with the trial court that the van’s seizure and search was lawful in James Combs v. State of Indiana, 20S-CR-616.

The high court concluded police lawfully seized Combs’ van as evidence under the Fourth Amendment’s plain view exception, concluding its three requirements were satisfied. The majority determined the police lawfully viewed Combs’ van, the van’s incriminating character was immediately apparent, and the police had a lawful right of access to the van.

Additionally, the majority found that once seized, the police lawfully inventoried Combs’ van.

“The officers followed the written policy. They conducted a thorough inventory and detailed their discoveries, including the pills, on the necessary form before towing the van. … While the inventory was conducted on Combs’ driveway … the policy required an inventory before the van was released to the towing service, and it was reasonable for it to occur there,” Massa wrote for the majority.

Although agreeing that the trial court’s judgment should be affirmed, Justice Slaughter noted that his reasonings were different than that of the majority.

“Rather than reach the merits of Combs’s constitutional claims, I would hold that he waived those claims and thus did not satisfy his burden on appeal of establishing that the inventory search of his vehicle was illegal,” Slaughter wrote in a separate opinion.

“The Court holds, rightly, that Combs waived his state constitutional claim,” Slaughter continued. “I would go further and hold that he waived his Fourth Amendment claim, too. The entirety of his federal constitutional argument consisted of the following sentence: ‘This Court should reverse the trial court’s order denying Defendant’s Motion to Suppress based on the law and factual circumstances in this case, notwithstanding Lieutenant Mount’s rationale that requesting a warrant is ‘a pain in the ass.’”

But in a dissent, Justice Goff argued that the plain-view doctrine didn’t justify the police’s seizure of the van and that the evidence obtained from the inventory search was inadmissible. Specifically, he questioned what need existed to seize the entire van when the driver admitted to the offense and when police thoroughly documented the structural damage to the van with photographs.

“In my opinion, there is none,” Goff opined, writing that he would reverse Combs’ convictions and remand for further proceedings.


June 9

Criminal-Suppression/Custodial Interrogation

State of Indiana v. Axel Domingo Diego


A split Indiana Supreme Court has reversed the suppression of a man’s statements made during a police interrogation, finding that the limited curtailment of his freedom of movement wasn’t akin to formal arrest. But one justice dissented, arguing that the suspect’s language barrier could have kept him from knowing he was free to leave.

The state of Indiana had sought transfer in the case of State of Indiana v. Axel Domingo Diego, 21S-CR-285, after the Indiana Court of Appeals upheld the suppression of statements made by defendant Axel Domingo Diego while being questioned by police.

Domingo Diego was charged with two Class A felony counts of child molesting and one count of Class C felony child molesting. He filed a motion to suppress his statement to police, and the Cass Circuit Court found the statements were inadmissible because they were made pre-Miranda.

The COA affirmed the trial court in August 2020, then reaffirmed on rehearing in November.

In answering the question of whether Domingo Diego was “in custody” such that the detective should have read him Miranda warnings prior to the interview, the high court majority concluded that the totality of objective circumstances surrounding the interrogation would make a reasonable person feel free to end the questioning and leave. As such, it found that Domingo Diego’s freedom of movement was not curtailed to the degree associated with formal arrest.

“Focusing only on the freedom-of-movement inquiry, we think there is considerable daylight between (State v. E.R., 123 N.E.3d 675 (Ind. 2019)) and the present case that directly undercuts Domingo Diego’s claim of custodial interrogation,” Justice Steven David wrote for the majority.

“The interview took place in Detective (Troy) Munson’s personal office, not an interview room. The approximately forty-five minute interview — while certainly lengthy — was not particularly hostile; it was exploratory and conversational rather than accusatory. Domingo Diego and (girlfriend Andrea) Martin left the station unaided, which gives rise to a reasonable inference that Domingo Diego was not cabined into a remote place in the police station. Although blunt, the interview would not have revealed to a reasonable officer that Domingo Diego did not understand what was being said.

“True, the couple was told they ‘needed’ to come to the police station, Detective Munson did carry his gun, Domingo Diego was outnumbered in the interview room, and the couple had to move through several barriers. But given the casual atmosphere, exploratory and conversational line of questioning, and relatively unimpeded pathway to the room, the totality of these objective circumstances does not represent a curtailment akin to formal arrest,” the majority concluded.

It therefore reversed the trial court’s suppression order and remanded the matter for further proceedings.

But Justice Christopher Goff dissented with a separate 12-page opinion, arguing that a Miranda warning would be necessary when “a limited-English-speaking suspect, having been summoned to a police station by a fully uniformed officer, endures a prolonged and accusatory interrogation by an armed detective in a visually cabined office with no clear path to the office door and with no knowledge of his ability to freely exit the secured stationhouse entrance … .”

“Today, we consider the same question of custody in a case involving the same detective at the same police station conducting an interrogation under strikingly similar circumstances,” Goff wrote, pointing out the similarities with State v. E.R. “The Court, however, finds ‘considerable daylight between E.R. and the present case,’ ultimately concluding that the circumstances here amount to something less than custodial interrogation.”

Goff said one important factor distinguished the case at hand from E.R., bolstering the trial court’s conclusion that police conducted a custodial interrogation: Diego’s limited-English proficiency.

“… (U)pon electing to interrogate such a suspect, a prudent officer, in my opinion, should consider whether the suspect’s language barrier might reasonably bear on the suspect’s understanding of his freedom of action,” Goff wrote, citing United States v. Burden, 934 F.3d 675 (D.C. Cir. 2019). “If so, a Miranda warning would greatly assist a judge tasked with ruling on the admissibility of any statements made during the interview.”

Indiana Court of Appeals

June 4

Civil Tort-Dismissal/Frivolous Filings

Robert Holland v. Trustees of Indiana University, et al.


The Indiana Court of Appeals has cut off the tap for a suspended attorney who it says has acted as a broken faucet of frivolous filings for far too long concerning injuries he claimed to sustain after falling at Indiana University, despite an earlier dismissal from the court.

Troubles began for suspended Gary lawyer Robert Holland in 2016 when he filed a complaint against IU for injuries he received in falls outside its Northwest Library. In late 2018, Holland filed an affidavit alleging that because IU operates retail establishments on its campus, the university is a corporation under federal law and can never claim sovereign immunity under state law.

The Lake Superior Court struck the affidavit as frivolous and sanctioned Holland, ordering him to pay $1,500 in attorney fees within 60 days. It warned Holland that if he continued to file such frivolous motions, as had been his pattern, the next sanction would be dismissal of his lawsuit. Additionally, the trial court rejected his request to certify 24 of its orders for interlocutory appeal.

Regardless, Holland proceeded with the appeal and failed to arrange for a transcript, prompting the Indiana Court of Appeals to order him to show cause why the appeal should not be dismissed. When he failed to do so, the appellate court dismissed the appeal.

When Holland filed a petition to transfer, the Indiana Supreme Court denied it in July 2019. IU requested additional sanctions on Holland for failing to pay the original $1,500 and for his continued frivolous filings, prompting the trial court to dismiss his lawsuit.

Holland next sought transfer of the appeal to the Indiana Supreme Court under Indiana Appellate Rule 56 because the trial court had refused to acknowledge the special rights he claimed as a “Moorish American.” Indiana justices denied his petition and dismissed his appeal, only to have Holland file an untimely, amended notice of appeal seeking to appeal the same orders he challenged in the dismissed appellate proceeding.

Holland further filed a request for review, claiming the trial court’s orders violated a 1787 Moroccan Treaty of Peace and Friendship and were void and unconstitutional. Both the Indiana Supreme Court and the Indiana Court of Appeals issued orders denying him relief, effectively ending his appeal.

He in turn filed three motions to set aside the judgment in August 2020 with the trial court, which rejected all of them on grounds that he had “exhausted all appeals” and nothing remained pending before it.

In his latest appeal to the COA, Holland challenged the orders rejecting his purported Trial Rule 60(B) motions as well as a number of the orders and judgments entered by the trial court during the last three years.

Dismissing all of Holland’s appeal except his challenge to orders dated Aug. 5 and 31, 2020, the appellate court concluded his Trial Rule 60(B) motions and latest appeal were attempts to relitigate issues that were conclusively litigated in earlier proceedings.

“Although Holland is correct that Trial Rule 60(B) allows a collateral attack on judgments that are void or procured by fraud, it does not authorize such an attack when final judgments adverse to the Trial Rule 60(B) movant already have been entered on the identical questions of voidness and fraud,” Judge Leanna Weissmann wrote.

“As Holland’s Trial Rule 60(B) motions simply regurgitate prior arguments already conclusively decided, we conclude no pertinent evidence supports the allegations in Holland’s Trial Rule 60(B) motion and, therefore, the trial court did not err in denying Holland’s Trial Rule 60(B) motions without hearing,” Weissmann wrote.

The appellate panel further concluded that IU’s requested sanctions were merited and that “enough is enough.”

“Holland may no longer operate as a broken faucet from which the flow of frivolous filings never ebbs. We affirm the trial court’s judgment and remand to the trial court to determine, after due consideration of Holland’s history of abuse, which of the restrictions authorized by our Supreme Court in Zavodnik v. Harper, 17 N.E.3d at 268- 269 (Ind. 2014), should be imposed against Holland. As we believe filing restrictions are an adequate sanction, we deny IU’s request for monetary sanctions.”

The case is Robert Holland v. Trustees of Indiana University, et al., 20A-CT-1696.


June 7

Criminal-Methamphetamine/Corrupt Business Influence

Jesse E. Atwood v. State of Indiana


Indiana Court of Appeals judges split in a decision regarding low-level drug offenses after a Shelbyville man selling meth to someone undercover was convicted of corrupt business influence.

Jesse Atwood was convicted of Level 5 felony corrupt business influence after selling methamphetamine to a confidential informant at least four times within a two-month period in 2018.

Atwood was later charged with dealing in methamphetamine as a Level 3 felony, four counts of dealing in methamphetamine as Level 4 felonies and corrupt business influence as a Level 5 felony.

He was ultimately found guilty of the Level 5 felony dealing and corrupt business influence charges, but not guilty of dealing as a Level 3 felony. The Shelby Superior Court also found him to be a habitual offender, sentencing him to an aggregate 11 years with one year suspended.

The Indiana Court of Appeals split on Atwood’s appeal, with the majority affirming his convictions in Jesse E. Atwood v. State of Indiana, 20A-CR-2391.

“Here, Atwood’s four methamphetamine transactions constituted a pattern of racketeering activity under Ind. Code § 35-45-6-1 and -2, which he does not dispute. Indeed, the court as the fact-finder could reasonably infer that the crimes were not isolated or sporadic,” Judge Elaine Brown wrote for the majority.

“Atwood sold methamphetamine on four occasions from two residences and, during the most recent meeting with the CI, made a comment that he was ‘gonna go buy a zip . . . and try and flip it.’ The trier of fact could reasonably conclude based on the nature of the crimes and Atwood’s conduct and comments that the criminal activity would have likely continued had it not been interrupted,” Brown wrote.

The majority concluded that the state presented evidence of probative value from which a reasonable trier of fact could find beyond a reasonable doubt that Atwood, through a pattern of racketeering activity, knowingly or intentionally acquired or maintained an interest in or control of property.

Dissenting in a separate opinion, Judge Nancy Vaidik pointed out that Section 35-45-6-2(2) applies when a person acquires or maintains “an interest in or control of property or an enterprise” through a pattern of racketeering activity.

“As the majority notes, the statute used to say ‘an interest in or control of real property or an enterprise,’ but in 1991 the legislature removed the word ‘real.’ The majority, relying on our criminal code’s general definition, concludes that ‘property’ under Section 35-45-6-2(2) includes any amount of money obtained in a drug deal. I disagree,” Vaidik opined.

As such, the dissenting judge said she believes that word “property” under the federal Racketeer Influenced and Corrupt Organizations Act should not be construed to include the small amount of cash that changes hands in a garden-variety drug deal.

“Or, to put it in meth terms, RICO is meant for people at or near the top of the chain of command, like Walter White in Breaking Bad, not a small-scale peddler at the bottom, like Atwood,” Vaidik wrote, adding that applying the RICO statute in a case like Atwood’s “is directly contrary to the 2013 legislation that significantly reduced sentences for low-level drug offenses.”


June 9

Civil Tort-Counterclaim/Indiana Trial Rules

William Pumphrey, III, RPM Pizza Midwest, LLC, d/b/a Domino’s Pizza, and Millbank Insurance Company v. Melody Jones


A pizza delivery man who arrived at the courthouse with a counterclaim one year and nine months after the complaint had been filed will be able to present his case following a decision by a split Indiana Court of Appeals, which found “justice requires” he should be allowed to serve up his arguments.

William Pumphrey was delivering pizza when he was in an auto accident with Melody Jones on Nov. 30, 2018. Jones filed a complaint against Pumphrey and his employer, RPM Pizza Midwest, alleging she was injured by Pumphrey’s negligence.

Defense counsel subsequently contacted Pumphrey and scheduled a meeting for April 14, 2019. Pumphrey did not keep the appointment and the attorney was unable to locate or contact him. The litigation moved forward without Pumphrey, but in October 2020, an associate attorney working in defense counsel’s firm found Pumphrey working at a different RPM store.

Pumphrey, who claimed he had not received any communication from defense counsel since early 2019, provided a differing account of the collision and indicated he was continuing to receive medical treatment. Defense counsel filed a motion to amend the answer to assert a counterclaim on Nov. 25, 2020, and, with no response from the Hamilton Superior Court, filed his counterclaim five days later.

The trial court denied the motion without explanation and Pumphrey turned to the Court of Appeals.

In William Pumphrey, III, RPM Pizza Midwest, LLC, d/b/a Domino’s Pizza, and Millbank Insurance Company v. Melody Jones, 21A-CT-47, a majority of the appellate panel reversed and remanded.

The majority cited Indiana Trial Rule 13(F) which, in part, enables a counterclaim to be made by amendment when “justice requires” the pleader be allowed to do so. Also, the appellate panel looked to Crider v. State Exchange Bank of Culver, 487 N.E.2d 1345 (Ind. Ct. App. 1986), trans. denied, and found the plaintiff had been allowed to amend his answer more than two years after several issues had already been litigated.

Noting the facts in Pumphrey’s case were “much more compelling,” the Court of Appeals majority overturned the trial court’s ruling because, per Ind. Trial Rule 13(F), “justice requires” his motion be granted.

“While the eighteen-month delay was lengthy, there is no indication that Pumphrey acted in bad faith or with dilatory motive,” Judge Robert Altice wrote for the majority. “He had simply gone on with his life — dealing with his injuries from the accident, going through a domestic breakup, and working at a new location delivering pizza — unaware of the ongoing communication attempts from Defense Counsel or the need for his additional cooperation in defending against the lawsuit. Additionally, prior to being located … in October 2020, Pumphrey had not provided his side of the story to Defense Counsel, and he immediately and fully cooperated with Defense Counsel after being located. Once his version came to light, the Motion to Amend was promptly filed.”

But Judge James Kirsch dissented, asserting that by allowing Pumphrey’s motion filed one year and nine months after Jones filed her complaint, the majority “has reweighed the evidence, substituted its judgment for the trial court, and failed to apply the standards for belated counterclaims as set forth in Indiana Trial Rules 13(F).”

Kirsch pointed to Pumphrey not appearing for the April 14, 2019, meeting with defense counsel. If he had shown up, the judge reasoned, Pumphrey likely could have discussed the possibility of making a counterclaim and given his updated contact information to the attorney.

“… I acknowledge that the stakes are high for Pumphrey because his counterclaim is a mandatory counterclaim and, as such, could not be raised in a subsequent proceeding. … Nonetheless, the decision to grant his motion to amend answer was still a matter of trial court discretion,” Kirsch wrote, citing Freedom Exp., Inc. v. Merch. Warehouse Co., 647 N.E. 2d 648, 653 (Ind. Ct. App. 1995). “… Given the facts before the trial court, the reasonable inference arising therefrom, the trial court’s discretion to accept or reject Pumphrey’s version of the events, I cannot agree that the trial court abused its discretion in denying Pumphrey’s Motion to Amend.”

Civil Tort-Negligence/Immunity

Laura Johnson v. City of Michigan City


A split Indiana Court of Appeals panel has affirmed judgment for Michigan City after a cyclist was injured on a city street, finding the city was immune from the cyclist’s negligence claim. A dissenting judge, however, would have reversed on the issue of immunity.

In the spring of 2017, Michigan City officials determined Duneland Beach Drive needed to be resurfaced, so City Engineer Charles Peller asked the local Board of Public Works to approve the project for bids. Meanwhile, city officials began receiving complaints about the road.

The Board of Works approved the projected and called for bids to be submitted by June 2017. But in mid-May, Laura Johnson was injured after striking a pothole and flying off her bicycle on the road. The accident left Johnson unable to walk for six months and prevented her from passing physical tests to enlist in the National Guard as she had planned.

The city continued its work on the resurfacing project, which was completed in early October 2017. But in December 2018, Johnson sued the city for negligence.

The city moved for summary judgment, which the LaPorte Superior Court granted on the grounds that the municipality was “immune from liability” under the Indiana Tort Claims Act.

Johnson appealed but the Indiana Court of Appeals affirmed in Laura Johnson v. City of Michigan City, 21A-CT-114.

Writing for the majority, Senior Judge John Sharpnack agreed that the city was entitled to discretionary function immunity because it was engaged in a “planning” function.

“The City has a deliberative, systemic process to assess and prioritize street repairs, with the assistance of a consultant. The City’s engineers consider the PASER report and citizen complaints, as well as Peller’s own street inspections, in setting priorities,” Sharpnack wrote, referencing the city’s pavement surface evaluation and rating system. “In addition, there is no factual dispute that, prior to Johnson’s accident, the City had determined the Drive needed resurfacing, and the Board of Public Works was preparing to select a contractor to perform the work. The City’s planning process is the type of act intended to be protected by discretionary function immunity: a function involving the formulation of basic policy decisions characterized by weighing alternatives and choosing public policy.”

Johnson had argued the city was engaged in an operational function preventing immunity, but the COA disagreed, finding that the “existence of the policy for repair of street and the current application of that policy as to Duneland Beach Drive confers immunity even as to that which would otherwise be an operational matter.”

But Judge Elaine Brown dissented.

“I would find the City has failed to designate evidence that a decision to fill a pothole which poses a dangerous condition is a deliberative, policy-driven process, or that this process was entirely a planning function rather than an operational function,” Brown wrote in a separate opinion. “… I would further find that the City, which points only to Peller’s deposition in its memorandum of support of summary judgment, has not designated evidence establishing as a matter of law that the decision to resurface the Drive and when to do so, given the condition of its pavement, was the type of function that is immune.

“… In any event,” Brown continued,” the fact the City made a decision to repave the entire Drive does not mean that filling identified, dangerous potholes of which the City had actual knowledge was not an operational function.”

The dissent pointed to the cases of Peavler v. Bd. Of Comm’rs of Monroe Cnty., 528 N.E.2d 40 (Ind. 1988), and City of Beech Grove v. Beloat, 50 N.E.3d 135 (Ind. 2016).

According to Brown, those decisions mean that “even when a ‘policy oriented decision-making process has been undertaken,’ … it may not matter to the extent the municipal body does not designate evidence of a ‘conscious balancing,’ or consideration of the two competing repairs in relation to one another.”

“At the summary judgment stage, all facts and reasonable inferences must be drawn in favor of the non-moving party, which here was Johnson,” Brown concluded. “… Based upon the designated evidence, I would conclude that the City failed to meet its burden and would deny it summary judgment.”•

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