Conversion from Crop Production to CAFO is not a “Significant Change”

One good thing about blogging so long and doing thousands of posts is that, occasionally, you get something right. Back in March of 2005, I posted on Sen. Jackman’s legislation having to do with agricultural nuisance actions.

At the time, I wrote:

This amends a section of the code apparently designed to protect agricultural areas from nuisance suits when suburbia moves into the agricultural area. Under current law, an agricultural or industrial operation is not a nuisance if: 1) it has been in continuous operation for at least a year; 2) there is no significant change in the hours of operation; 3) there is no significant change in the type of operation; and 4) the operation would not have been a nuisance at the time the operation began at the locality.

Senator Jackman’s amendment to the law repeals the requirement that the hours remain substantially the same and defines the “no significant change” requirement so that a change in the size, ownership, or to a different type of agricultural use does not constitute a “significant change”. So, presumably under the new law, converting from a small, locally owned, odor-free agricultural operation in business between 8 and 5 to a huge operation owned by an out of state corporation belching out noxious odors 24 hours per day would not consitute a “significant change”

(emphasis added)

Today and yesterday, the Indiana Law Blog has been posting about a recent decision having to do with Randolph County nuisance lawsuits from neighbors challenging increased operations at a hog finishing operation. (A “finisher” is an operator who takes the pigs after they’ve been weaned and grows them until they’re ready for slaughter). The ILB has posted the court’s decision (pdf) granting summary judgment in favor of the defendants in Armstrong v. Maxwell Farms.

The farm had been in operation since the early 1900s. Prior to 2007, the farm appears to have been used in crop production. However, in 2007, Maxwell Farms contracted with the farm’s owner as an independent contractor who would finish hogs at a barn on Gary Foulke’s farm. The plaintiffs argued, among other things, that the change from crop production to a hog finishing operation, its resulting noxious odors and diminished enjoyment and value of plaintiffs property constituted a “significant change.” The court, based on the plain language of the statute disagreed:

The Indiana Legislature had to know in 2005, when it amended the Right to Farm Act, that the number of animals being confined in swine and dairy operations was growing exponentially, and yet the Legislature did not give neighbors surrounding the operations any relief. In 2005, the Legislature made the Right to Farm Act even more restrictive to potential lawsuits. The Legislature has made its intent known to protect fanning operations against nuisance actions, even if the operation grows from a few hogs to several thousand, and even if the operation changes from growing corn to raising thousands of hogs.

I think the court got it right. The legislature, however, does not seem to be treating rural landowners very fairly. The idea that an agricultural operation ought to be able to keep doing what it was doing when neighbors bought their property makes sense. Don’t like it? Don’t move in. But, the idea that one neighbor can unilaterally take action to substantially impair the other neighbor’s enjoyment and use of the neighbor’s property is tougher to defend.

Court of Appeals – Potentially Troublesome Case on Statutes of Limitation

A few days ago, the Indiana Court of Appeals issued an opinion in Imbody v. Fifth Third Bank that I’m having trouble following. The decision had to do with whether suit was filed within the six year statute of limitations. The court was clear enough about why it believed the cause of action accrued when it did, but after the cause accrued, the debtor made some payments toward the debt and the court was not clear, in my opinion, about why the statute wasn’t tolled when those payments were made.

Imbody had a loan secured by a truck. Imbody defaulted on the payments, the Bank seized his truck, sold it at auction for less than the remaining debt and claimed a deficiency balance of about $15,000. Imbody made some payments toward the deficiency for awhile but then stopped.

At issue was whether the Bank filed suit within the six year statute of limitations. That issue turned, in part (or I believe it should have only been part of the analysis), on when the Bank’s cause of action accrued. The time line went like this:

7/23/2004 – Note signed
5/3/2006 – Default on loan agreement.
5/31/2006 – Truck repossessed.
?/?/2006 – Truck auctioned, deficiency remains
2/29/2008 – Last payment toward deficiency.
6/5/2012 – Complaint filed by Bank against Imbody.

After a trial, the trial court entered judgment against Imbody and in favor of the Bank. On appeal, however, the Court of Appeals said that the Bank had filed suit after the statute of limitations had run. The loan agreement had a provision saying that, if the debtor missed payments, the Bank wasn’t obligated to wait around for years for payments to become due and owing on the same schedule as if payments were continuing. Rather, it had an option to accelerate the entire note — in other words, the remaining balance comes due at once. However, the Bank wasn’t obligated to accelerate the note. Obligated or not, the Court stated that the act of repossessing the truck constituted an acceleration. Fair enough. That makes cause of action accrue on May 31, 2006. June 5, 2012 is more than six years later and, had nothing else happened, outside of the statute.

The general rule, however, is that when a debtor is making payments, the statute is tolled. Why make a creditor go to court if the debtor is making payments that are acceptable to the creditor? After the truck was sold and a deficiency balance of around $15,000 was established, Imbody made 14 payments of $100 per month through February 29, 2008. If the clock doesn’t start running until 2008, then the Bank is within the 6 year window.

In Clark v. University of Evansville, 784 N.E.2d 942 (Ind. Ct. App. 2003), the Court of Appeals said:

In construing the provisions of this statute, we have held that partial payment of a debt may constitute “an admission of continued indebtedness” which “remove[s] the bar of the statute.” Meehan v. Meehan’s Estate, 98 Ind.App. 9, 14, 186 N.E. 908, 909 (1933). In Meehan we also stated that such a partial payment must be “accompanied by circumstances or evidence amounting to an unqualified acknowledgment of more being due, from which a promise may be inferred as a matter of fact and not as a matter of law, to pay the remainder.”

The Court of Appeals in the Imbody case said, “the evidence shows that the parties had an informal agreement regarding payments on the deficiency balance. There is no evidence that the parties entered into a forbearance agreement.” If there is a requirement that a forbearance agreement be entered into for the statute to be tolled, the Court of Appeals does not cite the basis of that requirement. The Clark case suggests that it’s only necessary that there be evidence amounting to an unqualified acknowledgement of more being due from which a promise may be inferred as a matter of fact to pay the remainder. The informal agreement noted by the Court of Appeals seems to satisfy that and, in any event, the finding of fact would be the province of the trial court which found for the Bank.

So, I don’t know if I am missing something obvious on this one or if the Court of Appeals whiffed on the tolling issue. Hopefully the Court of Appeals will reconsider or the Supreme Court will review this case. Because I’d hate to have to drag a bunch of debtors into court to preserve a claim even where they are making payments that are acceptable to the creditor.

Aftermath of Judge Young’s marriage equality decision

Some good items at the Indiana Law Blog and Advance Indiana on the aftermath of Judge Young’s ruling on same sex marriage:

- The Indiana Law Blog on Gov. Pence’s General Counsel, Mike Ahearn’s memo to executive branch offices directing them to take necessary measures to change their processes to abide by Judge Young’s order.

- The Indiana Law Blog on the Daviess County Clerk’s refusal to issue licenses reportedly based in part on her religious beliefs.

- Advance Indiana pointing out the obvious flaw in Eric Miller / Advance America’s contention that amending the Indiana Constitution to prevent marriage equality would have done anything to alter Judge Young’s rationale. Based as it was on the United States Constitution, the Supremacy Clause dictates that state constitutional provisions would have to give way where they violate the federal constitution.

Oh, and also not so incidentally, the news has lots of stories out there about happy couples getting married. Which, I suppose, was the point of the exercise in the first place.

Update Late Friday afternoon, the 7th Circuit granted the Attorney General’s request for a stay of Judge Young’s order pending appeal.

Translator Services and Access to the Courts

The Indiana Supreme Court issued a decision in the case of Ponce v. State (pdf) overturning a conviction based on a plea agreement where the defendant in Elkhart County did not speak English and was advised of his rights through a faulty translation.

The Supreme Court found that the translation was so inadequate that the defendant could not be said to have meaningfully understood and waived his rights. It further observed that meaningful access to the courts requires that the accused actually be able to understand what’s being said.

This is an issue confronted by all state courts to one degree or another. It’s my understanding that translators are engaged by the courts on a county-by-county basis. Seems like the General Assembly might consider establishing (and funding) a state translators’ office administered by the Indiana Supreme Court which would certify the translators as: a) being competent translators; and b) having a working understanding of the judicial process such that they can communicate those concepts to a defendant. Those translators would then be made available to the state courts in the various counties. Some courts and languages could justify a more or less permanent assignment to one county or another. Others don’t have the volume, but if the demand was aggregated statewide the result might be a more efficient allocation of translator resources.

Medical Malpractice Cause of Action Not Tolled Pending Second Opinion

The Indiana Court of Appeals decided a case today entitled “Anonymous Physician v. Wininger”. (The physician is anonymous at this stage of litigation due to particulars about how the medical malpractice system works.)

The plaintiff had gone to the Anonymous Physician (AP) for problems with her foot. AP performed surgery on her second toe in early 2007. As of October 2007, the Plaintiff realized that her foot hurt worse than it had prior to the surgery. However, she did not go for a second opinion until April 2009. On her intake sheet, she listed the reason for her visit as “AP messed her foot up.” The second doctor said that the second toe on her foot was too short.

Plaintiff did not file her malpractice action until March 2011. The statute of limitations for a medical malpractice action is two years. (The abbreviation for statute of limitations, S.O.L., coincidentally is the same as that for Shit Outta Luck; which are, functionally, the same thing. If a would be litigant doesn’t file a claim within a certain amount of time, they are barred from doing so.)

The Plaintiff argued that the two years didn’t start to run until she got the second opinion and, therefore, knew that the pain in her foot was caused by the alleged negligence of AP. The court disagreed. If the patient is unaware of the negligence of the medical professional, the statute of limitations is tolled only “until the patient experiences symptoms that would cause a person of reasonable diligence to take action that would lead to the discovery of the malpractice.”

In this case, such symptoms were present not later than October of 2007 and, therefore, the action was barred.

As a side procedural note, it looks like the doctor got lucky. The trial court sided with the Plaintiff. However, it certified the case for an interlocutory appeal (an appeal that happens in the middle of the underlying case) and the Court of Appeals agreed to take it. Both of those things are discretionary. Either court could have declined to have the issue addressed by the Court of Appeals until after the case had concluded. If that had happened, before getting a shot at a decision on appeal, the parties would have had to incur a great deal of expense trying the malpractice case and would have faced a great deal of pressure to settle the case.

Interim Commission on Courts

Following a series of interim study committee meetings, the Commission on Courts has issued a final report (pdf). It makes a series of recommendations to the General Assembly:

1. Eliminating a trial court’s ability to grant an adoption where there is an appeal pending of a decision to terminate the parent-child relationship.

2. Allowing appointment of a second magistrate in Vanderburgh County.

3. Making a variety of juvenile records public and not subject to the current confidentiality requirements: “(a) paternity issues; (b) custody issues; (c) parenting-time issues; (d) child support issues; or (e) other related issues; concerning a child born to parents who are not married to each other.”

4. Giving trial courts more flexibility for the appointment of psychologists, psychiatrists, and physicians in insanity defense cases.

Trial by Jury

I had a jury trial this week, and I’m happy to say that I won. I don’t really do very many of them. They are really an inefficient way to resolve disputes — except for maybe the alternatives are worse. When you think about it, the civil jury trial is our substitute for what, historically, was resolved through raids and blood feuds. People have a dispute. At least one side typically thinks he/she/it is entitled to something someone else has (usually money); and they simply cannot agree on a resolution.

Now, most of these things don’t go to a jury trial – at least not for me. I am normally either able to get the case thrown out on a motion of some sort or help reach a settlement between my client and the other party. And, particularly if your motions are denied, the structural pressure to settle cases is really pretty significant. It’s surprisingly awkward to go to a court ordered mediation and offer nothing or next to nothing. You are made to feel rude and like you’re wasting everyone’s time. Very often mediation is a useful tool — but when you are determined to have your day in court, it’s an expensive hurdle to be cleared.

The jury trial itself is, for the lawyers anyway, a very labor intensive process. I have a lot of respect for those litigators who do that kind of work week-in and week-out. The hours of preparation and organization required for even simple cases is fairly significant. When I do have one, my wife and I end up commenting on what a problem it would be for our family life if I was doing these kinds of cases more frequently.

Typically, the structure of a civil jury trial process will begin with voir dire – the parties have been given a jury list a couple of days before of the panel of potential jurors. Different courts have different approaches, but for Indiana state courts, I think it’s fairly common for judges to briefly introduce the matter to the jurors and thank them for being part of the process. The judge asks some very preliminary questions about basic items that might disqualify a member of the panel from serving as a juror. Then, he gives the lawyers greater or lesser amounts of latitude to question the jurors.

Ostensibly the process is for lawyers to probe jurors for information that might reveal a juror who is unable to evaluate the case in an unbiased fashion. All the strategy books, however, pretty much tell you that, even now, you should be framing and arguing your case — softening up the jury to see things from your point of view. In my mind, the voir dire is in some ways the most awkward because it is the least structured. And first impressions are so important – there is a decent chance the jury will be fairly persuaded before you even get to the evidence.

During the voir dire process each side gets three peremptory challenge where they can dismiss a juror for pretty much any reason. Each side is trying to divine which jurors will be favorable to their case through inexact proxies — “people who do this kind of work have these kinds of tendencies” and so forth. (Incidentally, the juror questionnaires have a question about favorite TV shows – “The Big Bang Theory” is a runaway winner.) For civil cases, once you have six jurors and an alternate, the rest of the pool is dismissed and the jurors are sworn in. (The job of an alternate has to be so frustrating — you aren’t allowed to participate in deliberations. That would be torture for me; particularly if I felt like the rest of the jury was missing something important. I like to make my opinion known. Hence, this blog.)

After that, the jurors are given the preliminary instructions – a basic introduction to what the case is about and how the process works. Then the parties can give opening arguments — which is and isn’t a misnomer. Technically, I think you aren’t so much supposed to “argue” as simply explain to the jury what sorts of evidence they will see. But, of course, you are framing that evidence in a way that supports your case; so there is an argumentative element in there by nature. There isn’t a bright clear line where descriptions of the facts stop and impermissible argument begins.

Then the plaintiff opens his evidence. This is witness testimony and documents. Depending on the case, introducing evidence in this way, may not create the most comprehensible narrative for the jury. If there was a series of events, you won’t take the events one-by-one, getting the account of each witness for that event — rather, you will get what one witness knows about all the events before moving on to the next one. The jury might have to wait for a couple of days to hear what another witness recalls of a particular event.

Generally, if a party calls the witness, that party’s questions will have to be more open ended; relying on the witness to recall and supply details — occasionally straying into unanticipated territory. This is followed by cross-examination. On cross, you can ask leading questions – which leads to much more narrowly focused responses. The attorney doing the cross examination does most of the talking, with the witness often just confirming or denying what the attorney says.

Technology in the court room has improved. One thing I really appreciate in the Tippecanoe County court rooms is a sort of opaque projector that displays documents on a big screen to the jurors. I think that’s very helpful when you are asking a series of questions to a witness about a particular document.

After the plaintiff goes through his or her witnesses and documents, the plaintiff rests and then the defendant goes through his or her evidence in much the same fashion. After the defendant closes, the plaintiff may or may not put on some rebuttal witnesses. (There were none in the case I recently concluded.)

Once the evidence is concluded, the next step is to hammer out the details of the final jury instructions. This is done outside of the presence of the jury and seems like part of the process that has a lot of room for improvement. Ostensibly, I think, this is done at the last minute because the final instructions have to be based on the facts that were introduced during the presentation of evidence. So, the sides exchange the instructions, often at the 11th hour. They are based on model jury instructions. However, a party is also entitled to have non-pattern language included if it is a correct statement of the law, implicated by the facts of the case, and not otherwise covered by the rest of the court’s instructions. So, quite often, you are faced with language that is supported by case law you, as an opposing party, only have very limited time to review. And the clock is ticking because you have a jury waiting. Even if you send the jury home for the night, you are racing to craft and present arguments about what the law is and is not over the course of an evening and perhaps the next morning. The court, with the help of the attorneys, then has to merge at least three sets of instructions – the courts and each party’s. (More if there are multiple defendants). The court has to throw out the instructions that are duplicates, exclude the ones that aren’t permitted, and modify others if they partially misstate the law or partially duplicate others. It is quite an editing job done on the fly. However, I think that much of it could be done earlier in the process — this would require the court to make earlier (if potentially preliminary) declarations about what the law is and would reduce a certain amount of potential gamesmanship by the parties.

After the instructions are settled upon, the parties make their closing arguments. The plaintiff goes first, followed by the defendant, followed by rebuttal by the plaintiff. My client thought this was very unfair that the plaintiff got to go first and last. In most cases, you can’t help but feel like the jury has made up their mind. Probably, you’d be just as well saying something like, “thank you for your time, please treat us fairly.” But, I have never had the confidence to pull that one. I tend to walk them through an outline of why my opponent’s version doesn’t make sense and mine does. I tend not to have a flair for emotional appeals; but I think I’m fairly good at showing the jury the world from my client’s perspective.

Then, when each side has made their arguments, the judge reads the final instructions, and the case is handed to the jury. (See this post if you’re interested in my experience as a juror.) Turning the case over to a jury is nerve wracking for a lawyer. You have been in control of the case for so long; have prepared so much; and now it’s out of your hands. A group of people you have only known for a couple of days will decide the outcome. You have no ability to address their arguments or correct any misunderstandings they may have. If they forgot about a key piece of evidence you presented, you have no way of reminding them of what it was. You are in limbo while the jury is out. You don’t know how much time you have – whether you and your client should just hang out or if you should go about your business until the court calls you to let you know the jury has returned with a verdict. You try to guess whether the time the jury has spent deliberating is a clue as to success or failure.

In this last case, the jury returned very quickly. I had gone to the Black Sparrow and ordered a beer and a pizza. It was about 1 in the afternoon, and the lunch shift waitress remarked that she had never seen me order a beer during the day. I told her this was a different sort of day. I’d had about half of my beer and two pieces of pizza when I got the call that the jury had returned. As a defendant, this was good news because it seemed unlikely that the jury had had time to do any math. I was cautiously optimistic, but still had to prepare my client for bad news. I also like to give my client instruction on how to comport themselves with either good or bad news. In this case, there was a tremendous amount of bad blood because my client felt like the opposing party was flat out lying about him. There is often a difference in perspective for any event, even where both sides are trying their level best to remember and tell the truth. This was not one of those cases. Someone was obviously lying. I very much believe my client was telling the truth – but I’m hardly unbiased and, at the end of the day, I wasn’t there when the event happened.

My optimism about the verdict notwithstanding, there was still a huge amount of anxiety during that period when you arrive at your spot in the court room and watch the jury file in. At this point, you get to see which juror was selected as foreman. Again, you try to figure out whether that is a good sign or a bad sign. The foreman hands the verdict form to the bailiff who hands it to the judge. Now the anxiety hits a crest. Fortunately, in this case, the jury found that my client was not at fault. Even though I was very happy with the result, it’s important to temper my enthusiasm at that point. Because, on some level, I felt bad for opposing counsel. These are guys you work with year in and year out and they worked every bit as hard as I did. I don’t know for certain the details of their contract with their client, but I suspect they were working on contingency and probably won’t get paid for all that work. Now, I know my client – angry about being dragged through the whole process – does not share my feelings about opposing counsel. But, I’m part of the system. I know that plenty of people on the other side of my cases probably have hard feelings for me.

The following days are spent recovering from the physical impact of the trial. First off, I need plenty of sleep for a couple of days. Then, there is the post-trial let down to deal with. Even though I won, there will inevitably be an emotional crash. Because that focus of so much hard work has suddenly been removed, I’ll feel out of sorts for several days. But, before too long, I’ll shake it off and have another war story in the books.

Authorization to Use Force Against Public Servant

The Internet is alive with reports that IMPD officer Rod Bradway was shot and killed responding to a domestic disturbance.

Per the IMPD:

At approximately 1:52 am, officers with the Indianapolis Metropolitan Police Department (IMPD) were dispatched to the 6700 blk. of Eagle Pointe Dr. (Eagle Point Apartments) reference a disturbance.

When the first arriving officer arrived, he heard screams for “help” from an unidentified woman who was inside an apartment. The officer fearing for the safety of this woman made entry. As the officer entered the apartment, gunshots were exchanged between the officer and the suspect and the officer was struck with gunfire.

Based on these limited facts, the Supreme Court case from 2011, Barnes v. State (pdf) came to my mind (from my blog entry at the time):

The police got called to the apartment to respond to domestic violence in process. Husband was throwing stuff around the apartment and had apparently ripped a phone out of Wife’s hands and thrown it against the wall. When the police got there, Husband & Wife met the police in the parking lot. Police followed them back to the apartment, Husband barred entry while Wife said things like “just let them in.” Police tried to force their way, and Husband resisted physically.

The Supreme Court held at that time that the husband had no right to use force to stand his ground notwithstanding the husband’s contention that the entry of the officer in that case was unlawful. This led to the passage of SB 1-2012. The law makes it permissible to use force against a public servant if the individual using force reasonably believes it necessary to prevent the public servant from unlawfully entering the individual’s residence.

I’ll be watching this case with interest to see if the facts are such that the shooter might contend that this new law justified his actions.

Updated Abdul advises me that the shooter is dead. One less problem, I guess.

From the news release:

Investigators have not yet identified the suspect who was also fatally shot and killed in the exchange of gunfire with police. Investigators are also working to ascertain the exact circumstances of the shooting, and have detained the woman, who was not injured, for questioning. Further updates will be provided as they become available.

Lake County Judge Strikes Down Right To Work Under Indiana Constitution

Tom LoBianco, writing for the Associated Press, reports that Lake Superior Court Judge John Sedia struck down Indiana’s right to work law under Indiana Constitution Article 1, section 21 which provides that “No person’s particular services shall be demanded, without just compensation.”

I haven’t read the decision, but the theory appears to be that requiring that the terms of union negotiated contracts apply to non-union workers who do not pay dues or a dues equivalent is, in effect, requiring the union to provide service without just compensation.

I’m not a fan of right to work as a policy, but unless there is something fairly compelling in that opinion I haven’t yet seen; I would bet against this opinion being upheld on appeal.