Doctrines that have only applied to corporations in Indiana courts may be extended to cover cases involving government entities if the city of Marion wins its appeal at the state Supreme Court.
Derek Molter, representing the city, argued Thursday that a trial court’s decision to dismiss two of three time-barred claims against London Witte Group should be reversed since the city disagrees with a trial court ruling that the statute of limitations ended before a lawsuit was filed. Molter’s argument focused on how the $2.5 million in claimed damages, resulting from the uncompleted YMCA renovation project, couldn’t be recovered until former Mayor Wayne Seybold left office in 2016.
London Witte Group (LWG) was employed as a financial services firm by Seybold’s administration during a stalled redevelopment project partially funded by municipal bonds. Former Mayor Wayne Seybold’s brother, Chad Seybold, was hired by the developer as project manager.
The city claims that the $2.5 million was improperly used and distributed, according to the allegations made in the amended lawsuit filed.
The city is asking the Indiana Supreme Court to apply the adverse domination and continuous representation doctrines to the case. These doctrines have only been applied in Indiana to cover cases involving corporations and shareholders, according to the testimony presented. Molter said the city presented evidence that conflicted with LWG regarding when the statute of limitations expired and the scope and duration of LWG’s involvement as a financial advisor.
Molter said LWG never provided a written or oral agreement to the city for its scope or duration of work, claiming specifically that it never formally terminated its engagement.
“As a result, the scope and duration of London Witte’s engagement is a fact issue for the jury to decide, and the city is entitled to a day in court to present to the jury the abundance of evidence it has designated here, supporting the conclusion that London Witte’s work on the project continued to the end of the Seybold administration in December of 2015,” Molter said during the oral argument. “In fact this case represents the poster child for the reasons underlined for the continuing representation doctrine.
“As for adverse domination, neither the trial court nor the court of appeals doubted that former Mayor Seybold’s interests were adverse to that of the city,” Molter continued. “So the only question left is whether London Witte sustained its burden…that there was some person who could sue on the behalf of the city independent of the mayor’s authority.”
Tom Falkenburg, representing LWG, responded by saying there is no way that a mayor can dominate other administrators or elected officials’ ability to seek damages once malfeasance is discovered. He said the trial and appeals courts made the right decision by saying the statute of limitations began once an audit was made following public scrutiny.
“They knew of concerns and potential wrongdoing in the spring of 2014. At that point, that triggers the running for them to do an investigation, and they did,” Falkenberg argued. “The mayor stepped aside. Adverse domination simply doesn’t fit the facts here when the mayor steps aside and lets the city attorney and the director of development do their own investigation and bring in independent people – a big four accounting firm, an independent accounting firm – to do an investigation.”
Justice Mark S. Massa asked if there was any way a city attorney can act independently of a mayor to bring about a lawsuit for alleged wrongdoing, and Molter replied, “No.” Molter said the city employees serve on behalf of the mayor.
“The best factual evidence of this is that every time a subordinate city employee brought up a concern related to this project, the city’s efforts died at the feet of the mayor or his family,” Molter claimed, noting that Chad Seybold allegedly would not turn over critical documents to city staff. “So when Darren Reece, for example, the director of development, brought up the obvious concern about the city investing $2.5 million to a project that the former mayor’s brother would be overseeing, the mayor said that’s not the city’s business.”
Addressing Falkenberg, Massa later said that the president and governors are chief executives before asking Falkenberg to expand on why adverse domination shouldn’t apply to a mayor or city government.
“Here you have a series of allegations alleging broad corruption and malfeasance and yet the defense is that time ran because the lawsuit wasn’t brought when the mayor – who was allegedly in on it – was still the mayor,” Justice Massa said. “How can adverse domination not extend the statute of limitations on those facts as alleged?”
Falkenberg argued that adverse domination would only apply to claims alleged against the mayor, not a financial advisor. Falkenberg said LWG’s role was to show that TIF revenue would pay off the bonds and that LWG had nothing to do with allegations that bond proceeds were used to benefit Wayne Seybold.
Chief Justice Loretta Rush focused her time on asking Molter why the court should apply adverse domination to a government entity when the doctrine is grounded in corporate agency law. Molter said the city is technically a municipal corporation acting on behalf of its citizens and that other courts have ruled this way before.
“In the corporate context, ultimately you are trying to protect the shareholders,” he said. “Here, it is even more compelling to protect the shareholder equivalent in the government context which is the ratepayers and taxpayers at large… If you are going to apply a doctrine to protect shareholders, you should certainly apply the same doctrine to protect citizens for a municipal corporation.”
As for the discussion surrounding the continuous representation, Falkenberg argued that his client’s contract ended at the time it was paid for its services. Chief Justice Rush replied by noting that there was evidence in the record that LWG continued to consult after being paid and that the agreement was “pretty loose.”
Falkenberg said any additional work done by LWG was separate from the initial agreement related to securing financing for the project. Falkenberg said when there is no contract, testimony is used to determine continuous representation, and he argued that the facts were clear based on depositions.
“They had their toe in the water with regard to this project,” Chief Justice Rush replied. “The plaintiffs designated different steps that LWG was involved with trying to fix some of the problems, or consulting. There is a record of that.”
The Indiana Supreme Court is expected to issue opinions in the near future, but no date has been set as of deadline Friday. A full video of the oral arguments can be viewed at www. mycourts.in.gov/arguments by searching for City of Marion v. London Witte Group, LLC, et al.
Baileigh Evans is an aspiring dentist, and providing dental care to those who need it is an issue she can sink her teeth into.
Evans worked with Dr. Chad Leighty and Progressive Dental Center in Marion to arrange for dental exams for those who are in need of the care.
Evans is a junior at Oak Hill High School and part of a class in community service. Given her aspirations toward being a dentist in the future, she naturally turned toward this as a potential idea for the service project.
“So, when I get older I want to be a dentist, so I though why not help patients?” said Evans. “I like to help people that need it, so I thought let’s help people that don’t have the money to get the help here.”
Evans first reached out to Bridges to Health about possibly arranging the event, but eventually settled on Progressive to have the service done.
For Evans, helping people get the service they need is important.
“It means a lot because helping people is what makes me go about my day,” said Evans. “It keeps me going, so being able to be in this makes me feel really good knowing that they can finally afford to have their pain taken away.”
The people who came into the office for care Friday were given examinations for urgent issues. Most received x-rays to determine the nature of the care they would need to receive and then plan how to proceed. Many will receive general restoration, such as fillings. Some of the more severe cases will need extractions.
Amanda Lilly, office manager at Progressive Dental, said that she has seen Evans grow through the years, as her mother Tiffany also works at the office as a dental assistant. In getting to know Evans, Lilly said her heart stood out to her.
“She is an extremely big-hearted gal,” said Lilly. “She would help anybody out, willing to go the extra mile to put a smile on someone else’s face.”
Lilly said that this service being provided is very important because dental costs can be expensive, but that many others in the office go above and beyond to help clients, with many being involved in IndianaMOM, a charitable dental clinic.
Evans spent much of the day learning about the inner workings of the dentist’s office outside of the actual treatment.
“We’re just teaching her some of the outside skills, outside of just the dentistry side so she is working more on the business side of things, checking in her patients that she has set up for clinic,” Lilly said.
Evans learned one thing that she was very quick to point out about working at the office.
“It’s very stressful,” said Evans, “It takes a lot of paperwork to even be remotely able to do this.”
Though the office might be a little more stressful than she had initially thought, this has not detoured her from her plans in dentistry.
She is only a junior so there is still time for plans to change, but as of now Evans wants to pursue her dream of being a dentist at Indiana University.
As COVID-19 numbers continue to rise in Grant County and across the state, legislators are working to figure out how to stop the spread and damage of the virus.
Fresh off their recent election victories, State Representatives Ann Vermilion (R-District 31), Craig Snow (R-District 18), Mike Karickhoff (R-District 30) and Anthony (Tony) Cook (R-District 32) have all discussed the steps they will take to help their constituents during the pandemic.
“I think with the COVID you have to be an example,” Vermilion said. “And I don’t think that the topic of COVID should be a political topic or a judgmental. It has nothing to do with politics.”
She said her job is to support Grant County health care leaders such as Health Officer Dr. William David Moore and Marion General Hospital.
“We have to follow their lead. We have to follow their voice,” Vermilion said. “They’re the ones that are knee deep in it and I respect them. So my responsibility is to be an extension of their team and their knowledge and wisdom on COVID.”
Vermilion is not the only representative that said they believe there is a responsibility to lead by example for their constituents.
“Well, I set a good example. My mother lives in assisted living, I’m self quarantined right now,” Karickhoff said. “... At the end of the day, everybody’s gonna be responsible for their own behaviors. I think our governor’s done a very good job of educating the public.”
While both Karickhoff and Vermilion said they find importance in leading by example, Karickhoff said there needs to be awareness about the effect the pandemic has on the economy at the same time.
“There’s a balance to keep the economy open and protect the most vulnerable. And so what am I going to do? I’m going to set a good personal example,” Karickhoff said.
Cook said Gov. Eric Holcomb has led by example and that the governor has to continue to figure out how to balance protecting constituents from the virus and keeping jobs open.
“That’s a difficult line to walk, as you know, and you’ve seen where you’ve got to have businesses open, you got to maintain some jobs,” Cook said. “People have to have an income, those kind of things are difficult when you have a pandemic as ... we’ve never seen before in our generations.”
Though COVID-19 is something new for everyone, Snow said that the best thing people can do at this point in time is listen to the individuals on the front lines.
“The main thing is to continue to listen to our health officials. And you know, we really can’t afford to overrun our hospitals. And we need to make sure that our health care workers are...safe and healthy and have good working environments,” he said.
Snow said he sees the importance of remaining safe and healthy, and that he also wants to allow adults in Grant County to be treated as the adults they are.
“I just want to treat people fair and like adults, but at the same time I want to respect what our health officials are telling us and you kind of follow their recommendations. And that’s kind of the way I run the company and I’ll stand behind our health officials,” he said.
Grant County EMA Director Bob Jackson said 98 new cases of COVID-19 have been reported in the county on Friday, bringing the total number of cases since the beginning of the pandemic to 2,860. The county remains at 46 deaths due to COVID-19.
Over the last seven days, the county is averaging 67 new cases per day with a 46.9 percent positivity rate of those tested. Over the last 14 days, the county is averaging 56 new cases per day with a 78.4 percent positivity rate of those tested.
Friday’s new cases pushed the county’s total cases this month to more than 900. October, the previous all-time record high month, reported a little less than 600 cases.
The Indiana Department of Health Friday announced that 6,912 additional Hoosiers have been diagnosed with COVID-19 through testing at state and private laboratories. That brings to 282,311 the number of Indiana residents now known to have had the novel coronavirus following corrections to the previous day’s dashboard.
A total of 4,952 Hoosiers are confirmed to have died from COVID-19, an increase of 63 from the previous day. Another 254 probable deaths have been reported based on clinical diagnoses in patients for whom no positive test is on record. Deaths are reported based on when data are received by the state and occurred over multiple days.
To date, 2,030,938 unique individuals have been tested in Indiana, up from 2,009,763 on Thursday. A total of 3,785,422 tests, including repeat tests for unique individuals, have been reported to the state Department of Health since Feb. 26.
To find testing sites around the state, visit www.corona virus.in.gov and click on the COVID-19 testing information link.
A Marion man is facing various charges following an ongoing investigation by the JEAN Team Drug Task Force, Grant County Sheriff’s Department, Marion Police Department, Indiana State Police Drug Enforcement Section and Grant County Prosecutor’s Office, according to JEAN TEAM Detective Michael Ross.
The agencies have been investigating the dealing of illegal drugs in the Grant County community over the last several months and recently arrested Zajuan Antwan Johnson, 30, of Marion. Johnson is charged with manufacturing a lookalike substance and corrupt business influence, both Level 5 felonies, possession of a firearm by a serious violent felon, a Level 4 felony, and maintaining a common nuisance, a Level 6 felony, according to Ross.
Johnson is being held at the Grant County Jail on a $1,005 bond, according to Grant County Jail records. Ross said a search warrant was served at 1410 W. Fourth St. in Marion, and the case has resulted in the seizure of presumptive white powder synthetic, presumptive common spice, marijuana wax, firearms and paraphernalia used to distribute illegal drugs in the community.
Ross said the investigation is ongoing.
A Marion woman is facing drug possession charges following a Tuesday traffic stop, according to Indiana State Police (ISP) Sgt. and Public Information Officer Tony Slocum.
At approximately 11:33 p.m. on Tuesday, Nov. 17, an ISP trooper initiated a traffic stop on a 2006 Pontiac near Fourth and Branson streets in Marion that reportedly had an improper display of a license plate that was false and fictitious, Slocum said.
Amber Michelle Baty, 25, of Marion was found to be driving the Pontiac and allegedly provided false identifying information to the trooper, police said, although further investigation clarified her identity.
Slocum said a Marion Police Department officer and narcotic-detecting police dog then arrived on the scene to assist. The police dog conducted a free air sniff around Baty’s vehicle and indicated the presence of narcotics, according to the report.
Officers allegedly found methamphetamine, heroin, approximately 200 new and used syringes, smoking devices and drug paraphernalia in a subsequent search of Baty and the vehicle, Slocum said.
Baty was charged with possession of methamphetamine, possession of cocaine or narcotic drug, synthetic identity deception and unlawful possession of syringe, all Level 6 felonies, and misdemeanor possession of paraphernalia, according to Grant County Jail records. Slocum said she was also issued a citation for driving while suspended, improper display of a license plate and false and fictitious plate.
Baty was taken into custody and booked into the Grant County Jail and is being held on a $605 bond, according to jail records.
The ISP trooper was assisted on the scene by a fellow trooper and the Marion Police Department.
Hoosiers are encouraged to report suspected illegal drug activity by calling their local law enforcement agencies or the Indiana State Police. Information can also be reported anonymously by calling the Indiana State Police Marijuana Tip Line at 1-888-873-1694.