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Thursday, April 07, 2005

Ind. Decisions - Court of Appeals posts five today

Keaton and Keaton, P.C. v. R. Mark Keaton, et al (4/7/05 IndCtApp) [Unfair Competition]
Bailey, Judge

Case Summary. Appellant-Plaintiff Keaton and Keaton, P.C. (“Rushville Keaton”) appeals the trial court’s grant of summary judgment in favor of R. Mark Keaton and Paul A. Keaton d/b/a Keaton & Keaton (collectively “the Fort Wayne Keatons”). We affirm.

Issue. Rushville Keaton raises one issue, which we restate as whether the trial court erred in granting summary judgment on Rushville Keaton’s unfair competition claim in favor of the Fort Wayne Keatons where the parties agree that the Fort Wayne Keatons were not passing off or intentionally misrepresenting their services as the services of Rushville Keaton. * * *

Unlike most unfair competition cases, here, it is undisputed that the Fort Wayne Keatons have not passed off their services as those of Rushville Keaton, and thus the issue becomes a matter of law. Indeed, the undisputed designated evidence shows that since renaming its practice Keaton & Keaton, the Fort Wayne Keatons have represented hundreds of clients and have never passed off their services as those of Rushville Keaton or expressed that any relationship exists between the two firms. Accordingly, the trial court did not err in denying Rushville Keaton’s motion and granting summary judgment in favor of the Fort Wayne Keatons. Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.

Patrick J. Savieo v. The City of New Haven (4/7/05 IndCtApp) [Torts]
Crone, Judge
Patrick J. Savieo (“Patrick”), personal representative of the wrongful death estate of his father, Jon A. Savieo (“Jon”), appeals the trial court’s grant of summary judgment in favor of the City of New Haven (“the City”). We affirm.

The dispositive issue is whether the City is entitled to immunity for any breach of its duty to prevent Jon’s suicide. * * *

We note, however, that the scope of governmental immunity is not limited solely to those statutory grounds. In Benton v. City of Oakland City, 721 N.E.2d 224 (Ind. 1999), our supreme court observed [citing from the 1972 case of Campbell v. State]

Campbell identified three situations where governmental units would not be liable for “acts or omissions which might cause damage to persons”: (1) where a city or state fails to provide adequate police protection to prevent crime, id. (citing Simpson’s Food Fair, Inc. v. City of Evansville, 149 Ind.App. 387, 272 N.E.2d 871 (1971), transfer denied); (2) where a state official makes an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of the state official for making such an appointment; and (3) where judicial decision-making is challenged, id. (citing Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)).
* * * To the extent that the police are expected to prevent threatened suicides in noncustodial cases, we conclude that this duty is so closely akin to the duty to prevent crime that it should be treated as fitting within that limited exception to the general rule of governmental liability. See Fair v. State, 627 N.E.2d 427, 431 (Ind. 1993) (recognizing that “police are expected not only to enforce the criminal laws but also to aid those in distress, abate hazards, prevent potential hazards from materializing, and perform an infinite variety of other tasks calculated to enhance and maintain the safety of communities”). We therefore hold that the City is entitled to immunity for Lt. Baatz’s failure to prevent Jon’s suicide. Accordingly, we affirm the trial court’s grant of summary judgment in favor of the City. Affirmed.
RILEY, J., and VAIDIK, J., concur

Michael B. Montgomery v. The Board of Trustees of Purdue University (4/7/05 IndCtApp) [Employment Law]
Crone, Judge
* * * Montgomery presents three issues for review, one of which we find dispositive: whether Purdue is an “employer” for purposes of the Indiana Age Discrimination Act (“IADA”). * * *

Indiana Code Section 22-9-2-2 states, “It is declared to be an unfair employment practice and to be against public policy to dismiss from employment, or to refuse to employ or rehire, any person solely because of his age if such person has attained the age of forty (40) years and has not attained the age of seventy (70) years.” Indiana Code Section 22-9-2-1 provides that an “employer” for purposes of the IADA does not include “a person or governmental entity which is subject to the federal Age Discrimination in Employment Act [“ADEA”] (29 U.S.C. 621 et seq.).” Both parties agree that Purdue is a governmental entity, but they disagree whether Purdue is “subject to” the ADEA. * * *

In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the United States Supreme Court limited the relief available to state employees under the ADEA. * * *

The question here is whether, notwithstanding Kimel, Purdue is “subject to” the ADEA and therefore not an “employer” for purposes of the IADA. Both parties agree that the Eleventh Amendment shields Purdue, an instrumentality of the state, from private actions for monetary damages under the ADEA. See Kashani, 813 F.2d at 848. Montgomery contends that Purdue is therefore not “subject to” the ADEA. Purdue disagrees, contending that it is “a governmental entity which is ‘subject to’ the ADEA through private actions by employees for injunctive relief and by direct enforcement by the [EEOC]. Purdue also observes that the First Circuit has held that the ADEA remains applicable to and may be enforced against the states. See State Police for Automatic Retirement Ass’n v. DiFava, 317 F.3d 6 (1st Cir. 2003).

In DiFava, the plaintiff organization sought to overturn the permanent injunction of a mandatory retirement law for the Massachusetts state police force, claiming that Kimel had rendered the ADEA inapplicable to the states. The First Circuit disagreed * * *

We find the DiFava court’s analysis persuasive and agree with Purdue that it remains “subject to” the ADEA’s enforcement provisions as detailed above and is therefore not an “employer” for purposes of the IADA. Consequently, Montgomery has failed to state a claim upon which relief can be granted. We therefore affirm the trial court’s dismissal of Montgomery’s age discrimination claim and its entry of judgment on the pleadings. Affirmed.
RILEY, J., and ROBB, J., concur.

Andra Thompson v. State of Indiana (4/7/05 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

Andra Thompson appeals his conviction for Possession of Cocaine, as a Class C felony, following a bench trial, and presents a single issue for review: whether the trial court abused its discretion when it admitted into evidence cocaine officers recovered from between Thompson’s buttocks during a strip search incident to his arrest, which was filmed by a civilian camerawoman. We reverse and remand. * * *

Here, again, the officers had not obtained a warrant, but searched Thompson incident to his arrest. Unlike in cases where a warrant has issued, the officers in this case were not relying on a probable cause determination made by a neutral and detached magistrate. To the contrary, the officers were in complete control of the circumstances surrounding the strip search, and they permitted the civilian camerawoman to film Thompson naked below the waist.

We hold that the good faith exception to the exclusionary rule does not apply here. Thus, we conclude that the trial court abused its discretion when it admitted the cocaine recovered from Thompson’s buttocks into evidence. We reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
KIRSCH, C.J., and VAIDIK, J., concur

James Wilson v. State of Indiana (4/7/05 IndCtApp) [Criminal Law & Procedure]
May, Judge
James Wilson appeals his conviction of possession of cocaine as a Class A misdemeanor. See footnote Wilson argues on appeal the police illegally stopped and searched him, but we address instead the dispositive issue of whether Wilson abandoned the cocaine prior to its seizure by police officers. We affirm. * * *

Wilson dropped the bag underneath the parked car while riding his bicycle away from the officers. He had not complied with their request that he stop. Only after Wilson dropped the bag and declined to comply with their request did the officers use force to remove Wilson from the bicycle and handcuff him. When Wilson threw the black cloth bag to the ground, the items were subject to lawful seizure by the police. Wilson had not been “seized” at the time he dropped the black cloth bag; therefore, the bag containing cocaine was not the product of a seizure and was properly admitted into evidence over Wilson’s Fourth Amendment objection. Affirmed.
DARDEN, J., and BARNES, J., concur

Posted by Marcia Oddi on April 7, 2005 02:34 PM
Posted to Ind. App.Ct. Decisions