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Wednesday, September 20, 2006

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP) [Updated]

For publication opinions today (3):

In Michele Lynn Alli, et al. v. Eli Lilly and Company, a 12-page opinion, Judge Vaidik writes:

Michele Lynn Alli (“Michele”), individually and as personal representative of the estate of her late husband Daren Scott Alli (“Daren”), appeals the trial court’s grant of partial summary judgment in favor of Eli Lilly & Company (“Lilly”), the manufacturer of the antidepressant Prozac, in this products liability and wrongful death action. Specifically, Michele contends that the trial court erred in determining that the substantive law of Michigan—which is the state where her late husband lived, worked, was treated for depression, and committed suicide—applies instead of the substantive law of Indiana, which is where Lilly is headquartered. Applying Indiana choice-of-law analysis for tort cases, we conclude that the substantive law of Michigan applies to this case. In addition, because Michigan products liability law, which grants immunity to drug manufacturers unless certain narrow conditions are met, does not violate Indiana’s public policy, we decline to apply the public policy exception to this case. We therefore affirm the trial court. * * *

The Michigan legislature has decided to give drug manufacturers an absolute defense unless certain narrow conditions are met. There is nothing immoral, unnatural, unjust, or prejudicial to the general interests of the citizens of Indiana about § M.C.L. 2946(5). We decline to apply the public policy exception to this case and affirm the trial court’s grant of partial summary judgment in favor of Lilly.

In Rick L. Smith v. State of Indiana, a 6-page opinion involving an interlocutory appeal of the trial court’s order denying defendant's motion to dismiss one count of child seduction, defendant claimed that he was not covered by the statute because he was niether a "child care worker" nor "employed by a school corporation" under IC 35-42-4-7. Senior Judge Hoffman writes
[T]he school superintendent testified at the motion to dismiss hearing that bus drivers’ duties included managing the children on the bus, and disciplining the children. The bus driver is often the only adult on the bus. This evidence is sufficient to support the trial court’s conclusion that Defendant was a “child care worker.” He was able to discipline like a parent, and as the only adult on the bus, was in a position of authority. * * *

In the present case, although Defendant was directly compensated by another entity, Defendant directly reported to and was supervised by the school corporation. Defendant’s compensation included payment for the services rendered for the school corporation. Therefore, Defendant’s compensation may not come from the school, but is for his employment as a school bus driver for the school. Defendant’s claim here that he is not a child care worker must also fail.

The trial court did not err by denying Defendant’s motion to dismiss.

In Ronald Poling v. State of Indiana, a 13-page opinion, Judge Crone writes:
Case Summary. Ronald Poling appeals his convictions for three counts of neglect of a dependent as a class C felony. We affirm in part, reverse in part, and remand.

Issues. The dispositive issues are as follows: I. Whether Indiana Code Section 35-46-1-4 violates the Proportionality Clause of the Indiana Constitution; and II. Whether Poling’s convictions for six neglect offenses violate the Indiana Constitution’s prohibition against double jeopardy. * * *

Indiana caselaw dealing with the Proportionality Clause has primarily involved situations where the defendant argues that a less serious crime garners a more severe punishment than a more serious crime. * * * [I]n the instant case, the crimes of neglect of a dependent as a class C felony and neglect of a dependent as a class D felony, each carrying a different sentencing range, can be proven with identical elements. Prosecutors would likely pursue the C felony charge, and thus a longer sentence, for defendants charged with this crime.

Because we agree with Poling that Indiana Code Section 35-46-1-4 is unconstitutional, we hereby reduce his three class C felony convictions to class D felony convictions and remand with instructions to the trial court to resentence Poling accordingly.7 We share the trial court’s hope that the legislature will revisit Indiana Code Section 35-46-1-4 for the purpose of clarifying and distinguishing the elements of neglect of a dependent as a C felony and neglect of a dependent as a D felony so as to comply with Indiana’s Proportionality Clause. * * *

[With respect to the second issue] There was no double jeopardy violation here.

Affirmed in part, reversed in part, and remanded.

NFP civil opinions today (2):

InAnna Calabrese v. Robert Calabrese (NFP), a 29-page opinion, Judge Riley writes:

Appellant-Petitioner, Anna Calabrese (Anna), appeals the trial court’s judgment dissolving her marriage to Appellee-Respondent, Robert Calabrese (Robert). We affirm in part, reverse in part, and remand.

Anna raises nineteen issues on appeal, which we consolidate and restate as the following seven issues: (1) Whether the trial court violated Anna’s rights by holding the dissolution hearing when she was not represented by counsel; (2) Whether the trial court erred in ordering Anna and Robert’s son, R.C., to attend school outside the home and in refusing to admit evidence that Anna is an experienced home-schooling teacher; (3) Whether the trial court violated Provisional Orders in its division of marital property; (4) Whether the trial court properly ordered Robert to have supervised visitation with R.C.; (5) Whether the trial court’s award of spousal maintenance is adequate; (6) Whether the trial court’s child support order is adequate; and (7) Whether the trial court properly addressed Anna’s need for a life insurance policy, health insurance coverage, and reimbursement for various bills. * * *

Based on the foregoing, we conclude that the record in this case supports the trial court’s findings and judgment in the Decree, except for its order as to spousal maintenance for Anna. On that issue alone, we remand with instructions for the trial court to re-evaluate Anna’s award of spousal maintenance while considering her lengthy absence from the workforce and her time spent caring for R.C.

Dennis Conwell v. Integra Bank (NFP) - "we conclude that the trial court’s finding that the Conwells were in default of the Note was not clearly erroneous. Affirmed."

NFP criminal opinions today (4) (link to cases):

Roy G. Lewis v. State of Indiana (NFP)

Trent Buffington v. State of Indiana (NFP)

Andre Thomas v. State of Indiana (NFP)

James Lane v. State of Indiana (NFP)

William Lloyd v. State of Indiana (NFP)

Posted by Marcia Oddi on September 20, 2006 09:40 AM
Posted to Ind. App.Ct. Decisions