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Tuesday, February 27, 2007
Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)
For publication opinions today (5):
Daniel H. Raess, M.D. v. Joseph E. Doescher - This is the opinion on rehearing in the workplace bully case (here is a list of earlier ILB entries). "Plaintiff-Appellee Joseph E. Doescher has filed a petition for rehearing in which he claims that the trial transcript was materially misstated in our opinion. We grant rehearing for the limited purpose of correcting a misstatement; however, we reject Doescher’s claim that the misstatement was material. * * * The term 'bullying' is implied in the final statement, not explicit, and the quotation should have shown that distinction. However, as we noted in our original opinion, there is no doubt that Namie’s testimony and Doescher’s counsel combined to mislead and confuse the jury into considering the case as a “workplace bully” case."
Arica Drake Prince v. Allen Co. Dept. of Child Services - "Arica Drake Prince appeals the termination of her parental rights to her five children. Prince claims the evidence was insufficient to support the judgment. Because Prince had remained sober only during the months she was on probation and ordered by a criminal court to stay in a drug treatment facility, she had not yet demonstrated she could remain sober without the threat of imprisonment. In light of her history of relapses, we cannot say the court erred when it found no change in the circumstances resulting in the children being removed from Prince’s care. Because the evidence also demonstrated termination was in the children’s best interests, we affirm."
In the Matter of G.R., Bernard Leonelli and Mary Leonelli v. Noble County Department of Child Services - "We conclude that because Mother’s parental rights were terminated prior to the filing of the Leonellis’ petition for placement, Mrs. Leonelli was no longer G.R.’s grandparent and the trial court was therefore not required to consider her for placement under 31-34-4-2(a) or any other CHINS statute. Mr. Leonelli was not a grandparent to G.R. under the CHINS statutes because he had never been her blood or adoptive relative."
Bobby Greeno v. State of Indiana - "The Fourth Amendment permits a police officer, without any reasonable suspicion of any wrongdoing, to approach a citizen to ask questions; however, that citizen remains free to ignore the questions and walk away. Accordingly, when a citizen in such a circumstance walks away from the officer, the officer must have reasonable suspicion a crime is, was, or is about to occur prior to yelling “stop” and chasing the citizen. Because the officer had no reasonable suspicion when he yelled for Greeno to stop and then chased after Greeno, his warrantless search of Greeno was improper. We therefore reverse the denial of Greeno’s motion to suppress."
Dreibelbiss Title Company, Inc. v. Morequity, Inc. - "Dreibelbiss Title Company (“Dreibelbiss”) appeals a judgment against it for breach of a title insurance policy it issued to MorEquity (“Lender”), a mortgage lender. The trial court properly found Dreibelbiss failed to insure that Lender’s mortgage would be a first lien on the real estate that secured the mortgage, and the damages the court awarded were supported by the evidence. * * * At the time of the foreclosure the Lender held a lien for $131,552.99, and after the Bank’s lien was satisfied there was nothing left to satisfy any part of the Lender’s lien. We cannot say the trial court erred in finding the Lender was damaged in that amount. We accordingly affirm."
NFP civil opinions today (6):
Harold Grubbs and Ima Jean Grubbs v. Holiday Inn Franchising, Inc. (NFP) - "Harold and Ima Jean Grubbs (hereinafter “Grubbs”) appeal a judgment against them on a promissory note, arguing there was no consideration for the note or, in the alternative, there was a failure of consideration. Because Grubbs received consideration in exchange for the note, we affirm." From the dissent: "In sum, the admissible parol evidence leads to the conclusion that the promissory note was separate and apart from the Agreement and was given in exchange for a fully financed, operating hotel with an exclusive license. Because Holiday Inn provided none of these things, consideration for the promissory note failed and, therefore, the trial court’s judgment was contrary to law."
Chrystal M. Finklea v. Dora J. Bennett (NFP) - "The jury was in the best position to resolve conflicts in the evidence regarding medical expenses, lost time, pain and suffering, and inability to function as a whole person, and to assess damages appropriately. The trial court did not err in denying Finklea’s motion to correct error."
Jeffrey A. Langbehn, et al. v. Michael J. Bogese, Jr., et al. (NFP) - a complicated dispute involving the Lake County Solid Waste Management District.
Julie Moore Walker, et al. v. James Thad Martin, et al. (NFP) - Wrongful death action. "Hence, it is apparent that the three parties—Wood, LaFountaine, and Martin—were in business for individual commercial gain. And we cannot agree with the Moore’s contention that Wood was engaged in a joint venture with Martin based on nothing more than Martin’s status as an employee or independent contractor of LaFountaine. Thus, the Moores may not successfully claim that Wood may be held liable for Martin’s conduct under a joint venture theory."
Kerry L. Manworren v. Abby M. (Manworren) Courts (NFP) - "Kerry Manworren appeals the order that he pay $136 per week in child support. He claims the court deviated from the support amount that would result from application of the Child Support Guidelines ($90), but did not enter the findings required by Ind. Child Support Rule 3 to justify such a deviation. The court did not enter findings supporting a deviation, and Kerry’s ex-wife, Abby Manworren Courts, concedes application of the Guidelines to the facts properly found by the trial court results in a $90 support obligation. We must therefore reverse and remand."
Mary McWhirter, Ronald Ryker and Carl McWhirter v. Marion County Department of Child Services (NFP) - termination, affirmed. "We agree that poverty alone does not show unfitness. That does not mean, however, that poverty which causes a parent to neglect a child or expose the child to danger cannot be considered by a trial court in determining whether to terminate parental rights. Here, the evidence presented demonstrates that the decision to terminate parental rights was not based upon the Parents’ poverty, but upon their neglect of their children coupled with their failure to progress sufficiently to allow the children to return. In short, we cannot say that the trial court’s decision was clearly erroneous."
NFP criminal opinions today (6) [Access to Cases]:
Jeremy Southwood v. State of Indiana (NFP)
Anthony Wallace v. State of Indiana (NFP)
Jacob R. Patterson v. State of Indiana (NFP)
Sonny Hoskins v. State of Indiana (NFP)
Jacob L. Johnson v. State of Indiana (NFP)
William Beaver v. Darlene Beaver (NFP)
Posted by Marcia Oddi on February 27, 2007 11:45 AM
Posted to Ind. App.Ct. Decisions