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Friday, March 16, 2007

Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In Indiana Patient's Compensation Fund v. Eric Butcher and Dorothy Butcher, an 18-page opinion, Judge Barnes writes:

The Indiana Patient’s Compensation Fund (“the Fund”) appeals the trial court’s order of judgment collectively awarding Eric, Dorothy, and Samuel Butcher $3,500,000 for an act of medical malpractice. We reverse and remand. * * *

Conclusion There is no evidence that Dorothy suffered physical injuries as a result of the healthcare providers’ malpractice. We reverse the trial court’s conclusion that Dorothy is entitled to recovery for physical injuries. Neither Eric nor Dorothy was the actual victim of the malpractice, and they may not recover under their own statutory caps. Their total recovery is limited to $1,250,000. We reverse the trial court’s order requiring the Fund to pay Eric and Dorothy $3,500,000 and remand to the trial court for a new order consistent with this opinion. Reversed and remanded.

Carole J.Schuler v. James Graf, et al - "Carole J. Schuler appeals the trial court’s judgment ordering specific performance of a land sale contract executed between Schuler and James and Leanne Graf. We affirm. Issues: 1. Whether the contract for the sale of real estate was sufficiently definite to satisfy the Statute of Frauds. 2. Whether the trial court abused its discretion in ordering specific performance."

In Indiana Patient's Compensation Fund v. Lori and Darrin Winkle a 16-page opinion, Judge Robb writes:

Concluding that Lori and Darrin are not entitled to separate excess damage awards arising from the death of their unborn child, we affirm the trial court’s award of one statutory excess damage award to Lori, and reverse the remainder of the trial court’s order. * * *

Lori is entitled to a statutory cap for her injuries. Because the Winkles’ unborn child is not a “patient” pursuant to the Act and because Lori and Darrin therefore have no one from whom their negligent infliction of emotional distress claims can derive, they are not entitled to separate statutory caps for their emotional damages. The trial court’s order is therefore affirmed as to a single cap to Lori, and reversed as to the remainder. Affirmed in part and reversed in part.

Vernon & Shirley Graves v. John Marvin Johnson, Jr., et al - insurance dispute.

Nausher Sial v. State of Indiana - "Finding that Sial’s attorney was ineffective for failing to advise his client of the penal consequences of pleading guilty, we reverse the judgment of the post-conviction court and remand this proceeding for trial."

Dennis Turner v. State of Indiana - "Turner argues the trial court abused its discretion by admitting evidence obtained after a pretextual traffic stop. The stop of Turner’s vehicle was not reasonable in light of the circumstances and, therefore, violates Article I, Section 11 of the Indiana Constitution. Evidence arising out of the illegal stop, including a videotaped confession, must accordingly be suppressed. We reverse and remand."

NFP civil opinions today (8):

In Louise McCoskey v. Randall & Roberts Funeral Home (NFP), a 7-page opinion, Judge May writes:

Louise McCoskey appeals a judgment requiring her to pay Randall & Roberts Funeral Home a portion of the funeral and burial expenses for Earl Brown. McCoskey raises two issues, of which we need address only one: whether a statement by the trial court judge would give an objective person, knowledgeable of all the circumstances, a reasonable basis for doubting the judge’s impartiality. Because the judge’s comments reasonably could be read to suggest his judgment was clouded by his personal knowledge of one of the parties to the contract at issue, we must reverse and remand for a trial before a new judge.
Karen Johnson-Quick v. Billy D. Sexton and Globe Life and Accident Insurance Company (NFP) - dispute re insurance benificiaries and attorney fees, reversed and remanded.

Flex-N-Gate Corporation v. Town of Veedersburg (NFP) - "In light of the facts before us, we can only conclude that Corporation’s conduct and participation in developing an electrical rate applicable solely to its own operations demonstrates its intent to be bound by those rates and to waive any condition regarding electrical rates as provided for in the Agreement. In addition, Corporation’s failure to take any affirmative steps to show a contrary intent constitutes waiver of the condition in the Agreement. By operation of law, therefore, Corporation waived the electrical rate condition contained in the Agreement. Thus, the trial court properly granted summary judgment in favor of Town."

Priscilla Cessna v. Kenneth E. Buher & Joan Buher (NFP) - "The trial court found and concluded that the Buhers have a prescriptive easement and an implied easement of necessity for the waterline at issue. The trial court denied Cessna’s request for permanent injunction and damages. We affirm."

Clifford Edwin Reske v. Michelle (Reske) Honeycutt (NFP) - custody, affirmed.

Hal-Mark Rental Center, Inc. v. Sentry Select Insurance Company (NFP) - "Here, Hal-Mark’s policy clearly and unambiguously provided that Hal-Mark would not be able to obtain coverage under the False Pretense provision if it 'fail[ed] to obtain, verify and document, prior to the transaction, the other party’s business address, telephone number and drivers license number.' Thus, the policy provided coverage for situations involving false pretense except for when the insured failed to fulfill these requirements. We have held that “one express limitation in coverage does not render [an insurance] policy illusory as a matter of law.” Jones, 635 N.E.2d at 202. Accordingly, we conclude that the trial court’s entry of summary judgment in favor of Sentry was not erroneous. The judgment of the trial court is affirmed."

James Bedree v. Wells Fargo Bank (NFP)

In Paternity of D.S., Robert E. Summerville v. Kimiya S. Brooks (NFP), an 11-page opinion, Judge May writes:

Robert E. Summerville (“Father”) appeals the dismissal of his petition to change custody of his son, D.S., from D.S.’s maternal grandmother, Jessica Brooks, (“Grandmother”) to himself. Father agreed in June of 2002 that Grandmother was de facto custodian and should be given “joint legal and sole physical custody” of D.S. We therefore cannot conclude the court erred by labeling Grandmother de facto custodian. However, the court applied the wrong legal standard for determining whether to modify custody. In this situation, we reverse and remand. * * *

If, as Father argues, Grandmother did not rebut the presumption in his favor, then he should have been given custody of D.S. Accordingly, we must reverse the dismissal of Father’s petition to modify custody and remand for further proceedings, at which Grandmother will have the burden to rebut the presumption favoring Father. Reversed and remanded.

NFP criminal opinions today (9):

James Nuxoll v. State of Indiana (NFP)

Nathan Bickerstaff v. State of Indiana (NFP)

Allen Arnett v. State of Indiana (NFP)

Sabas Blanco v. State of Indiana (NFP)

Andrew Clinton Barker v. State of Indiana (NFP)

Damon A. Collins v. State of Indiana (NFP)

Durand Huggins v. State of Indiana (NFP)

Tinnisha Mitchell v. State of Indiana (NFP)

Michael Robert Rains v. State of Indiana (NFP)

Posted by Marcia Oddi on March 16, 2007 12:01 PM
Posted to Ind. App.Ct. Decisions