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Tuesday, April 10, 2007
Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)
For publication opinions today (1):
Shane Allen Blasius v. Stephen Earnest Wilhoff, Jr. and Heidi Ann Wilhoff - "The trial court awarded Stephen E. and Heidi A. Wilhoff (the Wilhoffs) custody of A.B. Shane A. Blasius, A.B.’s biological father, now appeals, presenting the following restated issue for review: Did the trial court abuse its discretion by awarding the Wilhoffs custody of A.B.? We affirm. The factual and procedural postures of this case are unique." This case deals with the putative father registry.
NFP civil opinions today (2):
Steven T. Gerber v. Indiana Department of Natural Resources (NFP) - "The Indiana Department of Natural Resources (the DNR) terminated Steven T. Gerber’s employment as a conservation officer with the DNR. Gerber was provided with a predeprivation hearing, a full evidentiary hearing before an administrative-law-judge panel (the ALJ panel), and an appeal before the Natural Resources Commission (the Commission). At each stage of the administrative review process, the decision to terminate Gerber was upheld. Thereafter, Gerber sought judicial review of the agency action. The court affirmed Gerber’s termination, and Gerber now appeals, claiming the Commission’s decision was arbitrary and capricious because the DNR failed to comply with its own procedures relating to employee discipline. We affirm. * * *
There is a fundamental problem with Gerber’s novel appellate argument – it was not raised below. As reflected in Gerber’s judicial review brief, he consistently argued to the judicial review court that, with respect to the DNR’s failure to follow SOP, his constitutional rights to due process had been violated. * * * Likely because his due process argument failed below, Gerber now attempts to wholly recast the issue. This belated attempt to effectively raise a new issue is improper and, therefore, the issue is waived."
David L. Howard v. U.S. Steel Corporation (NFP) is a 19-page opinion, including a 2-page dissent. Judge Sharpnack writes for the majority:
David Howard appeals the trial court’s grant of summary judgment to U.S. Steel. Howard raises two issues, which we revise and restate as whether the trial court erred by granting U.S. Steel’s motion for summary judgment. Additionally, U.S. Steel raises one issue, which we restate as whether U.S. Steel is entitled to receive appellate attorney fees due to Howard’s substantive and procedural bad faith. We affirm. * * *NFP criminal opinions today (8):KIRSCH, J. concurs in part and dissents in part with separate opinion:
Going in disguise by means of one or more satellite and other invasive technologies and fix-focusing such technologies upon the appellant ad hominem? Invoking the doctrine of res ipsa loquitor to disguise the invasion of the appellant’s privacy? Using invasive technology to lower the appellant in the estimation of his family, friends and society by making him the scapegoat, shill or victim of no resort? Knowing that some device, implant scheme, or artifice enables racially or otherwise invidiously select persons to receive transmitted data and conspiring to exclude the appellant from such transmitted data and invade his privacy, again, ad hominem? Knocking the appellant unconscious while he drove his automobile by using invasive technology?
If these are not the makings of a frivolous lawsuit, I do not know what a frivolous lawsuit is. If, as I believe, they constitute a frivolous lawsuit, then the appeal from the summary judgment dismissing that lawsuit is equally frivolous. I would grant U.S. Steel Corporation’s request for appellate attorney fees. Doing so reimburses the appellee for the substantial expenses it has incurred in defending this appeal and discourages the appellant and others from bringing such claims in the future.
I concur in the decision of the majority to affirm the summary judgment, but I respectfully dissent from its decision to deny appellate attorney fees.
Brian M. Maxwell v. State of Indiana (NFP)
Richard A. Mitchell v. State of Indiana (NFP)
Robert E. Coyle v. State of Indiana (NFP)
Jonte Laron Reid v. State of Indiana (NFP)
Brian C. Cookson v. State of Indiana (NFP)
Richard Fox v. State of Indiana (NFP)
Curtis Tyrone Love v. State of Indiana (NFP)
Joseph Love v. State of Indiana (NFP)
Posted by Marcia Oddi on April 10, 2007 01:17 PM
Posted to Ind. App.Ct. Decisions