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Tuesday, August 07, 2007
Ind. Decisions - Court of Appeals issues 1 today (and 12 NFP)
For publication opinions today (1):
In Matter of the Paternity of C.M.R., A Child Born Out of Wedlock, a 9-page opinion, Judge Crone writes:
Kari Schenkel brings this interlocutory appeal from the trial court’s order for the genetic testing of her and her two children to determine whether their deceased father, Joseph Miller, is the father of a third child, C.M.R. We vacate and remand.NFP civil opinions today (6):Issue. We raise sua sponte the following dispositive issue: whether the order for genetic testing is void due to a failure to join necessary parties. * * *
On appeal, Schenkel argues for the first time in this proceeding that the paternity action is untimely pursuant to Indiana Code Section 31-14-5-5 * * *
We need not specifically address these assertions, however, because a cursory review of the record reveals that several necessary parties have not been joined in this paternity action. Indiana Code Section 31-14-5-6 provides that “[t]he child, the child’s mother, and each person alleged to be the father are necessary parties to each [paternity] action.” * * *
In sum, we conclude that the order for genetic testing is void due to a failure to join necessary parties. We therefore vacate the order and remand with instructions to determine which of the participants in this paternity action should be joined as parties and to allow those parties to be served and given an opportunity to appear, answer, and defend their interests as appropriate. Vacated and remanded.
Scott and Becky Heckendorf v. Rush-Air, LLC and Michael Karpy (NFP) - - Re judgment on the evidence: "As the trial court properly concluded, Heckendorf failed to establish that the premises were dangerous or that Rush-Air breached a duty of care to him. Therefore, the trial court did not err in granting judgment on the evidence for Rush-Air." Re admission of evidence: "Heckendorf argues that the trial court committed reversible error when it denied the motion to admit Aaron’s deposition transcript. Specifically, Heckendorf contends that the language of Indiana Trial Rule 32(A) expressly provides for the admission of the deposition. * * * [T]he use to which a party may put an adversary’s deposition must be one consistent with the Rules of Evidence. * * * Heckendorf’s brief articulates a series of what he perceives to be “relevant” facts that were stated in Aaron’s deposition. However, these facts were not relevant to Heckendorf’s claim: that Rush-Air breached a duty to Scott. Therefore, the trial court did not abuse its discretion when it denied Heckendorf’s motion to admit the deposition. Affirmed."
In James H. Higgason, Jr. v. Indiana Department of Correction (NFP), a 10-page opinion, Judge Vaidik writes:
Appellant, and veteran pro se litigant, James Higgason, Jr., appeals the trial court’s dismissal of his complaint pursuant to Indiana Code § 34-58-2-1. Higgason presents two issues for our review: (1) whether I.C. § 34-58-2-1 is unconstitutional, and (2) whether “[t]he Indiana General Assembly and the complete Indiana Judiciary are conspiring to suppress and/or quash all state prisoner litigation.” We affirm. * * *NFP criminal opinions today (6):The legislature’s clear intent and purpose for enacting I.C. § 34-58-2-1, and other related statutes, is to prohibit civil actions by excessively litigious offenders, i.e. those who have had three civil complaints dismissed as frivolous, meritless, etc., except in those instances where the offender can demonstrate an immediate danger of serious bodily injury. Contrary to Higgason’s claim, the limitation found in I.C. § 34-58-2-1 is applicable to small claims complaints. In support of his claim that the legislature and judiciary of this State are conspiring to quash prisoner litigation, Higgason provides us with eighteen handwritten pages detailing his personal plight while incarcerated and making unsupported accusations, none of which support his contention that a conspiracy exists. Other than a rambling diatribe, Higgason has not presented us with a cognizable argument. The judgment of the trial court is affirmed.
ROBB, J., concurs
SULLIVAN, Sr. J., concurs in part and dissents in part with separate opinion [which reads] I dissent for the reason that I respectfully disagree with Smith v. Ind. Dep’t of Corr., 853 N.E.2d 127 (Ind. Ct. App. 2006) insofar as it holds that the same considerations that apply to a determination that I.C. § 34-58-1-2 is constitutional also apply to a review of I.C. § 34-58-2-1.Indiana Code §34-58-1-2 requires a determination by the trial court that the proposed civil complaint “(1) is frivolous; (2) is not a claim upon which relief may be granted; or (3) seeks monetary relief from a defendant who is immune from liability for such relief.” Only after such a determination has been made may the proposed complaint be rejected.
With regard to I.C. § 34-58-2-1, however, an arbitrary establishment of three prior unsuccessful law suits dismissed under I.C. § 34-58-1-2 absolutely precludes the filing of a fourth lawsuit unless there is immediate danger of serious bodily injury. This is so no matter how meritorious the current proposed complaint is. For this reason, I find I.C. § 34-58-2-1 to be in serious constitutional question.
Be that as it may, Higgason has not demonstrated or asserted that his instant lawsuit has merit. Therefore, the trial court was within is prerogative to dismiss the complaint on that ground.
Tony Dewayne Spaw v. State of Indiana (NFP)
James Moore v. State of Indiana (NFP)
Antoine D. Hill v. State of Indiana (NFP)
Devin Carter v. State of Indiana (NFP)
Heath Rutheford v. State of Indiana (NFP)
Ronnie Pringle v. State of Indiana (NFP)
Posted by Marcia Oddi on August 7, 2007 02:02 PM
Posted to Ind. App.Ct. Decisions