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Thursday, December 27, 2007

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

In Hopper Resources Inc., Construction Div. v. Wendell Webster , a 13-page opinion, Judge Darden writes:

Hopper Resources, Inc., Construction Division (“Hopper”), appeals the trial court’s order denying judgment to Hopper on its claim asserted against Wendell Webster in a complaint seeking the foreclosure of a mechanic’s lien and additional damages. We affirm.
In Joyce Carlson, et al v. Ernest and Anita Warren , a 17-page opinion, Judge Vaidik writes:
Joyce Carlson (“Carlson”), the administrator of Noel Mangus’s (“Mangus”) estate, and Elizabeth Alderson (“Alderson”), Mangus’s sister, challenge Mangus’s inter vivos conveyance of his farmland to his caretakers, Ernest and Anita Warren (the “Warrens” or “Ernest” or “Anita,” respectively). We find that, by designating deposition testimony in support of their motion for summary judgment that relates to the deed transfer at issue in this case, Carlson and Alderson waived the applicability of Indiana Code § 34-45-2-4 (“Dead Man’s Statute”). Further, the Warrens’ attorney’s testimony regarding his preparation of the warranty deed in question was relevant to show that he executed the deed in conformity with his habit and was therefore admissible. Finally, we conclude that summary judgment in favor of the Warrens was appropriate because Carlson and Alderson failed to show that the Warrens and Mangus had a confidential relationship by operation of law and otherwise failed to meet their initial burdens of proof on their tort claims against the Warrens. We affirm.
In In the Matter of L.H. v. State of Indiana , an 11-page, 2-1 opinion, Judge Robb writes:
L.H. was found by the juvenile court to have committed child molesting, a Class C felony if committed by an adult, and battery, a Class B misdemeanor if committed by an adult. L.H. appeals the true findings, contending that he was denied a fair trial when the juvenile court, at the State’s request and over his objection, incorporated testimony, evidence, and exhibits from a child hearsay hearing into the fact-finding hearing. Concluding that the juvenile court improperly incorporated the record of the child hearsay hearing, we reverse and remand. * * *

BARNES, J., concurs.
KIRSCH, J., dissents with separate opinion. [which begins] I believe that L.H. has failed to show prejudice resulting from the trial court’s incorporation of the evidence from the child hearsay hearing into the fact-finding hearing. In the absence of such prejudice, I believe that the trial court acted within its discretion, and, accordingly, I respectfully dissent.

In Jeannine Porod v. State of Indiana , a 5-page opinion, Judge Najam writes:
Jeannine Porod appeals her conviction for Acquiring Possession of a Legend Drug by Fraud, a Class D felony, following a jury trial. She presents a single issue for our review, namely, whether the State presented sufficient evidence to support her conviction. We affirm. * * *

Porod’s sole contention on appeal is that the State did not present sufficient evidence to prove that Ritalin is a legend drug as defined by statute. * * *

[ILB - The Court cites the definition of legend drug in IC 16-18-2-199, which includes a drug "(2) listed in the Prescription Drug List as: (A) *** Tenth Edition, (1990); and (B) revised in * * * Cumulative Supplement to the Tenth Edition, Number 10 (1990)."]

The publication referred to in subsection (2) is commonly known as the “Orange Book.” The list of drugs contained in the Orange Book includes Ritalin.

During trial, the State presented testimony that Ritalin is a legend drug, but the State did not introduce into evidence the Orange Book or a copy of 21 U.S.C. § 353(b)(1). On appeal, Porod argues that had the State “provided the judge with a copy of I.C. 16-18-2-199 and 21 U.S.C. [§] 353(b)[,]” that would have been sufficient to prove the legend drug element. Brief of Appellant at 8. In the alternative, Porod contends, the State “could have produced, and requested the judge take judicial notice of, [the Orange Book].” Id. But, Porod asserts, because the State did not pursue either manner of proof during trial, the evidence is insufficient to support her conviction. We cannot agree. * * *

Here, the statute defining “legend drug” incorporates by reference 21 U.S.C. § 353(b)(1), which does not include a list of drugs, and the Orange Book, which expressly includes Ritalin in its list of drugs. While not a statute, the Orange Book is promulgated by a federal agency, and we hold that the statute properly incorporates the Orange Book by reference. Because of that incorporation, Ritalin is, as a matter of law, specifically listed as a legend drug under Indiana Code Section 16-1-8-2-199. See White, 316 N.E.2d at 704. Accordingly, here, the trial court need only refer to the statutory definition and determine that Ritalin is a legend drug as a matter of law. See id. at 702; Barnett, 579 N.E.2d at 86. The State presented sufficient evidence to support Porod’s conviction.

[ILB note: Some questions remain for the ILB. IC 16-18-2-199 was enacted in 1993 and has not been amended since. It incorporated the 1990 (10th) edition of the Prescription Drug Product List. A general rule is that a statute cannot incorporate by reference a law or rule of another jurisdiction as it may be amended in the future, it must identify a specific version. So questions unanswered for the ILB because the evidence was not introduced at trial include (1) is Ritalin listed in the 1990 edition? (2) does Ritalin have more than one formulation? (3) where is it stated that the "Orange Book" is the equivalent of the 1990 Prescription Drug Product List?

In Bryon Uylaki v. Town of Griffith, et al , a 6-page opinion, Judge Bradford writes:
Appellant-plaintiff Bryon Uylaki appeals from the trial court’s dismissal of his wrongful termination claim against appellees-defendants the Town of Griffith, Town Councilmen of Griffith, the Department of Public Works, and the Chief Executive Officer, political subdivision of Indiana (collectively, “the Town”). We affirm. * * *

We believe that Uylaki had a fair opportunity to fully litigate the issues, even if he may not have fully exploited that opportunity. We conclude that administrative collateral estoppel applies, and the trial court, therefore, correctly dismissed Uylaki’s claim.

NFP civil opinions today (5):

In Mainsource Bank v. Calvin E. Brenneman, Leo N. Stenz, et al (NFP), a 7-page opinion, Senior Judge Barteau writes:

The sole issue presented for our review in this appeal is whether the trial court erred by entering summary judgment in this cause of action involving liability on personal guaranties for a business loan. * * *

The trial court erred by granting the Appellees’ motion for summary judgment. A genuine issue of material fact exists regarding Unger’s authority to sign for some or all of the Appellees. Resolution of those conflicting facts bears directly on the issue of the validity of the personal guaranties. Therefore, we remand this matter to the trial court for further proceedings consistent with this opinion. Reversed and remanded.

Invol. Term. of Parent-Child Rel. of A.P., M.P., and S.P., and Mary Palmero v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - Similar to yesterday's ruling out of the same court, Judge Sharpnack remands this ruling of a magistrate to Marion Superior Court Judge Moores on the basis that: "Because the record does not establish judicial approval of the magistrate’s findings in this case, we remand to the juvenile court for its consideration and further action consistent with this opinion. We retain jurisdiction of this appeal pending action by the juvenile court."

William R. Pinner v. Patrick S. Skidmore and American Family Insurance Co. (NFP) - Citing IC 34-9-3-3 and Trial Rule 25(A)(1), Judge Sharpnack writes:

Thus, for Pinner to continue his action against Skidmore after Skidmore passed away, Pinner, the court, or Skidmore’s counsel had to move to substitute Skidmore’s personal representatives. Because neither the court, nor the parties, including Pinner, moved to substitute Skidmore’s personal representative, Pinner could not continue his action against Skidmore. Thus, we cannot say that the trial court erred when it dismissed Pinner’s case. See McCalment v. Eli Lilly & Co., 860 N.E.2d 884, 896 (Ind. Ct. App. 2007) (concluding that the trial court did not err by granting defendant’s motion to dismiss). For the foregoing reasons, we affirm the trial court’s grant of Skidmore’s motion to dismiss. Affirmed.
Mark S. Priest v. Denise Priest (NFP) - "The appeal by Mark Priest is hereby dismissed and the judgment of the trial court is in all respects affirmed."

Christina M. Graham v. Terry A. Graham (NFP) - "STATEMENT OF THE CASE. Christina M. Graham (“Mother”) appeals the trial court’s granting of the motion to correct error filed by Terry A. Graham (“Father”). We reverse and remand.

"ISSUE. Whether the trial court abused its discretion in granting Father’s motion to correct error."

NFP criminal opinions today (7):

Bennie A. Williams v. State of Indiana (NFP)

Aaron L. Goldsby v. State of Indiana (NFP)

Timothy Kilbourne v. State of Indiana (NFP)

Freddie Byers v. State of Indiana (NFP)

George Jayne v. State of INdiana (NFP)

Misty R. Evans v. State of Indiana (NFP)

Anthony Taylor v. State of Indiana (NFP)

Posted by Marcia Oddi on December 27, 2007 12:55 PM
Posted to Ind. App.Ct. Decisions