« Ind. Courts - "Republican enters Delaware Circuit Court 3 race" | Main | Ind. Decisions - 7th Circuit "on the warpath today" »
Wednesday, February 20, 2008
Ind. Decisions - Court of Appeals issues 6 today (and 15 NFP)
For publication opinions today (6):
Mark Liddy v. Kathleen Liddy - "We find that a party opposing emancipation pursuant to Indiana Code § 31-16-6-6(a)(2) bears the burden of proving incapacitation. However, there is no indication that the trial court improperly allocated this burden in this case and the court did not err in deeming A.L. incapacitated. Further, the trial court did not err in its custody determination or calculation of child support. Affirmed."
In Brenda Spar v. Jin S. Cha, M.D., a 13-page, 2-1 opinion, Judge May writes:
Brenda Spar brought a malpractice action against Dr. Jin S. Cha, alleging he was negligent in treating her and in failing to obtain her informed consent. The jury rendered a verdict for Dr. Cha, from which Spar now appeals. Concluding Dr. Cha should not have been permitted to assert the defense of incurred risk or introduce evidence of Spar’s consent to prior unrelated surgeries, we reverse and remand for a new trial. * * *In Lisa R. Bigley v. MSD of Wayne Township Schools, a 15-page opinion, Judge Crone writes:CRONE, J., concurring.
DARDEN, J., dissenting with separate opinion. (that begins) I respectfully dissent with respect to the majority’s conclusion that the defense of incurred risk is not available to a physician facing a claim of negligent treatment; accordingly, I would also hold that evidence of Spar’s consent to previous surgeries was relevant to such a defense and, therefore, admissible.
Lisa R. Bigley, as a taxpayer within the Metropolitan School District (“MSD”) of Wayne Township, and for all other similarly-situated citizens and taxpayers (“the Taxpayers”), appeals the order granting attorney’s fees pursuant to Indiana Trial Rule 65(C) to MSD of Wayne Township Schools, acting by and through its School Board (“the Board”). On cross-appeal, the Board challenges the denial of a portion of its claim for attorney’s fees and requests appellate attorney’s fees. We affirm and remand with instructions.In Manda Hill v. Michael Bolinger, a 6-page opinion, Sr. Judge Hoffman writes:
Plaintiff-Appellant Manda Hill appeals the trial court’s grant of summary judgment in favor of Defendant-Appellee Michael Bolinger in Hill’s legal malpractice action against Bolinger. We affirm.In Derrick Anderson v. State of Indiana , an 8-page opinion, Judge Vaidik writes:The sole issue for our review is whether the trial court erred in granting summary judgment in favor of Bolinger. Bolinger represented Manda in the dissolution of her marriage to Dean Hill. * * *
Because we would not have reversed the dissolution court, we find that Manda has failed to establish the causation element for a case of attorney malpractice. Accordingly, the trial court did not err in granting Bolinger’s summary judgment motion.
Derrick Anderson appeals his conviction for Class B misdemeanor disorderly conduct. Specifically, he contends that because his expressions to the responding police officers were protected political speech under Article I, Section 9 of the Indiana Constitution, the evidence is insufficient to support his conviction. Because we conclude that Anderson’s expressions were not political speech and that they constituted an abuse of his right to speak, he is subject to accountability under Section 9. In addition, we conclude that the evidence is sufficient to support Anderson’s conviction. We therefore affirm.In Bruce Wayne St. Clair, Jr. v. State of Indiana , an 8-page, 2-1 opinion, Judge May writes:
Bruce Wayne St. Clair, Jr. appeals the denial of his petition for leave to file a belated appeal. The State opposed St. Clair’s petition on the ground St. Clair had waived his right to a direct appeal by entering a plea agreement with a fixed plea. The trial court summarily denied St. Clair’s petition. Finding St. Clair had an open plea and has met the requirements of Post-Conviction Rule 2, we reverse and remand. * * *NFP civil opinions today (7):As the petition was filed only one day late and was apparently accepted by the clerk, we cannot say St. Clair should have realized anything was amiss. His petition for permission to file a belated appeal was filed shortly after appellate counsel was appointed. Therefore, we conclude St. Clair has met his burden of demonstrating he was not at fault and was diligent in requesting relief, and we reverse the denial of his petition. Moreover, it is apparent from the record that St. Clair did not receive the benefit of his bargain. In the interest of judicial economy, we remand for resentencing. On remand, St. Clair shall have the opportunity to argue for a lesser sentence in accordance with his open plea agreement.
KIRSCH, J., concurs.
RILEY, J., dissenting with separate opinion. (which concludes) Thus, it is clear from the record that St. Clair pled guilty to a fixed term plea agreement that set forth a specific sentence recommendation. The trial court accepted the plea agreement and followed its terms. At the sentencing hearing, St. Clair waived all claims that could be raised on direct appeal. The trial court properly denied his motion to bring a belated appeal and, therefore, I would affirm the decision of the trial court.
Antoinea Bowman v. Lake County Div. of Family & Children (NFP)
Michael Page v. Annette Hahn (NFP)
Timothy E. Wellington v. Asset Acceptance, LLC (NFP) - "Here, Wellington provided his creditor with a post office box address as his residential address. This was his customary and practical method of collecting his mail because he frequently traveled between Indiana and Florida. Apparently with Wellington’s permission, his mother retrieved mail from the post office box. She signed the certified mail receipt at issue. Wellington has never contended that the post office box was an incorrect address, that he did not routinely receive his mail there, or that his mother lacked permission to accept mail and deliver it to him. In light of the evidence tending to show that Wellington received actual notice, the trial court did not abuse its discretion by denying Wellington relief from the judgment."
Stephanie Bailey v. Lewis Mann (NFP)
Brian S. Entwistle v. James Rogan (NFP)
NFP criminal opinions today (8):
Tony Thomas v. State of Indiana (NFP)
John W. Ferguson v. State of Indiana (NFP)
Braunell Mackey v. State of Indiana (NFP)
Casey O. Macon v. State of Indiana (NFP)
Robert Gunnell v. State of Indiana (NFP)
Charles A. Harris v. State of Indiana (NFP)
Leslie Jerome Johnson v. State of Indiana (NFP)
Robert Lee Shorter v. State of Indiana (NFP)
Posted by Marcia Oddi on February 20, 2008 01:44 PM
Posted to Ind. App.Ct. Decisions