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Friday, April 11, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In AGS Capital Corp., Inc., et. al. v. Product Action International, LLC, a 42-page, 2-1 opinion on an interlocutory appeal re the trial court’s grant of preliminary injunction to Product Action International, LLC, Judge bailey concludes:

In sum, we hold that IUTSA does not preempt a civil RICO claim because such a claim is an additional punishment made available by our General Assembly for particular schematic violations of Indiana’s criminal law. Product Action presented a prima facie case under IUTSA and RICO, supporting the trial court’s imposition of a preliminary injunction. We also affirm the trial court’s alter ego determination as to AGS and Fast Tek. While the majority of the terms of the preliminary injunction are not overbroad, the provision prohibiting the participation of AGS, Symons and Weaver in the operation of Fast Tek is overbroad. Accordingly, we reverse that particular provision of the preliminary injunction and affirm the remaining provisions. We reverse the award of attorney’s fees to Product Action as the prevailing party has yet to be determined by a trial on the merits. Finally, the Appellants have not carried their burden to establish that the injunction bond is inadequate. Affirmed in part, reversed in part, and remanded for further proceedings.

BAKER, C.J., concurs.
VAIDIK, J., concurs in part and dissents in part with opinion.

Morgan County Hospital, Richard J. Eisenhut, M.D., Unity Physicians, et al v. Maria Upham, et al - "Morgan County Hospital, Dr. Richard J. Eisenhut, Unity Physicians, Kendrick Family Practice, and Dr. Donald Baird (collectively Appellants) appeal the trial court’s denial of their motions for summary judgment on Maria Upham’s claims relating to the death of her husband Wilbur A. Upham. Appellants raise the following restated issue: Did the trial court properly deny Appellants’ motions for summary judgment? We affirm. * * *

"Appellants argue that the trial court erred in denying their motions for summary judgment. Appellants specifically contend that Upham’s action against them is subject to judicial estoppel because Upham did not disclose this action as an asset in her bankruptcy proceeding."

In Eula Jackson v. IFSSA & Indiana Department of Child Services, a 16-page opinion, Judge Vaidik writes:

Eula Jackson appeals the trial court’s dismissal of her petition for judicial review, which challenged the Indiana Family and Social Services Administration’s (“FSSA”) revocation of her child care home license, for failing to timely comply with the court’s order to make a more definite statement pursuant to Indiana Trial Rule 12(E). Because dismissal of a case for noncompliance with Trial Rule 12(E) is a harsh penalty that should be used only as a last resort and the facts of this case do not merit such a penalty, we conclude that the trial court abused its discretion in dismissing Jackson’s petition for judicial review. We also find error because the trial court did not hold a hearing before dismissing this case. In addition, because a relevant law changed after the FSSA revoked Jackson’s child care home license but before final disposition of Jackson’s petition for judicial review and the new provision may control the outcome in this case, the new provision applies to Jackson and we order the trial court to remand this case to the FSSA with directions for that agency to conduct further factfinding on the issue of whether the substantiation of abuse against Jackson should be reversed. Finally, because the trial court dissolved its previously entered stay when it dismissed this case and we conclude that the trial court abused its discretion in dismissing this case, we reinstate the stay during the pendency of any further proceedings in this case.
NFP civil opinions today (3):

In the Matter of A.G. & M.G., and M.G., Father v. Hamilton County Dept. of Child Services (NFP) - Appellant-Respondent M.G. (“Father”) appeals the trial court’s denial of his Motion to Dismiss a petition by Hamilton County Department of Child Services (“HCDCS”) alleging his children, A.G. and M.G., to be children in need of services (“CHINS”). Father contends that the trial court lacks subject matter jurisdiction over the pending matters because it failed to conduct a fact-finding hearing within the statutorily prescribed time limitations set forth in Indiana Code section 31-34-11-1 (2006). Concluding that the trial court lacked subject matter jurisdiction, we reverse."

In Warren P. Thayer, Jr. v. Joan C. Thayer (NFP), a 12-page, 2-1 opinion, Judge Robb writes:

Warren Thayer appeals the trial court’s order requiring him to pay his ex-wife, Joan Thayer, half of the value of their marital residence pursuant to the terms of an antenuptial agreement. On appeal, Warren raises one issue, which we restate as whether the trial court properly concluded Joan was entitled to half of the value of the marital residence. Concluding the trial court’s decision to award half of the value of the marital residence to Joan was proper, we affirm. * * *

MATHIAS, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [that concludes] I would reverse and apportion the marital residence consistent with the views expressed in this separate opinion.

In Cynthia Miller v. Mark D. Bousman (NFP). an 11-page, 2-1 opinion, Judge Robb writes:
Cynthia Miller appeals the trial court’s order granting Mark Bousman, Miller’s ex-husband, relief from judgment. On appeal, Miller raises three issues, which we consolidate and restate as whether the trial court properly granted Bousman relief from judgment. We reverse and remand, concluding the trial court improperly granted Bousman relief from judgment. * * *

Reversed and remanded.

MATHIAS, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [which begins] I believe the trial court was correct in granting relief under Trial Rule 60(B)(8) and therefore respectfully dissent from the decision to reverse that judgment.

NFP criminal opinions today (9):

Robert Oldham v. State of Indiana (NFP)

Joseph B. Tague v. State of Indiana (NFP)

Desiree Munz v. State of Indiana (NFP)

Jose Tinder v. State of Indiana (NFP)

Aljonon Duvall Coleman v. State of Indiana (NFP)

Andrea Amore v. State of Indiana (NFP)

Stephen L. Bailey v. State of Indiana (NFP)

Rick Lee Enis v. State of Indiana (NFP)

Keith Billingsley v. State of Indiana (NFP)

Posted by Marcia Oddi on April 11, 2008 01:24 PM
Posted to Ind. App.Ct. Decisions