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Friday, June 27, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)

For publication opinions today (4):

Bobby Robinson a/k/a Steven Smith v. State of Indiana - "We conclude that the trial court did not abuse its discretion in admitting evidence collected following Robinson’s arrest, as it was supported by probable cause. Moreover, we reject Robinson’s constitutional challenges to Indiana Code section 35-48-4-6(b)(2)(B) for the reasons cited by this court in Manigault, 881 N.E.2d at 687-90."

Term. of Parent-Child Rel. of L.B. and L.C.; Lanny B. v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. - "Based on the record before us, we cannot say that the juvenile court’s termination of Father’s parental rights to L.C. and L.B. was clearly erroneous. We therefore affirm the juvenile court’s judgment."

Travon E. Boyd v. State of Indiana - "Travon Boyd appeals his conviction for domestic battery as a class D felony.1 Boyd raises two issues, which we revise and restate as: I. Whether the domestic battery statute is unconstitutionally vague as applied in this case; and II. Whether the evidence is sufficient to sustain his conviction for domestic battery as a class D felony. We affirm."

In Surjit Singh, M.D. v. Diane Lyday, Betsy Calderhead, and Cara Nichols, a 32-page opinion, Judge Robb concludes:

We conclude the trial court improperly denied Singh’s motion for judgment on the evidence on the Patients’ claims for medical malpractice and gross negligence. We therefore remand with instructions that the trial court enter judgment on the evidence in favor of Singh on these claims. We also conclude the trial court abused its discretion in granting a new trial based on its decisions to exclude evidence at trial. We therefore remand with instructions that the trial court reinstate the jury’s verdict in favor of Singh on the Patients’ claim for battery. The issue of newly discovered evidence raised in the Patients’ motion to correct errors, which the trial court may address on remand, does not affect the insufficiency of the evidence presented at trial to support the Patients’ claims of medical malpractice and gross negligence. See, supra, Part II; see also, supra, note 13. Therefore, if the trial court chooses to grant the Patients’ motion to correct error based on their claim of newly discovered evidence, it should order a new trial on only their battery claim.
NFP civil opinions today (7):

William G. Hunert v. Sherry M. Hunert (NFP) - "quently, the district court again denied Groves’ Motion
to Suppress. We affirm. * * * Concluding that neither the trial court’s determination of William’s income nor its apportionment of his daughter’s college expenses is clearly erroneous, we affirm."

Bedford Ear, Nose & Throat Clinic, Inc. v. Review Board of the Indiana Dept. of Workforce Development, and Brandie A. Gilson (NFP) - "Appellant Bedford Ear, Nose & Throat Clinic, Inc. (“Clinic”) appeals a ruling of the Review Board of the Indiana Department of Workforce Development (“Review Board”) affirming the Administrative Law Judge’s (“ALJ”) determination that Brandie Gilson voluntarily left her employment with the Clinic with good cause. We affirm. * * *

"In light of the circumstances surrounding Gilson’s continued employment at the Clinic, we conclude that the sexual comments and sexual advances made by Dr. Samaddar, as found by the Review Board, are such that would impel a reasonably prudent person to terminate their employment under similar circumstances and that Gilson’s reasons for terminating her employment were objectively related to her employment as a receptionist for Dr. Samaddar’s clinic. Furthermore, to the extent that the Clinic claims that Gilson lacked good cause to voluntarily terminate her employment because she failed to notify her employer of her dissatisfaction with her working conditions, we conclude that Indiana law has no such requirement for establishing good cause. The judgment of the Review Board is affirmed."

Debra L. Guyer (n/k/a Debra L. Stover) v. Stephen Guyer (NFP) - "Debra Guyer appeals the trial court’s judgment awarding her $24,880 relating to Steven Guyer’s failure to pay a portion of his son’s college expenses pursuant to the terms of a dissolution decree. The trial court’s judgment, though technically favorable to Debra, effectively granted Steven relief from judgment under Trial Rule 60(B)(8). We conclude that the trial court’s grant was an abuse of discretion because, based on the evidence presented, the trial court could not have concluded that Steven filed his motion for relief within a reasonable time."

Luiz Alves v. Old National Bank, f/k/a St. Joseph Capital Bank (NFP) - "Alves therefore could not rest upon his mere allegations, but was required to designate evidence that he gave the required written notice to Old National, that Old National owed him a duty and that it caused the termination of his employment and/or his removal from MEG. To the contrary, Alves asserted without clear evidentiary support that he gave constructive notice of his claim to Old National. His designated evidence established only that Old National loaned him money and that he agreed to repay it. No duty arose and therefore no duty was breached. For these reasons, we conclude that the entry of summary judgment was proper."

In Lawrence Gunkel and Judy Lynn Gunkel v. Renovations, Inc. by Wagler and Menno D. Wagler, et al (NFP), a 30-page opinion, Judge Kirsch's dissent begins:

Multiple motions. Multiple hearings. Multiple judges. Parties admitting they entered into a contract, then denying that they entered into a contract. Bifurcated trials. Inconsistent positions. Inconsistent rulings. Summary judgments granted. Summary judgments denied. Summary judgments granted but not followed. Three appeals. Eight years and still unresolved. Attorney fees in excess of the amount in controversy.

It will soon be ten years since the Gunkels entered into a contract for construction of their new home. During this decade, they have not been served well by either their contractors or our legal system. Were Dante Alighieri alive today, this case would provide him with the material to add a tenth circle to his Inferno and call it “Litigation Hell.”

This is not a difficult case. It involves one set of homeowners, two contractors and one new house that leaked. New houses should not leak. The leaks were the fault of one or both of the contractors. The contractor or contractors that were at fault should fix the leaks or pay to have them fixed and pay for the damage that the leaks caused to the other property of the homeowners. To the extent that a contractor failed to perform the work set forth in contract, the contractor is liable for breach of contract. To the extent a contractor damaged other property of the homeowners during the performance of its work, the contractor is liable for negligence. Determine the relationship of the parties. Determine whether the contractors failed to perform the work as agreed. If so, determine the amount of the damages. Enter judgment. Next case.

In re the Marriage of Jeffrey Lee and Monica Lee (NFP) - "With regard to the valuation and division of the marital estate, the evidence of record supports the findings of the trial court and the findings support the judgment. As such, the property distribution order is not clearly erroneous. Likewise, the child support order is not clearly erroneous. Affirmed."

Term. of Parent-Child Rel. of L.B., L.T., JC.C., and JS.C.; and S.C. (NFP) - "We therefore affirm the juvenile court’s judgment terminating Mother’s parental rights to L.C., L.B., Ja.C., Jas.C. and T.C."

NFP criminal opinions today (8):

State of Indiana v. Kelvin Calmes (NFP) - "The State of Indiana appeals the trial court’s grant of a motion to suppress filed by Kelvin Calmes. The State raises one issue, which we revise and restate as whether the trial court erred when it granted the motion to suppress. We affirm."

William T. Spurlock v. State of Indiana (NFP)

Cicero Offerle v. State of Indiana (NFP)

Eric B. Bannister v. State of Indiana (NFP)

Gary Lindsey v. State of Indiana (NFP)

Randall Thomas v. State of Indiana (NFP)

Steven J. Robbins v. State of Indiana (NFP)

Anissa Tyler v. State of Indiana (NFP)

Posted by Marcia Oddi on June 27, 2008 12:40 PM
Posted to Ind. App.Ct. Decisions