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Thursday, October 23, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In Anne L. Hickman v. State of Indiana , a 12-page opinion, the issue was whether the Department of Correction had a legal obligation to pay Hickman for unused vacation days upon her termination from employment under contract law and the Indiana Wage Claim Statute. Judge Brown concludes "no," citing Mitchell v. Universal Solution (COA, 2006) and concluding:

The same reasoning applies in the present case, and we hold that, because Hickman accrued vacation hours under other provisions of the Indiana Administrative Code, she is estopped from arguing that 31 Ind. Admin. Code 1-10-3(a) is unenforceable.
In Paul L. Mishler v. State of Indiana, a 17-page opinion, Chief Judge Baker wrties:
Appellant-defendant Paul L. Mishler appeals his conviction for two counts of Child Molesting, a class A felony, claiming that the trial court erred in admitting the child victim’s pretrial statements and videotaped interview into evidence at trial. Mishler also contends that the evidence was insufficient to support the convictions and that the fifty-year aggregate sentence was inappropriate in light of the nature of the offenses and his character. We conclude that the victim’s statements and interview were properly admitted into evidence and find that the evidence was sufficient to support the convictions. However, we also conclude that Mishler’s sentence is inappropriate. Therefore, we affirm in part, reverse in part, and remand with instructions to revise Mishler’s sentence to an aggregate thirty-eight-year term of incarceration.
In LHT Capital, LLC v. Indiana Horse Racing Commission, et al, a 9-page opinion on rehearing, Judge Brown writes:
LHT Capital, LLC (“LHT”) petitions for rehearing of a published opinion in which we affirmed the trial court’s grant of a motion to dismiss for lack of subject matter jurisdiction. LHT Capital v. Ind. Horse Racing Comm., 891 N.E.2d 646 (Ind. Ct. App. 2008). We held that LHT had failed to exhaust its administrative remedies by failing to raise the constitutionality and legality of 71 Ind. Admin. Code § 11-1-13(d) (“Emergency Rule”) before the Commission and that LHT’s failure to exhaust its administrative remedies was not excused based upon futility or the fact that LHT was arguing facial invalidity and unconstitutionality.

In its petition for rehearing, LHT does not appear to challenge the holding that it failed to exhaust its administrative remedies. Rather, LHT argues that the reasoning in the opinion conflicts with Indiana Supreme Court precedent regarding the exceptions to the exhaustion of administrative remedies requirement. LHT’s arguments are incorrect.

NFP civil opinions today (6):

Bruce Herdt, et al v. City of Jeffersonville, Indiana, et al (NFP) - "As the Remonstrators’ arguments are either reassertions of their earlier positions or are based on a misunderstanding of our opinion, the petition for rehearing is denied. "

In the Matter of the Adoption of D.J.E. and M.N.E. v. David and Mary Speer (NFP) - "Espinoza alleges that the trial court erred in finding that her consent to the adoption was unnecessary under Indiana Code section 31-19-9-8 because she had abandoned the twins and had failed to support them. Finding no error, we affirm the judgment of the trial court. "

David Bradley and Cynthia Sue Drawbaugh v. The Methodist Hospital, Inc. and Dr. Paul J. Stanish (NFP) - " David Drawbaugh and Cynthia Drawbaugh appeal the trial court’s denial of their motion to correct error and / or their motion to set aside dismissal following the trial court’s order dismissing their complaint for medical malpractice against The Methodist Hospital, Inc. (the “Hospital”), Dr. Paul Stanish, and Jim Atterholt." Affirmed.

Shane Beal, et al. v. Edwin Blinn, Jr. (NFP) - " In this interlocutory appeal, Shane Beal appeals the trial court’s denial of his motion to dismiss a complaint filed by Edwin Blinn, Jr. Beal raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying his motion to dismiss. We affirm."

In Re: Protective Order of Donald L. Campbell v. D.S. (NFP) - "Appellant-respondent Donald L. Campbell appeals the trial court’s issuance of a protective order against him. Specifically, Campbell argues that the trial court erred in granting the protective order in favor of appellee-petitioner, Charles Scott—the seventeen- year-old victim’s father—because the victim did not testify at the hearing. Campbell also argues that the trial court erred in considering the allegations against him that were contained in a police report that was not admitted into evidence and that the evidence was insufficient to support the trial court’s determination that Campbell had stalked or harassed the victim. Finally, Campbell argues that even if the protective order was validly issued, the trial court abused its discretion in extending the protective order beyond two years from the issuance of the original order. Finding no error, we affirm the judgment of the trial court. "

John Anthony Malan v. Melissa Malan (NFP) - " Malan has failed to advance his arguments with cogent reasoning or citations to relevant authority and the record. We find the argument section of his brief incoherent, and addressing his claims on the merits would require us to make and advance his arguments for him. Accordingly, we are compelled to dismiss Malan’s appeal. "

NFP criminal opinions today (7):

Marcus J. Perry v. State of Indiana (NFP)

Zachariah James v. State of Indiana (NFP)

D'Andre Griffin v. State of Indiana (NFP)

Michael Haley v. State of Indiana (NFP)

Johan Doeden v. State of Indiana (NFP)

Ronald Eugene Batenich v. State of Indiana (NFP)

Nelson J. Marks v. State of Indiana (NFP)

Posted by Marcia Oddi on October 23, 2008 12:51 PM
Posted to Ind. App.Ct. Decisions