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Tuesday, November 25, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In RDI/Caesars Riverboat Casino Inc. and M/V Glory of Rome v. Tina Conder, an 18-page opinion, Chief Judge Baker writes:

Here, we must decide whether a riverboat casino that is indefinitely moored to the shore is a “vessel in navigation” for the purpose of the federal Jones Act. 1 We hold that it is not. Appellants-defendants RDI/Caesars Riverboat Casino, Inc., and the M/V Glory of Rome (collectively, Caesars) appeal the trial court’s order granting appellee-plaintiff Tina Conder’s motion for partial summary judgment and denying Caesars’s motion to dismiss Conder’s complaint. Caesars argues that the trial court erred as a matter of law by concluding that an indefinitely moored, dockside casino was a “vessel in navigation” pursuant to the Jones Act and that Conder was a Jones Act Seaman. Finding that the Jones Act does not apply, we reverse in part and remand with instructions to dismiss Conder’s Jones Act claim and for further proceedings on her Sieracki seaman claim. * * *

In sum, the Riverboat has been moored to the dock since 2002. It has had no transportation function since that time. It is joined to the land by a number of cables. It is connected to land-based utilities. Its owners intend that it remain stationary for the foreseeable future. Thus, the Riverboat’s operations are gaming-related, rather than maritime in nature, and that has been the case since 2002. Conder, as a table games dealer for the Casino, is simply not an employee who is regularly—or at all—exposed to “the special hazards and disadvantages to which they who go down to sea in ships are subjected.” McDermott, 498 U.S. at 354. Under these circumstances, we cannot conclude that the Riverboat is a vessel in navigation or that Conder is the type of employee that the Jones Act is intended to cover and protect. We find, therefore, that the trial court erred as a matter of law by granting Conder’s motion for partial summary judgment and denying Caesars’s motion to dismiss the Jones Act count of Conder’s complaint.

In Bernice M. Reedy, b/n/f Mentoria Headdy v. Indiana Family and Social Services Administration, a 10-page opinion, Judge Barnes writes:
Bernice Reedy appeals the trial court’s affirmation of the decision by the Indiana Family and Social Services Administration (“FSSA”) denying Reedy’s request to include her out-of-pocket payments to her nursing facility as an allowable spend-down expense. We reverse.

Issue. Reedy raises one issue, which we restate as whether the trial court properly affirmed the FSSA’s decision not to include Reedy’s nursing facility payments as an allowable spend-down expense. * * *

For these reasons, the FSSA’s determination that Reedy’s nursing facility expenses cannot be credited toward her spend-down is contrary to law. Accordingly, the trial court erred in affirming the FSSA’s decision.

In the Matter of the Paternity of E.C. - " Matthew Cole (“Father”) filed a petition to modify his child support obligation in Johnson Circuit Court due to his incarceration. The trial court denied his petition. Father appeals pro se and argues that his incarceration has resulted in a substantial change in his income, and therefore, he is entitled to a reduction of his child support obligation. We reverse and remand for proceedings consistent with this opinion. * * *

"Because we conclude that Father has established prima facie error, and that the trial court abused its discretion when it denied his motion to modify his child support obligation, we reverse and remand for proceedings consistent with this opinion. "

In Kevin M. Weldon v. Asset Acceptance , a 15-page, 2-1 opinion, Judge Baker writes:

Appellant-defendant Kevin M. Weldon appeals the trial court’s orders denying his motion to vacate an arbitration award and for summary judgment and entering summary judgment in favor of appellee-plaintiff Asset Acceptance, LLC (Asset Acceptance). Finding that Weldon failed to file his motion to vacate within the three-month deadline set forth by the Federal Arbitration Act1 and that under the circumstances presented herein, the trial court was required to confirm the arbitration award, we affirm. * * *

MATHIAS, J., concurs.
BROWN, J., dissents with opinion. [which begins] I respectfully dissent. The majority holds that Weldon waived his argument that the FAA’s three-month time limit does not prevent a party from challenging the validity of the award at any time. The majority then addresses Weldon’s argument, waiver notwithstanding, and concludes that “the arbitrator properly assumed jurisdiction over the arbitration proceedings.” I disagree with the majority’s conclusions that Weldon waived his argument regarding jurisdiction and that Weldon assented to the terms of the credit agreement.

Royal Amos v. State of Indiana - "Royal Amos was convicted after a jury trial of two counts of murder,1 four counts of attempted murder,2 each as a Class A felony, one count of burglary3 as a Class B felony, and one count of carrying a handgun without a license4 as a Class A misdemeanor, and he was sentenced to an aggregate sentence of 271 years executed. He appeals, raising the following issues: I. Whether the trial court abused its discretion when it admitted hearsay statements of one of the victims into evidence based on the present sense impression exception; II. Whether the trial court abused its discretion when it submitted questions to a witness that had been posed by the jury; and III. Whether sufficient evidence was presented to support Amos’s convictions. We affirm."

NFP civil opinions today (1):

Charles W. Marlowe v. Katherine D. Marlowe (NFP) - "Appellant-Respondent Charles W. Marlowe (“Father”) appeals from the trial court’s order determining Father’s college-expense arrearage for his two sons, B.M. and D.M. to be $10,780.50. Father contends that the trial court abused its discretion in imposing a retroactive support order and imposing a 50-50 shared expense standard on all prior college education expenses despite the court’s findings that the Mother’s income accounted for roughly seventy percent of the parties’ net income. We reverse and remand to the trial court with instructions. "

NFP criminal opinions today (8):

Kevin Dean Stanifer v. State of Indiana (NFP)

Melvin Muhammad v. State of Indiana (NFP)

Gregory S. Taylor v. State of Indiana (NFP)

David Kist v. State of Indiana (NFP)

Jason L. Becraft v. State of Indiana (NFP)

Timothy L. Wilson v. State of Indiana (NFP)

Thurman Lee v. State of Indiana (NFP)

Theodore Suel v.State of Indiana (NFP)

Posted by Marcia Oddi on November 25, 2008 12:30 PM
Posted to Ind. App.Ct. Decisions