The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 25 NFP)

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Wednesday, November 26, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 25 NFP)

For publication opinions today (5):

In Patricia Popovich v. John R. Danielson, M.D. , a 12-page opinion, Judge May writes:

Patricia Popovich appeals the dismissal of her complaint against Dr. John R. Danielson. Because the Medical Malpractice Act governs three of Popovich’s claims, she needed to obtain an opinion from a medical review panel prior to filing her complaint, and the trial court properly determined it lacked jurisdiction over those claims. Popovich’s fourth claim, for fraud, was insufficiently specific for us to determine whether it falls under the Malpractice Act; as such it did not meet the pleading requirement of Trial Rule 9(B). Accordingly, the trial court properly dismissed that portion of her complaint, and we affirm. * * *

Because a medical review panel needed to first review Popovich’s claims of assault and battery, defamation, and “contractual obligation to accurately and correctly report necessary medical findings and observations in medical records,” the trial court properly dismissed them without prejudice. The court also properly dismissed without prejudice her claim of fraud, as that claim was insufficiently specific to meet the requirements of Trial Rule 9(B).

In In Re: The Paternity of A.M.P. , an 8-page opinion, Judge Robb writes:

In this Title IV-D proceeding, the State appeals the trial court’s order granting the State’s motion to correct error. Although the trial court’s order was technically favorable to the State, it contained a provision that prevented the State from withholding additional amounts from the Title IV-D obligor’s paycheck to satisfy an arrearage unless the State successfully moved the trial court to enter an additional order authorizing such withholding. On appeal, the State contends this provision is inconsistent with federal and state laws governing Title IV-D income withholding procedures. Concluding that the State is not statutorily required to seek judicial authorization under such circumstances, we reverse. * * *

We conclude Indiana Code section 31-16-15-2.5(f) does not permit the trial court to limit the State’s authority to increase the weekly withholding amount to satisfy an arrearage. Thus, the State has demonstrated that the trial court’s interpretation of that statute was prima facie error.

Frank P. Barbera v. AIS Services - "Frank P. Barbera, pro se, appeals from the trial court’s judgment confirming an arbitration award in favor of AIS Services, LLC, as assignee of MBNA America, N.A. (“AIS”). Barbera presents a single issue for review: whether the trial court erred when it refused to vacate the arbitration award for insufficient service of process. We reverse."

In Save the Valley, Inc., Thomas and Jae Breitweiser, et al v. David Ferguson, Daveco Farms, et al, a 5-page opinion, Judge Riley writes:

The Residents raise three issues on appeal. However, we address the following dispositive issue: whether the trial court lacked subject matter jurisdiction over a private claim for declaratory and injunctive relief arising from activity regulated by the Indiana Department of Environmental Management (“IDEM”). * * *

From these statutes, it is clear that the Indiana General Assembly has charged IDEM with the responsibility of regulating potential harm from the operation of CFOs.

Our Supreme Court addressed a very similar claim in Town Board of Orland v. Greenfield Mills, Inc., 663 N.E.2d 523 (Ind. 1996). Orland applied for an IDEM permit to construct a municipal sewage treatment facility. While the application was pending, nearby landowners filed suit to enjoin the construction. As here, there was no claim for monetary damages. The Orland Court held that the trial court lacked subject matter jurisdiction to consider the complaint. [Quoting Orland: "If landowners included in their complaint a request for monetary damages for any taking, trespass, or nuisance caused by discharge from the sewage treatment project, the case might well present issues for ultimate determination by the trial court following completion of the permitting process (including administrative and judicial review thereof).] * * *

We follow the dispositive precedent of Orland, affirm the trial court’s dismissal of the Residents’ complaint, and remand with instructions to vacate the existing orders and to enter an order dismissing the complaint for lack of subject matter jurisdiction.

Randell R. Rhodes, Jr. v. State of Indiana -" In light of the nature of the offense and the character of the offender, Rhodes has not convinced this Court that his advisory sentence of thirty years is inappropriate. "

NFP civil opinions today (6):

Christine (Tisdale) Bolick v. Raymond C. Tisdale (NFP) - " Concluding that the trial court’s determination of Father’s income was not clearly erroneous and that the trial court did not abuse its discretion in awarding an additional parenting time credit to Father, we affirm. "

Haag Trucking Co. and Rose Maxine Haag v. Mark E. Haag and Perfect Pallets, Inc. (NFP) - " This litigation concerns a family’s battle over the pieces of three Indianapolis- based family businesses left behind after the 2003 death of Robert Haag. Rose Maxine Haag (“Maxine”), Robert’s widow and one of the plaintiffs below, appeals from the trial court’s judgment against her personally for a breach of fiduciary duty as a shareholder of Perfect Pallets, one of the three businesses. Mark Haag, Robert’s and Maxine’s son and one of the defendants below, cross-appeals the trial court’s judgment that he was not frozen out as a shareholder of Haag Trucking, another one of the family businesses. Concluding that the trial court’s decision regarding Maxine is not clearly erroneous and that the trial court’s decision regarding Mark is not contrary to law, we affirm. "

City of Gary, Gary Police Civil Service Commission, Nathaniel Brannon and Anthony Stanley v. Thomas Pawlak and Ronald Pineda (NFP) - "Therefore, the Appellants have not established inexcusable delay or implied waiver, nor have they identified any evidence of prejudice. The trial court did not err by granting the preliminary injunction."

Joshua L. Overton v. Review Board, and Brad A. Renfro (NFP) - "Under the circumstances, we conclude that Overton?s continued unexcused and unexplained absences, despite a prior warning about such practices, justified his termination for just cause. The determination of the Board is affirmed. "

Janeen L. Mathes v. Joseph W. Mathes (NFP) - a 2-1 opinion reversing the trial court’s division of the marital estate.

In the Matter of D.A. (NFP) - "The Crawford County Department of Child Services (CCDCS) appeals the trial court’s judgment denying its petition to terminate T.G.’s (Mother) parental rights to her children. In so doing, CCDCS alleges that the trial court’s findings and conclusions are not properly supported by the evidence and that the trial court impermissibly subordinated the children’s interests to those of Mother. We affirm."

NFP criminal opinions today (19):

Joshua Borden v. State of Indiana (NFP)

Bert E. Black v. State of Indiana (NFP)

Tyrone Mathis v. State of Indiana (NFP)

Robert Earl Gent v. State of Indiana (NFP)

John A. Tate v. State of Indiana (NFP)

David Drew v. State of Indiana (NFP)

Rodney L. May v. State of Indiana (NFP)

Gregory L. Saylor v. State of Indiana (NFP)

Thomas K. Miller v. State of Indiana (NFP)

Benjamin Claunch v. State of Indiana (NFP)

Gerald Rickert v. State of Indiana (NFP)