« Ind. Decisions - 7th Circuit issues three Indiana decisions today | Main | Ind. Decisions - Supreme Court issues one today »

Thursday, December 18, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Mikel A. Schilling v. Huntington County Community School Corp., et al , an 18-page, 2-1 opinion, Judge Najam writes:

Mikel A. Schilling appeals the trial court's grant of summary judgment to the Huntington County Community School Corporation (“Huntington”), the Huntington County Community School Corporation Employee Benefit Trust, and American Health Care Partnership, Inc. (“AHCP”) (collectively, “the School”). Schilling raises two issues for our review, which we restate as whether the trial court properly determined that the School?s Employee Health Plan (“the Health Plan”) is unambiguous and operates to exclude Schilling from recovering for injuries sustained in a farm-related accident. * * *

In sum, the trial court properly granted summary judgment to the School. Exclusion 33 is unambiguous and operates to exclude from the Health Plan's coverage all injuries that would be covered by Indiana's Worker's Compensation Act, regardless of whether worker's compensation was actually obtained by the insured. Further, Exclusion 33 is not contrary to public policy. Accordingly, we affirm the trial court. Affirmed.

ROBB, J., concurs.
MAY, J., dissents with separate opinion. [which begins, on p. 12] The majority's interpretation of Exclusion 33 would require any School employee who might possibly be eligible for worker's compensation coverage, from whatever source, to buy it or risk losing insurance benefits provided by the Health Plan. The policy language before us cannot properly be read to have that effect, and I must therefore respectfully dissent.

In Terry Gerstbauer and Capitol Speedway, Inc. v. Stephen W. Styers, a 27-page, 2-1 opinion, Judge Najam wrtites:
Terry P. Gerstbauer and Capitol Speedway, Inc. (“Capitol”) appeal from the trial court’s order on attorneys’ fees. They raise three issues for our review, which we consolidate and restate as whether the trial court abused its discretion in determining the reasonableness of Gerstbauer and Capitol’s attorneys’ fees. On cross-appeal, Stephen W. Styers also challenges the trial court’s award of fees as well as its judgment that he cannot recover on his statutory trespass claim. We affirm in part and reverse and remand in part. * * *

Under the circumstances, unless Gerstbauer wanted to concede or be defaulted, he had no choice but to continue employing his attorneys throughout this litigation. The amount of fees incurred by both parties in this case appear unreasonable “on their face,” as the trial court recognized. Appellants’ App. at 22. But a proper consideration of Professional Conduct Rule 1.5(a) supports our attorneys’ fee award in this appeal.

The trial court abused its discretion in awarding Gerstbauer attorneys’ fees. The court misinterpreted Paragraph 12 of the parties’ lease, and it misapplied Professional Conduct Rule 1.5(a). Accordingly, we must reverse the court’s fee award. However, rather than remand for reconsideration, we hold that Gerstbauer reasonably incurred $79,577.89 in attorneys’ fees, and we direct the trial court to enter a judgment against Styers that includes that sum. We also hold that the issues raised by Styers on cross- appeal are without merit.

Affirmed in part and reversed and remanded in part.

ROBB, J., concurs.
MAY, J., dissents with separate opinion. [which begins, at p. 25] I agree with the majority that the trial court should not have determined Gerstbauer’s attorney fees by looking only to the amount of the judgment. However, the majority’s decision to award fees based solely on evidence presented by Gerstbauer’s opponent amounts to an improper reweighing of the evidence that was before the trial court. I would remand so the trial court could properly recalculate attorney fees based on its analysis of the evidence before it in light of the legal standards the majority has articulated.

In Art Hill, Inc. v. Review Board of the Indiana Dept. of Workforce Development, and Terrence Horan, a 9-page opinion, Judge Najam concludes:
Therefore, we hold that a party to an unemployment hearing may voluntarily waive the opportunity for a fair hearing where the party received actual notice of the hearing and failed to appear at or participate in the hearing.

In compliance with Indiana Code section 22-4-17-6 and 646 Indiana Administrative Code 3-12-21(d), the ALJ provided notice of the telephone hearing and instructions to both parties that required each party to provide a single telephone number where the party could be contacted at the time of the hearing. Although the ALJ requested written notice of the contact telephone number, he also specifically authorized notice by telephone or fax if time would not permit notice by mail to arrive prior to the hearing. Art Hill provided a single contact telephone number to the ALJ two days prior to the hearing. However, Art Hill failed to notify the ALJ that its contact telephone number had changed prior to the hearing. Art Hill also failed to take the simple step of leaving a representative at extension 5353 to accept and transfer the ALJ’s incoming call. Rather, Art Hill waited until fifteen minutes after the scheduled beginning of the hearing to attempt to contact the ALJ. By that time, the ALJ had concluded or nearly concluded the hearing.

Based on these facts, Art Hill cannot say that it was denied a reasonable opportunity for a fair hearing. * * * Therefore, Art Hill was not denied due process when the ALJ conducted the telephone hearing without its participation.

Conclusion. Art Hill was not denied due process when the ALJ conducted an unemployment hearing by telephone without Art Hill’s participation where Art Hill was not available at the contact telephone number provided to the ALJ. Therefore, the Review Board did not err when it affirmed the decision of the ALJ granting unemployment benefits to Horan. Affirmed.

NFP civil opinions today (3):

Lowell Abbe and Carolyn Abbe v. The Cadle Company (NFP) - "The Abbes contend that the law of the case doctrine prohibited the trial court from reconsidering its earlier decision on Cadle’s motion for relief from judgment. But the law of the case doctrine provides that “an appellate court’s determination of a legal issue is binding in subsequent appeals given the same case and substantially the same facts.” Perry v. Gulf Stream Coach, Inc., 871 N.E.2d 1038, 1048-49 (Ind. Ct. App. 2007). In other words, the doctrine bars subsequent litigation of a fact or issue decided by an appellate court. The doctrine does not apply to rulings made by a trial court, which, again, may reconsider its rulings at any time so long as the action is pending resolution. See Ind. Trial R. 53.4; Stephens, 734 N.E.2d at 1135. Thus, the Abbes’ contention that the trial court lacked the power to review its earlier decision in this case would render Trial Rule 53.4 meaningless and is without merit. Affirmed."

Michael Poulimas v. Angel Ewing (NFP) - "Michael Poulimas appeals the trial court’s decision regarding his personal property and its award to Angel Ewing. We affirm. * * *

"Shortly before moving in together, Ewing and Poulimas entered into a Joint Cohabitation Agreement (“JCA”) on February 6, 2004. The JCA was drafted by Poulimas. Neither party disputes the validity of the JCA or any of its provisions. The couple purchased a home in Sharpsville. The JCA detailed procedures to deal with the home in the event that the couple ended the relationship. * * *

"The trial court’s findings and conclusions regarding the personal property of the parties and the $12,060.98 award with respect to the real property are not clearly erroneous. We affirm. "

Timberland Lumber Co., et al v. Marrill Getche (NFP) - "Tim Boone and Timberland Home Center (collectively, Timberland, unless otherwise indicated) appeal a judgment in favor of Marrill Getche in Getche‟s small claims action against Timberland and A & B Windows for breach of contract. Timberland presents the following consolidated, restated issue for review: Did a contract exist between Getche and Timberland? We affirm. "

NFP criminal opinions today (5):

Rex Johnson v. State of Indiana (NFP)

Sidney G. Hopkins v. State of Indiana (NFP)

Jeremiah Jonas Walls v. State of Indiana (NFP)

Daryl M. Payne v. State of Indiana (NFP)

Robert E. Money v. State of Indiana (NFP)

Posted by Marcia Oddi on December 18, 2008 12:10 PM
Posted to Ind. App.Ct. Decisions