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Thursday, January 29, 2009

Ind. Decisions - Court of Appeals issues 9 today (and 11 NFP)

For publication opinions today (9):

Thomas P. Harris v. Richard Denning and Susan K. Carpenter - "Thomas P. Harris appeals the grant of summary judgment in favor of Richard Denning and Susan K. Carpenter on Harris’s complaint alleging deceit, collusion, fraud, and misrepresentation during the course of their representation of Harris in post-conviction proceedings. On appeal, Harris raises a single issue: whether the trial court erred in granting Denning and Carpenter’s summary judgment motion. We affirm. "

Michael F. Fowler v. State of Indiana - "The corpus delicti rule provides that a crime may not be proved based solely on a
confession. Malinski v. State, 794 N.E.2d 1071, 1086 (Ind. 2003). To warrant the admission of a confession, the State must provide an inference that a crime was committed, which may be established by circumstantial evidence. Workman v. State, 716 N.E.2d 445, 447 (Ind. 1999). * * *

"The State presented sufficient evidence to provide an inference that a crime was committed, so as to establish the corpus delicti. "

In John D. Giovanoni, II v. Review Board and Clarian Health Partners, Inc. , an 18-page opinion, Judge Crone writes:

John D. Giovanoni II appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“the Board”) denying his application for unemployment benefits. We reverse.

Giovanoni raises one issue on appeal, which we restate as follows: whether he was
discharged for just cause.

[Clarian] discharged Giovanoni, a pharmacy technician, after he accumulated eight absences in violation of its no-fault attendance policy. * * *

Having determined that an attendance policy that subjects employees to termination for absences and tardiness regardless of the reason is unreasonable for purposes of Section (d)(2) and that all discharges for absences and tardiness must be examined under Section (d)(3), we now turn to the case at bar. Here, Clarian's attendance policy exposed an employee to termination regardless of the reason for the employee‟s absence. As such, it is unreasonable for purposes of Section (d)(2). Because Giovanoni was discharged for unsatisfactory attendance, we must determine whether Giovanoni has established good cause for his absences under Section (d)(3). * * *

Under these circumstances, we conclude that Giovanoni established good cause for his absences and tardiness. Accordingly, Giovanoni was not discharged for just cause, and therefore we reverse the Board‟s decision.

ROBB, J. concurs.
BROWN, J., dissents with separate opinion. * * * I conclude that Giovanoni failed to demonstrate that Section (c)(2) exempted him from disqualification, and I would affirm the Board‟s decision that he was discharged for just cause.

Anthony L. Todd v. State of Indiana - "Anthony L. Todd appeals from his conviction for Failing to Register as a Sex Offender, as a Class D felony, following a bench trial. Todd raises a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. We affirm. "

In Savannah Linley Ann Nelson Ramirez, by her father, Stephen Ramirez v. James A. Wilson and Suzy-Q Trucking, a 20-page 2-1 opinion, Judge Bailey writes:

[Ramirez appeals the trial court's grant of partial summary judgment in favor of Appellees upon a claim under Indiana's child wrongful death statute, IC 34-23-2-1. We affirm.]

Ramirez raises two issues: I. Whether the trial court erroneously granted partial summary judgment upon a determination that a full-term fetus is not a “child” under the statute; and II. Whether the statute, as interpreted by our Supreme Court in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002), violates the privileges and immunities clause of the Indiana Constitution. * * *

Ramirez contends that S.R., a full-term and viable fetus, should be considered a “child” pursuant to IC 34-23-2-1 * * *

In Bolin, our Supreme Court reviewed a case where the plaintiff had suffered the miscarriage of an eight to ten week old fetus after an automobile accident and had brought a claim for wrongful death under the statute. The trial court granted the defendant‟s motion for summary judgment, and this Court affirmed the trial court. On transfer, our Supreme Court undertook “to determine the scope of the term „child‟ in the Wrongful Death Statute.” 764 N.E.2d at 207. Based upon the language of the statute, the Court ultimately concluded that “the legislature intended that only children born alive fall under Indiana‟s Child Wrongful Death Statue.” * * *

In Horn v. Hendrickson, 824 N.E.2d 690 (Ind. Ct. App. 2005), this Court was asked to determine whether Bolin was inapplicable where a “viable” fetus of six months gestation had died as a result of a vehicular accident. * * * The Horn Court acknowledged that Supreme Court precedent is binding until it is changed either by that court or by legislative enactment, but also observed that “our supreme court‟s words and opinions are not carved in stone, and it is not inappropriate for the parties or the judges of this court to ask the court to reconsider earlier opinions.” * * *

Inasmuch as there exist no genuine issues of material fact, and the Appellees are entitled to judgment as a matter of law on the claim under Indiana‟s child wrongful death statute, the trial court properly granted partial summary judgment. Affirmed.

BRADFORD, J., concurs.
RILEY, J., dissents with opinion. [which begins on p. 8 of 20] I respectfully dissent from the majority‟s decision to affirm the trial court's grant of partial summary judgment in favor of the Appellees. In essence, the majority's opinion refuses to “proceed in direct conflict with controlling supreme court precedent,” while at the same time, it implicitly acknowledges that the result reached in Bolin v. Wingert, 764 N.E.2d 201 (Ind. 2002) is wrong. * * *

[and concludes on p. 20] In light of this dissent, the Horn decision, and this majority‟s decision, I implore the parties here to seek transfer to the supreme court, requesting a modification of its Bolin decision.

In Indianapolis Concrete Inc. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development , a 10-page opinion, Judge Brown writes:
Indianapolis Concrete raises one issue, which we revise and restate as whether the ALJ erred as a matter of law in his conclusion that Indianapolis Concrete is a successor employer of Indy Concrete, Inc., under Ind. Code § 22-4-10-6. We reverse. * * *

In determining whether one employer has acquired substantially all of the assets of another, other courts have considered several factors, including acquisition of: (1) manufacturing equipment and machinery; (2) office equipment; (3) corporate name; (4) inventories; (5) covenants not to compete; (6) possession of premises; (7) good will; (8) work in progress; (9) patent rights; (10) licenses; (11) trademarks; (12) trade names; (13) technical data; (14) lists of customers; (15) sales correspondence; (16) books of accounts; and (17) employees transferred. See Robert Snyder & Assocs., Inc. v. Cullerton, 221 N.E.2d 148, 154 (Ill. Ct. App. 1966); see also Imprint Techs., Inc. v. Comm'r of Econ. Sec., 535 N.W.2d 372, 376 (Minn. Ct. App. 1995); Pee Dee Nursing Home, Inc. v. S.C. Emp. Sec. Comm'n, 399 S.E.2d 777, 779 (S.C. 1990); Riteway Oil & Gas Co., Inc. v. Iowa Dep't of Job Serv., 423 N.W.2d 550, 551 (Iowa 1988).
[ILB Note: Apparently there are no Indiana cases]

Nicholas W. Cooper v. State of Indiana - "On direct appeal from the revocation of his probation, Nicholas W. Cooper asserts that he did not knowingly and intelligently waive his right to counsel. We affirm. "

Travis L. Roberson v. State of Indiana - "Travis Roberson appeals following his guilty plea to Attempted Murder, a Class A felony. Roberson contends that the trial court abused its discretion in waiving him into adult court and that his thirty-eight-year sentence is inappropriate in light of the nature of his offense and his character. We affirm."

Fiducial Investment Advisors v. Troy C. Patton - "Fiducial Investment Advisors, Inc. (“FIA”) appeals from the trial court's confirmation of an arbitration award in favor of Troy C. Patton (“Patton”). FIA presents the following issues for review: 1. Whether the arbitration panel exceeded its authority when it determined that FIA was liable to Patton for vacation pay and unreimbursed business expenses. 2. Whether the arbitration panel's award of attorney's fees was procured by fraud. We affirm. "

NFP civil opinions today (3):

In Phillip V. Frederick v. Discover Bank (NFP), a 10-page opinion in a pro se case, Judge Bradford concludes:

“[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt.” Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999). “Consistent with the legislative history, verification is only intended to eliminate the . . . problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.'” Id. (quoting S. Rep. No. 95-382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699). There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt. Id. Given this authority and the inapplicability of Spears and Fields, we are not inclined, on this record, to reverse the trial court's summary judgment.

Having reached this conclusion, we wish to point out that it is not an endorsement of the debt collector's practices in this case. Wright & Lerch's October 24, 2005 response letter, purportedly of verification, contained no actual statement or independent documentation of the debt owed, and the debt it referenced, the $12,283.11 requested in the notice, was not the amount ultimately sought in its action against Frederick. Such minimal efforts at verification do not appear to be in the spirit, if the letter, of section 1692g(b), which requires a copy of the debt verification to be sent to the debtor. Were this a more complete appellate record, we would be inclined to reverse on these grounds, especially given the absence of any effort by the appellee to provide a brief or assist in any way with our understanding of its actions or lack thereof.

A.D. v. Allen Co. Dept. of Child Services (NFP) - "April D. (“Mother”) appeals the involuntary termination of her parental rights to her children, T.W. and T.D., claiming there is insufficient evidence supporting the trial court's termination order. We affirm. "

Alan J. Lape v. Debra R. Lape (NFP) - "Alan J. Lape (“Husband”) appeals and Debra R. Lape (“Wife”) cross-appeals from the dissolution decree terminating their marriage. We affirm in part, reverse in part, and remand with instructions. "

NFP criminal opinions today (8):

Meghan Lea Browning v. State of Indiana (NFP)

Jerry D. Johnson v. State of Indiana (NFP)

Sherman Harris v. State of Indiana (NFP)

Ngun Thang v. State of Indiana (NFP)

James R. Worthington v. State of Indiana (NFP)

Brian Williams v. State of Indiana (NFP)

Larry A. Hellyer v. State of Indiana (NFP)

Eric Leo Armstrong, IV v. State of Indiana (NFP)

Posted by Marcia Oddi on January 29, 2009 10:59 AM
Posted to Ind. App.Ct. Decisions