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Friday, February 13, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In Karen Long & Clifford M. Thorson v. Biomet, Inc. , a 12-page opinion, the issue is: "Whether the trial court erred in denying Defendants’ motion to dismiss because Plaintiffs do have standing to maintain their derivative action." Justice Darden concludes:

We are cognizant, as noted at oral argument, of Gabhart’s statement that "no wrong should be without a remedy." 370 N.E.2d at 358. Here, however, the Buyer succeeded to the rights of the former Biomet corporation to seek redress for any alleged injury suffered by the corporation as a result of options backdating by Defendants, and Plaintiffs have sold their shares in that corporation. Therefore, we do not find that the trial court erred in granting the motion to dismiss based on Plaintiffs’ lack of standing. Affirmed.
In Babes Showclub, Jaba, Inc., and James B. Altman v. Patrick and Lisa Lair, a 28-page opinion in an interlocutory appeal from the Marion Superior Court, in a case involving the Fireman's Rule and the Rescue Docrtine, Judge Crone writes:
Babes Showclub, Jaba, Inc., and James B. Altman (collectively, “Appellants”) appeal the denial of their motion to dismiss the complaint filed by Patrick Lair and Lisa Lair (collectively, “the Lairs”) for injuries that Patrick, an Indianapolis police officer, allegedly suffered at the hands of a Babes Showclub patron while responding to a complaint on the club's premises. We reverse. * * *

With respect to the Lairs' general negligence, negligent security, and common law dram shop claims, we observe that as in Woodruff (but unlike in Heck and Johnson), the crux of this case is “the duty owed by a landowner to those coming onto the premises under a public duty during emergencies.” Heck, 659 N.E.2d at 503. In Woodruff, the fireman was fatally injured as a result of a condition of the defendant's premises, whereas in this case Patrick was allegedly injured by a patron of Babes Showclub. Given that a landowner's liability may arise from either a condition of the premises or the actions of a third person, see, e.g., Winchell v. Guy, 857 N.E.2d 1024 (Ind. Ct. App. 2006), we find this to be a distinction without a meaningful difference for purposes of the Fireman's Rule.

In Woodruff, our supreme court determined that a landowner owes no duty to a firefighter “except that of abstaining from any positive wrongful act which may result in his injury[.]” 136 Ind. at 442, 34 N.E. at 1117. As both the majority and the dissenting opinions acknowledged in Johnson, this vestige of the Fireman's Rule remained intact after Heck. Here, the Lairs have not alleged that Appellants committed any “positive wrongful act” that resulted in Patrick's injuries. * * * If anything, the “positive wrongful act” in this case was committed by the patron who allegedly assaulted Patrick. In sum, notwithstanding any indication in Heck that our supreme court is poised to abolish the Fireman's Rule altogether, we conclude that Woodruff is controlling in this case. As such, we conclude that the Lairs' general negligence, negligent security, and common law dram shop claims are barred by the Fireman's Rule.

Also, to the extent that Appellants violated any statutes or ordinances in serving alcohol to the patron, nothing indicates that those laws were enacted specifically to protect police officers responding to a complaint on a landowner's premises. Thus, the Lairs may not recover under this theory of liability. * * * Therefore, we reverse the denial of Appellants' motion to dismiss.

NFP civil opinions today (2):

In Rudolfo Rodriguez v. Rainbow Searcher, Inc. (NFP), an 8-page opinion, Judge Darden writes:

Rudolfo Rodriguez, Jr. appeals the small claims court's judgment entered against him in an action filed by Rainbow Searchers, Inc. (“Rainbow”). We reverse and remand.

Issue. Rodriguez raises two issues, one of which we find dispositive: Whether Rainbow lacked standing to bring its action. * * *

The evidence shows that Rainbow reimbursed Lakeview for the amount of the redemption from funds that Deem had given Rainbow after her failure to discover the tax sale came to light. We cannot say that Rainbow has met the standing requirement, where it did not suffer any financial injury or claim against it. Its assertion of liability is merely speculative. As there is no demonstrable injury to Rainbow, we find that the trial court erred in exercising jurisdiction over Rainbow's complaint.
Asserting that Rainbow's action was groundless due to lack of standing, Rodriguez requests attorney's fees pursuant to Indiana Code section 34-52-1-1. * * *

We therefore reverse the trial court's judgment in favor of Rainbow and remand to the trial court for a determination of whether attorney's fees are appropriate in this case.

In John Mavrikis v. Kevin Kuyt (NFP), a 5-page opinion, Judge May writes:
John Mavrikis appeals a small claims court judgment in favor of Kevin Kuyt. Mavrikis asserts he is entitled to one month’s rent for a property for which no lease was signed. Because Mavrikis did not present his statutory argument to the trial court before the court rendered its final judgment, we may not consider it on appeal. Accordingly, we affirm. * * *

After the court announced its judgment, counsel for Mavrikis said: “Your Honor, by operation of statute when there is no written lease it becomes a 30 day, month to month property lease. And because of that we believe the Court’s decision is incorrect in that it should be at least a 30 day month to month lease.” The court declined to modify its judgment. * * *

[A] “party may not raise an issue for the first time in a motion to correct error or on appeal.” Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000). When a party waits until after the court enters its judgment to raise an argument, the argument is waived. NFP criminal opinions today (12):

Robert T. Dempsey v. State of Indiana (NFP)

Arthur F. Elder v. State of Indiana (NFP)

Darin A. Charlton v. State of Indiana (NFP)

William J. Melton v. State of Indiana (NFP)

Archie Lee Parker v. State of Indiana (NFP)

Douglas Wayne Buck II v. State of Indiana (NFP)

Juan Ochoa v. State of Indiana (NFP)

Nicholas Mathes v. State of Indiana (NFP)

Larry Johnson v. State of Indiana (NFP)

Titus Lawler v. State of Indiana (NFP)

Derrick Sanders v. State of Indiana (NFP)

Jeffrey Rawnsley v. State of Indiana (NFP)

Posted by Marcia Oddi on February 13, 2009 12:29 PM
Posted to Ind. App.Ct. Decisions