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Wednesday, March 11, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 11 NFP)

For publication opinions today (2):

In Gloria J. Hayes v. The Trustees of Indiana University, a 25-page opinion, in an employment termination case, Judge Darden writes:

Hayes asserts that the trial court erred in granting the University's motion for summary judgment. Specifically, she argues that she was entitled to assert her “bumping rights” pursuant to the Human Resources Manual; that the Indiana Tort Claims Act (the “Act”) does not apply; that she is entitled to judicial review; and mandate is the appropriate remedy. * * *

Breach of contract. Hayes contends that summary judgment on her breach of contract claim was improper because the Human Resources Manual was a contract which conferred “bumping rights” upon her. We disagree. * * *

In Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 722 (Ind. 1997), the Indiana Supreme Court “re-affirm[ed] the vitality of the employment-at-will doctrine in Indiana and the general rule that adequate independent consideration is necessary to convert an at-will relationship into an employment relationship requiring an employer to discharge an employee for good cause.” It further declined “to construe employee handbooks as unilateral contracts and to adopt a broad new exception to the at-will doctrine for such handbooks.”

Given our Supreme Court's holding in Orr, we decline to find that the Human Resources Manual constituted a contract under which Hayes could maintain a breach of contract claim. Additionally, Hayes admitted that she “did not have a signed contract” with the University and agreed that she was an “employee at will.” * * *

We conclude that the University was entitled to summary judgment as a matter of law on Hayes' breach of contract claim as she was an at-will employee, and the Human Resources Manual did not constitute a contract. As we do not find that the Human Resources Manual contractually bound the University, we need not address whether Hayes' purported “bumping rights” under the Human Resources Manual were breached.

Indiana Tort Claims Act . Hayes asserts that the trial court erred in finding that her claim for breach of contract is subject to the notice requirement of the Act. She argues that “the notice provisions of the Tort Claims Act have no application to” her case as it “is not only captioned a claim for breach of contract, but also, is substantively a claim for breach of enforceable contractual obligations . . . .” * * *

Hayes cannot maintain a breach of contract claim against the University as she did not have a contractual relationship with the University. Thus, any possible tort claim she may have related to the RIF would sound in tort. See Burke, 709 N.E.2d at 1042 (holding that the employee-at-will's claim sounds in tort). Accordingly, it was incumbent upon Hayes to file notice of her claim within 180 days after her loss. This she did not do; therefore, any possible tort claim against the University is barred.

Judicial Review. Hayes contends that the trial court improperly found that she was not entitled to judicial review. Specifically, she argues that “the fact that [the] AOPA does not provide a statutory means of seeking judicial review of [the] University's actions does not mean the University is immune from judicial review.” * * *

Here, the Legislature specifically excluded the University from the AOPA's application. Thus, it clearly intended to exclude the actions of the University from judicial review. We therefore find that the trial court properly granted the University's motion for summary judgment on Hayes' complaint for judicial review.

Mandate. * * * Contrary to Hayes' assertion, we cannot say that either the University's decision to eliminate Hayes' position pursuant to a reduction in force or its classification of Hayes' position was made in a quasi-judicial capacity. Accordingly, the University's decisions regarding these matters are not subject to a mandate order.

In Bruce Barkwill v. The Cornelia H. Barkwill Revocable Trust , a 12-page opinion, in a dispute between two brothers re their monthr's trust, Judge Barnes writes:
Bruce Barkwell appeals the trial court’s conclusion that the 2006 revision to his mother Cornelia Barkwell’s trust was valid. We affirm.

Issue. We consolidate and restate the issue as whether a presumption of undue influence attached to the 2006 revision to Cornelia’s trust. * * *

Clearly, this is an issue that will garner continued attention as the baby boomer generation ages. We maintain that courts must proceed with caution in analyzing these situations and that an automatic presumption that any adult child who assists an aging parent is presumed to be in a dominant role and exert undue influence over that parent’s decisions is ill-advised. We caution that love, attention, and occasional assistance provided by an adult child typically and naturally arise from a sense of filial duty. It seems unreasonable for our courts to rely exclusively upon care, compassion, or generosity by an adult child for their ailing parent and then render such actions suspect. These relationships must be carefully examined in light of the surrounding circumstances before any conclusions regarding that child’s dominance and influence be made.

Conclusion. The trial court’s findings and conclusions are not clearly erroneous. No presumption of undue influence attaches to Jeffrey’s relationship with his mother. The trial court’s conclusion that Cornelia’s 2006 trust revision is valid is supported by the evidence. We affirm.

NFP civil opinions today (4):

In Re: The Paternity of G.H.W.; H.A.F. v. Y.K.W. (NFP) - "The trial court did not abuse its discretion in modifying custody of G.W. to joint physical custody between Mother and Father. Additionally, that part of the trial court’s order regarding Mother’s potential move to Texas should not be construed as absolutely requiring a change of custody should Mother want or need to move at any time in the future. We reverse the trial court’s elimination of Father’s child support obligation and remand for further proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded."

Smitty's Painting, Inc. v. Review Board of the Dept. of Workforce Development, and Raymond A. Sage (NFP) - "Smitty’s failed to demonstrate good cause that additional evidence should be accepted by the Review Board or good reason why such evidence could not have been introduced to the ALJ. Therefore, the Review Board did not abuse its discretion when it refused to accept Smitty’s additional evidence. Affirmed. "

James Bedree v. Daniel E. Serban (NFP) - "In the present case, the hearing officer entered a purported final order on April 10, 2008, when he granted Serban’s motion and dismissed Bedree’s case. By doing so, the hearing officer overstepped the boundaries of his statutorily defined duties and grant of power. See Ind. Code § 33-23-5-8(2) and -9(a). Moreover, Serban does not assert, and we find no evidence, that the hearing officer was sitting as a judge pro tempore or special judge so as to be granted the power to enter a final appealable order pursuant to the exception contained in Ind. Code § 33-23-5-8(2).

"Based upon the foregoing, we conclude that the trial court erred by denying Bedree’s motion to vacate the order to dismiss. Accordingly, the trial court’s order of May 5, 2008, denying Bedree’s motion to vacate the order to dismiss is reversed."

Thomas Lee Keller and Shirley Jean Rohrs v. Daniel Keller (NFP) - " Tom and Shirley raise one issue, which we revise and restate as whether the trial court abused its discretion in its Order of Sale Procedure issued September 3, 2008, when it appointed Oberlin Real Estate and Auctioneers, Inc. (“Oberlin”), to conduct the public auction of the family farm. On cross appeal, Dan raises one issue, which we revise and restate as whether he is entitled to receive appellate attorney fees because of Tom and Shirley’s substantive bad faith. We affirm. "

NFP criminal opinions today (7):

Jessica Caperton v. State of Indiana (NFP)

Arlene Ambrose v. State of Indiana (NFP)

Gary McGuire v. State of Indiana (NFP)

Jeff Kuhn v. State of Indiana (NFP)

Michael K. Lindsey v. State of Indiana (NFP)

Samuel Lonnie Helton v. State of Indiana (NFP)

Steve Pigg v. State of Indiana (NFP)

Posted by Marcia Oddi on March 11, 2009 11:35 AM
Posted to Ind. App.Ct. Decisions