« Ind. Gov't. - When everyday Hoosiers seek public information under the Access to Public Records Act, their requests often aren't filled in a timely manner, or are ignored altogether | Main | Ind. Law - More on "Indiana fire codes could be tougher" says Star. And they could be accessible, says ILB »

Friday, March 20, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In Massood Jallali v. National Board of Osteopathic Medical Examiners, Inc. (NBOME), 10-page opinion, Judge Barnes writes:

The dispositive issue we address is whether NBOME's Indiana complaint should have been dismissed on comity grounds, because it was filed after Jallali initiated legal action in Florida. Comity differs from full faith and credit in that it applies to matters other than final judgments and is not a constitutional requirement. See Ventura County, State of Cal. v. Neice, 434 N.E.2d 907, 910 (Ind. Ct. App. 1982). Rather, comity is “a willingness to grant a privilege, not as a matter of right, but out of deference and good will. Its primary value is to promote uniformity of decision by discouraging repeated litigation of the same question.” Kentner v. Indiana Pub. Employers' Plan, Inc., 852 N.E.2d 565, 575 (Ind. Ct. App. 2006) (quoting American Econ. Ins. Co. v. Felts, 759 N.E.2d 649, 660 (Ind. Ct. App. 2001)), trans. denied. Under comity, an Indiana state court may dismiss a case in order to respect proceedings pending in another state's court. Felts, 759 N.E.2d at 660.

Generally, whether to exercise comity is a matter within a trial court's discretion, and we review such a decision for an abuse of discretion. In re Arbitration Between Am. Gen. Fin. Servs., Inc. & Miller, 820 N.E.2d 722, 724 (Ind. Ct. App. 2005). However, it also has been said that “on grounds of comity, the power of one state to interfere with a litigant who is in due course pursuing his rights and remedies given under the law, in the courts of another state, should be exercised sparingly.” New York, C. & St. L.R. Co. v. Perdiue, 97 Ind. App. 517, 523, 187 N.E. 349, 351 (1933). * * *

But because the Florida case already was pending when NBOME filed this action, the Florida case should be allowed to proceed to completion. The same is true of NBOME's claims that Jallali's Florida lawsuit is “frivolous, unreasonable, groundless, and/or in bad faith.” We presume the Florida court can adequately assess whether that is the case. Furthermore, we conclude, given the substantial similarity between the parties, subject matter, and remedies sought in both the Indiana and Florida lawsuits, the trial court here ought to have exercised its discretion in favor of deferring to the already-pending Florida litigation in the interests of comity.

Conclusion. The trial court abused its discretion in denying Jallali's motion to dismiss NBOME's Indiana lawsuit on comity grounds. We reverse the denial of the motion to dismiss, which also necessarily results in reversal of the partial grant of summary judgment in favor of NBOME, and remand for the trial court to dismiss NBOME's complaint. Reversed and remanded.

In Caesars Riverboat Casino v. Genevieve Kephart, a 28-page, 2-1 opinion, Judge Mathias writes:
Caesar's Riverboat Casino, LLC (“Caesar's”) filed suit in Harrison Circuit Court alleging that Genevieve M. Kephart (“Kephart”) failed to provide funds to cover checks written while gambling at Caesar's establishment. Kephart countersued alleging that Caesar's took advantage of her pathological gambling condition to unjustly enrich itself. Caesar's filed a Trial Rule 12(B)(6) motion on Kephart's counterclaim. The trial court denied Caesar's motion and Caesar's appeals. Concluding that Indiana's common law does not provide Kephart a private cause of action in negligence against Caesar's in the form of a counterclaim, we reverse.

Conclusion. For all of these reasons, the facts alleged in Kephart's counterclaim “are incapable of supporting relief under any set of circumstances.” Godby, 837 N.E.2d at 149. 7 There is no common law duty obligating a casino operator to refrain from attempting to entice or contact gamblers that it knows or should know are compulsive gamblers. Caesar's motion to dismiss under Trial Rule 12(B)(6) therefore should have been granted by the trial court. Reversed.

DARDEN, J., concurs.
CRONE, J., dissents with separate opinion. [which begins, on p. 18 of 28] In this appeal, we consider as a matter of first impression for this Court whether a casino—a gambling enterprise that owes its existence to, is regulated by, and is a source of revenue for the State of Indiana—has a common law duty to refrain from enticing to its premises a known pathological gambler who has not requested that she be removed from the casino's direct marketing list or excluded from the casino. The majority concludes that no such duty exists. I respectfully disagree. [ILB emphasis]

Andre Lavoie v. State of Indiana - "Lavoie faced a maximum sentence of eighty-six years in prison. In balancing the heinous nature of Lavoie‟s actions against his lack of a significant criminal history and his guilty plea, the trial court arrived at an aggregate sentence of seventy-one years. In light of Lavoie‟s character and the nature of his crimes against T.H., we conclude that this sentence is not inappropriate. "

Lisa M. Beckingham v. Review Board of the Indiana Dept. of Workforce Development and Cenveo Corp. is an 18-page, 2-1 opinion written by Sr. Judge Hoffman. Some quotes:

Plaintiff-Appellant Lisa M. Beckingham appeals the decision of the Unemployment Insurance Review Board (“the Board”) denying her application for unemployment benefits. We affirm.

Beckingham presents two issues for our review, which we restate as: I. Whether Beckingham was discharged for just cause. II. Whether Beckingham’s discharge should have been reviewed under Ind. Code § 22-4-15-1(d)(3) rather than Ind. Code § 22-4-15-1(d)(2). * * *

[W]e therefore conclude that Beckingham was discharged for just cause pursuant to Ind. Code §22-4-15-1(d)(2). The second and final issue raised by Beckingham is whether her discharge should have been reviewed under Ind. Code § 22-4-15-1(d)(3) rather than Ind. Code § 22-4-15-1(d)(2). * * *

We may not interpret a statute that is clear and unambiguous on its face. Schafer v. Sellersburg Town Council, 714 N.E.2d 212, 215 (Ind. Ct. App. 1999), trans. denied. Rather, the words of the statute are to be given their plain, ordinary and usual meaning. Id. Ind. Code § 22-4-15-1(d) is written in the disjunctive. Accordingly, discharge for just cause can be established under any of the eight subsections. This point was addressed in Beene when the same argument that Beckingham presents here was presented by Beene. A panel of this Court noted:

The [ ] conclusion that Beene could be discharged and denied benefits for violating the Employer’s uniformly enforced, reasonable attendance policy obviates the need to determine whether there was good cause for her poor attendance under IC 22-4-15-1(d)(3) as that statute lists several disjunctive definitions of just cause, any one of which would support the discharge and denial of benefits.
Beene, 528 N.E.2d at 846. In addition, in her dissenting opinion in Giovanoni, Judge Brown stated that the statute, as it is now written, does not require attendance issues to be addressed under Ind. Code § 22-4-15-1(d)(3). Rather, the statute is written in the disjunctive such that we may analyze an attendance issue under section (d)(2) or section (d)(3). Moreover, Judge Brown noted that it is up to the legislature to change the wording of the statute if it determines that Section (d)(2) should not apply to attendance issues. See Giovanoni, 2009 WL 200249 (Brown, J., dissenting). Thus, the Board’s determination that Beckingham was discharged for just cause pursuant to Ind. Code § 22-4-15-1(d)(2) is proper.

Based upon the foregoing discussion and authorities, we conclude that Beckingham was discharged for just cause under Ind. Code § 22-4-15-1(d)(2) and that, based upon the language of the statute, the attendance issue in this case was not required to be reviewed under Ind. Code § 22-4-15-1(d)(3). Affirmed.

DARDEN, J., concurs.
NAJAM, J., dissents with separate opinion. [which begins on p. 14 of 18]

NFP civil opinions today (1):

Timothy McFadden v. Kurt Ness, et al (NFP) - "Thus, we agree with the trial court that the well-settled principle controls here, i.e., that, based upon a lack of duty, a landlord is not liable for injuries sustained by a tenant on the leased property after the landlord has surrendered control of the property to the tenant. The trial court did not err in granting summary judgment in favor of Ness Realty on this basis. "

NFP criminal opinions today (4):

Christopher A. Mendez v. State of Indiana (NFP)

Ismael Leonardo v. State of Indiana (NFP)

David Cassidy v. State of Indiana (NFP)

John Pickett v. State of Indiana (NFP) - petition on rehearing, where the two remaining members of the panel agree with the petitioner that the third member should have recused himself:

With these principles in mind, we conclude that the following steps shall be taken: (1) The memorandum decision handed down on January 21, 2009 shall be withdrawn; (2) the Court of Appeals Administrator’s Office shall designate a replacement for Judge Bradford on the panel, and (3) after the replacement judge has been named, consideration of the appeal will proceed as normal by the newly constituted panel. Petition granted.

Posted by Marcia Oddi on March 20, 2009 01:28 PM
Posted to Ind. App.Ct. Decisions