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Friday, August 21, 2009

Ind. Decisions - Court of Appeals issues 8 today (and 10 NFP)

For publication opinions today (8):

In Christine Dugan v. Mittal Steel USA, Inc., and Jay Komorowski, a 13-page opinion, Judge Crone writes:

Christine Dugan appeals the trial court's grant of summary judgment in favor of Mittal Steel USA, Inc. (“Mittal”), and Mittal employee Jay Komorowski (collectively, “Appellees”) on her defamation claim. We affirm in part, reverse in part, and remand for further proceedings. * * *

Dugan first contends that Komorowski's statements are defamatory per se. We agree. On their face, the statements impute criminal conduct and misconduct in Dugan's occupation. Dugan also contends that the statements are false, in that the arbitrator determined that she did not engage in such wrongdoing. Again, we agree.

In response, Appellees invoke the doctrine of qualified privilege, which “protects communications made in good faith on any subject matter in which the party making the communication has an interest or a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty.” * * *

Assuming for argument's sake that Komorowski made the statement in good faith and that he and his coworkers shared a common interest in job security, we fail to see how the statement was limited to the purpose of upholding this interest, in that Komorowski admitted that he did not know whether the investigation was over or whether more employees would be terminated. In other words, we fail to see how Komorowski's statement regarding Dugan's alleged theft could even arguably serve the purpose of quelling any rumors and fears regarding McClain's and Gorroll's job security. Likewise, we cannot conclude that the meeting was the proper occasion for making the statement or that the statement was made to appropriate parties. Cf. Schrader, 639 N.E.2d at 262 (listing elements of qualified privilege defense). Therefore, we conclude that Appellees failed to establish as a matter of law that the statement is protected by the common interest privilege. Consequently, we reverse the trial court's grant of summary judgment as to paragraph 7 of Dugan's complaint and remand for further proceedings on that portion of her definition claim.

In Boyd Vandenberg, Deceased v. Snedegar Construction, Inc. , a 17-page opinion, Judge Crone writes:
Boyd Vandenberg's wife, Jane Vandenberg, appeals the order of the Full Worker's Compensation Board (“the Board”), affirming the single hearing officer's decision denying her claim for worker's compensation benefits following Boyd's suicide. Jane asserts that the Board erroneously concluded that Snedegar Construction, Inc. (“the Company”), carried its burden to prove that Boyd's death was caused by a knowingly self-inflicted injury and therefore she is not entitled to benefits. We affirm. * * *

We conclude that the evidence and the reasonable inferences drawn therefrom support the Board's decision that the Company carried its burden to prove that Boyd's death was caused by his knowingly self-inflicted injury. Accordingly, we affirm the Board's decision denying Jane's claim for worker's compensation benefits.

In Plaza Group Properties, LLC, Robert W. Allen, et al. v. Spencer County Plan Commission, et al. , a 17-page opinion, Judge Bailey writes:
The Spencer County Plan Commission and the Spencer County Board of Commissioners (collectively “Spencer County”) filed an information to show cause, alleging that Plaza Group Properties, LLC, Robert W. Allen, and Fuel in Dale, L.L.C. (collectively “Defendants”) were violating an order issued by the Spencer Circuit Court. The trial court found the Defendants to be in contempt, ordered them to pay $340,000 in fines, in addition to attorney and expert-witness fees, and prohibited the operation of the Defendants' business for at least one year and until they paid in full the fines and fees ordered therein. * * *

The Defendants were precluded from arguing that Spencer County Ordinance 2005-11 was unconstitutional and that two of the Defendants did not operate the business. Furthermore, the one-year closure of the Defendants' bookstore did not violate their First Amendment rights.

The fine was not punitive. However, of the forty-six contemptuous acts found to have occurred, the record does not support the trial court's finding in three of them. Accordingly, we remand with instructions to reduce the fine from $340,000 to $317,500. We deny the county's request for appellate attorney fees. Affirmed in part, reversed in part, and remanded.

D.L.D. v. L.D. - "D.L.D. (“Father”) appeals the denial of his motion to correct error, which challenged the denial of his Indiana Trial Rule 60(B)(6) motion to set aside a dissolution decree, custody order, and property settlement obtained by L.D. (“Mother”). We affirm."
Note: As per this ILB entry from Aug. 14, quoted here, this is the now at least the fourth such opinion:

"ILB comment (from 8/14/09): This is the third opinion in a divorce case the ILB has noticed recently where the parties are not identified by name. All three divorce cases have included custody issues. I've learned informally that there is a new courtwide policy that essentially vests discretion in the writing judge. I have heard nothing official, so don't know the parameters of the discretion, whether it is just divorce cases with custody issues, what criteria apply, etc.. (In this case, the parties' names are available via the docket.)"

Q- Might this or a similar informal policy be adopted to shield the identities of the parties with respect to other types of decisions?

In William Price v. State of Indiana , an 8-page opinion, Chief Judge Baker writes:
Appellant-defendant William Price appeals his conviction for Cruelty to an Animal, a class A misdemeanor. Specifically, Price argues that the statute is unconstitutionally vague and that the evidence was insufficient to convict him. Finding that the statute is not unconstitutionally vague as applied to Price and that the evidence was sufficient, we affirm. * * *

Price argues that Indiana Code section 35-46-3-12 is unconstitutionally vague. As an initial matter, the State maintains that Price has waived this argument because he did not move to dismiss the information in the trial court. Price counters that the constitutionality of a statute may be raised at any stage of the proceedings.

Our Supreme Court has held that “[g]enerally, the failure to file a proper motion to dismiss raising the Constitutional challenge waives the issue on appeal.” Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985). Nevertheless, both our Supreme Court and this court have considered challenges to the constitutionality of statutes even though the defendant had failed to file a motion to dismiss. See Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992) (concluding that “the constitutionality of a statute may be raised at any stage of the proceeding including raising the issue sua sponte by this Court”); Vaughn v. State, 782 N.E.2d 417, 420 (Ind. Ct. App. 2003) (deciding to address the defendant's challenge to the constitutionality of a statute even though the defendant failed to file a motion to dismiss and the State argued waiver). Moreover, even in cases where waiver has been found, the court proceeded to address the merits of the defendant's constitutional challenge. See Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind. 1985) (concluding that “[e]ven assuming appellant had preserved this claim, it would not constitute reversible error”); Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008) (stating that “even if we were to consider [the defendant's] argument upon the merits, he would not prevail because his challenge to the statute as unconstitutionally vague fails”). Thus, we will address the merits of Price's argument.[2]
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[2] We caution that our decision to reach the merits is not an invitation to neglect to file a motion to dismiss and then argue for the first time on appeal that the statute is unconstitutional. Indeed, this court has refused to address the merits after concluding that the defendant waived his constitutional challenge. See Adams v. State, 804 N.E.2d 1169, 1172 (Ind. Ct. App. 2004) (holding that the defendant waived his challenge to the constitutionality of a statute because he failed to file a motion to dismiss in the trial court); Wiggins v. State, 727 N.E.2d 1, 5 (Ind. Ct. App. 2000) (holding that the defendant waived his argument that the statute was unconstitutionally vague even though he had filed a motion to dismiss because the motion only alleged that the statute violated the prohibition against ex post facto laws).

In Isaiah Tooley v. State of Indiana , an 8-page opinion, CJ Baker writes:
Appellant-defendant Isaiah Tooley appeals his conviction for Cruelty to an Animal, a class A misdemeanor. Specifically, Tooley argues that the statute is unconstitutionally vague and that there was insufficient evidence to convict him. Finding that the statute is not unconstitutionally vague on its face or as applied to Tooley and that the evidence was sufficient, we affirm. [ILB - The same discussion re vagueness as in the Price opinion follows, with the same footnote text.]
Kenneth L. Collins v. State of Indiana is a 23-page, 2-1 opinion. Judge Bradford writes:
Appellant/Defendant Kenneth Collins appeals from the trial court's alteration of the terms of his probation, which was originally imposed following his February of 2000 guilty plea to Class B felony Rape. We affirm in part and remand in part. * * *

We conclude that the imposition of the Special Stipulations did not constitute an abuse of discretion, did not violate due process, and was not an ex post facto law. We further conclude, however, that Special Stipulations 6, 7, 10, 11, and 15 were impermissibly vague, and we therefore remand this cause to the trial court for clarification of those terms. * * *

BROWN, J., concurs.
CRONE, J., concurring in part and dissenting in part. I concur with the majority's opinion in all respects except for its determination that Stipulations 16 and 17 are not unconstitutionally vague. Pursuant to McVey, 863 N.E.2d 434, and Fitzgerald, 805 N.E.2d 857, I would remand to the trial court to reconsider and clarify these conditions.

In Roger L. Brown v. State of Indiana , a 10-page opinion, Judge Crone writes:
Roger L. Brown challenges his convictions for class D felony operating a vehicle while intoxicated resulting in bodily injury. We affirm.

Issues: I. Whether the trial court abused its discretion by admitting evidence of Brown‟s horizontal gaze nystagmus test; II. Whether the trial court abused its discretion in admitting evidence of Brown‟s blood draw; and III. Whether the evidence is sufficient to sustain the convictions.

NFP civil opinions today (3):

George Mimms v. Hidden Bay Homeowners Association, Inc. (NFP)

Barbara MacMillian v. Jeffrey S. MacMillian (NFP) - "Barbara MacMillan appeals an Order entered on December 15, 2008, ordering Barbara to pay half of any tax liability based upon the sale of certain investment accounts, and also granting Jeffrey MacMillan a credit of $15,226.00 which represents 40% of the mortgage and real estate taxes paid by Jeffrey from the filing date until the date of the dissolution trial. Barbara raises three issues, which we revise and restate as: I. Whether the trial court erred in granting Jeffrey a $15,226.00 credit which was not granted to Jeffrey in the original dissolution decree, when the original dissolution decree was not appealed; II. Whether the trial court erred in ordering Barbara to pay one-half of the tax liabilities concerning the sale of certain investment accounts; and III. Whether this court should remand the case to the trial court for its consideration of awarding appellate attorney fees and expenses in favor of Barbara. We reverse and remand."

Brown Flying School, Inc. and Steve Brown v. Terre Haute International Airport Authority, et al. (NFP) - Lack of standing.

NFP criminal opinions today (7):

Justin Parsley v. State of Indiana (NFP)

Larry D. Grissett v. State of Indiana (NFP)

James Bryant v. State of Indiana (NFP)

Timothy E. Dennison v. State of Indiana (NFP)

Clyde Piggie v. State of Indiana (NFP)

Cordero Love v. State of Indiana (NFP)

Randy L. Reedy v. State of Indiana (NFP)

Posted by Marcia Oddi on August 21, 2009 11:49 AM
Posted to Ind. App.Ct. Decisions