« Ind. Decisions - 7th Circuit issues one Indiana opinion today | Main | Courts - "D.C. Circuit Tosses FCC Rule Capping Cable Subscribers" »

Friday, August 28, 2009

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In Annette Baker v. Heartland Food Corporation , a 9-page opinion, Judge Najam writes:

Annette Baker filed an application for adjustment of claim with the Worker's Compensation Board of Indiana (the “Board”) against her employer, Heartland Food Corporation (“Heartland”). A Single Hearing Judge denied her claim, concluding that Baker had not established that her personal injury arose out of and in the course of her employment. Baker petitioned the full Board, which affirmed the Single Hearing Judge's decision. On appeal, Baker contends that the Board erred when it denied her claim. Applying the positional risk doctrine, we hold that Baker met the initial burden to show that her personal injury occurred in the course of employment, that the burden of proof shifted to Heartland, and that Heartland failed to rebut the presumption that the injury arose out of employment. Accordingly, Baker is eligible for worker's compensation. * * *

Baker would not have been at the place where she injured her back but for the duties of her employment. Heartland did not prove that the injury was the result of an idiopathic cause, a cause personal to her, and it has not, therefore, rebutted the presumption in Baker's favor under the positional risk doctrine. Accordingly, we reverse the Board's decision and remand with instructions to award Baker benefits. Baker would not have been at the place where she injured her back but for the duties of her employment. Heartland did not prove that the injury was the result of an idiopathic cause, a cause personal to her, and it has not, therefore, rebutted the presumption in Baker's favor under the positional risk doctrine. Accordingly, we reverse the Board's decision and remand with instructions to award Baker benefits.

T.D. v. State of Indiana is the fourth case to come to the Court of Appeals under Indiana Appellate Rule 14.1. The others were T.S. [see also the ILB entries under the heading "Supreme Court grants transfer with opinion, applying new Appellate Rule 14.1"], D.M., and D.S. [transfer was denied in D.S. on Aug. 24- see this ILB entry for more info]. As with the earlier cases, in T.D., a 10-page opinion, the trial court's decision is affirmed. Judge May writes:
The Indiana Department of Child Services (“IDCS”) seeks expedited review, pursuant to Indiana Appellate Rule 14.1, of the St. Joseph Probate Court’s modified dispositional order placing T.D., a juvenile adjudicated to be a delinquent, in an out-of-state shelter care facility contrary to the IDCS’s placement recommendation. We affirm. * * *

After reviewing IDCS’s and the Probation Department’s Consideration Reports and considering the evidence and testimony admitted during the modification hearing, the trial court concluded IDCS’s alternative placement recommendations were contrary to T.D.’s best interests. The order placing T.D. at Forest Ridge was supported with ample evidence of T.D.’s history of drug abuse, her diagnosed mental disorders, her family relationships, her wishes and those of her grandmother, and the Probation Department’s formal recommendation. We cannot conclude the trial court committed clear error in placing T.D. at Forest Ridge.[2]
______________
[2] At the time the trial court issued its modified dispositional order placing T.D. in the Forest Ridge program, Indiana law provided that IDCS was responsible for the payment of costs and expenses incurred by or on behalf of a child for an out-of-home placement ordered by a juvenile court and implemented after entry of a dispositional decree or modification order. This was true even if the placement was contrary to the IDCS recommendation, unless or until the trial court modified its dispositional order or IDCS prevailed on appeal, so long as the court made written findings that the placement was an emergency required to protect the health and welfare of the child. See Ind. Code § 31-37-18-9(d) and (e). This rule also applied to out-of-state placements if certain additional conditions were met. See Ind. Code §§ 31-37-19-3 and 41-40-1-2(f) (2008). [ILB - that should be "31", not "41"]

But during the 2009 Special Session of the Indiana General Assembly, Indiana Code Section 31-40-1-2(f) was amended. It now reads: “The [IDCS] is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement is not recommended or approved by the director of the department or the director’s designee.” (Emphasis added.) This amendment shifts from IDCS to the counties the burden of payment for housing and services provided to or for the benefit of a child placed in a facility located outside of Indiana without prior approval by the IDCS director or the director’s designee, notwithstanding the court’s determination regarding the best interests of the child. Because the change made to Indiana Code Section 31-40-1-2 did not become effective until July 1, 2009, it is inapplicable to the case before us.

Andre Syval Peoples v. State of Indiana - "Andre Peoples entered a plea of guilty to dealing cocaine as a Class B felony, then after a bench trial was found to be an habitual offender. He argues on appeal the habitual offender enhancement was improper because his prior convictions do not support such an enhancement. We affirm."

In Steven T. Gerber v. State of Indiana , a 14-page decision with three opinions, Judge May writes for the majority:

Steven T. Gerber appeals the denial of his petition for expungement of his arrest records. We reverse and remand. * * *

Gerber raises two issues, which we restate as: (1) whether the trial court erred by treating the running of the limitations period as a prerequisite to petitioning for expungement, and (2) whether the trial court erred by allowing the Prosecutor to advance arguments in opposition to Gerber’s petition. * * *

On remand, the trial court shall either (1) summarily grant the petition, (2) set the matter for hearing, or (3) summarily deny the petition after finding the petition insufficient. The Prosecutor shall not participate in the proceedings on remand.

Reversed and remanded.
BAKER, C.J., concurs in part and dissents in part. [in an opinion which begins] Although I agree with the majority’s substantive analysis, I respectfully part ways from the disposition of the case. I believe that the trial court has only two limited options on remand.
BARNES, J., concurs in part and dissents in part. [a snippet] I part ways, however, from her conclusion that participation by the prosecutor “should not be permitted on remand.”

David Mork v. State of Indiana - "David Mork appeals his conviction for theft as a class D felony. Mork raises two issues, which we revise and restate as follows: I. Whether the trial court improperly denied Mork's motion for discharge under Ind. Criminal Rule 4(B); and II. Whether the evidence was sufficient to support Mork's conviction. We affirm."

NFP civil opinions today (3):

Term. of Parent-Child Rel. of E.H., J.G., and J.J.G.; E.H. and J.G. v. IDCS (NFP)

John L. Parker v. Lee Morgan (NFP) - "After visiting his friend Calvin Guy at an apartment that Guy was leasing from landlord Lee Morgan, John Parker fell in the apartment’s snow-covered parking lot and injured his ankle. When he returned after the snow had cleared, Parker observed that the parking lot was eroded and uneven in the spot where he had fallen. Parker filed a complaint against Morgan, alleging that he negligently maintained the parking lot, which was used by all the tenants and was under Morgan’s control. Morgan filed a motion for summary judgment, which the trial court granted. Parker now appeals, contending that the trial court applied the incorrect standard of care and that there are remaining genuine issues of material fact. Agreeing with Parker, we reverse the trial court’s grant of summary judgment and remand for further proceedings."

Henry E. Fagan v. Brenda D. Fagan (NFP) - "Henry E. Fagan (“Husband”) appeals the order dissolving his marriage to Brenda D. Fagan (“Wife”). He argues the trial court erred by: (1) entering a final dissolution decree without conducting a retrial of the final dissolution hearing; (2) awarding Wife one-half of his pension; and (3) entering an order for child support in excess of the amount agreed upon by the parties. Concluding Husband has waived these issues, and otherwise finding no error, we affirm."

NFP criminal opinions today (6):

Thomas Dose v. State of Indiana (NFP)

Andrew G. Bowers v. State of Indiana (NFP)

Phillip T. Billingsley v. State of Indiana (NFP)

Jason Woolems v. State of Indiana (NFP)

Michael Havison v. State of Indiana (NFP)

Adrian Butler v. State of Indiana (NFP)

Posted by Marcia Oddi on August 28, 2009 12:34 PM
Posted to Ind. App.Ct. Decisions