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Thursday, September 17, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

League of Women Voters v. Todd Rokita - see ILB summary here.

In Kenneth Lobb and Elsie Lobb v. Melissa Hudson-Lobb, a 15-page opinion, Judge Najam writes:

Kenneth and Elsie Lobb (collectively “the Lobbs”) appeal from the dissolution court's judgment ordering the sale of their real estate to satisfy a judgment lien from a decree that dissolved the marriage of Melissa Hudson-Lobb (“Wife”) and Kevin Lobb (“Husband”). We address a single dispositive issue on review, namely, whether the court erred when it determined that the money judgment awarded to Wife in the Decree of Dissolution of Marriage (“Decree”) constituted a judgment lien against the Lobbs' real estate. * * *

We conclude that on these facts, as a matter of law, it was unnecessary for the Decree to have been entered in the Record of Judgments and Orders for the award in favor of Wife to have been a judgment lien on the property enforceable against the Lobbs. Again, “where one spouse is ordered to pay the other spouse money in installments, such final judgment automatically creates a judgment lien, "except where the exercise of the court's discretion would specifically eliminate it." Reed, 508 N.E.2d at 1259. The dissolution court here took no steps to eliminate the creation of a lien. And the Lobbs had actual notice of the Decree's money judgment in favor of Wife and that Husband had not paid all of that judgment. Thus, the unpaid award in the Decree constitutes a judgment lien in favor of Wife enforceable against the Lobbs. The Lobbs' contention to the contrary must fail.

In Alisha Harradon, et al v. Keith Schlamadinger, et al, a 10-page opinion, Judge Mathias writes:
Alisha Harradon and William Jones, Jr. (collectively “Parents”) filed a complaint in Starke Circuit Court against Keith and Kathy Schlamadinger (collectively “the Schlamadingers”) alleging that the Schlamadingers' negligence proximately caused the death of their infant child. The Schlamadingers filed a motion for summary judgment, which the trial court granted. Parents appeal and argue that the Schlamadingers owed a duty of reasonable care to the child, and that the question of whether the Schlamadingers breached that duty creates a genuine issue of material fact precluding the entry of summary judgment. Concluding that the Schlamadingers are entitled to judgment as a matter of law, we affirm. * * *

The law does not require the Schlamadingers to protect a youthful invitee, such as the baby, from a danger on their premises which Parents themselves created, were fully aware of, and yet consciously disregarded. See Johnson, 595 N.E.2d at 752 (citing Restatement (Second) of Torts §343A). Although the two-month-old baby could not himself be aware of the risk of sleeping on a sofa with his mother, Parents were and chose to do so anyway. Importantly, there is also no evidence in the record that Kathy observed or had actual knowledge that Alisha was sleeping on the sofa with the baby when he suffocated. In her deposition, Kathy testified that she assumed the baby was sleeping in its car seat.

As a matter of law, under the facts and circumstances before us, the sofa was not a dangerous condition on the Schlamadingers' premises, and even if it could be found to be such, Parents knew and assumed the risk involved with Mother's decision to sleep with the baby on the sofa. Parents' designated evidence cannot surmount the conjunctive preconditions to liability set forth in Section 343. That same evidence leads us to conclude as a matter of law that the Schlamadingers did not breach the duty of reasonable care they owed to Parents' baby. Accordingly, we affirm the trial court's grant of summary judgment in favor of the Schlamadingers.

NFP civil opinions today (2):

Kenneth Cole Fullmer v. Allstate Property & Casualty Insurance (NFP) "Based on the foregoing, we conclude that Fullmer waived his opportunity to have the jury instructed that it was proper to name only Allstate as a defendant, and even if the trial court had erred by refusing to give that instruction, Fullmer has failed to demonstrate a reasonable probability that his substantive rights were adversely affected."

Rosalie Jarvis v. Harold Drees (NFP) - "Rosalie Jarvis appeals the trial court’s failure to award her certain attorney fees in her action for obtaining an order of protection with respect to Harold Drees. Jarvis presents the following restated issue for review: Did the trial court order Drees to pay Jarvis’s attorney fees in an amount less than the amount to which she was entitled? We reverse and remand with instructions."

NFP criminal opinions today (7):

Kelvin L. Lampkins v. State of Indiana (NFP)

Brian E. Cain v. State of Indiana (NFP)

Isaac Jones v. State of Indiana (NFP)

Steven Rottet v. State of Indiana (NFP)

Ernest White v. State of Indiana (NFP)

Tommie Hatchett v. State of Indiana (NFP)

Christopher Ashlock v. State of Indiana (NFP)

Posted by Marcia Oddi on September 17, 2009 11:18 AM
Posted to Ind. App.Ct. Decisions