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Tuesday, December 15, 2009

Ind. Decisions - Court of Appeals issues 5 today (and 6 NFP)

For publication opinions today (5):

In Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass Co., and Brad Craven , a 12-page opinion, Judge Kirsch writes:

[The Wilsons] appeal the trial court's grant of summary judgment in favor of Gene Isaacs, Sheriff of Cass County and Deputy Brad Craven (collectively, “the Sheriff”). The Wilsons raise the following restated issues: I. Whether the trial court erred when it granted summary judgment in favor of the Sheriff on the basis that the Sheriff was immune from liability for injuries caused by the enforcement of a law pursuant to the Indiana Tort Claims Act (“ITCA”), IC 34-13-3-3(8); and II. Whether the trial court erred when it granted summary judgment in favor of Deputy Craven because the Wilsons are barred under IC 34-13-3-5 from pursuing a claim against him individually for actions taken within the scope of his employment.

We affirm in part, reverse in part, and remand.

In Indiana Farmers Mutual Ins., Co. v. North Vernon Drop Forge, et al. , a 28-page opinion, Judge Vaidik writes:
The defendant insureds agreed to provide a third party with “clean fill” dirt from their steel forge. The fill dirt turned out to be contaminated. The third party sued the insureds for depositing contaminated waste on his property. The complaint alleged intentional and unintentional torts, breach of contract theories, and strict liability causes of action. The defendants' commercial general liability insurer filed this action seeking declaration that it had no duty to defend the insureds in the underlying suit. In the course of summary judgment proceedings, the insured forge owner testified via affidavit that he did not know the fill dirt was contaminated. The trial court entered summary judgment in favor of the insureds. We hold that (1) the forge owner's affidavit testimony may be considered along with the underlying complaint when assessing the insurer's duty to defend, (2) the factual allegations sufficiently disclose an unintended “occurrence” requiring the insurer to defend in the underlying suit, (3) coverage is not foreclosed by the policy's intentional acts exclusion, (4) the insurer was not prejudiced by untimely notice of occurrence, and (5) the trial court erroneously ordered indemnification before the conclusion of the underlying litigation. We affirm in part and reverse in part.
In Patricia A. Grigsby v. Charles E. Grigsby , aa 15-page opinion, Chief Judge Baker writes:
Appellant McClure & O'Farrell, P.C. (the Law Firm), appeals the trial court's order awarding attorney fees to appellee Patricia A. Grigsby. The Law Firm argues that the trial court erred by concluding that the Law Firm had acted unreasonably by opposing Patricia's petition for an accounting of the Law Firm's services to her deceased, estranged husband in their divorce proceeding. Finding that the Law Firm did not act unreasonably, we reverse. * * *

[Includes discussion of attorneys' ability to "gauge whether the information they hold on behalf of their clients is confidential. If an attorney believes that the revelation of the information—including billing records or a fee agreement—would be tantamount to the disclosure of a confidential communication, then it would behoove the attorney to protect that information until directed to do otherwise by a court."]

Inasmuch as none of the four primary arguments raised by the Law Firm in opposition to Patricia's petition were unreasonable, the trial court erred by ordering the Law Firm to pay Patricia's attorney fees, and the judgment of the trial court is reversed.

In State of Indiana v. Craig Cooper, a 14-page, 2-1 opinion, Chief Judge Baker writes:
Appellant-respondent State of Indiana appeals the grant of post-conviction relief in favor of appellee-petitioner Craig Cooper. Specifically, the State argues that Cooper's request for post-conviction relief should have been denied because, even though the date and location of the offense were not specified in the factual basis during the guilty plea hearing, Cooper has failed to demonstrate how he was prejudiced by those “irregularities.” Concluding that the post-conviction court properly granted Cooper's request for relief, we affirm. * * *

In sum, we are not convinced that the post-conviction court committed “clear error” in granting Cooper's request for relief, and we are not left with a “definite and firm conviction that a mistake has been made.” * * *

BAILEY, J., concurs.
ROBB, J., dissents with opinion [that begins, at p. 12] Although I agree with the majority's conclusion the trial court did not establish a sufficient factual basis to support Cooper's guilty plea, I do not believe Cooper has demonstrated he was prejudiced by the error. Therefore, I respectfully dissent.

In City of South Bend v. Charles Dollahan, a 19-page, 2-1 opinion, Judge Darden writes:
The City of South Bend (“City”) appeals the trial court's judgment, following a bench trial, holding it liable for injuries suffered by Charles Dollahan (“Dollahan”) and ordering it to pay $300,104.00 in damages. We affirm. * * *

MATHIAS, J., concurs.
ROBB, J., dissenting with separate opinion [that begins, at p. 18] The majority concludes the evidence supports the trial court's conclusion that the City “knew or should have known that placing heavy mechanical equipment on the sidewalk, given the sidewalk's history of instability, would create an unreasonable risk of harm to Dollahan.” I respectfully dissent.

NFP civil opinions today (3):

Diversified Blasthole Drilling, Inc. v. P. Frederick Pfenninger (NFP) - "The trial court erred when it dismissed Diversified’s claims for damages stemming from conduct constituting criminal conversion and attorney deceit. As a result, the trial court abused its discretion when it denied Diversified’s motion to correct error. Therefore, we reverse the trial court’s dismissal of Diversified’s claims and remand this case for further proceedings. Reversed and remanded."

In Norma and Roland Wardlow v. A-1 Striping Svcs., Inc., Kroger Food Stores, et al. (NFP), an 18-page, 2-1 opinion in a slip and fall case, Chief Judge Baker writes:

More specifically, the Wardlows argue that the designated evidence would permit a jury to conclude that Kroger, Merrifield Plaza, and Cressy & Everett breached their duty of care to Norma while she was on the premises. The Wardlows further maintain that a genuine issue of material fact exists with regard to A-1 Striping and Arnt's duty of care and breach of that duty as contractors. Concluding that the trial court erred in granting summary judgment for the appellees, we reverse and remand for further proceedings consistent with this opinion. * * *

In sum, the facts designated by the appellees fail to negate the possibility that a jury could find that the appellees breached a duty of reasonable care to Norma. More specifically, the designated evidence failed to establish that Kroger, Merrifield Plaza, and Cressy & Everett can avoid liability as a matter of law regarding their duty of care to Norma while she was on the premises. Similarly, the designated evidence fails to show that Arnt and A-1 should be excused from potential liability to the Wardlows as a matter of law. See Peters v. Forster, 804 N.E,2d 736, 743 (Ind. 2004) (holding that a contractor generally has a duty to use reasonable care both in his work and in the course of performance of the work). As a result, we must conclude that summary judgment was improperly granted in the appellees' favor. The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

RILEY, J., concurs.
BROWN, dissents with opinion [that begins, at p. 14] I respectfully dissent from the majority's conclusion that the trial court erred in granting summary judgment for the Appellees. Specifically, I disagree with the majority's conclusion that the Appellees failed to make a prima facie showing that there were no genuine issues of material fact and were therefore entitled to judgment as a matter of law. Once the Appellees satisfied their burden, the burden then shifted to the Wardlows to “designate and produce evidence of facts showing the existence of a genuine issue of material fact.”

J.H. v. E.H. (NFP) - "We are unpersuaded that the trial court abused its discretion with respect to its various parenting time determinations in the modification order. We are further unpersuaded that Father's challenges to the trial court's prospective modification order and award of attorney's fees are meritorious. We must conclude, however, that the trial court did not adequately justify its decision to require Father to pay half of the expenses for G.H.'s parochial school. We therefore remand to the trial court for entry of findings on the matter and an evidentiary hearing, if necessary, to facilitate that determination. Accordingly, we affirm in part and reverse and remand in part to the trial court."

NFP criminal opinions today (3):

Matthew Richardson v. State of Indiana (NFP)

Eugene Graves v. State of Indiana (NFP)

John A. McKenzie v. State of Indiana (NFP)

Posted by Marcia Oddi on December 15, 2009 12:06 PM
Posted to Ind. App.Ct. Decisions