The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

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Tuesday, September 07, 2010

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In David Hatter, et al. v. Pierce Manufacturing, Inc. , a 26-page opinion, Judge Robb writes:

While working as a Pike Township firefighter, David Hatter was injured when the cap on a fire truck’s rear intake pipe was propelled off the pipe by pressurized air and the cap struck Hatter in the face. Hatter and his wife Kristina brought this products liability action against Pierce Manufacturing, Inc. (“Pierce”), the manufacturer of the fire truck. Following a jury trial and verdict in favor of Pierce, Hatter appeals. Hatter presents for our review the following restated issues: 1) whether the trial court abused its discretion by failing to strike two jurors for cause; 2) whether the trial court abused its discretion in the giving of two jury instructions; 3) whether the trial court abused its discretion by excluding certain evidence; 4) whether the trial court erred by denying Hatter’s motion for judgment on the evidence as to the fault of two non-parties; and 5) whether the trial court erred by dismissing Kristina’s loss of consortium claim as a sanction for a discovery violation. Regarding Hatter’s jury selection issue, we conclude Hatter failed to exhaust one of his peremptory challenges and has failed to show that both of his challenges for cause were improperly denied. Further concluding the trial court did not abuse its discretion in its instruction of the jury or in excluding evidence, and finding no other error, we affirm.

In Rod L. Avery, et al. v. Trina Avery , a 7-page opinion, Judge Najam writes:

Rod Avery and Marshall Avery (“the Averys”) appeal from the trial court’s entry of default judgment against them in this will contest initiated by Trina Avery (“Trina”). The Averys present a single issue for our review, namely, whether the trial court erred when it entered default judgment against them for their failure to file an answer to Trina’s verified complaint. We hold that a will contest is a civil action and that a defendant in a will contest is required to file an answer or otherwise plead to a complaint as provided in the trial rules. Accordingly, we affirm the default judgment entered by the trial court. * * *

Again, a will contest is a freestanding cause of action separate and distinct from the administration of an estate, and the trial rules generally apply to will contests. See Robinson, 587 N.E.2d at 685. We hold that the Averys were required to file a timely answer to Trina’s complaint. They failed to do so. The trial court did not err when it entered default judgment against the Averys.

In Jeff Koehlinger, et al. v. State Lottery Commission of Indiana , a 19-page, 2-1 opinion, Judge Bradford writes:

Appellants/Plaintiffs Jeff Koehlinger and Jeff Frazier, as individuals and as class representatives of all others similarly situated (“Appellants”), appeal from the trial court's grant of summary judgment in favor of Appellee/Defendant the State Lottery Commission of Indiana (“the Lottery”). The Lottery contends that the trial court should have entered summary judgment in its favor on the ground that the Appellants did not exhaust their administrative remedies. Appellants contend that the trial court erred in concluding that the Lottery was entitled to summary judgment on their claims of contract rescission, false advertising, negligence, negligent misrepresentation, unjust enrichment, restitution, and money had and received. Concluding that the trial court erred in granting summary judgment in favor of the Lottery on Appellants' contract claim, we reverse and remand. * * *

I. Whether the Trial Court Erred in Failing to Grant the Lottery
Summary Judgment on the Basis that the Plaintiffs had Failed to
Exhaust Their Administrative Remedies

Both sides acknowledge that the Lottery and claims against it are subject to the Administrative Orders and Procedures Act (“AOPA”). The Lottery contends that the Appellants did not exhaust the administrative remedies available to them while the Appellants argue that they should be excused from the exhaustion requirement because no adequate remedy existed at the time their claims became ripe.* * *

The designated evidence contains myriad examples of persons attempting to contact the Lottery regarding the website error, and there is no indication that any of these contacts was successful in initiating any kind of administrative process. Simply put, it seems that the Lottery had no mechanism for addressing player concerns of this type at the time, leaving us in grave doubt as to the availability of an administrative remedy.

Moreover, we cannot agree that the Lottery's losing-ticket redemption program qualifies as an administrative remedy that needed to be exhausted for purposes of AOPA, as it did not exist when the Plaintiffs' claims became ripe. * * *

II. Contract Rescission * * *

If a player can prove to the trial court that he or she relied on the Lottery's misinformation to his or her detriment, that player will be entitled to rescission.

III. DCSA * * *

The trial court properly granted the Lottery summary judgment on Appellant's DCSA claim. * * *

IV. Negligence and Negligent Misrepresentation

Appellants contend that the trial court erred in concluding that the Lottery enjoys immunity under the DCSA. The Lottery contends that it is immune from the DCSA because its advertising activities are required or expressly permitted by state law. * * *

The trial court properly granted summary judgment in favor of the Lottery on Appellants' tort claims.

V. Quasi-Contractual Claims

Finally, Appellants contend that the trial court erred in dismissing its quasi-contractual claims for unjust enrichment, money had and received, and restitution. * * *

The trial court did not err in granting summary judgment in favor of the Lottery on Appellants' quasi-contractual claims.

Conclusion. The trial court correctly refused to grant the Lottery summary judgment on its claim that Appellants had failed to exhaust their administrative remedies. The trial court correctly granted summary judgment in favor of the Lottery on Appellants' tort, DCSA, and quasi-contractual claims. The trial court, however, erred in granting summary judgment in favor of the Lottery on Appellants' contract rescission claim, and we therefore remand for further proceedings not inconsistent with this opinion, up to and including bench trial, if necessary.

MATHIAS, J., concurs.
RILEY, J., concurs in part and dissents with separate opinion. [that begins, on p. 16 of 19] I respectfully disagree with the majority's opinion in the resolution of this case. While I concur with the majority on the denial of the Lottery's claim that Appellants had failed to exhaust their administrative remedies and its decision on Appellants' DCSA and quasi-contractual claims, I concur in result with respect to Appellants' contract rescission claim, and dissent on the majority's handling of Appellants' negligence claim.

In Larry Rodts v. Heart City Automotive, Inc. , a 12-page opinion, Judge Najam writes:

Larry Rodts appeals the trial court's grant of summary judgment for Heart City Automotive, Inc. (“Heart City”). Rodts raises the following two issues for our review: 1. Whether his oral contract for employment with Heart City is unenforceable under Indiana's Statute of Frauds.
2. Whether a deferred compensation scheme constituted “wages” under Indiana law.

We hold that no genuine issues of material fact precluded the entry of summary judgment for Heart City. Rodts' oral contract is unenforceable and his deferred compensation was not a wage. As such, we affirm the trial court's entry of summary judgment for Heart City.

In Gregory Johnson v. State of Indiana , an 8-page opinion, Judge Najam writes:

Gregory Johnson appeals his conviction for Refusal to Identify Self, a Class C misdemeanor, following a bench trial. He presents two issues for our review: 1. Whether the State presented sufficient evidence to support his conviction. 2. Whether his misdemeanor conviction violates Article I, Section 16 of the Indiana Constitution. We affirm. * * *

In essence, Johnson asks that we create an exception to the statute where a defendant has a reasonable fear for his safety which prevents his compliance. Further, Johnson contends that because the Beech Grove police officer ultimately retrieved his driver’s license from the cab of his truck, he did, in fact, comply with the statute. We cannot agree. * * *

Here, Officer Payne asked Johnson to provide his driver’s license, which was in his possession, at least four times, and Johnson refused each request. Johnson did not ever “physically hand over” his driver’s license. See id. Instead, only after his arrest did Johnson instruct the Beech Grove officer where to find his driver’s license. We hold that the State presented sufficient evidence to support his conviction. To the extent that Johnson contends that his fear for his safety prevented him from complying with the statute, Johnson asks us to reweigh the evidence and to create an exception to the statute, which we will not do.

NFP civil opinions today (5):

Umarex Sportwaffen GMBH, et al. v. Toyriffic, LLC (NFP)

Mark Hendrickson, et al. v. Joseph Potetz, et al. (NFP)

James D. Schregardus, et al. v. OH Retail, LL, LLC (NFP)

Salaheddin A. Alfaqeer v. LOR Corporation (NFP)

Term. of Parent-Child Rel. of D.M., A.M. v. I.D.C.S. (NFP)

NFP criminal opinions today (5):

Haneef S. Jackson-Bey v. State of Indiana (NFP)

Theodore Ebeyer v. State of Indiana (NFP)

Phillip J. Camp v. State of Indiana (NFP)

Dewan D. Burnett v. State of Indiana (NFP)

John Chupp v. State of Indiana (NFP)