Citizens Action Coalition of Indiana, et al. v. NIPSCO and Indiana Office of Utility Consumer Counselor (7/27/04 IndCtApp) [ ]
Baker, Judge
Appellants-intervenors Citizens Action Coalition of Indiana, Inc. (CAC) appeals an order from the Indiana Utility Regulatory Commission (IURC) awarding $1,105,857.80 in attorney fees, costs, and expenses to the Northern Indiana Public Service Company Industrial Group (Industrials)—a consortium of industrial electricity customers of the Northern Indiana Public Service Company (NIPSCO)—earned by the Industrials for participating in an investigation by the IURC. Specifically, CAC claims that the IURC’s order does not meet the criteria established by Indiana courts with respect to payment of attorney fees from a “common fund.” Additionally, CAC argues that even if a “common fund” exists from which to award attorney fees, the IURC unlawfully limited eligibility of attorney fees to signatories of a settlement reached in the IURC investigation. Finally, CAC contends that the IURC erroneously denied its request to conduct discovery with respect to the negotiations that resulted in the fee provisions of the settlement. Concluding that the funds in the escrow account comprise a common fund, that CAC’s argument with respect to attorney fees from the fund for non-signatories to the agreement is not ripe for review, and that the IURC did not err when it denied CAC’s discovery requests, we affirm the IURC’s order. * * *Robert Dost v. State of Indiana (7/27/04 IndCtApp) [Criminal Law & Procedure]In light of the issues addressed, we conclude that the funds in the escrow account constitute a common fund, that CAC’s argument with respect to attorney fees from the fund is not ripe for review, and that the IURC did not err when it denied CAC’s discovery requests. The IURC’s order is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
"Based upon the foregoing authorities and analysis, we conclude that the search warrant issued for the purpose of searching Dost’s residence is valid and fulfills the requirements of the Fourth Amendment."
Amy Smith v. Julie & Scott Archer (7/27/04 IndCtApp) [Insurance]
Barnes, Judge
Amy Smith appeals the trial court’s imposition of sanctions for purportedly violating the Alternative Dispute Resolution (“ADR”) rules in connection with a court-ordered mediation session. We reverse.Jeffrey Gregg, et al. v. Jeffrey & Brenda Cooper (7/27/04 IndCtApp) [Insurance]The sole issue is whether the trial court abused its discretion in imposing sanctions. * * *
In sum, although a court “may” impose sanctions for violating an ADR rule, in this case the decision to do so was clearly against the logic and effect of the facts and circumstances before the court because there is no indication of intentional misconduct by Smith or her attorney or prejudice to the Archers or the mediation process. Therefore, the order imposing sanctions against Smith was an abuse of discretion. * * * Reversed.
CRONE, J., and BAKER, J., concur.
Here, it is undisputed that Gregg was moving bales of hay from Bruin’s property to Gregg’s nearby property to feed his own cattle. Although Gregg was using Simpson’s tractor to move the bales and Simpson could have stopped Gregg from using the tractor, the movement of the bales was not related to Simpson’s farming operations. Despite Gregg and Simpson’s arrangement to trade Gregg’s labor for the use of Simpson’s equipment, no evidence was designated to demonstrate that Gregg was acting within the scope of his employment with Simpson or acting to further Simpson’s business at the time of the accident. Rather, Gregg was acting on his own initiative and for the benefit of himself. There were no genuine issues of material fact, and Simpson was entitled to judgment as a matter of law. Thus, the trial court erred by denying Simpson’s motion for summary judgment. See, e.g., Shelby, 533 N.E.2d at 1298 (affirming the trial court’s grant of summary judgment where the employee’s “action, if intentional, was done on his own initiative and not in service of” the employer and, thus, the employer could not be held liable on a respondeat superior theory).Carl Richard v. Carmen Richard (7/27/04 IndCtApp) [Family Law]For the foregoing reasons, we reverse the trial court’s declaratory judgment in favor of the Coopers on Simpson’s policy with United Farm, the trial court’s denial of the motion to correct error, and the trial court’s denial of Simpson’s motion for summary judgment, and remand for proceedings consistent with this opinion. Reversed and remanded.
DARDEN, J. and ROBB, J. concur
Appellant-Petitioner, Carl A. Richard (Carl), appeals the trial court’s determination that he is the biological father of a daughter, C.R.R. We affirm. * * *Michael Sabo v. Anne Marie Sabo (7/27/04 IndCtApp) [Family Law; Constitutional Law]Despite Carl’s contentions, we find nothing in Charles’ testimony that constitutes the direct, clear, and convincing proof necessary to overcome the statutory presumption that Carl is the biological father of C.R.R. Thus, in the same vein that our supreme court has held that a putative father cannot overcome the presumption by merely denying he had relations with his wife, we hold that Carl cannot overcome the statutory presumption of paternity by merely presenting testimony of his identical twin brother that the child is probably his and he is willing to pay child support. As a result, we hold that the trial court committed no error in determining that Carl is the biological father of C.R.R.
Based on the foregoing, we conclude that the trial court did not err in determining that Carl failed to rebut the statutory presumption that he is the biological father of C.R.R. Affirmed.
KIRSCH, C.J., and NAJAM, J., concur.
[Husband] appeals the trial court’s judgment dissolving his marriage to [Wife]. We affirm in part and reverse and remand in part.Ernest L. Jones v. State of Indiana (7/27/04 IndCtApp) [Criminal Law & Procedure]Issue. *** [W]hether the trial court erred by conducting the final hearing without allowing Husband the due process opportunity to defend himself either in person, by counsel, or telephonically, in violation of Article I, Section 12 of the Indiana Constitution. * * *
[T]he trial court knew that Overton—i.e., the one responsible for setting up the telephonic conference—had withdrawn and that the Westville Correctional Facility did not set up the conference. As such, Husband—through no fault of his own—was denied his right to defend himself in the final dissolution hearing in person, by counsel, or telephonically. Accordingly, the trial court erred by conducting the civil hearing with Husband in absentia, without providing Husband a means by which to defend himself in the civil action. See, e.g., Murfitt, 809 N.E.2d at 334 (holding that the incarcerated defendant was not afforded the opportunity to protect his own interests in the divorce proceedings because he was unable to present his claim of defense in person, telephonically, by counsel, or through documentary evidence).
For the foregoing reasons, we affirm the trial court’s denial of Husband’s motion for appointment of counsel without making the requisite determinations, but reverse the trial court’s order because the trial court conducted the final hearing without allowing Husband a means to defend himself. We remand to the trial court for proceedings consistent with this opinion. Affirmed in part and reversed and remanded in part.
BAKER, J., and FRIEDLANDER, J., concur.
Ernest Jones appeals his conviction for nonsupport of a dependent child as a Class C felony and the sentence imposed thereon. We affirm but remand. * * *Johnathon Exum v. State of Indiana (7/27/04 IndCtApp) [Criminal Law & Procedure]Jones’ conviction does not violate double jeopardy principles. We affirm Jones’ conviction for nonpayment of child support but remand for the trial court to recalculate the amount of arrearage taking into account the order of abatement. We affirm the sentence because the amount of the arrearage is many times more than the statutory minimum even with the reduction due to the abatement. We affirm but remand for a recalculation. Affirmed but remanded.
CRONE, J., and BAKER, J., concur.
Appellant-defendant Johnathan Exum appeals his conviction for Murder, a felony, challenging the trial court’s application of the felony murder rule, set forth in Indiana Code section 35-42-1-1. Specifically, Exum argues that the death of Lawrence Duff, a co-perpetrator who participated in an attempted robbery, was not reasonably foreseeable to him, and that certain jury instructions were misleading, confusing, and incorrect statements of the law. Finding that Exum reasonably should have foreseen that the commission of Attempted Robbery, a class B Felony, would create a situation which would expose another to the danger of death, and, thus, he was a mediate or immediate cause of the death within the meaning of the felony murder statute, and that the jury instructions were not misleading, confusing, or incorrect statements of the law, we affirm. * * *Liberty Insurance Corporation and Liberty Mutual Insurance Group v. Ferguson Steel Company, Inc. (6/27/04 IndCtApp) [Insurance]In light of our discussion of the issues set forth above, we conclude that (1) the death of Duff was reasonably foreseeable to Exum; (2) Exum contributed to that death; and (3) jury instructions number 38 and 39 were neither misleading, confusing, or misstatements of the law, nor did they prejudice Exum’s substantial rights. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
Liberty Insurance (“Liberty”) appeals the trial court’s entry of summary judgment in favor of Ferguson Steel Company (“Ferguson”). We reverse and remand.Posted by Marcia Oddi at July 27, 2004 02:03 PMIssue. The issue before us is whether the trial court properly granted summary judgment in favor of Ferguson on the basis that Ferguson was an additional insured under Liberty’s policy on January 6, 2000. * * *
The question for the trial court was not whether there was an enforceable contract between Ferguson and Steel Frame on January 6, 2000, but whether there was an enforceable contract between Ferguson and Liberty with respect to coverage on that date. We conclude, based upon the undisputed material facts and the application of unambiguous policy language, that there was not. Therefore, the trial court erroneously entered summary judgment in favor of Ferguson. With respect to Liberty, based upon identical undisputed evidence, lack of a genuine issue of material fact in the case, and the clear and unambiguous language of the policy, the trial court erroneously denied Liberty’s motion for summary judgment. * * *
Reversed and remanded.
CRONE, J., and BAKER, J., concur.