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Wednesday, October 27, 2004

Indiana Decisions - Court of Appeals posts five today

C.L.Y. v. State of Indiana (10/27/04 IndCtApp) [Juvenile Law]
Vaidik, Judge

C.L.Y. appeals his adjudication as a delinquent child for committing acts that would constitute Child Molesting as a Class C felony and Attempted Child Molesting as a Class B felony if committed by an adult. We find that it was not an abuse of discretion for the trial court to order C.L.Y. to remain in detention pending his fact-finding hearing and to deny C.L.Y.’s motion for continuance. We affirm because even assuming that the photographic array from which the victim made an out-of-court identification is impermissibly suggestive, the evidence is nonetheless sufficient to sustain C.L.Y.’s adjudication as a delinquent child. * * *
Affirmed. CRONE, J., concurs.

RILEY, J., concurs in part and dissents in part with separate opinion.
I concur in part and dissent in part. I concur with the majority opinion as to Issue I and Issue II. I respectfully dissent to Issue III. * * *

I would reverse the juvenile court’s adjudication of C.L.Y. as a delinquent child.

J.Y. v. State of Indiana (10/27/04 IndCtApp) [Juvenile Law]
Najam, Judge
J.Y. appeals from his adjudication as a delinquent child for committing Attempted Child Molesting, as a Class B felony, and Child Molesting, as a Class C felony, when committed by an adult. He presents the following issues for our review: 1. Whether the juvenile court abused its discretion when it admitted into evidence testimony regarding the victim’s out-of-court identification of J.Y. 2. Whether the State presented sufficient evidence to support his adjudication as a delinquent child. We reverse. * * *
KIRSCH, C.J., and RILEY, J., concur.
Rueth Development Company, et al. v. Michael Muenich (10/27/04 IndCtApp) [Attorney Malpractice; Procedure]
Sharpnack, Judge
Rueth Development Company, Harold Rueth, and Helen Rueth (collectively, the “Rueths”) appeal the trial court’s dismissal of their attorney malpractice complaint against Michael L. Muenich. The Rueths raise one issue, which we restate as whether the trial court abused its discretion by granting Muenich’s motion to dismiss where the trial court had ordered the Rueths to file an amended complaint and the Rueths filed their amended complaint either one or three days late. We reverse and remand.

The relevant facts follow. On May 19, 2002, the Rueths filed a complaint against Muenich that alleged Muenich “represented the [Rueths] in connection with an action brought by the United States on behalf of the United States Environmental Protection Agency” and “[a]s a result of [Muenich’s] negligence during the course of said representation, the [Rueths] sustained damages in excess of $4 million dollars.” Muenich filed a motion for a more definite statement under Ind. Trial Rule 12(E) and sought the dates on which the alleged acts of negligence occurred. The trial court granted the motion on March 3, 2003, and ordered the Rueths to amend their complaint within twenty days.

The Rueths’ counsel did not properly calendar the date on which the amended complaint was due. On March 26, 2003, the Rueths’ counsel realized the error, called Muenich’s counsel, and left a voicemail message advising that the Rueths had not yet filed the amended complaint but would do so the next day and requesting Muenich’s counsel to call “if counsel for [Muenich] had a problem with that.” On March 27, 2003, the Rueths filed an amended complaint, and on the same day, Muenich filed a motion to dismiss the Rueths’ complaint with prejudice under Ind. Trial Rule 12(E) because the Rueths had failed to file a timely amended complaint. Muenich later filed a motion to strike the Rueths’ amended complaint. After a hearing, the trial court granted Muenich’s motion * * *

The Rueths acknowledge that their amended complaint was filed either one or three days late. The Rueths argue that even though their amended complaint was late, the trial court abused its discretion by dismissing their complaint because our courts disfavor dismissal for a technicality and “[d]ismissal for a miniscule delay is the epitome of resolution on a technicality.” * * *

Although our procedural rules are extremely important, it must be kept in mind that they are merely a means for achieving the ultimate end of orderly and speedy justice. We must examine our technical rules closely when it appears that invoking them would defeat justice; otherwise we become slaves to the technicalities themselves and they acquire the position of being the ends instead of the means. * * *

The error here caused a minimal delay of three days. The missed deadline resulted from a calendaring error, not from an intentional violation of the trial court’s order. Further, the missed filing deadline was not caused by the Rueths. Rather, the delay was caused by their attorney’s calendaring error. The Rueths’ counsel was not “stirred into action by a threat of dismissal.” Rather, he caught his error, notified opposing counsel of the mistake, and filed the amended complaint the next day. Muenich has identified no prejudice caused by the delay. Additionally, there is no evidence that the Rueths had previously violated a trial rule or a trial court’s order. Less drastic sanctions were available to the trial court, such as a verbal warning as suggested by the Rueths’ counsel at oral argument. Lastly, as noted above, we have a preference for deciding cases on their merits. * * *

For the foregoing reasons, we reverse the trial court’s dismissal of the Rueths’ complaint and remand for proceedings consistent with this opinion. Reversed and remanded.
BAILEY, J. and MAY, J. concur

In Re: The Paternity of K.L.O., minor child, Toby L. Lakins v. Amy Feldman (10/27/04 IndCtApp) [Family Law]
Robb, Judge
Toby Lakins appeals the trial court’s denial of his motion to dismiss a petition to establish paternity filed by Amy Feldman, which alleged that Lakins was the father of K.L.O. We reverse and remand. * * *

On August 1, 1992, Feldman, who was not married at the time, gave birth to K.L.O. Feldman and Jeffery Overholser, the man she was dating at the time of K.L.O.’s birth, executed a paternity affidavit naming Overholser as the father. In late 2002, Feldman requested that another man, Toby Lakins, submit to a DNA test to determine if he was K.L.O.’s biological father. Lakins agreed, and a subsequent DNA test revealed a probability of 99.99995% that Lakins was K.L.O.’s biological father. * * *

Lakins first contends the trial court erred in denying his motion to dismiss because Feldman was barred by the statute of limitations from pursuing a paternity action against Lakins. We disagree.

Under [IC] 31-14-5-3, a mother may not file a paternity petition later than two years after the child is born. However, under Indiana Code section 31-14-5-2(b), a child may pursue a paternity action at any time before the child reaches twenty years of age. A child who is incompetent due to age may file a paternity petition through the child’s guardian, guardian ad litem, or next friend. Ind. Code § 31-14-5-2(a). In the instant case, Feldman filed this paternity action on behalf of K.L.O. as her next friend. Because K.L.O. was only ten years old at the time of the filing of the paternity action, Feldman was not barred by the statute of limitations from filing a paternity petition on K.L.O.’s behalf as her next friend. [cites omitted]

Lakins next contends the trial court erred in denying his motion to dismiss under Indiana Trial Rule 12(B)(7) because Overholser was not joined as a necessary party. We agree. * * * The trial court did not, however, find that fraud, duress, or material mistake of fact existed in the execution of the paternity affidavit by Overholser. Furthermore, the trial court did not rescind or set aside the paternity affidavit that was executed by Overholser. Thus, Overholser remains the legal father of K.L.O., and, as such, he should have been joined as a necessary party in the instant case. For this reason, the trial court erred in denying Lakins’s motion to dismiss the paternity action filed against Lakins because Feldman did not join Overholser, a necessary party, to the action.

Conclusion. We hold Feldman was not barred by the statute of limitations from pursuing a paternity action on behalf of K.L.O. as her next friend. Nevertheless, the trial court erred in denying Lakins’s motion to dismiss because Overholser was not joined as a necessary party to this cause. Therefore, we reverse the trial court’s decision and remand this cause to the trial court for further proceedings consistent with this opinion. Reversed and remanded.
KIRSCH, C.J., and BAKER, J., concur.

Northern Indiana Public Service Company v. John S. Bloom, as Personal Representative of the Estate of Fred J. Zurbrick, deceased (10/27/04 IndCtApp) [Torts; Agency; Insurance]
Robb, Judge
Northern Indiana Public Service Company (NIPSCO) employee Fred Zurbrick was killed in an automobile accident with Charmaine Minniefield while driving a NIPSCO vehicle home from work. Minniefield filed suit against NIPSCO and Zurbrick’s estate (the “Estate”) for injuries to herself and her passengers as well as property damage. NIPSCO filed dispositive motions arguing that it was not responsible for Zurbrick’s actions because he was a commuter rather than an employee in the course of his employment. The trial court found that a genuine issue of material fact existed as to whether Zurbrick was a commuter at the time of the accident, but that NIPSCO was liable regardless of the outcome of that issue. The trial court found that NIPSCO was to pay for the Estate’s legal defense and to act as the Estate’s insurance carrier for up to one million dollars. NIPSCO now appeals. We affirm in part and reverse in part.

Issues. NIPSCO raises three issues which we consolidate and restate as: [1] Whether the trial court properly found that NIPSCO was obligated to pay for the Estate’s legal defense and to act as the Estate’s insurance carrier; and [2] Whether the trial court properly found that NIPSCO was to indemnify the Estate for up to one million dollars. * * *

Conclusion. The question of whether Zurbrick was an employee in the course of his employment or a commuter remains to be decided by a trier of fact. Regardless of the outcome of that question, the trial court properly found that NIPSCO was required to defend and indemnify the Estate. However, the trial court erred in capping NIPSCO’s liability at one million dollars. Therefore, we affirm the trial court’s decision as to liability, but reverse as to the limit of liability. Affirmed in part and reversed in part.
DARDEN, J., concurs.

SHARPNACK, J., concurs in part and dissents in part with opinion.
I concur in part and respectfully dissent in part. I concur that NIPSCO’s obligation to respond in damages to the Minniefields as self-insurer of the vehicle driven by Zurbrick for Zurbrick’s liability would not be limited to Fifty Thousand Dollars or One Million Dollars for bodily injuries to the Minniefields. It would be limited only by the extent of the Minniefields’ damages.

I dissent from the conclusion that NIPSCO is obligated to defend Zurbrick’s Estate against the Minniefields’ claims, although it strikes me that it would be in NIPSCO’s interest to do so. * * *

Posted by Marcia Oddi on October 27, 2004 02:11 PM
Posted to Indiana Decisions