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Friday, July 21, 2006

Ind. Decisions - Court of Appeals issues five today

In Jim Aaron v. Susan J. Scott a/k/a Susan J. Mahl; John Nicklas and HD Vest Financial Services and Merill Lynch, a 13-page opinion, Judge Friedlander concludes: "Based on the foregoing, we cannot conclude the trial court’s determination that Merrill Lynch was not in contempt was contrary to the logic and effect of the facts, and, therefore, the trial court did not abuse its discretion."

Township Board of Calumet Township of Lake County, et al v. Mary L. Elgin - a 9-page opinion, is an interesting case - the question at one point is "whether the Home Rule Act [conferred] upon the Township Board the statutory authority to pre-approve the Trustee’s contracts and purchases in excess of $75,000.00." Or, as Judge Bailey puts it on p. 5: "The instant dispute distills to whether the Township Board, having allocated a certain sum for professional and service contracts executed by the Trustee, may then micromanage the expenditures." The Board had passed several resolutions, including a resolution stating that all the trustee's contracts over $75,000 had to have approval by the board. Judge Bailey writes:

On appeal, the Township Board has abandoned any argument that the Home Rule Act explicitly confers upon it the authority to approve the Trustee’s proposed contracts. Instead, the Township Board claims that the act implicitly authorized the passage of the resolutions at issue. It advances a “public policy” argument that the taxpayers would be well served by greater scrutiny of the Trustee’s expenditures.

No doubt, the public policy argument would be more persuasive if the taxpayer funds were expended by the Trustee without any checks and balances. However, the Trustee is constrained by the budget approved by the Township Board, which includes line item allocations. The Township Board annually reviews the prior expenditures and decides to maintain, decrease, or increase future allocations. Additionally, proof of expenditures must be submitted to the State Board of Accounts. Aside from encroaching upon the statutory role of the Trustee, the purported resolution would not promote efficiency. Presumably, the Township Board would be required to convene upon multiple occasions to entertain bids or approve proposed contracts or expenditures; yet the resolution mandates no such meetings. Effectively, if the Township Board declined to voluntarily convene, the Trustee could not enter into any large contract or make any large expenditure during her tenure. For these reasons, the Township Board’s public policy argument does not persuade us that the Township Board, rather than the Trustee, was entitled to summary judgment.

In Bill Colburn v. Kessler's Team Sports, an 11-page opinion in a Worker's Compensation case, Judge Najam writes:
Bill Colburn appeals from the Worker’s Compensation Board’s dismissal of his Application for Adjustment of Claim (“Claim”). Colburn presents a single dispositive issue for our review, namely, whether the Board erred when it found that Colburn’s Claim was untimely under Indiana Code Section 22-3-3-3. * * *

Colburn asserts that because the Act is to be liberally construed in favor of employees, and because “the law does not favor litigation,” we should construe the Act “to provide that the expiration of the two year statute of limitations imposed by I.C. § 22-3-3-3 is not effective to bar a claimant’s claim where no disagreement has arisen prior to the expiration of the statute.”

We decline Colburn’s invitation to so construe the Act based on public policy considerations.

In Bucko Construction Co., Inc. v. Indiana Dept. of Transportation, et al, an 18-page opinion, Judge Friedlander writes:
In November 1996, the Indiana Department of Transportation (INDOT) reviewed Bucko Construction Company, Inc.’s (Bucko) performance as a contractor with the State and, based on Bucko’s deficient performance on Contract R-20974 (the Contract), reduced Bucko’s prequalification rating for highway construction projects by thirty percent. Bucko administratively appealed the reduction and, after its administrative remedies proved unsuccessful, sought judicial review in December 1998. While the judicial review action was pending, Bucko filed a complaint against INDOT for alleged violations of the Contract. Thereafter, Bucko supplemented the record in the Lake Superior Court judicial review action by submitting the judgment from the Marion Superior Court contract case. In affirming INDOT’s decision to reduce Bucko’s prequalification rating, the Lake Superior Court refused to consider the judgment of the Marion Superior Court. On appeal, Bucko claims the Marion Superior Court judgment was controlling and should have been considered in the judicial review action. We affirm. * * *

In summary, we conclude that the judicial review court properly confined its review to the administrative record. Moreover, even if considered, the Marion County litigation sheds no significant light on the adequacy of the administrative findings and the resulting reduction of Bucko’s prequalification rating. As set forth in detail above and in the ALJ’s findings, the project was plagued with problems (e.g., delays, equipment failures, material failures, the use of unapproved materials, and plant shutdowns) well before the dispute arose regarding segregation and raveling of the passing lanes, as evidenced by the interim CR-2s and the warning letter issued by the prequalification committee during Phase II of the project. Further, it is evident that surface problems arose on the passing lanes soon after Phase II was completed, causing rapid deterioration of significant portions of the surface and requiring repair. The fact that the contract only required removal and replacement of the defective portions of roadway and not microsurfacing does not alter the ALJ’s extensive findings regarding the inadequacy of Bucko’s performance throughout the contract and the deficient quality of its finished product. The judicial review court properly affirmed INDOT’s decision to reduce Bucko’s prequalification rating.

In the Paternity of P.W.J., Phillip William Gray v. Linda Sue Schachel - "We grant Gray’s petition for rehearing for the sole purpose of clarifying this issue and affirm our original opinion in all other respects."

Posted by Marcia Oddi on July 21, 2006 11:20 AM
Posted to Ind. App.Ct. Decisions