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Wednesday, September 13, 2006

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

For publication opinions today (1):

In Marlys Battema v. Sally A. Booth, et al, a 12-page opinion, Judge Crone concludes:

In our view, Battema has presented enough evidence to at least raise a question of fact as to whether the doctrine of fraudulent concealment applies in this case, and, if so, whether the concealment was active or constructive, when the statute began to run under that doctrine, and whether Battema filed her proposed complaint within a reasonable time period after her discovery of Dr. Sally’s alleged malpractice. In sum, the trial court erred in finding no genuine issues of material fact with regard to Battema’s medical malpractice claim. We therefore reverse and remand for further proceedings consistent with this opinion.
NFP civil opinions today (3):

Priscilla A. Waldrip v. Review Board of the Indiana Department of Workforce Development and Employment Plus, Inc. (NFP) - "Did the Review Board err in determining that Waldrip’s employer terminated her for just cause? We affirm."

In Madeline Wilson v. Spurr Enterprises (NFP), a 12-page opinion with a dissent beginning on p. 9 [and remember, this is NFP], Chief Judge Kirsch concludes:

Therefore, there are questions of material fact which render the trial court’s summary judgment on the Plaintiff’s complaint and the Defendants’ counterclaim and third-party claim erroneous. Accordingly, we reverse the summary judgment entries. We also vacate the award of attorney fees pursuant to IC 34-52-1-1, and we remand with instructions to the trial court to grant the Wilsons’ request for jury trial on the complaint and counterclaim. Reversed and remanded.

CRONE, J., concurs.
BAILEY, J., dissents with separate opinion. [that begins]

I respectfully dissent from the reversal of summary judgment upon Wilson’s counter-claim for abuse of process. A trial court’s order on summary judgment is cloaked with a presumption of validity; the party appealing from a grant of summary judgment must bear the burden of persuading this Court that the decision was erroneous. Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703 (Ind. Ct. App. 2005), trans. denied.

Lexus Real Estate Group v. Bullitt County Bank (NFP) - "Once BCB notified Jacobson of the lawsuit, she had five months to enter an appearance, file an answer, and check the trial court’s docket on Appellants’ behalf. Jacobson did none of those things. Consequently, we cannot say that the trial court abused its discretion in reinstating the default judgment and judgment and decree of foreclosure against Appellants. We therefore affirm."

NFP criminal opinions today (4) (link to cases):

Kevin Carey v. State of Indiana (NFP)

Kevin Matthew Boyd, Sr. v. State of Indiana (NFP)

Talia Eichelberg v. State of Indiana (NFP)

Lewis Rhynearson v. State of Indiana (NFP)

Posted by Marcia Oddi on September 13, 2006 03:05 PM
Posted to Ind. App.Ct. Decisions