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Friday, March 30, 2007

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In the Matter of C.S., L.S., and M.S., and Christopher Montgomery v. Marion Co. Office of Family & Children - "Christopher Montgomery appeals the trial court’s determination that his child, C.S., is a child in need of services (“CHINS”), alleging that the trial court’s determination was not supported by sufficient evidence. Concluding that the evidence and findings do not support the trial court’s judgment, we reverse."

In Rebecca Shaw, Estate of Kayla N. Hughes and Stephen Hughes v. LDS Enterprises, Inc. d/b/a I&I Steakhouse, et al, a 14-page opinion, Judge May writes:

Kayla Hughes was killed in an automobile accident after she spent some time at I&I Steakhouse, a restaurant owned by LDC Enterprises. Her parents, Rebecca Shaw and Steven Hughes (collectively, “Shaw”), sued LDC alleging employees of the restaurant served alcohol to Kayla, who was sixteen at the time. LDC moved to dismiss three counts of the complaint on the ground they were governed by Illinois law, and the trial court granted the motion.[ft 1] Shaw asserts on appeal Indiana law applies. We reverse. * * *

The last event necessary to make LDC liable for its alleged wrong took place in Indiana with Kayla’s death, and application of Illinois law would leave Shaw without a remedy. The substantive law of Indiana therefore applies. The counts in Shaw’s amended complaint alleging nuisance under Indiana statutory and common law, and seeking injunctive relief should not have been dismissed. We reverse and remand. Reversed and remanded.
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[1] Dépeçage is the process of analyzing different issues within the same case separately under the laws of different states. Simon v. United States, 805 N.E.2d 798, 801 (Ind. 2004). Indiana’s choice-of-law rules do not permit dépeçage. Id. at 803. This appears to be the reason the counts were dismissed rather than analyzed under Illinois law by the Indiana court.

[ILB - This choice-of-laws case includes, in addition to a number of interesting footnotes, application of the Lex Loci Delicti presumption ("we hold the last act necessary to make LDC liable for nuisance was the injury in Indiana"), discussion of the availability of relief under the Illinois and Indiana dram shop acts, etc.]

Denny A. Wages v. State of Indiana - "The trial court did not abuse its discretion in ruling that Kern will be permitted to testify as to her observations of Wages’s driving shortly before the fatal wreck. We affirm."

Richard J. McVey v. State of Indiana - "Based on the foregoing, we conclude that (1) the trial court properly admitted McVey’s voluntary statements made during a polygraph examination; (2) the trial court properly excluded evidence of the victim’s prior sexual history under Indiana Evidence Rule 412; (3) the trial court properly denied McVey’s Motion for a New Trial; and (4) several of the special probation conditions for adult sex offenders imposed upon McVey are not sufficiently clear to inform him of what conduct is prohibited, and thus, we remand to the trial court to reconsider and clarify these conditions with greater specificity. Affirmed in part, reversed in part, and remanded with instructions."

Travis D. Fentress v. State of Indiana - "Because the foil ball was properly discovered during a Terry search and was properly opened and examined pursuant to a search incident to arrest based on probable cause, we conclude that the cocaine was properly admitted into evidence. Therefore, the trial court did not abuse its discretion by allowing the cocaine to be admitted into evidence."

NFP civil opinions today (3):

Patricia Cummins v. The Kroger Company (NFP) - "In other words, we conclude that no reasonable trier of fact could conclude that Cummins was let go for any reason other than her inability to perform her job without assistance. We therefore cannot say that the trial court erred in granting summary judgment in favor of Kroger."

Phyllis Dean v. Jack Reed (NFP) - "We note here that we understand the trial court’s loss of patience in the present case. This was a case which had been languishing on the court’s docket without significant progress for years. Both parties had failed to appear for pre-trial conferences, and the case had even been dismissed once for failure to prosecute but later reinstated. The plaintiff ultimately failed to appear at the hearing upon her own motion for summary judgment. Had the trial court exercised its discretion in dismissing the case yet again for failure to prosecute, we cannot say that the trial court would have erred in so doing. However, in granting summary judgment to Reed upon all of Dean’s claims when Dean had moved only for partial summary judgment and when the designated evidence, which was submitted solely by Dean, did not support summary judgment, the trial court’s actions, however understandable, were improper. The judgment of the trial court is reversed, and the cause is remanded for proceedings consistent with this opinion."

Myron R. Huffman v. Marcia A. Huffman (NFP) - "The trial court did not abuse its discretion in dividing the marital estate. We affirm."

NFP criminal opinions today (5):

David S. Delucenay v. State of Indiana (NFP)

Rodney Strong v. State of Indiana (NFP)

Adel Yazidi v. State of Indiana (NFP)

Matthew Knippenberg v. State of Indiana (NFP)

Andrew T. Serafine v. State of Indiana (NFP)

Posted by Marcia Oddi on March 30, 2007 01:37 PM
Posted to Ind. App.Ct. Decisions