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Friday, April 13, 2007
Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)
For publication opinions today (3):
In Ralph D. Millsaps, M.D. & Julio A. Morera, M.D. v. Ohio Valley Heartcare, Inc., a 13-page opinion, Chief Judge Baker writes:
Appellants-plaintiffs/cross-appellees Ralph D. Millsaps, M.D., and Julio A. Morera, M.D. (collectively, appellants), appeal from the trial court’s order enforcing the employment agreement (Agreement) in place between the appellants and appellee-defendant/cross-appellant Ohio Valley Heartcare, Inc. (OVHC), including the non-compete provision. In particular, the appellants raise a number of arguments, one of which we find dispositive, namely, that the trial court erred in finding that OVHC did not breach the Agreement by failing to provide timely and competent billing and collection services. OVHC cross-appeals, arguing that the trial court erred in finding that the appellants did not breach or threaten to breach the Agreement and, consequently, that OVHC is not entitled to attorney fees and costs. Finding that OVHC breached the Agreement and, consequently, is not entitled to enforce it against the appellants, we reverse the judgment of the trial court and remand with instructions to enter judgment in the appellants’ favor on their declaratory action and for further proceedings consistent with this opinion.In First National Bank & Trust v. Indianapolis Public Housing Agency , a 19-page opinion, Judge Riley concludes:
In conclusion, we caution that it is undeniable that, in this case, both First National and IHA took risks. By not requesting a stay pending appeal in the Aegean Litigation, IHA risked having the funds distributed and not being able to recover them even if they prevailed on appeal. By executing on the trial court’s Order and releasing the retained funds during the pendency of the appeal, First National assumed the risk that they might have to repay the monies if Aegean would be unable to in the event IHA prevailed on appeal. Here, we conclude that the risk lies squarely with First National. * * *Homeq Servicing Corporation v. Bradley J. Baker & Constance D. Baker - Pro se appellees lose in mortgage servicing company appeal - pro se's lack of knowlege of procedure at the trial and appeals level played a significant role in this case.We agree with the trial court that the language of the indemnification clause is clear and unambiguous. It is apparent from the clause’s last three lines, whereby the parties agreed that “[First National] shall not undertake any costs or expenses relating to claims until it shall have first offered to permit the indemnifying parties to undertake its defense with respect to such claims,” that the indemnification language only applies to third-party claims against First National, and not to claims of IHA against First National under the retainage agreement. (Appellant’s App. p. 80). Accepting First National’s interpretation would lead to the absurd result that IHA would have the contractual right to undertake the defense of its own claims against First National. Accordingly, we conclude that the trial court did not err in its application of the law. City of South Bend, 821 N.E.2d at 9. Therefore, we affirm the trial court’s grant of IHA’s motion to dismiss.
CONCLUSION. Based on the foregoing, we hold that the trial court properly granted IHA’s partial summary judgment, and properly dismissed First National’s counterclaim. Affirmed.
NFP civil opinions today (2):
Walton Investment Group and Deborah Walton v. James Toliver (NFP) - "Appellants-defendants Walton Investment Group (WIG) and Deborah Walton (collectively, appellants) appeal from the trial court’s judgment in favor of appellee-plaintiff James Toliver. Specifically, appellants argue that (1) the trial court erred by entering judgment against appellants because Toliver did not give them notice of the property’s defective sewer system, and (2) the evidence was insufficient to support the trial court’s $3200 damages award. Finding that appellants had notice of the sewer problem and that the trial court’s award for damages was proper, we affirm the judgment of the trial court. * * *
Turning to the $900 security deposit * * * Indiana Code section 32-31-8-6 authorizes a trial court to award a tenant an appropriate remedy, and we cannot conclude that the trial court erred by including Toliver’s $900 security deposit in its award for damages. Therefore, we find that the trial court’s $3200 award for damages was proper."
Tonda Beth Nichols v. Rex David Minnick, et al (NFP) - "The sole issue for our review is whether the trial court erred in entering judgment in favor of Minnick in Nichols’ action seeking the return of Minnick’s commission. * * * Affirmed."
NFP criminal opinions today (11):
Jabari K. White v. State of Indiana (NFP)
Jason Paddock v. State of Indiana (NFP)
Lester Jones v. State of Indiana (NFP)
Nevada Benedict v. State of Indiana (NFP)
Stacy Mitchell v. State of Indiana (NFP)
Kindra Pullins v. State of Indiana (NFP)
Nathan Daquan Jenkins v. State of Indiana (NFP) - From the 4/21/07 Anderson Herald-Bulletin:
In his appeal, Jenkins claims that a videotaped interview with Anderson police detectives shortly after he was arrested shouldn’t have been allowed into evidence at his trial.Carolyn Waltz v. State of Indiana (NFP)Jenkins also claims that Carroll shouldn’t have used his juvenile criminal history as an aggravator when deciding his sentence. As a juvenile, Jenkins had been arrested for battery, theft and carrying a handgun without a license. Generally, murder carries a 45- to 65-year prison sentence.
However, in the appeals court decision, Judge Michael P. Barnes says that the videotaped interview was admissible, and Carroll was legally allowed to use Jenkins’ juvenile criminal history to increase Jenkins’ murder sentence.
“The trial court did not err in admitting evidence or in sentencing Jenkins,” Barnes writes in the April 13 decision.
David A. Jones v. State of Indiana (NFP)
Thomas Rogers v. State of Indiana (NFP)
Raymond Stewart v. State of Indiana (NFP)
Posted by Marcia Oddi on April 13, 2007 01:01 PM
Posted to Ind. App.Ct. Decisions