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Wednesday, May 02, 2007

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Inland Steel Company v. Ronald Pavlinac, Sr. , a 23-page opinion, Judge Sullivan writes:

Inland Steel Company (“Inland”), appeals following a decision by the Worker’s Compensation Board of Indiana (“the Board”) in favor of Appellee-Claimant, Ronald Pavlinac, Sr. Upon appeal, Inland presents three issues for our review: I. Whether the Board erred by disregarding the stipulation of issues submitted by the parties. II. Whether the Board erred in concluding that Pavlinac’s Application for Adjustment of Claim was timely filed. III. Whether the Board’s findings are sufficient to support its conclusion that Pavlinac is permanently and totally disabled. Pavlinac cross-appeals, requesting damages and appellate attorney fees upon the basis that Inland’s appeal is frivolous and was brought in bad faith. We affirm. * * *

In the present case, Inland presented issues which sought to have this court go against our standard of review or ultimately proved to be disingenuous or trivial. We further note the extended period of time that Pavlinac has been prevented from obtaining worker’s compensation benefits. Therefore, under the facts of this case, we find it appropriate to increase Pavlinac’s award by ten percent. * * *

In his brief and by separate motion, Pavlinac also requests an award of damages, including an award of attorney fees, pursuant to Indiana Appellate Rule 66.6 Appellate Rule 66 provides that a court “may assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorneys’ fees.” * * *

Although many of Inland’s arguments were disingenuous or trivial in nature thereby supporting our order to increase the Board’s award by ten percent, there is no allegation that Inland deliberately presented such issues so as to delay Pavlinac’s receipt of worker’s compensation benefits. Nor does it appear to us that Inland’s brief upon appeal was written in a manner calculated to require the maximum expenditure of time by both Pavlinac and this court. In short, while we have found it appropriate to order the Board’s award to be increased by ten percent, we do not think Inland’s actions upon appeal were so egregious or deliberate so as to warrant an additional award of damages, including attorney fees, pursuant to Appellate Rule 66.

The award of the Worker’s Compensation Board is affirmed, and it is ordered that the Board’s award be increased by ten percent.

NFP civil opinions today (3):

Kerry T. Smith v. Dearborn County Hospital and Carol M. Lovins, M.D. (NFP) - Re "II. Whether the trial court erred in failing to remove Juror Number 2," the opinion concludes: "To qualify as fundamental error, an error must be so prejudicial to the rights of a party as to make a fair trial impossible. Here, at the time she was questioned, Juror Number 2 told the trial court that she had not yet made up her mind about the verdict. She also agreed not to make any more faces and not to make a decision about the case until she had heard all of the evidence. There is nothing in the transcript that suggests the Estate had any further complaints about the juror. Under these circumstances, we find no fundamental error."

RXSD Enterprises, Inc. v. Gasoline Equipment Service Company (NFP) - "RXSD Enterprises, Inc. (“RXSD”) appeals the trial court’s judgment awarding damages to Gasoline Equipment Service Company (“GESC”). RXSD raises a several issues on appeal of which the following is dispositive: was the general judgment awarding damages to GESC clearly erroneous. We reverse."

In re the Marriage of Johnny W. Ulmer and Christel J. Gezels (NFP) - "Appellant Johnny W. Ulmer (“Ulmer”) appeals a post-dissolution award of attorney’s fees in favor of his ex-wife Christel J. Gezels (“Gezels”). We affirm an award of attorney’s fees to Gezels but revise the amount to $10,520.80."

NFP criminal opinions today (3):

William C. Davis v. State of Indiana (NFP)

Marcus T. Govan v. State of Indiana (NFP)

Michael Baldwin v. State of Indiana (NFP)

Posted by Marcia Oddi on May 2, 2007 03:22 PM
Posted to Ind. App.Ct. Decisions