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Thursday, June 28, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 10NFP)

For publication opinions today (4):

In Robert M. O'Brien d/b/a Links Mortgage v. 1st Source Bank , a 12-page opinion, Judge Najam writes:

Robert M. O’Brien appeals from the trial court’s grant of summary judgment on the breach of contract claims of 1st Source Bank (“Bank”). O’Brien presents a single issue for our review, namely, whether the Bank acquired an enforceable lease against O’Brien from the bankruptcy of the Bank’s borrower. We affirm and remand with instructions.
Pinnacle Media is a familiar case, it went to the Supreme Court, including a rehearing denial, last year. See this ILB entry from May 3, 2006. Today, in Pinnacle Media, LLC v. Metropolitan Development Commission of Marion County and the Department of Metropolitan Development of the City of Indianapolis , a 10page opinion, Judge Najam writes:
Pinnacle Media, L.L.C. (“Pinnacle”) appeals from the trial court’s order denying its motion to amend its complaint in Pinnacle’s declaratory judgment action against the Metropolitan Development Commission of Marion County and the Department of Metropolitan Development of the City of Indianapolis (collectively “the City”).

Pinnacle raises two issues on appeal, which we restate as: 1. Whether res judicata bars Pinnacle’s proposed amended complaint. 2. Whether the trial court erred when it refused to apply Indiana Code Section 36-7-4-1109 to the claims raised in Pinnacle’s amended complaint. * * *

[The Court rules that res judicata applies, and as to issue 2] The law-of-the-case doctrine provides that an appellate court’s determination of a legal issue binds both the trial court and the court on appeal in any subsequent appeal involving the same case and substantially the same facts. The purpose of the doctrine is to minimize unnecessary relitigation of legal issues once they have been resolved by an appellate court. Accordingly, under the law-of-the-case doctrine, relitigation is barred for all issues decided “directly or by implication in a prior decision.” However, where new facts are elicited upon remand that materially affect the questions at issue, the court upon remand may apply the law to the new facts as subsequently found.

Because Pinnacle has already asked our Supreme Court to apply Indiana Code Section 36-7-4-1109 in this case, and the court has declined to do so, the issue has been resolved. Pinnacle does not direct us to “new facts” found since remand to warrant revisiting the issue. The trial court did not err when it did not apply the statute in this case. Affirmed.

Henry D. Hull v. State of Indiana "Henry Hull appeals the order that his suspended sentence be executed, arguing the trial court should have offered him the opportunity to speak at his hearing. We affirm. * * * Because Hull neither asked to speak nor objected to the lack of opportunity to speak, he waived his right of allocution."

In Jeff Doerr v. Lancer Transport Services , an 8-page opinion, Judge May writes:

Jeff Doerr appeals the decision of the Full Worker’s Compensation Board, which held that to reinstate his worker’s compensation claim against his employer, Lancer Transport Services, Doerr was required to pay Lancer the sums he obtained in a settlement reached with the third-party tortfeasor without Lancer’s knowledge or consent. Lancer cross-appeals alleging the Full Board erred when it reversed the Single Hearing Member’s decision to dismiss Doerr’s worker’s compensation claim. Finding the Single Hearing Member correctly dismissed Doerr’s claim, we reverse. * * *

Paragraph Two of Ind. Code § 22-3-2-13 requires us to hold Doerr’s settlement with the third-party tortfeasor without the written consent of Lancer or Legion, relieved Lancer of liability for Doerr’s worker’s compensation claim. If the legislature intended a different result under these facts, then we must leave it to the legislature to modify Ind. Code § 22-3-2-13. The decision of the Full Worker’s Compensation Board is reversed, and Doerr’s application for adjustment is dismissed.

NFP civil opinions today (2):

Oscar Guillen, Sr. v. Kerusso Properties (NFP) - "Guillen argues he is entitled to prejudgment interest under Ind. Code § 34-51-4-7, which provides: “The court may award prejudgment interest as part of a judgment.” However, this statute applies only to a “civil action arising out of tortious conduct.” Ind. Code § 34-51-4-1. Guillen’s claim sounds in contract and not in tort. Guillen has failed to establish prima facie error and we accordingly affirm."

Roy Alan Veatch v. Karen Veatch (NFP) - "Concluding that the trial court did not abuse its discretion with regard to parenting time, but that the court erred by dividing the marital assets without giving clear consideration to all the relevant statutory elements, we affirm in part and remand for a redetermination of the division and distribution of the parties’ marital assets."

NFP criminal opinions today (8):

Patrick Cox v. State of Indiana (NFP)

Monty Cook v. State of Indiana (NFP)

Andrew Evans v. State of Indiana (NFP)

Timothy Woodrfuff v. State of Indiana (NFP)

Damon Anderson v. State of Indiana (NFP)

Ronald C. Dixon v. State of Indiana (NFP)

Nick Dotts v. State of Indiana (NFP)

Calvin L. Wilson v. State of Indiana (NFP)

Posted by Marcia Oddi on June 28, 2007 01:49 PM
Posted to Ind. App.Ct. Decisions