The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

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Wednesday, March 12, 2008

Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In Steve Carter v. City of East Chicago, Indiana, East Chicago Second Century, Inc., Michael A. Pannos, et al , an 8-page opinion, Judge May writes:

The Indiana Attorney General appeals the dismissal of its counterclaim and crossclaim for imposition of a constructive trust and an accounting on money paid to East Chicago Second Century pursuant to a riverboat casino license agreement. We affirm. * * *

The Attorney General’s authority to bring its counterclaim and crossclaim was premised on its characterization of the Showboat agreement as establishing a “public charitable trust.” The agreement did not establish such a “charitable trust,” and therefore the dismissal of counterclaim and crossclaim was not error.

In Employee Benefit Managers, Inc. of America and Charles Belch v. Indiana Dept. of Insurance, a 12-page opinion, Judge Bailey writes:

Employee Benefit Managers, Inc. of America and its President, Charles Belch (“Belch”), (collectively, “EBM”) appeal a decision of the Allen Superior Court affirming an order of the Indiana Department of Insurance (“the Department”) that, in relevant part, revoked insurance licenses held by EBM. We affirm. * * *

The Department had jurisdiction over EBM to regulate activities where the practical function was the provision of insurance, and to oversee compliance with the Agreed Entry. The Department’s findings of fact with regard to non-compliance rested upon substantial evidence. Finally, EBM was not denied due process.

In the Matter of T.S., Ashley Shipley v. Marion Co. Div. of Family & Children, and Child Advocates, Inc. - "Ashley Shipley (“Mother”) appeals determination her son, T.S., is a child in need of services (“CHINS”). We affirm."

In Ava McSwane, Danielle Hays v. Bloomington Hospital and Healthcare System, Jean M. Eelma, M.D., a 29-page, 2-1 opinion with a dissent beginning on p. 21, Judge May writes:

Bloomington Hospital treated Malia Vandeneede for injuries she said she sustained when she fell off a horse onto some debris. After treatment, she was discharged into her former husband’s custody. He killed her on their way home, then killed himself. Ava McSwane, Malia’s mother and personal representative, sued the Hospital and Dr. Jean Eelma, who treated Malia, asserting they had a duty to protect her from the domestic violence. The trial court granted summary judgment for the Hospital and Doctor on the grounds they had no duty toward Malia and Malia was contributorily negligent. We affirm the summary judgment for the Doctor but reverse the summary judgment for the Hospital. * * *

A hospital has a statutory duty to report suspected abuse of an endangered adult, and its independent duty to safeguard its patient from dangers that might result from circumstances within the hospital’s control extends to the discharge of a patient into the custody of the person who allegedly inflicted the injuries that necessitated her hospitalization. The Hospital therefore should not have been granted summary judgment on the ground it owed Malia no duty. In light of the conflicting factual inferences as to Malia’s contributory negligence, summary judgment for the Hospital on that ground was also improper. Affirmed in part, reversed in part, and remanded.

ROBB, J., concurs.
BAKER, C.J., dissents with opinion. [which begins] I must dissent from the majority’s conclusion that the Hospital had a duty to Malia to refuse to discharge her to the care of her husband. In imposing this astonishingly broad duty upon medical caregivers, the majority essentially relies upon two rationales—the endangered adult statute and common law tort cases. I find both rationales to be fundamentally flawed.

In James and Elaine Whitman v. Edward and Robin Denzik, a 15-page opinion, Judge Crone concludes:

At this point, we observe that several legal principles may be gleaned from the facts of Searcy and Wilfong. To support a finding of permissive use, the servient owner must establish that he or she actually communicated, either explicitly or implicitly, to the adverse claimant that he or she was allowing the adverse claimant to use the disputed property at his or her sufferance. In this case, Mr. Taylor’s affidavit does not establish anything other than his state of mind, which is insufficient to demonstrate permissive use. Likewise, an adverse claimant must produce evidence that he or she actually communicated, either explicitly or implicitly, to the servient owner that he or she was using the disputed property under a claim of right; mere evidence of the adverse claimant’s state of mind would be insufficient to carry this burden.

In sum, the Denziks established that no genuine issue of material fact exists as to the existence of the prescriptive easement, and the Whitmans failed to designate any evidence precluding entry of summary judgment in favor of the Denziks. Therefore, we affirm.

In State of Indiana v. Ruth A. Hicks , a 9-page opinion, Judge Robb concludes:

We conclude that all the reasonable inferences from the evidence indicate that Hicks was not in custody when she told Officer Sherman that she had been driving the vehicle. Therefore, the trial court’s grant of Hicks’s motion to suppress that statement was contrary to law.

Conclusion. We conclude the trial court’s grant of the motion to suppress was clearly erroneous. We therefore reverse and remand for further proceedings.

NFP civil opinions today (4):

Jose and Nancy Olivares v. Toni Van Gompel (NFP) - "Because the collection of the evidence violated neither the Fourth Amendment nor Art. 1, Section 11, we reverse the trial court’s order suppressing the evidence."

Everlite, Inc. v. Jack Salts (NFP) - "EverLite appeals the denial of its motion to correct error, which alleged the jury verdict was excessive. Finding no abuse of discretion, we affirm."

Michael Humphrey v. City of Cannelton (NFP) - "The trial court did not abuse its discretion in adopting the Board’s proposed findings and conclusions granting the Board’s motion to correct error. The judgment of the trial court reinstating the Board’s disciplinary action against Humphrey is affirmed."

State of Indiana v. Derek Hollis and Antonio Graves (NFP) - "Because the collection of the evidence violated neither the Fourth Amendment nor Art. 1, Section 11, we reverse the trial court’s order suppressing the evidence."

NFP criminal opinions today (12):

Frank E. Goss v. State of Indiana (NFP)

Michael Wilson v. State of Indiana (NFP)

Troy Lynn Craig v. State of Indiana (NFP)

Kenneth Pitts v. State of Indiana (NFP)

Richard E. Carter v. State of Indiana (NFP)

Johney Muncy v. State of Indiana (NFP)

George Brandon Box v. State of Indiana (NFP)

Donald Perkins v. State of Indiana (NFP)

Norman L. West v. State of Indiana (NFP)

Michael Craig v. State of Indiana (NFP)

Timothy A. Johnson v. State of Indiana (NFP)