Tuesday, April 29, 2008
Ind. Decisions - Court of Appeals issues 6 today (and 5 NFP)
For publication opinions today (6):
In General Casualty Insurance Co. v. Diana Bright, a 5-page opinion, Judge Sharpnack writes:
General Casualty Insurance Company (“General Casualty”) appeals the trial court’s grant of Diana Bright’s motion to dismiss. General Casualty raises one issue, which we revise and restate as whether the trial court erred when it dismissed General Casualty’s complaint. We reverse and remand. * * *In Fifth Third Bank v. PNC Bank, Indiana, Inc., John O. Sturdy, Jr., Diana K. Sturdy, Sturdy Construction, John W. Waggoner, Young, Lind, Entres & Kraft Title Co. LLC. , a 7-page opinion, Judge Bradford concludes:
We hold that the clause providing that a suit be brought within one year after the date of the loss unambiguously refers only to suits against General Casualty, as its heading indicates, and not to General Casualty’s claim against Bright.
Fifth Third contends that the trial court abused its discretion in that its order did not punish PNC, the disobedient party. We agree with Fifth Third. Both the wording of Trial Rule 37 and our jurisprudence indicate that the sanctions to be imposed pursuant to a violation of a discovery order should be to the detriment of the offending party, and we see none to PNC here.1 Although there was some benefit conferred on YLEK, an order issued for the purpose of benefiting the offended party does not serve any of the purposes for Trial Rule 37 that we have recognized unless it also punishes the offending party.2 Here, due to the relationship between the parties, the trial court’s order has benefited YLEK and harmed Fifth Third, without punishing PNC in the least. In the end, we fail to see how an order that does not punish PNC would aid in ensuring compliance with future discovery orders or prevent PNC from profiting from its intransigence. We therefore conclude that the trial court abused its discretion in crafting an order that failed to punish PNC and reverse its dismissal of YLEK from the case. On remand, if the trial court concludes that sanctions are still justified, it is instructed to impose sanctions in a manner consistent with this opinion and Trial Rule 37 that serves to punish PNC for its failure to comply with discovery orders.In In the Matter of the Adoption of L.M.R., Ricky Rybolt and Margaret Rybolt v. Bobbie Sue Brooks, a 14-page opinion, Judge Riley writes:
Appellants-Petitioners and Respondents, Margaret (Grandmother) and Ricky Rybolt (Grandfather) (collectively, the Grandparents), appeal the trial court’s Order denying their Petition for Adoption of L.M.R. in favor of Appellee-Respondent and Petitioner, Bobbie Sue Brooks (Brooks). We affirm.Joyce Hawkins v. State of Indiana - "The trial court did not abuse its discretion by allowing Sergeant Kelly to testify regarding his opinion of how Tim was shot and a crime concealed. The trial court properly admitted Joyce’s confession, prison phone calls, and prison letters. The trial court did not err in excluding the other conversations on the CD. Additionally, the evidence was sufficient to support Joyce’s conviction for murder. Affirmed."
Gary D. Beer v. State of Indiana - "For the foregoing reasons, we affirm Beer’s convictions and sentence for three counts of dealing in cocaine as class A felonies, unlawful possession of a firearm by a serious violent offender, dealing in a narcotic drug with intent to deliver, and maintaining a common nuisance as a class D felony. Affirmed."
In Leslie G. Miller v. State of Indiana, a 17-page opinion, Judge Riley concludes:
Based on the foregoing, we conclude that the evidence is sufficient to support Miller’s conviction for child molesting as a Class A felony; that the trial court did not violate Miller’s Blakely rights in sentencing him; that Miller’s sentence is not inappropriate; and that the trial court erred in failing to inquire into Miller’s ability to pay before making the payment of $10,770.00 to the Jennings County Prisoner Reimbursement Fund a condition of Miller’s probation. Therefore, we remand this cause to the trial court to either make a proper inquiry into Miller’s ability to pay or to remove the reimbursement order as a condition of Miller’s probation.NFP civil opinions today (2):
Thomas Pottschmidt v. GDI Construction Corp. (NFP) - "Appellant/Plaintiff/Cross-Appellee Thomas Pottschmidt appeals from the trial court’s order granting Appellee/Defendant/Cross-Appellant GDI Construction’s (“GDI”) motion for summary judgment. Specifically, Pottschmidt contends that issues of material fact remain and thus the granting of GDI’s motion for summary judgment was inappropriate. Pottschmidt also contends that, as a matter of law, an oral employment contract cannot be altered by a subsequent offer of employment letter. On cross-appeal, GDI challenges whether the trial court improperly dismissed its request for attorney’s fees and costs incurred in defending Pottschmidt’s claims. We affirm."
Commitment of H.H. v. The Health and Hospital Corp. of Marion County, d/b/a Wishard Health Services, et al (NFP) - "H.H. appeals an order granting the petition, filed by the Health and Hospital Corporation of Marion County, d/b/a Wishard Health Services/Midtown Community Mental Health Center (“Midtown”),1 for his involuntary regular commitment. H.H. asserts that there was insufficient evidence to establish that he was dangerous to others. We affirm."
NFP criminal opinions today (3):
Posted by Marcia Oddi on April 29, 2008 01:20 PM
Posted to Ind. App.Ct. Decisions