The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 21 NFP), including an appeal lost in the Clerk's office until last month [UPDATED]

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Wednesday, April 30, 2008

Ind. Decisions - Court of Appeals issues 3 today (and 21 NFP), including an appeal lost in the Clerk's office until last month [UPDATED]

For publication opinions today (3):

In Cory Pierce, Judith McIntosh, Thomas Ferrara, Judy Willis, et al v. State of Indiana Dept. of Correction, et al , a 28-page opinion, Judge Sharpnack writes:

Cory Pierce, Judith McIntosh, Thomas Ferrara, Judy Willis, Linda McHargue, and all other institutional teachers at a juvenile correctional facility who are not certified for teaching special education (the “Teachers”) appeal the trial court’s denial of their motion for judgment on the record. The Teachers raise one issue, which we revise and restate as, whether the trial court erred by affirming the State Employees’ Appeals Commission’s (“SEAC”) decision that the Indiana Department of Correction (“DOC”) could require all juvenile correctional facility teachers to obtain special education licenses. On cross-appeal, the DOC, et al., argue that the trial court improperly ordered the DOC to comply with the SEAC’s recommendations. We affirm in part and reverse in part. * * *

In summary, we conclude that the administrative law judge and the SEAC did not exercise jurisdiction over the issues the recommendations address. Any “recommendation” made by the SEAC did not involve a specific case and therefore does not constitute a mandatory recommendation. Thus, the trial court improperly ordered the DOC to comply with the SEAC’s recommendations.

In City of Clinton, Indiana v. Todd Goldner, a 15-page opinion, Judge Sharpnack writes:

The City of Clinton appeals the trial court’s grant of summary judgment to Todd Goldner. The City raises three issues, which we revise and restate as: I. Whether the trial court erred by granting Goldner’s motion for summary judgment; and II. Whether the trial court abused its discretion by awarding Goldner liquidated damages and attorney fees pursuant to the Wage Payment Statute. We affirm in part, reverse in part, and remand. * * *

Here, the designated evidence reveals that the Mayor told Goldner that his request to return to work would be granted as soon as work became available. In effect, the Mayor suspended him for more than five days.3 Ind. Code § 36-8-3-4 grants the Board, not the Mayor, the power to suspend Goldner. See Town of Highland v. Powell, 168 Ind. App. 123, 127-128, 341 N.E.2d 804, 807-808 (1976) (holding that police officer was discharged in violation Ind. Code § 18-1-11-3, a predecessor to Ind. Code § 36-8-3-4). Thus, we conclude that the trial court did not err by granting Goldner’s motion for summary judgment and by denying the City’s motion for summary judgment. * * *

Here, Goldner did not render labor or service for the period between October 24, 2005, and April 12, 2006. Thus, we conclude that the Wage Payment Statute is not applicable. * * * Thus, we conclude that the trial court abused its discretion by awarding Goldner liquidated damages and attorney fees. * * *

For the foregoing reasons, we affirm the trial court’s grant of Goldner’s motion for partial summary judgment, reverse the trial court’s award of liquidated damages and attorney fees, and remand for proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded.

In Jamie Hieston v. Gregory Hendricks, et al, a 14-page opinion, Judge Vaidik writes:

Brown v. Brown, 849 N.E.2d 610 (Ind. 2006), established a bright-line test for determining when Social Security disability payments should be credited toward a child support arrearage. Brown determined that a disabled parent is entitled to credit against the parent’s child support obligation for Social Security benefits paid to a child effective as to the date the parent files a petition to modify a support order. Accordingly, we find that Mother cannot receive credit for the lump sum payments of retroactive Social Security disability paid to her children for arrearages accumulated before she filed a petition to modify her child support. This is so even though the trial court and the Title IV-D Prosecutor were aware that she had filed a Social Security disability claim nearly two years before she filed her petition to modify support.

Further, Brown dictates that any prospective Social Security disability payments that exceed the modified child support amount are to be considered as a gratuity to the children and shall not be applied as a credit toward any arrearages. As such, the trial court erred in crediting those prospective payments toward the arrearage. We, therefore, affirm in part, reverse in part, and remand.
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[1] As we have pointed out in Lake County Board of Elections & Registration v. Copeland, 880 N.E.2d 1288, 1290-91 (Ind. Ct. App. 2008), reh’g denied, and Gilbert v. State, 874 N.E.2d 1015, 1015 n.1 (Ind. Ct. App. 2007), trans. denied, we have recently become aware of some difficulties in receiving the prompt transmission of fully-briefed appeals to our court. Indeed, briefing was complete in the present case on July 31, 2007, when Mother filed her Reply Brief, but the case was not transferred to our court until March 18, 2008—a delay of over seven months. We remind counsel that a link to the Clerk’s online docket is available at http://www.in.gov/judiciary/cofc/ and counsel may check the docket to confirm that the case has, in fact, been transmitted to this court after being fully briefed.

NOTE that this case was lost in the Clerk's office until last month. And although the Court urges attorneys to check the online docket to make sure their briefed cases have been submitted to the judges, the Clerk has inexplicably been removing entire categories of appeals, such as juvenile appeals, completely from the online docket.

For example, here is an opinion issued last Friday, April 25th, in the case of In The Matter of B.F. and T.F., Children in Need of Services, Audrey Faver v. Marion County Department of Child Services, and Child Advocates, Inc. . The docket number is 49A05-0709-JV-515. The ILB just looked up that case in the online Clerk's docket. It does not exist in the docket.

In other words, anyone looking to see if the case had been appealed would not find it in the docket; the first notice of the appeal would have been the issuance of the COA's opinion. And no attorney in the case would have been able to check the online docket, as the COA appeals has been suggesting, because there is no docket at all for the case.

For background, start with this ILB entry from April 3rd.

[UPDATED] Here is a case that the ILB had not caught before, an April 10th NFP opinion in the case of Term. of Parental Rights of A.B., Violet Tunstall v. Dearborn County Div. of Child Services. The Court included the same footnote, ending with: "We remind counsel that a link to the Clerk’s online docket is available at http://www.in.gov/judiciary/cofc/ and counsel may check the docket to confirm that the case has, in fact, been transmitted to this court after being fully briefed." So the ILB just checked the docket for the docket number 15A01-0612-JV-540. There is NO online docket for this case!

NFP civil opinions today (7):

Candice Lloyd v. Terry Lloyd (NFP) - "Candice Lloyd appeals from the trial court’s order dissolving the marriage between her and Terry Lloyd, dividing their marital property, and denying her request for attorney’s fees. Candice raises three issues, which we restate as: 1) whether the trial court abused its discretion in awarding Terry more than half of the marital estate; 2) whether the trial court’s valuation of Terry’s pension is clearly erroneous; and 3) whether the trial court abused its discretion in denying Candice’s request for attorney’s fees. Concluding that the trial court’s finding regarding the value of Terry’s pension is clearly erroneous, we reverse and remand. However, we affirm the trial court in all other respects."

Donald Smith v. Beth (Smith) Dial (NFP) - "The trial court concluded that Father’s current child support obligation is offset by the Social Security disability payments currently received by Mother, but that Father was not entitled to credit against his support arrearage for the Social Security disability payment. The court also concluded that parties never agreed that Father’s child support obligation should be permanently modified to $40 per week. Father appeals and argues that the parties agreed to modification of child support in 2004, and therefore, he is entitled to credit against his support arrearage for the 2006 Social Security disability payment. We affirm."

Keith Myers v. Wesley C. Leedy (NFP) - "Myers raises one issue, which we restate as whether the trial court’s conclusion that Leedy’s interest in the property as a tenant survived the forfeiture of his landlord’s land sale contract is clearly erroneous. We reverse and remand."

Regina C. Kerber and Dennis L. Guthrie v. Don C. Guthrie (NFP) - "Concluding that the trial court could not order reformation when it was not requested by the parties but that the trial court’s findings and conclusions support the imposition of a constructive trust as sought in Dennis and Regina’s complaint, we reverse and remand."

Timothy A Thomas v. City of Hammond (NFP) - "Timothy A. Thomas appeals the termination of his employment as a member of the Hammond Police Department by the City of Hammond Board of Public Works and Safety (“the Board”). We affirm."

Janet H. Devittorio v. Joseph M. Devittorio (NFP) - "The trial court’s findings and conclusions in favor of Joseph on the issues of modification of the property equalization payment and mortgage/alimony payments is supported by the evidence. The trial court did not err."

Invol. Term. of Parent-Child Rel. of D.D. and Rhonda D. v. Marion Co. Dept. of Family & Children and Child Advocates (NFP) - "Rhonda D. (“Mother”) appeals the termination of her parental rights to her son, D.D. As the juvenile court’s judgment is supported by clear and convincing evidence, we affirm."

NFP criminal opinions today (14):

Michael A. Allen v. State of Indiana (NFP)

Otis Freshwater v. State of Indiana (NFP)

Fernando R. Ramirez v. State of Indiana (NFP)

Craig Reveter v. State of Indiana (NFP)

Nathanial Dodson v. State of Indiana (NFP)

Phillip Collins v. State of Indiana (NFP)

Leo Dent v. State of Indiana (NFP)

Christopher Gibbs v. State of Indiana (NFP)

Robert Karr v. State of Indiana (NFP)

Kathy Jo Ward v. State of Indiana (NFP)

Steven Winners v. State of Indiana (NFP)