The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 24 NFP)

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Thursday, May 08, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 24 NFP)

More details to follow

For publication opinions today (5):

In Town of Georgetown v. Edwards Community, Inc. et al , an 11-page opinion, Judge Mathias writes:

The Town of Georgetown (“the Town”) appeals the order of the Floyd Circuit Court imposing a moratorium on future attempts by the Town to annex certain territories and awarding attorney fees to Edwardsville Community, Inc. (“Edwardsville”). We reverse. * * *

The trial court erred in imposing a forty-two month moratorium on future annexation attempts by the Town because Edwardsville’s remonstrance was facially insufficient under Section 11 [IC 36-4-3-11]. Because of this, the trial court could not properly set a hearing pursuant to Section 11(c), and without a hearing set under Section 11(c), there was no trigger for the moratorium once the Town repealed the annexation ordinances. The trial court also erred in ordering the Town to pay Edwardsville costs because there was no judgment on the merits of the remonstrance.

Gary Gerlach v. Larry Gene Woodke - "Although we agree with Gerlach that the record is not clear about what Woodke was doing at the time of the injury and thus may not have been injured while performing maintenance and repair work, this oversight on our part does not change our conclusion that Woodke was not a farm or agricultural employee at the time of his injury. Accordingly, we grant Gerlach’s petition for purposes of correcting our oversight and addressing the other issues raised in the petition, but otherwise affirm our original opinion in its entirety."

Dennis Peterson v. Charles Lambert, John Doe, et al - "Peterson’s claims rest on the allegation that in confiscating his baby powder and addressing or failing to address his grievances thereafter, the defendants were acting willfully and wantonly and clearly outside the scope of their employment. Baby powder is on the list of personal property that is prohibited at MCF. Prison administrators are accorded “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). Peterson has alleged no facts that would support his contention that the defendants were acting willfully, wantonly, or outside the scope of their employment in confiscating a prohibited item, and he has not made a claim challenging MCF’s policies prohibiting certain items.1 Peterson’s complaint lacks an arguable basis in law or fact and the trial court properly dismissed both of his claims."

In Allstate Insurance Co. v. Ted and Rosella Fields, an 11-page opinion, Judge Mathias writes:

A default judgment was entered against Allstate Insurance Company (“Allstate”) in Lake Superior Court on a claim of bad faith filed by policyholders Ted and Rosella Fields (“the Fieldses”). Thereafter, a jury trial was held to determine the amount of damages. The jury awarded compensatory damages in the amount of two million dollars and punitive damages in the amount of eighteen million dollars. The trial court reduced the punitive damage award to six million dollars pursuant to Indiana Code section 34-41-3-4. Allstate appeals and raises the following dispositive issue: whether the trial court erred when it denied Allstate’s motion for partial summary judgment on the bad faith claim. We reverse and remand for proceedings consistent with this opinion. * * *

As in Fields I, we conclude that the trial court erred when it denied Allstate’s motion for partial summary judgment. For this reason, Allstate should not have had a default judgment entered against it on the bad faith claim. Accordingly, we reverse and remand to the trial court with instructions to vacate the jury’s verdict and to enter summary judgment in favor of Allstate on the Fieldses’ bad faith claim.

In OB-GYN Associates of Northern Indiana, P.C. v. Tammy Ransbottom, a 12-page opinion, Judge Friedlander writes:

Upon interlocutory appeal, Ob-Gyn Associates of Northern Indiana, P.C. (Ob-Gyn) appeals the denial of its motion to dismiss a negligence action against it filed by Tammy Ransbottom. The propriety of that ruling hinges upon the answer to the following question: Is cosmetic laser hair removal “health care” within the meaning of Indiana‟s Medical Malpractice Act? We affirm. * * *

In summary, we conclude that the laser hair removal treatment administered by Roschek did not constitute health care with the meaning of the Medical Malpractice Act, and the trial court did not err in denying Ob-Gyn‟s motion to dismiss.

NFP civil opinions today (10):

Mary Ann Smith-Dobben v. Richard Lee Dobben (NFP) - "The findings amply support the trial court’s conclusion that there had been substantial changes in circumstances, and that it was in the best interest of E. and D. for Father to be granted physical and legal custody of them, and in the best interest of J. that Mother be granted physical and legal custody of him. Affirmed."

Michael and Mamie Williams v. Gregory Hilycord (NFP) is a 2-1 opinion, with the majority writing: "A default judgment was entered in Bartholomew Superior Court against Michael and Mamie Williams (“the Williamses”) voiding a land sales contract they had entered into with Gregory Hilycord (“Hilycord”) for the purchase of a large tract of land in Bartholomew County. The Williamses filed a motion to set aside default judgment, which was denied. They appeal and argue that the trial court erred when it granted default judgment in favor of Hilycord because the remedy of forfeiture was not warranted by the allegations in the complaint. We reverse and remand for proceedings consistent with this opinion."

C.L. v. R. F. (NFP) - "Having concluded that the trial court erred by failing to conduct a hearing on Father’s motion to dismiss, we need not consider Mother’s remaining claims. The judgment of the juvenile court is reversed and remanded for further proceedings."

Amsted Industries Inc. d/b/a American Steel Foundries v. Jess A. Kaufman and Crane America Services (NFP) - "In that the language of the indemnification provision before us essentially mirrors that in Moore, the result is the same. When the dependent clauses are read together, the provision as a whole, in clear and unequivocal terms, expressly addresses the subject of Crane America’s indemnification of Amsted for Amsted’s own negligence. Thus, Crane America knowingly and willingly accepted its obligation to indemnify Amsted unless the injury was solely caused by the negligence of Amsted. We therefore conclude that the trial court erred in granting Crane America’s motion for summary judgment and accordingly reverse. Furthermore, as we conclude that the indemnification provision is valid and enforceable, we also conclude the trial court erred in denying Amsted’s motion for partial summary judgment. Reversed and remanded for further proceedings."

Commissioner, Indiana Department of Environmental Management v. Bulk Petroleum Corp. (NFP) - "We do not believe these circumstances are those of clear, uncontested unlawful conduct necessitating the application of the per se rule, but rather the breach of an agreement as expressed in the Further Investigation Report and Corrective Action Plan. The per se rule has no application in this case. Therefore, IDEM was required to demonstrate irreparable harm in order to obtain the requested preliminary injunction. The trial court did not err in denying the petition."

Andy's Truck & Equipment Co., Inc. v. State of Indiana and Commissioner of Lake County, Indiana (NFP)

Francis "Swede" Colen v. Ohio County, Indiana, et al (NFP)

In the Matter of R.W. and M.W. (NFP)

Keith Allen Matthew v. Patricia Jean Matthew, Robert L. Arthur (NFP)

Marriage of Gail (Marquart) Zermano v. David M. Marquart (NFP)

NFP criminal opinions today (14):

James E. Metz v. State of Indiana (NFP)

Victor Crews v. State of Indiana (NFP)

Dwayne Ellington, Jr. v. State of Indiana (NFP)

Marlon J. Davis v. State of Indiana (NFP)

James G. Wilson v. State of Indiana (NFP)

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