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Tuesday, June 03, 2008

Ind. Decisions - Court of Appeals issues 6 today (and 10 NFP)

For publication opinions today (6):

In Term. of Parent-Child Rel. of A.B., and Angela B. and Brian J. v. Lake Co. Dept. of Child Services - a 15-page opinion, the Court reverses an involuntary termination of parental rights, on the basis that "the trial court’s judgment terminating Mother’s and Father’s parental rights to A.B. is clearly erroneous." Judge Vaidik concludes:

Although GAL Schlessinger and caseworker Kelley both recommended termination of Mother’s and Father’s parental rights because they felt it was in A.B.’s best interests to be adopted by Cyprian, this alone may not serve as a basis for termination of parental rights. A parent’s right to his or her children may not be terminated solely because a better place to live exists elsewhere. * * * Indiana Code § 31-35-2-4(b)(2) requires the LCDCS to prove, among other things, either (1) that there is a reasonable probability that the conditions resulting in removal of the child will not be remedied or (2) that continuation of the parent-child relationship poses a threat to the child’s well-being. Neither circumstance has been proven in this case. * * *

Without clear and convincing evidence to support each of the factors set forth in Indiana Code § 31-35-2-4(b)(2), we cannot affirm the termination of a parent-child relationship. Accordingly, the juvenile court’s decision to terminate Mother’s and Father’s parental rights must be set aside.

In Phillip R. Goodson v. Barbara Carlson and David Carlson, a 9-page opinion, the question is whether service of process was adequate. Judge Darden concludes:
Given the evidence, we cannot say that the Carlsons exercised due diligence in attempting to locate Goodson where the Carlsons utilized only one method to determine Goodson’s address; failed to file an alias summons after being granted leave to do so; and did not attempt further notice until nearly two years after commencement of their case. Accordingly, the trial court never obtained personal jurisdiction over Goodson, and the default judgment therefore is void.9 We reverse and remand with instruction for the trial court to grant Goodson’s motion to set aside the default judgment.
In Robert Reich v. Lincoln Hills Christian Church, Inc. , an 8-page opinion, Judge Vaidik's opinion turns on the Statute of Frauds:
Robert Reich, who had a remainder interest in a property, and Lincoln Hills Christian Church, Inc. entered into a written agreement for the exchange of two properties. Reich’s mother, who had a life estate in the property, did not sign the agreement. When the church did not follow through with the agreement, Reich sued for specific performance, and Lincoln Hills filed a motion to dismiss. Reich now appeals the trial court’s Indiana Trial Rule 12(B)(6) dismissal of his complaint. Because the written agreement neither describes with reasonable certainty each party and the land nor states with reasonable certainty the terms and conditions of the promises and by whom the promises were made in violation of Indiana’s Statute of Frauds, we affirm the dismissal of Reich’s complaint.
In Brandon Stanley v. Danny Walker , a 15-page opinion, Judge Darden states the issue as:
Whether the trial court improperly relied on Indiana’s collateral source statute as the basis for excluding Stanley’s proffered evidence of write-offs to Walker’s medical bills, offered to rebut Walker’s medical records, which omitted written-off charges and indicated that Walker had incurred greater medical expenses than he actually had.
After analysis of the common law collateral source rule and the 1986 statute, the opinion concludes:
As we are of the impression that a key policy rationale underlying the common law collateral source rule – namely, safeguarding those benefits for which the injured party “was himself responsible” – remains in effect, we must conclude that write-offs constitute insurance benefits for which the plaintiff has paid directly, and therefore, defendants cannot be allowed introduce evidence of write-offs to reduce damage awards. Restatement (Second) of Torts § 920A.

Such benefits should inure to the benefit of the plaintiffs, who had the foresight to secure insurance and to maintain their coverage through payment of their insurance premiums. That the plaintiff’s insurance company developed a relationship with the plaintiff’s medical providers such that favorable discounts and reductions in rates could be negotiated, to the plaintiff’s benefit, should not serve to diminish the tortfeasor’s liability for harm caused. Moreover, the very real potential for diminution of tortfeasor liability depending upon the insured or uninsured status of the victim further demonstrates the inherent inequity of a scheme that permits tortfeasors to present evidence of write-offs for consideration in calculating the extent of the injured party’s medical expenses.

Based upon the foregoing, we conclude that fundamental notions of tort law, surviving policy justifications of the common law collateral source rule, and concerns of equity warrant the finding that write-offs secured by insurance companies for the benefit of their insureds, constitute insurance benefits for which the plaintiff or the plaintiff’s family has paid directly, and therefore, must be excluded from consideration when calculating the extent of the injured party’s pecuniary loss. Affirmed.

In Michael A. Linton, M.D. v. Lawanda Davis, a 29-page opinion, Judge Riley writes:
Appellant-Defendant, Michael A. Linton, M.D. (Dr. Linton), appeals the trial court’s Order entered on a jury verdict awarding Appellee-Plaintiff, Lawanda Davis (Davis), damages in the amount of $1,250,000 resulting from medical mismanagement of Davis’ labor and delivery. We affirm.

Dr. Linton raises four issues on appeal which we consolidate and restate as the following three issues: (1) Whether the trial court abused its discretion by admitting into evidence testimony regarding the proceedings and rulings of the Indiana Medical Licensing Board; (2) Whether the trial court abused its discretion by excluding from evidence the Indiana Medical Review Panel’s statutory determination not to forward Dr. Linton’s name to the Medical Licensing Board; and (3) Whether the trial court abused its discretion by disallowing Ivanka Prcevski (Nurse Prcevski), called as a skilled lay witness pursuant to Ind. Evidence Rule 701, to testify about her perceptions of the baby’s well-being during Davis’ labor and delivery. * * *

Based on the foregoing, we conclude that whereas the licensure status of a physician who gives an expert opinion is admissible to impeach the physician’s opinion, the Board’s specific findings are not admissible in judicial proceedings. However, here the trial court properly admitted the specific findings because Dr. Linton opened the door to the evidence. Furthermore, we find that the trial court properly excluded the Panel’s determination not to forward Dr. Linton’s name to the Board. Lastly, we conclude that the trial court committed harmless error by refusing to admit Nurse Prcevski’s testimony.

State of Indiana v. Shannon Hollars - "The trial court granted Hollars’ motion to correct error after finding that he was deprived of due process by the cumulative effect of three perceived errors: (1) jury instructions; (2) discovery violation; and (3) timing of the execution of the search warrant. We address each factor in turn. * * *

"Based on the foregoing, we conclude that the trial court abused its discretion by granting Hollars’ motion to correct error because the three perceived errors do not warrant a new trial on the attempted murder charge, either individually or collectively. Therefore, we reverse the judgment of the trial court and direct the trial court to reinstate the jury’s verdict and Hollars’ sentence. Reversed."

NFP civil opinions today (3):

Lloyd G. Perry v. Paper Trust (NFP) - "Accordingly, we find that Perry failed to satisfy his burden of proof, and we find no abuse of discretion in denying Perry’s motion for relief from judgment."

Stephen Lagenour v. Diana Lagenour (NFP) - "Husband argues that the trial court abused its discretion by failing to grant him spousal maintenance and in equally dividing the marital property. Finding that the trial court acted within its discretion, we affirm the judgment of the trial court."

Kay Walser v. Donna Wilkins (NFP) - "Appellant-defendant Kay Walser appeals the trial court’s order affirming the decision of the Delaware County Health Department (Health Department) that directed Walser to vacate, demolish, and properly dispose of his mobile home. Walser argues that this matter should have been filed as a new complaint rather than folded into previously-filed litigation concerning other health and safety complaints regarding his property. He also contends that the evidence is insufficient to support the judgment. Finding no error, we affirm."

NFP criminal opinions today (7):

Ben Plenaar v. State of Indiana (NFP)

Jason Shelton v. State of Indiana (NFP)

Lee Hardacre v. State of Indiana (NFP)

Bradley Morgan v. State of Indiana (NFP)

Hugo Medina v. State of Indiana (NFP)

Keith Flannery v. State of Indiana (NFP)

Deborah Ann Hazel-Morphew v. State of Indiana (NFP)

Posted by Marcia Oddi on June 3, 2008 12:48 PM
Posted to Ind. App.Ct. Decisions