The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

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Wednesday, June 18, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

For publication opinions today (4):

In Matthew Zachary v. State of Indiana , a 9-page opinion, Judge Bailey writes:

Zachary presents a single issue for review: whether he was denied the effective assistance of trial and appellate counsel because counsel did not challenge an admonishment and instruction that restricted the jury’s consideration of certain self-defense evidence. * * *

The jury ultimately found that the State had rebutted Zachary’s claim of self-defense. However, this is not attributable to trial counsel’s failure to object to instruction by the trial court, as a timely objection would not have been sustained.

Conclusion Zachary failed to demonstrate that he was prejudiced by an erroneous instruction to the jury. As such, he did not establish the ineffectiveness of either trial counsel or appellate counsel for failure to challenge the same. The post-conviction court properly denied Zachary post-conviction relief. Affirmed.

In Roy Austin Smith v. Indiana Dept. of Corrections, an 8-page opinion, Judge Robb writes:

Roy Smith, pro se, appeals from the trial court’s order dismissing his complaint against the Indiana Department of Correction (“DOC”), the Indiana State Prison (“ISP”), the State of Indiana, and several employees of ISP, after conducting the inquiry required by Indiana Code chapter 34-58-1. Smith raises three issues, which we consolidate and restate as whether the trial court properly dismissed his complaint. Concluding that the trial court erred in dismissing Smith’s complaint in its entirety, we reverse and remand. * * *

Conclusion. Although some of Smith’s claims against some of the named defendants may fail to state a claim upon which relief may be granted, we can discern no basis on which to dismiss the complaint in its entirety. We therefore reverse the trial court’s order dismissing Smith’s complaint and remand with instructions for the trial court to comply with Indiana Code section 34-58-1-3 and issue a new order stating which claims may and which claims may not proceed. Reversed and remanded.

Frank W. O'Connell v. Jennifer L. O'Connell - "Frank O’Connell (“Husband”) appeals the trial court’s order dissolving his marriage to Jennifer O’Connell (“Wife”). We affirm in part, reverse in part, and remand with instructions.

Issues. 1. Whether the trial court abused its discretion in its division of the marital estate. 2. Whether the trial court abused its discretion in valuing the marital residence and ordering that the marital residence be sold.

In Procare Rehab Services of Community Hospital v. Janice S. Vitatoe , a 14-page opinion, Judge Crone writes:

Community Hospitals of Indiana, Inc. (“Community”), appeals from the denial of its motion to dismiss Janice S. Vitatoe’s complaint against ProCare Rehab Services of Community Hospital (“ProCare”) for lack of subject matter jurisdiction. We reverse and remand. * * *

The parties do not dispute that Vitatoe’s original hamstring injury was accidental and arose out of and in the course of her employment with Community. Also, they do not dispute that the injuries that form the basis of Vitatoe’s medical malpractice claim were accidental. Citing McDaniel v. Sage, 174 Ind. App. 71, 366 N.E.2d 202 (1977), Community argues that those injuries arose out of and in the course of her employment and that therefore her medical malpractice claim against Community is barred pursuant to Indiana Code Section 22-3-2-6. * * *

Although neither McDaniel, Seaton, nor Crider is factually or procedurally on all fours with this case, taken together they stand for the proposition that, if an employee’s injury that arose out of and in the course of her employment is aggravated by treatment for that injury, regardless of where, when, by whom, and for how long the treatment was provided, the injury caused by the treatment shall be deemed as a matter of law to have arisen out of and in the course of her employment for purposes of the Act; as such, the employee’s exclusive remedy against her employer for the injury caused by the treatment is under the Act. * * *

Vitatoe claims that her situation is unique because “she was foremost a patient at the time of the injury, facing the same risks of medical negligence faced by any patient receiving rehabilitative treatment from Procare Rehab.” Appellee’s Br. at 11. Based on the aforementioned precedent regarding the dual-capacity doctrine and the aggravation of an employee’s work-related injuries, as well as the plain language of Indiana Code Section 22-3-2-6, we find this to be a distinction without a meaningful difference. Consequently, we reverse the denial of Community’s motion to dismiss Vitatoe’s proposed medical malpractice complaint for lack of subject matter jurisdiction and remand for further proceedings consistent with this opinion. We express no opinion as to the viability of Vitatoe’s claims against the remaining defendants. Reversed and remanded.

BRADFORD, J., concurs.
BARNES, J., concurs with separate opinion. [that begins] I concur with the majority’s analysis and agree that the outcome here is dictated by precedent. That does not mean that I believe such an outcome is logical or fair.

The proposition that merely because an injured employee is treated at a facility that has links to the employment site where the original injury was sustained, he or she is prohibited from bringing a separate action for neglectful or reckless care makes no sense to me.

NFP criminal opinions today (6):

Jodi Lynn Page v. Best Buy Company, Inc. (NFP) - "We fail to see how each tenant’s financial duty of contribution translates into a duty to control common area maintenance. Using such logic, Page would be able to recover against any tenant of the shopping center. As Page’s fall did not occur inside the Best Buy store or on the immediately adjoining sidewalk, it occurred in an area over which Trustco, not Best Buy, retained control. As such, the trial court properly entered summary judgment in favor of Best Buy."

Kelly Trucking Inc. v. Bradley S. Wilson, Indiana Dept. of Workforce Development, et al (NFP) - "Given the findings of fact, we conclude the Board’s determination that Wilson was not terminated for just cause is reasonable."

Nicholas L. Georgakopoulos v. Elizabeth A. Coit (NFP) - "Georgakopoulos waived the issue of child support modification by not properly raising it before the trial court. Coit has not established that her attorney fees for the custody modification were associated with an intentional violation of the settlement agreement modification; therefore, she has not shown that the trial court erred by denying her attorney fee request. We affirm."

In Old Paths Baptist Church v. Washington County Health Department et al. (NFP), a 9-page opinion, Judge Bailey writes:

Old Paths Baptist Church (“Old Paths”) appeals the dismissal of its challenge to the constitutionality of Indiana Code Section 16-20-1-25. We affirm.

Issue. Old Paths presents a single issue for review: whether the trial court erroneously dismissed Old Paths’ claim that Indiana Code Section 16-20-1-25 is unconstitutional because an individual or entity targeted for a suspected health code violation must submit to an administrative search based upon hearsay or be subject to criminal penalties.

Facts. The instant appeal involves the latest in a series of legal proceedings prompted by the efforts of the Washington County Health Department (“the Health Department”) to inspect property of Old Paths and its pastor, John Lewis (“Lewis”), for alleged sewage disposal violations, and the stance of Old Paths and Lewis that entry onto private land must be preceded by permission, a warrant, or exigent circumstances. Consistent with this position, Lewis first challenged the constitutionality of Indiana Code Section 16-20-1-23 and Old Paths now challenges the constitutionality of Indiana Code Section 16-20-1-25. * * *

As best we can discern its argument, Old Paths asserts (notwithstanding prior stipulations to the contrary) that Indiana’s statutory scheme governing local health departments is void and cannot be applied in a constitutional manner. According to Old Paths, this is so because a health code inspector privy only to a hearsay allegation may conduct a search of private land and the party to be searched has no recourse. * * *

At the trial in the instant matter, Old Paths and the Health Department submitted a joint stipulation that Indiana Code Section 16-20-1-23 could be constitutionally applied (specifying judicial permission, permission from the property owner or exigent circumstances). After raising the constitutionality of Indiana Code Section 16-20-1-25 (when read together with Indiana Code Section 16-20-1-23) as a defense to the counterclaim against it, Old Paths made the following representation in open court on the first day of trial: “if he does it [the search] constitutionally and has proper probable cause, we’re going to be law abiding citizens and we’ll not object.” (Tr. 9.) Thus, Old Paths conceded that Indiana Code Section 16-20-1-25 could be applied in a constitutional manner.

ILB Note: The ILB counts at least three recent cases from Washington County re the legality of inspections by the health department based on complaints of sewage released to the ground. They all seem to come down to: "IC 16-20-1-23 should be interpreted to require that the WCHD must obtain judicial permission prior to conducting a health inspection, unless there is permission or exigent circumstances."

Sheryl Crowder Taylor v. David Taylor (NFP) - "Sheryl Crowder Taylor (“Wife”) challenges the trial court’s denial of her motion for attorney’s fees pursuant to the dissolution of her marriage to David Taylor (“Husband”). We affirm.

"Issues. 1. Whether the trial court erred when it denied Wife’s motion based upon the terms of the parties’ mediation agreement. 2. Whether Wife’s challenge to the trial court’s bifurcation of the dissolution action is subject to appellate review."

Troutwine Estates Development Co., LLC, Daniel Jordan, et al. v. Comsub Design and Engineering, Inc. (NFP) - "Following our remand of this case to the trial court with instructions to enter more specific findings, Troutwine Estates Development Company, LLC (“Troutwine”), Daniel Jordan (“Jordan”), Michael D. Jordan, and Mastermark, Inc. (“Mastermark” and, collectively, “the Developers”), challenge the sufficiency of the finding supporting the imposition of individual liability on the Developers in favor of ComSub Design and Engineering, Inc. (“ComSub”). We remand once again with instructions to enter more specific findings. * * *

"We agree with Troutwine and the Developers that the trial court’s finding is actually a conclusion unsupported by any factual findings from the evidence upon which it might have relied in determining that Troutwine was the Developers’ alter ego. In other words, the trial court’s finding is inadequate to support its judgment. The absence of specific factual findings is particularly vexing given Judge Robb’s observations in the previous appeal regarding the “highly fact-sensitive inquiry” required to determine whether to “circumvent the protections of a limited liability corporation[.]” Troutwine, 854 N.E.2d at 900. In sum, we must remand once again with instructions to enter specific factual findings regarding the basis for imposing individual liability on Daniel Jordan, Michael D. Jordan, and Mastermark.. Remanded."

NFP criminal opinions today (11) [Link to Cases]:

Antonio Davidson v. State of Indiana (NFP)

Richard T. Schilson v. State of Indiana (NFP)

Geowanda Hayes v. State of Indiana (NFP)

Michael Modlin v. State of Indiana (NFP)

Gordon Northrup v. State of Indiana (NFP)

Brian Burke v. State of Indiana (NFP)

Alyone J. Priest v. State of Indiana (NFP)

Matthew Zigler v. State of Indiana (NFP)

Cynthia J. DePaul v. State of Indiana (NFP)

Alfrederick Williams v. State of Indiana (NFP)

Marques Love v. State of Indiana (NFP)