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Tuesday, June 24, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 13 NFP)

For publication opinions today (1):

In Thomas J. Herr v. Carter Lumber Inc., The Carter Jones Lumber Co., and Brian L. Oaks, a 9-page opinion, Judge Brown writes:

Thomas J. Herr appeals the trial court’s judgment in his action against Carter Lumber, Inc., the Carter Jones Lumber Company (collectively, “Carter Lumber”), and Brian Oaks for unpaid attorney fees. Herr raises one issue, which we restate as whether the trial court’s order that Herr receive his compensation under a contingency fee agreement only after Carter Lumber makes a recovery is clearly erroneous. We affirm.

Before addressing the argument raised by Herr, we note that he did not submit a transcript of the bench trial upon which the trial court’s findings of fact and conclusions thereon are based. * * *

It appears that Herr is not challenging the trial court’s findings of fact and is challenging only the trial court’s conclusions of law. Based upon Pabey and Walker, we will address the issue raised by Herr. * * *

Without a final result of the cases, a court is unable to determine an appropriate compensation for Herr. We conclude that, under Galanis and Four Winds, Herr may not receive compensation for his attorney fees until Carter Lumber receives payment. The trial court’s order denying Herr’s request for immediate payment of his attorney fees was not clearly erroneous.

For the foregoing reasons, we affirm the trial court’s judgment that Herr is entitled to recover his quantum meruit fee on any collection achieved by successor attorneys.

NFP civil opinions today (5):

Aurelia Watts v. Health and Hospital Corp. of Marion Co. d/b/a Wishard Memorial Hospital (NFP) - "The trial court properly granted Wishard’s motion for partial summary judgment and acted within its discretion when it denied Watts’s motion to amend her complaint. The trial court did not abuse its discretion when it admitted Attorney Shula’s testimony concerning attorney fees and when it issued its $40,000 attorney fees award. Finally, Watts did not establish that she was prejudiced by the trial court’s denial of her motion to strike Wishard’s proposed findings of fact and conclusions of law."

Paul W. Gaudy v. Lake County, Indiana by the Lake County Plan Commission Planning and Building Department (NFP) - "Gaudy has not established that the trial court lacked subject matter jurisdiction to resolve the Plan Commission’s claim. Accordingly, the trial court properly denied his motion for relief from judgment. We affirm."

City of Hammond, Hammond Civic Center, et al. v. Martha Plys (NFP) - The issue is whether the Hammond Fittness Center release signed by Matha Plys is specific enough to exempt the Hammond defendants from liability for negligence. The opinion concludes:

In short, the release signed by Plys demonstrates that she assumed the risk, that she held the Hammond defendants harmless “from any and all loss, claim, injury, damage, or liability,” she agreed to indemnify them, and she held them harmless for any injury sustained while using the facilities caused by a negligent act or omission. This release was specific enough to waive Plys’s negligence claims. The trial court relied on an improper interpretation of this contract in denying the Hammond defendants’ motion for summary judgment. We conclude that the Hammond defendants were entitled to summary judgment as a matter of law.

Conclusion. The release signed by Plys was sufficiently specific to release the Hammond defendants from any actions by Plys alleging their negligence. We reverse the trial court’s denial of the Hammond defendants’ motion for summary judgment and remand for further proceedings consistent with this opinion.

In the Matter of Involuntary Term. of Parent-child Rel. of A.M., A.L. and mother, K.M. v. Marion Co. Dept. of Child Svcs. and Child Adv. (NFP) - "Since the time of A.M.’s removal, approximately 3 years have passed and Mother still has not completed services. Mother therefore remains unavailable to care for her children. It is unfair to ask A.M. and A.L. to continue to wait until Mother is willing and able to get, and benefit from, the help that she needs. See also In re Campbell, 534 N.E.2d 273, 275 (Ind. Ct. App. 1989) (stating that the court was unwilling to put the children “on a shelf” until their mother was capable of caring for them). Accordingly, the judgment of the juvenile court terminating Mother’s parental rights to A.M. and A.L. is hereby affirmed."

Lisa D. Tate v. Review Board of the Indiana Department. of Workforce Development and Southern Enterprises, Inc. (NFP) - "Lisa Tate appeals the decision of the Review Board of the Indiana Department of Workforce Development (the “Board”) denying her claim for unemployment benefits. We affirm."

NFP criminal opinions today (8):

State of Indiana v. William S. Elpers (NFP)

Bobby Henard v. State of Indiana (NFP)

Sean Wayne Keith v. State of Indiana (NFP)

Jeffrey Scott Morris v. State of Indiana (NFP)

Timothy J. Jenkins v. State of Indiana (NFP)

Randy L. Reeder v. State of Indiana (NFP)

Aaron K. Cameron v. State of Indiana (NFP)

Irvin Neal v. State of Indiana (NFP)

Posted by Marcia Oddi on June 24, 2008 12:42 PM
Posted to Ind. App.Ct. Decisions