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Friday, July 11, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Thomas Williams and Sanford Kelsey v. Kelly Eugene Tharp and Papa John's U.S.A., Inc. , an 18-page opinion, Judge May writes:

Two African-American men, Thomas Williams and Sanford Kelsey, went to a Papa John’s restaurant in Westfield to pick up a pizza they had ordered. They paid for the pizza and left for Williams’ home. An employee falsely reported one of the men pulled a gun. A number of police officers surrounded their vehicle when the two returned home with the pizza. Police detained the men, in handcuffs and on their knees, for an hour and a half while they investigated.

Williams and Kelsey sued Papa John’s and its employee for defamation, false imprisonment, negligence, and intentional infliction of emotional distress. The trial court granted summary judgment for Papa John’s and its employee on the ground the complaint included no defamatory statement; it also found the employee’s statement was privileged even if defamatory and the employee did not act intentionally or in an extreme and outrageous manner. We reverse and remand for trial. * * *

[ILB: Note from p. 2 that "[I]n February 2005, Kelsey came to Indianapolis for a job interview with a law firm.]

Williams and Kelsey’s complaint adequately alleged a defamatory statement and there is a genuine issue of fact as to whether Tharp’s statement was protected by a privilege. We accordingly reverse summary judgment for Tharp and Papa John’s and remand for trial.

In Matthew J. Aplin v. State of Indiana , a 7-page opinion, Judge Bailey writes:
Appellant-Defendant Matthew J. Aplin (“Aplin”) appeals his convictions for Attempted Sexual Misconduct with a Minor, as a Class B felony, and Child Solicitation, as a Class C felony. We reverse the Attempted Sexual Misconduct with a Minor conviction and affirm the Child Solicitation conviction. * * *

The Internet conversation ended at 3:24 p.m. and by 4:13 p.m. Aplin arrived in his green truck at the Fishers Super Target parking lot. He was wearing tan pants, a yellow shirt, and a green sweater. Officers observed Aplin walk to the entrance of the Starbucks and “peer inside.”

The State presented sufficient evidence from which the jury could conclude that Aplin used a computer network to solicit a person he believed to be fifteen years old to engage in deviate sexual conduct. Aplin’s emphasis on the youthful appearance of the Internet photograph of “glitterkatie2010” and the Yahoo requirement that chat room participants be at least eighteen years of age is merely an invitation to reweigh the evidence. This we cannot do. Drane, 867 N.E.2d at 146.

Conclusion The State did not establish Aplin’s commission of Attempted Sexual Misconduct with a Minor. Therefore, we remand with instructions to the trial court to vacate this conviction and sentence. However, there is sufficient evidence to support Aplin’s conviction for Child Solicitation. Affirmed in part, reversed in part, and remanded with instructions.

NFP civil opinions today (5):

The Invol. Term. of Parent-Child Rel. of G.E. (child) and Angela E. (mother) v. Marion Co. Dept. of Child Svcs. (NFP) - "We cannot ignore the exceptional facts here demonstrating a commitment by Emswiller to turn her life around and change her conditions as necessary to parent G.E. She has taken advantage of many opportunities during her incarceration to learn a trade, to deal with her substance abuse, and to improve her parenting skills and education. She has secured placement in a program that will ease the transition from incarceration and put her on a path to an independent life. The trial court’s conclusions that there is a reasonable probability that the conditions that resulted in the removal will not be remedied and that the continuation of the parent-child relationship poses a threat to G.E. are not supported by the evidence.

"Conclusion We find that DCS did not present sufficient evidence to terminate Emswiller’s parental rights at this time. We reverse."

Michael A. Williamson v. Penny Jane (Williamson) Rose (NFP) - "Appellant-Respondent Michael A. Williamson (“Michael”) appeals the denial of his Indiana Trial Rule 60(B) motion to set aside a judgment obtained by his ex-wife Appellee-Petitioner Penny Williamson (“Penny”). We reverse and remand for an evidentiary hearing. * * *

"In ruling on a Trial Rule 60(B) motion, the trial court must balance the alleged injustice suffered by the party moving for relief against the interests of the winning party and societal interest in the finality of litigation. Id. To this end, T.R. 60(D) requires a hearing at which pertinent evidence is to be presented. We decline to review the “exhibits” presented by Michael and remand for the development of a factual record in a T.R. 60(D) hearing. Reversed and remanded."

Black Cowboys, LLC v. State of Indiana Department of Natural Resources (NFP) - "Black Cowboys operated a saddle barn concession at Fort Harrison State Park under a license from the Department of Natural Resources (“DNR”). Black Cowboys brought a breach of contract action against DNR after DNR terminated the concession. The trial court denied Black Cowboys’ motion for summary judgment and granted DNR’s motion. We affirm. * * *

"DNR could properly terminate its contract with Black Cowboys based on the complaints it had received from the public. The license agreement permits DNR to immediately terminate the agreement “where continued operation by the Licensee may result in significant or irreparable harm to the Department and/or the public. * * *

"The undisputed evidence of complaints about the condition of the horses while Black Cowboys operated the saddle barn supports a determination Black Cowboys’ operation of the saddle barn “reflect[ed] adversely on the Department” and summary judgment for DNR was therefore not error. Affirmed."

Darrin Coomer v. DaimlerChrysler Corp., et al (NFP) - "Appellant-plaintiff-cross-appellee Darrin Coomer appeals the trial court’s grant of summary judgment in favor of appellees-defendants-cross-appellants DaimlerChrysler Corp., Metadyne Corp., and NC-M Chassis Systems, LLC (collectively, the appellees). Specifically, Coomer argues that the trial court erred in granting summary judgment in favor of the appellees because the evidence establishes a good faith dispute regarding the cause of his seizures. Additionally, the appellees cross-appeal the trial court’s denial of their motion to strike Coomer’s expert’s affidavit and report. Concluding that the appellees were entitled to summary judgment as a matter of law because Coomer’s designated evidence was insufficient to establish causation, we affirm the judgment of the trial court."

Matthew Gregory v. DaimlerChrysler Corp., et al (NFP) - "Appellant-plaintiff-cross-appellee Matthew Gregory appeals trial court’s grant of summary judgment in favor of appellees-defendants-cross-appellants DaimlerChrysler Corp., Metadyne Corp., and NC-M Chassis Systems, LLC (collectively, the appellees). Specifically, Gregory argues that the trial court erred in granting summary judgment in favor of the appellees because the evidence establishes a good faith dispute regarding the cause of his seizures. Additionally, the appellees cross-appeal the trial court’s denial of their motion to strike Gregory’s expert’s affidavit and report. Concluding that the appellees were entitled to summary judgment as a matter of law because Gregory’s designated evidence was insufficient to establish causation, we affirm the judgment of the trial court."

NFP criminal opinions today (8):

Michael D. Hickingbottom v. State of Indiana (NFP)

Michael Marshall v. State of Indiana (NFP)

Steven L. McCollum v. State of Indiana (NFP)

Patrick Holtsclaw v. State of Indiana (NFP)

Travis N. Turner v. State of Indiana (NFP)

Christopher Miller v. State of Indiana (NFP)

Gary Underwood v. State of Indiana )NFP)

C.R.M. v. State of Indiana (NFP)

Posted by Marcia Oddi on July 11, 2008 10:26 AM
Posted to Ind. App.Ct. Decisions