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Wednesday, July 16, 2008

Ind. Decisions - Court of Appeals issues 6 today (and 9 NFP)

For publication opinions today (6):

In Tim Sinks v. Krista L. Caughey , a 16-page opinion in an interlocutory appeal, Judge Vaidik writes:

This case stems from a 2002 automobile accident in which Krista Caughey and her then-husband, Marius Sakalinskas, were rear-ended by a pickup truck. American Family Mutual Insurance Company, who insured both vehicles involved in the collision, informed Caughey that Jackie and Kathy Grover owned the truck and their son Michael Grover (“Michael”) drove it on the day of the accident. After the statute of limitations expired, Caughey learned that American Family had provided her with incorrect information because Tim Sinks was the actual driver of the truck on the day in question. As a result, the trial court allowed Caughey to amend her complaint and add Sinks as a party defendant. Sinks brings this interlocutory appeal after the trial court denied his motion to dismiss, which alleged that Caughey failed to bring her claim against Sinks within the applicable two-year statute of limitations and failed to comply with Indiana Trial Rule 15(C). Concluding that Sinks had constructive notice of the lawsuit when American Family was served with the lawsuit and that the “mistake” element of Trial Rule 15(C) was met, we affirm the judgment of the trial court.
In Keith Elton Rich v. State of Indiana, a 19-page opinion, Judge Robb writes:
Following a guilty plea, Keith Rich appeals his fourteen-year sentence for burglary and possession of marijuana, the trial court’s order that Rich pay a $200 public defender fee, and the trial court’s order that Rich reimburse the victims for the cost of a home security system. Rich raises the issues of whether the trial court abused its discretion in ordering him to pay the public defender fee and reimburse the victims and whether his sentence is inappropriate given the nature of the offenses and his character. Concluding the trial court acted within its discretion in ordering Rich to pay the public defender fee and that his sentence is not inappropriate, we affirm the trial court in part. However, concluding the trial court abused its discretion in ordering Rich to pay for the installation of the victims’ security system, we reverse the trial court’s restitution order and remand with instructions that it correct this order to remove the cost of the security system.
In Micorvote General Corp. v. The Office of Secretary of State and Todd Rokita, Indiana Secretary of State , an 11-page opinion, Judge Bradford writes:
Appellant/Petitioner MicroVote General Corporation (“MicroVote”) appeals from the trial court’s dismissal of its petition for judicial review of an adjudication by Appellees/Respondents the Office of the Secretary of State (“OSS”) and Indiana Secretary of State Todd Rokita. Concluding that (1) MicroVote’s failure to timely file either the record of the administrative proceeding or a request for an extension of time to do so deprived the trial court of jurisdiction over the case; (2) a motion to dismiss a petition for judicial review, if made on the wrong ground, does not require reversal; (3) MicroVote’s failure to transmit an adequate agency record deprived the trial court of jurisdiction over the case; and (4) MicroVote may not rely on equitable estoppel to excuse its failure to timely file the agency record, we affirm.
In Chad A. Weideman v. State of Indiana , an 8-page opinion, Judge Riley writes:
Appellant-Defendant, Chad M. Weideman (Weideman), appeals his conviction for public nudity, as a Class B misdemeanor, Ind. Code § 35-45-4-1.5(c). We reverse and remand.

Issues. Weideman raises three issues, which we restate as the following two issues: (1) Whether the public nudity statute, I.C. § 35-45-4-1.5, is unconstitutionally vague; and (2) Whether the evidence is sufficient to support the conviction of Weideman beyond a reasonable doubt.

Facts. On June 10, 2006, at approximately 8:45 p.m., Gerald Bowser (Bowser) and his girlfriend Patty Hogan (Hogan) went out to his truck that was parked on the street in front of his residence. Although it was dark outside, they both saw someone standing by a fence on Bowser’s property. Bowser then drove his truck on to the sidewalk and pointed his headlights at the person. When the lights shined upon the person, they saw their neighbor, Weideman, standing there naked with a look of panic or surprise on his face. Weideman immediately dropped and rolled into a nearby ditch that went between Bowser and Weideman’s property and crawled on his hands and knees to the back of his property. Hogan called the police. * * *

Weideman also argues that, even if the public nudity statute is constitutional, the evidence presented by the State was insufficient to support his conviction for public nudity, as a Class B misdemeanor. Specifically, he first contends that no witness testified that they saw his genitalia, pubic area, or buttocks. Secondly, he contends that there was no evidence that he had a specific intent to be seen. * * *

We conclude that this testimony is sufficient evidence to prove beyond a reasonable doubt that Weideman was nude.

The State was also required to prove beyond a reasonable doubt that Weideman had an “intent to be seen by another person” in order to convict Weideman of public nudity as a Class B misdemeanor. I.C. § 35-45-4-1.5(c). During the trial, Bowser testified that it was dark outside, and when he turned his truck lights on, Weideman had a panicked look on his face and “he turned to the ditch and just dropped, he just, like fell down and rolled.” “[H]e dropped and rolled into the ditch and then he crawled on his hands and knees down the ditch to the back of the property.” Weideman testified at the trial that he did not want to be seen. Based on our review of the record, we conclude that the State presented insufficient evidence to prove beyond a reasonable doubt that Weideman intended to be seen. Therefore, we must reverse Weideman’s conviction for public nudity, as a Class B misdemeanor. * * *

Conclusion. Based on the foregoing, we conclude that the public nudity statute is not unconstitutionally vague, but that the State failed to present evidence sufficient to prove beyond a reasonable doubt that Weideman committed public nudity, as a Class B misdemeanor. Reversed and remanded with instructions.

In Jim & Jill Kovach v. Alpharma, Inc., Caligor, Inc.; et al. , a 29-page, 2-1 decision, Judge Riley writes:
The Kovachs raise one issue on appeal, which we restate as follows: Whether the trial court erred by entering summary judgment in favor of the Cup Defendants. On cross-appeal, the Cup Defendants raise one issue, which we restate as follows: Whether the trial court erred by denying the Cup Defendants’ Motion to Exclude the opinion testimony of the Kovachs’ expert. * * *

Matthew was prescribed 15ml, or one-half of the Cup’s volume, of Capital of Codeine. Although Nurse Robinette stated that she gave Matthew only 15ml of Codeine, Jim, who was in the room at the time, testified that the Cup was completely full. Matthew drank all of the medicine in the Cup. At 11:20 a.m., he was discharged from Surgicare. Later that day, after arriving home, Matthew went into respiratory arrest. He was transported to Bloomington Hospital, where he was pronounced dead of asphyxia due to an opiate overdose. The autopsy revealed that Matthew’s blood contained between 280 and 344 nanograms per ml of Codeine, more than double the recommended therapeutic level of the drug. * * *

In his affidavit and deposition testimony, O’Donnell [the Kovacachs' expert] examined a graduated measuring cup, identical to the one used to administer the Capital of Codeine to Matthew. Based upon his examination, education, and experience, he stated that children are generally more sensitive to an overdose of medication than adults and thus, especially when administering opiate medications, require precise medicinal doses. Describing the characteristics of the Cup, he opined that “[t]he Cup is a device that is fit to be used to determine the volume of medications that do not require [p]recision [m]easurements.” He concluded that “[t]he Cup is defective and unreasonably dangerous as a volume measuring device to determine [p]recision [m]easurements” and that a cause of the overdose was: (i) The Cup’s characteristics; (ii) The graduated measurement markings of the Cup not creating a clear contrast that could be easily read against the color of the Cup; and (iii) The Cup’s graduated measurements are not sufficiently visible to act as a reminder or checklist for the user when measuring the volume of medications to be administered.

Additionally, he opined that a cause of Matthew’s overdose and subsequent death was the lack of fitness and defective condition of the Cup.

The Cup Defendants now challenge O’Donnell’s opinions as lacking any scientific foundation, unreliable, and irrelevant. In essence, they request this court to completely ignore O’Donnell’s affidavit and deposition because they claim his opinions are entirely speculative. While it is true that no scientific principles underlie O’Donnell’s opinion, his opinion is still admissible as it is proper expert testimony based upon specialized knowledge, pursuant to Evid. R. 702. ... O’Donnell is a registered pharmacist and university professor who examined a medical device for dispensing medications to children and offered his professional opinion about what his examination disclosed. His opinions are reliably based upon his own observations and application of his specialized pharmaceutical knowledge to those observations. ... As such, we find them to be reliable and relevant to the issues at hand. Any challenge to O’Donnell’s opinions and perceived gaps in his examination could be exploited at trial through vigorous cross-examination. Mindful of our standard of review, we cannot conclude that the trial court abused its discretion by admitting O’Donnell’s testimony.

On appeal, the Kovachs contend that the trial court erred in entering summary judgment in favor of the Cup Defendants. In sum, they present us with two claims each under the Uniform Commercial Code and under the Product Liability Act, maintaining that a genuine issue of material fact exist on each assertion. * * *

Based on our analysis, we find that the Kovachs have established a genuine issue of fact with respect to both their claims under the Product Liability Act and the implied warranty of merchantability under the UCC. We reverse the trial court’s grant of summary judgment in these respects but affirm the grant of summary judgment regarding the Kovachs’ action of implied warranty of fitness for a particular purpose. We remand to the trial court for further proceedings.

Conclusion. Based on the foregoing, we find that the trial court erred when granting summary judgment to the Cup Defendants with respect to the Kovachs’ arguments under the Product Liability Act and the implied warranty of merchantability under the UCC. However, the trial court properly granted summary judgment with respect to the Kovachs action of implied warranty of fitness for a particular purpose under the UCC. Additionally, we find that the trial court did not abuse its discretion by admitting O’Donnell’s testimony. Affirmed in part, reversed in part, and remanded for further proceedings.

ROBB, J., concurs.
BAKER, C.J., dissents with separate opinion. [which states in part:] The nurse administered at least double the recommended dosage of the drug to Matthew. No reasonable factfinder would conclude that her actions were the result of a measuring error. Although there are many other possible causes of the tragic error, I can only conclude, based on these facts, that it cannot be found to have resulted from imprecise measuring. Therefore, I believe that the designated evidence establishes that the Kovachs have failed to show that the alleged defect, failure to warn, and/or breach of duty on the part of the Cup Defendants was the proximate cause of Matthew’s death.

In Brennen Baker and Moisture Management v. Tremco Inc. and Rick Gibson, a 26-page, 2-1 opinion, Judge Bradford writes:
Appellant/Plaintiff/Counterclaim Defendant Brennen Baker and Appellant/Third-Party Defendant Moisture Management appeal the trial court’s grant of partial summary judgment in favor of Appellees/Defendants/Counterclaim Plaintiffs/Third-Party Plaintiffs Tremco Incorporated and Rick Gibson. Baker and Moisture Management contend that the trial court erroneously granted summary judgment to Tremco and Gibson with respect to their claims that (1) Baker’s covenant not to compete with former employer Tremco is unenforceable, (2) Tremco tortiously interfered with Baker’s business activities, (3) Tremco wrongfully discharged Baker, (4) Gibson defamed Baker, and (5) Tremco violated Indiana’s blacklisting statute. We affirm in part, reverse in part, and remand with instructions. * * *

Conclusion. In summary, we affirm the trial court’s entry of summary judgment in favor of Gibson on Baker’s claim that Gibson defamed him by telling a third party that he suffered from mental illness and in favor of Tremco on Baker’s “blacklisting” and wrongful discharge claims. Moreover, we reverse and remand with instructions to enter summary judgment in favor of Baker on his claim that he did not violate the noncompete clause of the Agreement. Finally, we remand for trial on Baker’s claim against Tremco of tortious interference and his claim that Gibson defamed him by telling a third party that he had engaged in inappropriate sales practices. Trial on the defamation claim is limited to the issues of Gibson’s malicious intent, general damages, and special damages, if any. The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions.

BARNES, J., concur.
CRONE, J., concurring in part and dissenting in part. [which begins] I concur in the majority’s opinion in all respects except for its affirmance of the trial court’s entry of summary judgment in favor of Gibson on Baker’s claim that Gibson defamed him by telling a third party that he suffered from mental illness. Because I believe that a bare assertion that someone suffers from mental illness is sufficient to constitute slander per se, I respectfully dissent as to that issue.

NFP civil opinions today (1):

Vinod Gupta v. Gary T. Hubbuch (NFP) - "We conclude that Hubbuch properly appealed the grant of tax deed to Gupta in the trial court pursuant to a Trial Rule 60(B) motion. We also conclude that Gupta made a bona fide effort to comply with the notice requirements of Indiana Code chapter 6-1.1-25. We affirm the trial court’s refusal to grant a tax deed to Gupta but remand for a refund of Gupta’s purchase price and calculation of interest due to him. The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions."

NFP criminal opinions today (8):

Matthew S. Taylor v. State of Indiana (NFP)

Demitrius Weems v. State of Indiana (NFP)

Michael Sabo v. State of Indiana (NFP)

Antonio Jones v. State of Indiana (NFP)

William L. Henry II v. State of Indiana (NFP)

Raymond E. Myers v. State of Indiana (NFP)

William C. Burns v. State of Indiana (NFP)

Roger Brewer v. State of Indiana (NFP)

Posted by Marcia Oddi on July 16, 2008 01:00 PM
Posted to Ind. App.Ct. Decisions