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Thursday, July 24, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 9 NFP)

For publication opinions today (5):

In John Clark, Rep. of the Estate of Cory R. Clark v. Aris, Inc., et al , a 9-page opinion, CJ Baker writes:

Baer left the job site during the middle of his shift without Aris’s permission to do so, drove his personal vehicle to the residence of Cory Clark and Jenna Clark, entered the home, and murdered the Clarks. Baer was subsequently found guilty of the murders of the Clarks.

On February 27, 2006, the Estate filed a complaint against Aris, among others, for negligent hiring and retention of Baer. On January 29, 2007, Aris filed a motion for summary judgment, arguing that it was not liable for Baer’s actions as a matter of law. Following a hearing, the trial court summarily granted Aris’s motion on July 6, 2007. The Estate now appeals. * * *

Aris hired Baer to flag traffic at a construction site. This job did not put him into personal contact with citizens, it did not provide access to people’s homes or property, and it authorized him to do nothing more than stand on the street and control the flow of traffic. * * * We simply cannot conclude that Cory and Jenna Clark, who lived miles from the construction site in a residence that Baer was not authorized to enter for any purpose whatsoever, were reasonably foreseeable victims, or that the tragic harm that befell them was reasonably foreseeable. * * * But given these facts, we find as a matter of law that the Clarks were not reasonably foreseeable victims who were injured by a reasonably foreseeable harm. Thus, as a matter of law, Aris did not have a duty of care to the Clarks and the trial court properly granted summary judgment in Aris’s favor.

Jacob Jones v. State of Indiana - "Jacob Jones (“Jones”) was convicted in Marion Superior Court of Class C felony auto theft and Class A misdemeanor driving while suspended. Jones appeals and argues that the evidence is insufficient to support his auto theft conviction because the vehicle he stole had been abandoned. We affirm."

In Jeffrey A. Graham v. State of Indiana , a 10-page opinion, CJ Baker writes:

We find that the State presented sufficient evidence to support Graham’s conviction for resisting law enforcement and that his convictions for criminal recklessness and criminal mischief do not violate the prohibition against double jeopardy. However, as the State acknowledges, the trial court did not inquire into Graham’s ability to pay or fix a manner of payment for the restitution; thus, we reverse the restitution order and remand with instructions contained herein.
In Tamara Sullivan v. Noell Krughoff, Shelby Co. Dem. Central Committee Chairperson , a 6-page opinion, Judge Mathias writes:
Respondent-Appellant Tamara Sullivan (“Sullivan”) appeals from the trial court’s judgment finding that Val Phares was the duly elected representative of the Fourth Ward to the Shelbyville Common Council as a result of the 2007 general election. We affirm and remand. * * *

The issue before us is not how a statute should be interpreted but which statute is to be applied to this situation. Sullivan argues that the trial court applied the wrong statute when it ordered that all of the absentee ballots cast in the Shelbyville Common Council, Fourth Ward, not be counted. * * *

An absentee ballot, which is what is at issue in this case, may not be counted unless it has been properly endorsed. Indiana Code § 3-12-1-13. The absentee ballots cast in the Shelbyville Common Council, Fourth Ward election were not properly endorsed under the statute. A careful reading and comparison of the statutes at issue makes clear that absentee ballots of any type must be endorsed as described in Indiana Code section 3-12-1-13 in order to be valid.

We therefore affirm and remand for the trial court to order that Val Phares be installed as Councilperson for the Shelbyville Common Council, Fourth Ward immediately, upon receipt of this opinion.

Tri-Etch Inc., et al v. Cincinnati Insurance Co. is a complex, 27-page opinion. CJ Baker's several page summary of the opinion begins:
The case we address today stems from a tragedy that has resulted in nine years of litigation. These parties have been before our court three times and have argued their case before our Supreme Court twice. While the issues we address include complex insurance matters concerning notice, prejudice, policy coverage, and defense costs, no amount of litigation will ever erase the unfortunate circumstances that bring us here today.NFP civil opinions today (2):

In Re: K.L., T.R., and B.M., Children In Need of Svcs., T.W. v. Marion Co. Dept. of Child Svcs. (NFP) - "Here, the juvenile court’s findings in its order declaring the Children to be CHINS are very similar and in places identical to the language used by the juvenile court in J.Q. We also note that the evidence presented to the juvenile court was not undisputed. Based on J.Q., we reverse and remand with instructions that the trial court more specifically follow the requirements of Ind. Code § 31-34-19-10."

In Diana E. Lowhorn v. Brian E. Lowhorn (NFP), an 18-page opinion, Judge Brown writes:

Diana E. Lowhorn (“Mother”) appeals the trial court’s modification of custody of her children to her former husband, Brian E. Lowhorn (“Father”). Mother raises one issue, which we restate as whether the trial court abused its discretion by modifying custody. We reverse and remand. * * *

In summary, we conclude that many of the trial court’s findings are clearly erroneous, and the remaining findings, taken together, fail to demonstrate a substantial change necessary to modify custody. We therefore reverse the trial court’s grant of Father’s petition to modify custody and remand for proceedings consistent with this opinion.

NFP criminal opinions today (7):

Richard R. Wireman v. State of Indiana (NFP)

Christopher Scruggs v. State of Indiana (NFP)

Randy D. Hix v. State of Indiana (NFP)

M.W., a Minor v. State of Indiana (NFP)

James Lewis v. State of Indiana (NFP)

Jerry Lee Sargent v. State of Indiana (NFP)

Jeffrey S. Morris v. State of Indiana (NFP)

Posted by Marcia Oddi on July 24, 2008 12:14 PM
Posted to Ind. App.Ct. Decisions