The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 20 NFP)

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Monday, August 11, 2008

Ind. Decisions - Court of Appeals issues 4 today (and 20 NFP)

For publication opinions today (4):

In Misty D. Davis v. State of Indiana , a 16-page opinion, Judge Kirsch writes:

Misty D. Davis appeals her convictions and sentence for assisting a criminal in murder as a Class C felony and giving a false statement to law enforcement as a Class B misdemeanor. Davis raises nine issues on appeal, which we consolidate and restate as: I. Whether the trial court erred in denying Davis’ motions to dismiss based on improper venue and her marital status. II. Whether the trial court abused its discretion in allowing the admission of evidence of the murders in which she was alleged to have assisted. III. Whether the trial court abused its discretion in admitting into evidence Davis’ marriage certificate. IV. Whether the trial court abused its discretion in giving a jury instruction detailing Indiana’s marriage laws. V. Whether there was sufficient evidence to convict Davis. VI. Whether Davis’ Presentence Investigation Report was admissible at her sentencing hearing. VII. Whether Davis’ sentence was inappropriate. We affirm. * * *

The trial court did not abuse its sentencing discretion, and Davis’ sentence is not inappropriate.

In Elwood and Lila Simmons v. Erie Ins. Exchange , a 24-page opinion, Judge Robb writes:

Elwood and Lila Simmons appeal following a judgment awarding them each $10,000 following an automobile accident. The Simmonses raise two issues, but we find dispositive the issue of whether the trial court abused its discretion by instructing the jury on the affirmative defense of failure to mitigate damages. Concluding that insufficient evidence exists to support this instruction, we reverse and remand for a new trial. * * *

Erie argues that Elwood failed to mitigate damages due to his failure to undergo surgery to treat his plantar fasciitis, his learned gait, and his alleged failure to regularly use his medications and orthotics. We will address each in turn. * * *

Based on the circumstances at bar – 1) no doctor recommended surgery to Elwood; 2) Elwood saw several doctors, who prescribed a variety of treatments other than surgery; and 3) Erie’s failure to introduce evidence regarding the risks, benefits, costs, or inconveniences of the surgery – we conclude Elwood’s failure to undergo surgery is insufficient to support an instruction on failure to mitigate damages. * * *

Based on these considerations we conclude the trial court’s instruction on failure to mitigate damages cannot be supported by the evidence introduced at trial relating to Elwood’s learned gait. * * *

We conclude the trial court’s instruction on failure to mitigate damages cannot be supported by Elwood’s alleged failure to regularly take his medications or wear orthotics, without more evidence in the record. * * *

We conclude the trial court abused its discretion in instructing the jury on the affirmative defense of failure to mitigate damages. We also conclude that this error was not harmless and therefore reverse and remand for a new trial.

In Danny Brian Brattain v. State of Indiana , a 7-page opinion, Judge Bradford writes:

Appellant-Defendant Danny Brattain appeals the sentence imposed following his guilty plea to Operating a Vehicle with a Blood Alcohol Concentration (“BAC”) of .15 percent or Greater as a Class A misdemeanor, and Operating a Vehicle After Forfeiture of License for Life as a Class C felony, for which he received an aggregate eight-year sentence, with three and one-half years suspended to probation. Upon appeal, Brattain claims that his sentence is inappropriate in light of the nature of his offenses and his character. Concluding that Brattain has waived his claim and that, in any event, it fails on the merits, we affirm.

In Dutchmen Manufacturing, Inc. v. Chad Reynolds, a 27-page opinion, Chief Judge Baker writes:

Appellant-defendant Dutchmen Manufacturing, Inc. (Dutchmen), appeals the $6 million jury verdict entered against it in favor of appellee-plaintiff Chad Reynolds as the result of injuries that Reynolds sustained while working near some scaffolding that Dutchmen personnel had installed. Specifically, Dutchmen argues that: (1) the trial court erred in denying its motion for a judgment on the evidence; (2) the jury was improperly instructed; (3) the trial court erred in denying its motion for a mistrial because of opposing counsel’s allegedly improper comments; and (4) the jury’s damage award was excessive. Concluding that the trial court properly denied Dutchmen’s motion for judgment on the evidence and finding no other error, we affirm.

[ILB Note: From the end of the opinion: "Finally, Dutchmen argues that the damage award must be set aside. Specifically, Dutchmen claims that a $30 million damage award was excessive because Reynolds 'only presented evidence of approximately $10 million in damages.'” -- while at the beginning of the opinion a $6 million jury verdict is mentioned.

Here is the answer to that, from p. 9 of the opinion: "On July 17, 2007, the jury returned a verdict on liability, finding that Dutchmen was 20% at fault and Keystone was 80% at fault. Following a trial on damages, the jury found that Reynolds’s damages totaled $30 million, resulting in a verdict in favor of Reynolds and against Dutchmen in the amount of $6 million."]

NFP civil opinions today (8):

Gayle Parkevich individually, as Successor Trustee and Beneficiary v. Stephen Harlow, et al. (NFP) - "On appeal, we address a single issue, namely, whether the trial court erred when it granted summary judgment to the Malpractice Defendants. We affirm. * * *

"Parkevich was only a potential successor trustee of Vernon’s Trust, because she was never confirmed by the court as trustee. Thus, Parkevich does not qualify as a “trustee” under the definition that applied when Vernon Payne last amended Vernon’s trust. Because she does not qualify as a trustee, she does not have standing to pursue the professional negligence claims against the Malpractice Defendants."

Vernon and Elva Payne Irrevocable Trust for Beverly Draper v. Janet Best, Paula Eller and Beverly Draper (NFP) - "But we do not reach the merits of whether the trial court erred in denying the Petition to Re-Docket based on laches. Instead, we consider sua sponte whether that issue is justiciable. * * * In a companion case, also handed down today, we hold that Parkevich does not have standing and is not a real party in interest to maintain the malpractice action. In re Vernon Payne and Evla Payne Irrevocable Trust (Parkevich v. Harlow), No. 29A04-0711-CV-624 (Ind. Ct. App. August 11, 2008). Because Parkevich does not have standing and is not a real party in interest to pursue the malpractice claims against the Malpractice Defendants, the trial court could grant no relief on her Petition to Re-Docket. As such, her appeal from the order denying the Petition to Re-Docket is moot. * * * Therefore, we dismiss Parkevich’s appeal from the trial court’s denial of her Petition to Re-Docket."

Dennis Peterson v. Miami Correctional Facility (NFP) - "It is well settled that the State and its agencies are not liable for ordinary court costs as a matter of public policy. State v. Mileff, 520 N.E.2d 123, 128-29 (Ind. Ct. App. 1988). It is error for a trial court to assess court costs against the State or its agencies as part of a judgment. Id. at 129. Accordingly, the trial court erred by assessing costs of $9.40 against the State, in this case, the Miami Correctional Facility. See IC 11-8-2-1."

Sue Hayes v. Sean and Beth Smith (NFP) - "Here, although it does not appear that the Smiths requested attorney fees and costs in their motion for summary judgment, we cannot say that this is an unexpected request or a new issue that Hayes had no notice of or opportunity to defend against. The contract signed by both parties contained a provision stating that in the event of litigation, the prevailing party shall be entitled to reasonable attorney fees and costs. Further, in their answer to Hayes’s complaint, the Smiths included a request for attorney fees and costs in defending the action. We therefore conclude that the Smiths have not waived their request for attorney fees and that Hayes had ample notice that the Smiths, as the prevailing party in the litigation, would be entitled to reasonable attorney fees and costs. We remand to the trial court for a determination of reasonable attorney fees and costs."

Gregory Hare v. Heather Ellison (NFP) - "Gregory Hare (“Hare”) appeals the trial court’s order denying his petition to modify custody and subsequent order to pay appellate attorney fees. Hare raises many issues,1 which we consolidate and restate as follows: I. Whether the trial court’s order denying Hare’s petition to modify custody is contrary to the evidence. II. Whether the trial court erred in awarding appellate attorney fees. We affirm in part, reverse in part, and remand."

Term. of Parent-Child Rel. of J.B., C.B.; and Cha.B., R.B. v. Grant Co. Dept. of Child Svcs. (NFP) - "In sum, we conclude that after excluding all improper findings, the remainder of the findings made by the juvenile court were sufficient to support the judgment. We also conclude that sufficient evidence was presented to support the juvenile court‟s judgment terminating Mother‟s and Father‟s parental rights to J.B. and C.B. The judgment of the juvenile court is affirmed."

The Guardianship of Letha Bell Sullivan; Geneva Underwood v. Rodger Sullivan (NFP) - "Geneva Underwood appeals the trial court’s order granting her brother, Rodger Sullivan, guardianship over their mother, Letha Sullivan. On appeal, Geneva raises two issues, which we restate as 1) whether the trial court improperly excused Letha from attending the hearing on Geneva’s petition for appointment of a guardian over Letha and 2) whether the trial court improperly concluded that Rodger was not required to execute a guardian’s bond. Concluding the trial court did not improperly excuse Letha from attending the hearing or exempt Rodger from executing a guardian’s bond, we affirm."

David M. Wolf v. Richard Ogle (NFP) - "Appellant/Cross-Appellee/Plaintiff David Wolf appeals following a trial in which the jury found him to be zero percent at fault and awarded him damages of $1,050,000 against Appellee/Cross-Appellant/Defendant Richard Ogle, after which the trial court, in response to Ogle‟s motion to correct error, upheld the damages award but ordered a new trial on the single issue of fault apportionment upon determining that the jury‟s verdict was against the weight of the evidence. Upon appeal, Wolf challenges the trial court‟s determination that the verdict was against the weight of the evidence. On cross-appeal, Ogle claims that the trial court erred in upholding the damages award, which Ogle claims was excessive. We affirm in part, reverse in part, and remand."

NFP criminal opinions today (12):

Freddie Mills v. State of Indiana (NFP)

Quincy E. Wade v. State of Indiana (NFP)

Larry R. Mitchell v. State of Indiana (NFP)

Michael A. Dortch v. State of Indiana (NFP)

Donald Mallard v. State of Indiana (NFP)

Terrence Webbs v. State of Indiana (NFP)

Jesse Matthews v. State of Indiana (NFP)

Thomas A. Armfield v. State of Indiana (NFP)

Keith D. Owens v. State of Indiana (NFP)

Daniel W. Zerbe v. State of Indiana (NFP)

Robert S. Phillips v. State of Indiana (NFP)