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Thursday, October 09, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)

For publication opinions today (1):

In Christopher Scott Barker v. City of West Lafayette and Officer Adam S. Ferguson, a 14-page opinion, Judge Crone writes:

Christopher Scott Barker appeals the trial court’s attorney fees order issued upon remand from another panel of this Court. The fees order followed Barker’s successful civil rights action against the City of West Lafayette and Officer Adam S. Ferguson (collectively, “the City”). The City filed a cross-appeal. We affirm in part, reverse in part, and remand.

Issues: Barker raises one issue, which we restate as the following three: I. Did the trial court err in denying Barker’s petition for fees related to his trial court and post-remand litigation to recover attorney fees? II. Did the trial court err in denying Barker’s petition for fees related to his prior fee-related appeal to this Court? III. Did the trial court err in awarding fees related to Barker’s unsuccessful excessive force claim against the City?

In its cross-appeal, the City raises four issues, which we consolidate and restate as the following three: IV. Did the trial court use a reasonable hourly rate in calculating Barker’s attorney fees? V. Did the trial court err in failing to deduct fees for clerical work performed by paralegals? VI. Did the trial court commit reversible error by ruling prematurely upon Barker’s motion to correct error? * * *

In sum, we reverse the trial court’s order denying Barker fees related to litigation to his trial court and post-remand litigation to recover fees, and we instruct the trial court to award Barker fees in the amount of $28,568.64, plus reasonable fees related to additional litigation before the trial court in this case. We reverse the trial court’s order denying Barker’s petition for fees related to his first appeal and instruct the trial court to award him $28,342.16, plus reasonable fees related to the instant appeal. We affirm the trial court’s award of fees related to Barker’s unsuccessful excessive force claim and instruct the trial court to reflect that award correctly in its revised order. We affirm on the remaining issues.

Affirmed in part, reversed in part, and remanded with instructions for further proceedings not inconsistent with this opinion.[3]
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[3] To avoid yet another appeal in this case (and further expenditure of public funds), we encourage the trial court to consider this Court’s guidance when determining, upon remand, the amount of fees to which Barker is entitled for the litigation of this second appeal.

NFP civil opinions today (1):

In Re: The Marriage of Marilyn Daluisio v. Gene Daluisio (NFP) - "Marilyn Daluisio (“Wife”) appeals a trial court judgment vacating an income withholding child support order against Gene Daluisio (“Husband”). The dispositive issue is whether the trial court erred in concluding that the California IWO was unenforceable on its face. We affirm. * * *

"Here, Wife did not pursue an IWO through the local child support agency.5 Instead, she secured the services of a Texas-based child support collection agency. As such, her IWO was not exempt from the requirement of a judicial signature. Thus, the trial court properly concluded that the IWO was defective and unenforceable for lack of proper execution. Therefore, we affirm."

NFP criminal opinions today (5):

April K. Finch v. State of Indiana (NFP)

Tyrone Bradshaw v. State of Indiana (NFP)

Sean Morse v. State of Indiana (NFP)

Darrell E. Cardwell v. State of Indiana (NFP)

Hilliard Alan Lush v. State of Indiana (NFP)

Posted by Marcia Oddi on October 9, 2008 12:37 PM
Posted to Ind. App.Ct. Decisions