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Friday, December 05, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

Timothy Strowmatt v. Kim E. Rodriguez (Strowmatt) - " Strowmatt asserts that the trial court erred in calculating his child support arrears. Citing to Lambert v. Lambert, 861 N.E.2d 176 (Ind. 2007), he argues that the amounts accrued during his periods of incarceration should not have been included in the calculation. We disagree. * * *

"Indiana has long held “that after support obligations have accrued, a court may not retroactively reduce or eliminate such obligations.” * * * As there was no abatement order or modification of Strowmatt’s child support obligation, it continued during his incarceration and accrued until his son’s emancipation on December 10, 2005."

In Joseph J. Reiswerg & Cohen Garelick & Glazier v. Pam Statom , a 17-page opinion, Judge Brown writes:

In this consolidated appeal, Joseph J. Reiswerg appeals the trial court’s grant of partial summary judgment to Pam Statom in her legal malpractice action, and both Reiswerg and Cohen Garelick & Glazier (“CGG”) appeal the trial court’s order striking their motions for summary judgment, which raised statute of limitations defenses.

Reiswerg raises three issues, which we consolidate and restate as: I. Whether the trial court erred by granting Statom’s request for final judgment against Reiswerg; and II. Whether the trial court abused its discretion by striking Reiswerg’s motion for summary judgment. CGG raises two issues, which we consolidate and restate as: III. Whether the trial court abused its discretion by striking CGG’s motion for summary judgment.

We dismiss in part, affirm in part, reverse in part, and remand.

In Christine Sandage and Arthur Shofner v. The Board of Commissioners of Vanderburgh Co., Indiana, et al. , a 13-page opinion, Judge Brown writes:
The Appellants argue that Porter’s Parking is liable as a matter of law for the wrongful deaths of Sandage-Shofner and Small because Porter’s Parking: (1) assumed a duty to supervise Moore; (2) negligently hired and retained Moore; and (3) is vicariously liable under the theory of respondeat superior. We will address each argument separately.

Duty to Supervise . * * * In the present case, the designated evidence reveals that Moore was an employee of Porter’s Parking on work release. Under the terms of the work release program, Moore was to return to the community corrections facility at the end of his shift. On the night in question, rather than returning to the facility, at the end of his shift Moore drove himself to Sandage-Shofner’s apartment and committed the murders. The Appellants have presented no evidence that Porter’s Parking was responsible for returning Moore to the facility, that Porter’s Parking assumed care and control over Moore, or that its relationship with Moore was custodial in nature. Accordingly, we must reject the Appellants’ argument that Porter’s Parking had taken charge of Moore or assumed care and control over him knowing that he was likely to cause bodily harm to others. * * *

Negligent Hiring and Retention. * * * Thus, as a matter of law, Porter’s Parking did not have a duty of care to Sandage-Shofner, Small, and Jenkins, and the trial court properly granted summary judgment in favor of Porter’s Parking. * * *

Respondent Superior. * * * Here, under the terms of the work release program, Moore was to return to the community corrections facility at the end of his shift. However, on the night in question, rather than complying with the work release program, Moore drove himself to Sandage- Shofner’s apartment and committed the murders. In light of the designated evidence, we cannot say that Moore’s actions constituted conduct authorized by Porter’s Parking, or were in furtherance of the business or interests of Porter’s Parking. Moreover, the Appellants cite no authority, and we find none, for the proposition that an employer is vicariously liable for all acts of an employee simply because the employee is an inmate on work release. Accordingly, we conclude that Moore’s murderous acts did not fall with the scope of his employment with Porter’s Parking, and thus that Porter’s Parking is not vicariously liable under the doctrine of respondeat superior.

Laquania Wallace v. State of Indiana - " This evidence is sufficient to prove that the House was property of another, supporting the Criminal Mischief conviction. The conviction for Theft is also supported by sufficient evidence to demonstrate that Bowman had rightful possession of the furnace and water heater based on Bowman’s testimony that he purchased and installed the units in the House. We therefore affirm Wallace’s convictions. "

Melissa Christian v. State of Indiana - "Here, the evidence demonstrated that Christian was found in her friend’s driveway attempting to unlock a vehicle. The State describes the driveway as “an area that people in the neighboring area use to park” and an area “used by the public to park perpendicular to Randolph Street.” The State claims that “[t]he parking area did not belong to anyone in particular.” Id. However, the evidence presented at the trial does not support these claims. Christian described the area as a “driveway” between her friend’s residence and the neighbor’s residence. The officer described the area as a place to park perpendicular to Randolph Street. The State presented no evidence that the parking area was used by the public in general rather than only the residences next to the area. * * *

"As in the above cases, we conclude that the State failed to prove Christian was located in a public place. Because there is insufficient evidence that Christian was intoxicated in a public place, we reverse her conviction for public intoxication."

NFP civil opinions today (4):

Teresa Heath v. Timothy Heath (NFP) - "Based upon the Parenting Time Guidelines, Mother was entitled to credit for 98 overnights. Consequently, the trial court’s use of 52 overnights in calculating Mother’s parenting time credit without an explanation of the deviation was clearly erroneous. On remand, we direct the trial court to recalculate Mother’s parenting time credit in accordance with the Ind. Child Support Guidelines or explain the deviation. For the foregoing reasons, we reverse the trial court’s child support order and remand with instructions."

The Termination of Parent-Child Relationship of S.V. and K.V. (NFP) - "For the foregoing reasons, we affirm the trial court’s termination of Mother’s parental rights to S.V. and K.V. "

Fred Pfenninger and Cummins Michigan, Inc. v. Great Lakes Drilling, Inc., et al. (NFP) - "Appellant Fred Pfenninger appeals sanctions imposed by the trial court for Pfenninger’s conduct as an attorney in a lawsuit involving Appellees Great Lakes Drilling, Inc., and Diversified Blast Hole, Drilling, Inc. (collectively, “Diversified”). We affirm in part, reverse in part, and remand. * * *

"In sum, the judge was not required to recuse himself because the basis of request was Pfenninger’s disagreement with the trial court’s ruling on the merits rather than any impropriety on the part of the judge. Second, Pfenninger was not denied due process for the hearing on the amount of sanctions because the Chronological Case Summary reflects that notice of the hearing was sent to both parties. The trial court abused its discretion in trebling the sanction because the relevant authority did not provide for such. Finally, this appeal does not warrant an award of appellate attorney’s fees for Diversified. We remand the case to the trial court to modify the amount of the sanction to $14,398.58."

CGC Bridgeway Apartments, LLC v. First Bank and Trust Co. of Illinois (NFP) - "CGC Bridgeway Apartments, LLC (“Bridgeway”) appeals the trial court’s order foreclosing its property in favor of First Bank and Trust Company of Illinois (“First Bank”). Bridgeway raises one issue, which we revise and restate as whether the trial court’s findings of facts and conclusions thereon foreclosing Bridgeway’s property were clearly erroneous. We affirm. "

NFP criminal opinions today (6):

David L. Howard v. State of Indiana (NFP)

Garrison Lee Hood v. State of Indiana (NFP)

Michael B. Zalat v. State of Indiana (NFP)

Calvin Kinney v. State of Indiana (NFP)

Eric Danner v. State of Indiana (NFP)

Richard Creedon, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on December 5, 2008 12:30 PM
Posted to Ind. App.Ct. Decisions