« Environment - More on: Indianapolis law firm reviews Randolph County proposed CAFO regs | Main | Courts - Texas judge declares mistrial after counting 13 people on jury »

Thursday, February 12, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 15 NFP)

For publication opinions today (4):

In Larry Cox and Tube City v. Allen Matthews, a 20-page opinion, CJ Baker writes:

Appellants-defendants Larry Cox and Tube City, LLC d/b/a Olympic Mill Services (collectively, "Tube City"), appeal from the trial court‘s judgment holding Tube City liable for negligence and ordering it to pay $4,126,529 in damages to appellee-plaintiff Allen Matthews. Specifically, Tube City argues that the trial court erred by allowing the expert testimony of Anthony Gamboa, Ph.D. In addition, Tube City maintains that the jury‘s verdict and allocation of damages is clearly against the weight of the evidence. Furthermore, Tube City asserts that the trial court improperly instructed the jury regarding the absence of Cox and documents relating to Cox‘s employment. Finally, Tube City maintains that the trial judge was improperly appointed in violation of the Indiana Trial Rules.

Matthews cross-appeals, claiming that this appeal must be dismissed because Tube City‘s brief was not timely filed. Finding no error, we affirm the judgment of the trial court.

James Lee Walters v. Jane Bennett Walters - " Finding that the trial court erred in concluding that the allocation of college expenses could not be modified and finding no other error, we affirm in part, reverse in part, and remand to the trial court with instructions to calculate Jane's portion of the children's college expenses and modify the order consistent with these findings. "

Larry E. Kuhn v. State of Indiana - "We find, and the State acknowledges, that the post-conviction court's decision to conduct an evidentiary hearing on Kuhn's ineffectiveness of trial counsel claims in Kuhn's absence was error, and that Kuhn was entitled to an opportunity to present evidence to support his claims. Accordingly, we reverse the denial of Kuhn's petition for post-conviction relief and remand to the trial court for further proceedings consistent herewith. Reversed and remanded. "

In James W. Smyth v. Judy G. Hester & Estate of Timothy P. Brazil , a 19-page opinion, Judge Darden writes:

The law firm of Plews Shadley Racher and Braun LLP (“PSRB”), as intervenor, appeals the trial court's order awarding attorney fees to the Estate of Timothy P. Brazill (“Estate”) and to attorney Judy G. Hester (“Hester”) for actions by PSRB on behalf of its client James W. Smyth. We reverse and remand. * * *

We acknowledge that the record may include some questionable litigation tactics that might support the trial court's exercise of its discretion to award attorney fees. However, our review in that regard is impaired by the fact that the order appealed does not provide us with any insight as to the trial court's reason for the award of attorney fees in this case, i.e., what the trial court found to be frivolous, unreasonable, and bad faith conduct. Accordingly, we remand to the trial court for further consideration and explanation of its judgment in that regard.

NFP civil opinions today (7):

Lillian Tyring v. Barbara and Jerry Sanders (NFP) - "Here, we have nothing other than Tyring’s representations that the Trust is a revocable trust and that Wife has no vested interest in any of the Trust assets. A review of Tyring’s Trust document is the only way to determine what interest, if any, Wife may have in the Trust assets. Wife’s vested interest in the Trust assets, if any, is relevant to matters in the dissolution action, specifically with respect to Wife’s request for spousal maintenance. To protect Tyring’s interest in keeping the contents of the Trust document confidential, the trial court granted a protective order such that Husband and his counsel were ordered to not disclose the contents of Tyring’s Trust document to any third parties, other than experts retained for purposes of this action, without the court’s approval. If, after review of the Trust documents themselves, Husband determines that Wife may have a vested interest therein, Husband must request another hearing to seek the court’s permission to gather additional information relating to Tyring’s Trust. In light of Indiana’s liberal discovery process, we conclude the trial court did not abuse its discretion in ordering Tyring to turn over her Trust documents to Husband. "

Randy Evans v. Myers Autoworld, Inc. (NFP) - "Randy Evans appeals the trial court's order granting summary judgment in favor of Myers Autoworld, Inc. (“Myers”). Evans contends that the trial court erred by granting summary judgment in favor of Myers with regard to his claim for retaliatory discharge. We affirm."

In the Matter of W.M. v. Marion Co. Dept. of Child Services (NFP) - " Mother raises the following restated issue for our review: whether there is sufficient evidence to support the juvenile court’s finding that W.M. was a CHINS as to Mother. We affirm."

In the Matter of the Term. of Parent-Child Rel. of N.R. v. Vanderburgh Co. Dept. of Child Services (NFP) - "A thorough review of the record leaves this court convinced that the trial court's judgment terminating Mother?s parental rights to N.R. is supported by clear and convincing evidence. Since the time of N.R.'s removal, Mother has failed to make any improvement in her ability to care for her son. It is unfair to ask N.R. to continue to wait until Mother is willing to obtain, and benefit from, the help that she needs. "

Jason C. Burkett v. Winter Louthain (Shidler) (NFP) - "The trial court did not make the requisite findings as required by section 31-14-14-1, and did not find that restricting Burkett’s visitation was in D.B.’s best interests as required by section 31-14-14-2. Therefore, we must remand this case to the trial court with instructions to enter an order containing findings sufficient to support its order restricting Burkett’s visitation with D.B. or enter an order that does not contain a visitation restriction. Given the circumstances presented in this case, i.e. that Burkett is serving a forty-year term in the Department of Correction for sex offenses committed against D.B.’s mother, it should be a simple matter on remand for the trial court to enter a new order with the findings required by sections 31-14-14-1 and 2. "

Gloria C. Dickey v. David J. Dickey (NFP) - "Because I believe the modification of maintenance was error, I must respectfully dissent. As for the second issue, I agree with the majority's result, but write to address Gloria's due process argument. "

In the Matter of H.T. and J.R. v. Marion Co. Dept. of Child Services, and Child Advocates (NFP) - "Based upon the foregoing, we find no clear error from the trial court’s determination that H.T. and J.R. were CHINS because Mother has untreated substance abuse and mental health issues that impaired her ability to appropriately parent them. Affirmed. "

NFP criminal opinions today (8):

State of Indiana v. Allan M. Schlechty (NFP)

Robert Taylor v. State of Indiana (NFP)

Valencia Shelton v. State of Indiana (NFP)

Devin George v. State of Indiana (NFP)

Randolph Carr v. State of Indiana (NFP)

Derell Quan Bailey v. State of Indiana (NFP)

Joseph G. Ross v. State of Indiana (NFP)

Francisco Aguinaga v. State of Indiana (NFP)

Posted by Marcia Oddi on February 12, 2009 12:44 PM
Posted to Ind. App.Ct. Decisions