The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

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Wednesday, February 25, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 17 NFP)

For publication opinions today (4):

In William Lee Pallett v. State of Indiana , a 7-page opinion, Judge May writes:

Pallett asserts: (1) the Department of Correction “turned him over” to the Monroe County Jail, thus discharging his life sentence; and (2) because he was discharged from the Monroe County Jail in January 2003, there was no parole to revoke in October 2003. * * *

The Parole Board did not use the term “turn over” in Pallett‟s case and did not evidence any intent to discharge him from his life sentence. * * *

Because Pallett was not “turned over,” he was on parole from his life sentence while he was serving his sentence in Monroe County, and he was continuously on parole from the time he was handed over to the Monroe County Sheriff until his parole was revoked. * * *

Relying on Metcalf, Pallett argues he was “turned over” and discharged because the Parole Board did not use language specifically preserving his life sentence. * * *

Relying on the exhibits Pallett attached to his petition, the Parole Board demonstrated that it did not use “turn over” language and did not otherwise indicate Pallett was discharged from his life sentence. Pallett designated no evidence to the contrary. Therefore, the trial court did not err by granting summary judgment. Affirmed.

Jimmie C. Smith v. Champion Trucking Co. Inc. - "Jimmie C. Smith (“Smith”) appeals the dismissal of his Application for Adjustment of Claim with the Indiana Worker’s Compensation Board (“Board”). We reverse and remand.

"The sole issue presented is whether Smith’s worker’s compensation application was properly dismissed pursuant to the subrogation portion of the Indiana Worker’s Compensation Act (“the Act”), Indiana Code Section 22-3-2-13, after Smith settled his claim against a third-party tortfeasor."

Gloria Benefield v. State of Indiana - "Appellant/Defendant Gloria Benefield appeals following her conviction for Class C felony Forgery. Benefield contends that the State failed to produce sufficient evidence to sustain her conviction, that the trial court abused its discretion in instructing the jury, that the trial court abused its discretion in sentencing her, and that her sentence is inappropriate in light of the nature of her offense and her character. We affirm. "

In E. Lee Warren, et al v. IOOF Cemetery, et al, an 8-page opinion, Judge Bailey writes:

Four of the surviving children of Sherman Warren (“Sherman”) and Isabella Warren (“Isabella”), E. Lee Warren, Lilly Frayer, Ester Hensley, and Arlie Warren (“the Warren Plaintiffs”) brought an action challenging a 2005 disinterment of Sherman’s remains, naming as defendants their siblings Betty Jo Ball, Mae Wilson, Mary Collins, Martha Brewer, Lizzie Hartig, Mat Warren, and Julie Schoff, IOOF Cemetery, David C. Van Gilder, as guardian of Isabella, and the Indiana State Department of Health (collectively, “the Warren Defendants”). The defendants were granted summary judgment. We affirm.
The Warren Plaintiffs state six issues for review, which we consolidate and restate as a single issue: whether summary judgment was properly granted to the Warren Defendants.

Sherman died in 1970 and was buried in a cemetery in Barbourville, Kentucky, where Isabella also planned to be buried. Isabella moved in with their youngest daughter and lived with her until the daughter died and was buried in IOOF Cemetery in New Haven, Indiana. In May of 2005, pursuant to the grant of a Kentucky disinterment permit, Sherman’s remains were disinterred and moved to IOOF Cemetery.

On March 8, 2006, the Warren Plaintiffs filed their “Complaint for Declaratory Judgment and to Set Aside Authorization for Disinterment of Remains of Sherman Warren” in the Allen Superior Court. The Warren Plaintiffs alleged that Isabella suffered from advanced Alzheimer’s and that her authorization for disinterment was wrongfully procured. * * *

Isabella died on October 17, 2007, and was buried next to Sherman and their daughter in Indiana. The Warren Defendants moved for summary judgment, which was granted. The Warren Plaintiffs appeal. * * *

Indiana Code Section 23-14-57-1 specifies persons having authority to consent to disinterment, including surviving adult children. However, a person specified in the disinterment statute does not have an absolute right to disinter remains as a matter of law, and rights of others who oppose disinterment may be considered. * * *

Here, the parties have disputed whether Isabella was able to freely and carefully consider the propriety of moving Sherman’s remains from Kentucky in 2005. They do not, however, contest any fact relative to the present circumstances of interment. We assume, consistent with the Warren Plaintiffs’ factual contentions, Isabella suffered from Alzheimer’s during her later years and may not have been fully aware of the implications of some actions or decisions. Nevertheless, Isabella consistently expressed her desire to be buried beside her husband.

Sherman and Isabella are buried beside each other in a public cemetery. One particular location cannot be equally accessible to each of the eleven surviving children as they now live in diverse locations. However, there is no indication that any surviving child would be hampered in his or her efforts to visit the gravesites. The trial court found “no justification” for disinterment. We agree that the summary judgment record does not reveal any compelling reason to disinter the remains of two individuals, one of whom died over thirty-eight years ago. The trial court’s exercise of its discretion was not contrary to the facts and circumstances before it. Affirmed.

NFP civil opinions today (4):

Home Bank S.B. v. U.S. Bank National Association, assignee of Franchise Mortgage Acceptance Co., LLC (NFP)

Troy Faulkenburg v. Gerald Austin Nance (NFP) - "Troy Faulkenburg appeals the trial court’s judgment awarding damages to Gerald Nance for conversion of Nance’s propane gas tank and timber, unpaid rent, damage to
Nance’s real estate, and Nance’s attorney fees and travel expenses. Faulkenburg argues the trial court erred by denying his counterclaim and the evidence does not support the award of damages to Nance. We affirm. "

Techcom, et al v. Telematrix (NFP), a 24-page opinion. "In this appeal, Mantyla, Louden, and Techcom appeal a judgment in favor of Telematrix for money damages after the latter prevailed on the theories of breach of fiduciary duty and tortious interference with a business relationship with Cummins. The Appellants present the following consolidated and restated issues for review:
1. Did the trial court commit clear error in determining that Louden breached his fiduciary duties to Telematrix?
2. Did the trial court commit clear error in concluding that Mantyla and Techcom tortiously interfered with Telematrix‟s business relationship with Cummins?
3. Did the trial court err in awarding $152,577.17 in damages to Telematrix?
We affirm."

Brian Magill and Magill Builders, LLC v. Justin and Amanda Lutz (NFP) - "In sum, the trial court erred in requiring a written work order to modify the contract. In contrast to the trial court’s conclusion, the parties modified the contract to include a larger laundry room for fifteen hundred dollars. On remand, we direct the trial court to enter the appropriate finding and recalculate the breach of contract damages accordingly. Despite this modification, the evidence supports the conclusion that Magill’s actions constituted an anticipatory breach of the contract. Furthermore, the trial court was correct in refusing to award damages to Magill and determining that Brian and the LLC committed fraud. "

NFP criminal opinions today (13):

Jeremy Scott Merritt v. State of Indiana (NFP)

Antonio J. Ray v. State of Indiana (NFP)

Rosevelt (Roosevelt) Hamilton v. State of Indiana (NFP)

Randall C. McSwain v. State of Indiana (NFP)

In Re: The Commitment of D.C. v. State of Indiana, et al. (NFP)

James Suttle v. State of Indiana (NFP)

Sedrick Lamont Curtis v. State of Indiana (NFP)

Raymond Cassidy v. State of Indiana (NFP)

C.L. v. State of Indiana (NFP)

Juan M. Garrett v. State of Indiana (NFP)

T.W. v. State of Indiana (NFP)