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Thursday, June 04, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 11 NFP)

For publication opinions today (4):

Eric D. Smith v. J. David Donahue, et al. - " Although Indiana uses notice pleading, the plaintiff must still plead the operative facts involved in the litigation. See Donahue v. St. Joseph County, 720 N.E.2d 1236, 1239 (Ind. Ct. App. 1999). Smith pleaded none. Smith’s claims are frivolous, lack an arguable basis in fact and law, and are not claims upon which relief may be granted. See Ind. Code § 34-58-1-2. The trial court did not err in dismissing Smith’s complaint. Affirmed. "

In Witmat Development Corp. and Lorelei Airhart v. Randall Dickison, et al. , a 10-page opinion, Judge Mathias writes:

Randall Dickison, individually and as personal representative of the Estate of Gregory Dickison (“the Estate”), filed a complaint in Clay Superior Court against Witmat Development Corporation (“Witmat”) alleging that Witmat negligently failed to warn of a water-filled strip pit adjacent to a public highway, which pit is located on Witmat's property. Witmat moved for summary judgment arguing that it owed no duty to Gregory Dickison (“Dickison”), or in the alternative, that Dickison's own negligence was the cause of the accident that resulted in his death. The trial court denied Witmat's motion for summary judgment. Witmat appeals and raises three arguments, but we address only the following dispositive issue:whether Witmat owed a duty to Dickison as a matter of law. Concluding that Dickison was not traveling the roadway with reasonable care, and therefore, that Witmat is entitled to judgment as a matter of law, we reverse.
In Shean West v. State of Indiana, a 6-page opinion, Sr. Judge Sullivan writes:
The sole assertion presented upon appeal is that there is insufficient evidence to support the conviction because Mrs. West's testimony was inherently contradictory and therefore subject to the rule of incredible dubiosity.
It is well settled that this appellate tribunal will not weigh conflicting evidence and therefore will not reweigh the evidence nor judge witness credibility. Gleaves v. State, 859 N.E.2d 766 (Ind. Ct. App. 2007). However, the rule of incredible dubiosity was recently restated by our Supreme Court in Fajardo v. State, 859 N.E.2d 1201( Ind. 2007) as follows:
If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
859 N.E.2d at 1208 (quoting Love v. State, 761 N.E.2d 806, 810 (Ind. 2002)). * * *

The judgment and sentence upon the conviction for Domestic Battery are affirmed.

Christopher L. Moore v. State of Indiana - "The trial court did not abuse its discretion in sentencing Moore, and Moore’s aggregate sentence of nineteen years is not inappropriate in light of the nature of the offense and the character of the offender. Affirmed."

NFP civil opinions today (4):

Donald W. Snover v. Linda K. Snover (NFP) - " Concluding Donald had sufficient opportunity to participate in the final hearing but that the trial court abused its discretion when it determined Donald had no interest in the marital residence, we remand. "

Michael Gould, O.D. v. Jeffrey B. Musselman (NFP) - "During a routine contact lens examination, Dr. Michael Gould, O.D., discovered that Jeffrey B. Musselman's intraocular pressure was abnormally high. Dr. Gould did not provide a referral to an opthamologist but did instruct Musselman to see an opthamologist that Musselman reported having seen in the past about his elevated eye pressure. Musselman agreed to see his opthamologist about the issue, but he never did so. Musselman later developed pigmentary dispersion glaucoma and filed a medical malpractice suit against Dr. Gould, alleging that Dr. Gould failed to meet the applicable standard of care. Dr. Gould asserted the affirmative defenses of contributory negligence and failure to mitigate damages and tendered jury instructions regarding each. The trial court refused to give the instructions, finding that they were not supported by the evidence. A jury found in favor of Musselman and awarded him $750,000. Dr. Gould now appeals, arguing that the trial court abused its discretion by rejecting the jury instructions on contributory negligence and the duty to mitigate damages. Because there is no evidence that Musselman's alleged negligence was simultaneous to Dr. Gould's alleged negligence and because the tendered instruction on the duty to mitigate damages does not fit the facts of this case, we conclude that the evidence does not support the tendered instructions. We affirm the trial court. "

Elizabeth and Dennis Hollen v. Troy Spears and Johnnie Spears (NFP) - "Elizabeth and Dennis Hollen filed a complaint in Washington Superior Court against Troy and Johnnie Spears seeking damages the Hollens incurred after Elizabeth Hollen fell down a flight of stairs at the Spearses' home. The Spearses filed a motion for summary judgment and argued that they did not breach the duty owed to Elizabeth Hollen, and therefore, they were entitled to judgment as a matter of law. The trial court granted the Spearses' motion for summary judgment. The Hollens appeal and argue that genuine issues of material fact preclude the entry of summary judgment. Concluding that the trial court did not err when it granted the Spearses' motion for summary judgment, we affirm. "

A.E. v. J.E. (NFP) - "In light of our statutory analysis and our conclusion that Father is estopped from challenging the paternity affidavit, the trial court did not err in refusing Father’s request to set aside the paternity affidavit. Affirmed."

NFP criminal opinions today (7):

Darren Hudson v. State of Indiana (NFP)

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

James W. Baker, Jr. v. State of Indiana (NFP)

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

Kimberly Faulkner v. State of Indiana (NFP)

Michael Kincaide v. State of Indiana (NFP)

Emil Garver v. State of Indiana (NFP)

Posted by Marcia Oddi on June 4, 2009 12:18 PM
Posted to Ind. App.Ct. Decisions