Wednesday, June 17, 2009
Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)
For publication opinions today (3):
Eric D. Smith v. Jill Matthews and Linda Vannatta - "Eric Smith, an inmate at the New Castle Correctional Facility appeals pro se from the trial court’s order granting summary judgment in favor of Jill Matthews and judgment on the pleadings in favor of L.A. Vannatta. For our review, Smith raises two issues, which we restate as: 1) whether the trial court erred when it granted summary judgment in favor of Matthews; and 2) whether the trial court erred when it granted judgment on the pleadings in favor of Vannatta. Finding no error, we affirm.
"[E]ven accepting all of Smith’s allegations in his pleading as true, he has failed to state a claim for which 42 U.S.C. section 1983 provides a remedy. As a result, the trial court did not err when it granted judgment on the pleadings in favor of Vannatta".
Brian Ross v. State of Indiana - "Brian Ross appeals his conviction for class D felony maintaining a common nuisance and his convictions and sentences for two counts of class A felony dealing in cocaine. We affirm.
"Issues: 1. Whether the evidence was sufficient to support Ross.s convictions. 2. Whether Ross.s sentence is inappropriate pursuant to Indiana Appellate Rule 7(B)."
James Whatley v. State of Indiana - "James Whatley appeals his conviction for murder. Whatley raises two issues, which we restate as:
"I. Whether the trial court’s admission of testimony that Whatley had been using drugs and visited Relax Inn to deliver drugs constituted fundamental error; and II. Whether the evidence is sufficient to sustain his conviction.
NFP civil opinions today (6):
Eric D. Smith v. Stanley Knight, et al (NFP) - "As Smith's complaint has no arguable basis in law or fact, we find that the trial court properly dismissed it pursuant to Indiana Code section 34-58-1-2."
Gloria K. O'Shell v. Indiana State Employees Appeals Commission, et al. (NFP) - "None of O'Shell's arguments establish that SEAC had jurisdiction over her complaint, nor do they show that the final order of dismissal was contrary to law. Furthermore, O'Shell did not have a property interest in her public employment that would have entitled her to due process protections in the appeal of her unfavorable performance appraisal. Accordingly, SEAC correctly dismissed O'Shell's complaint, and the trial court properly upheld SEAC's determination. Affirmed."
James C. Ascough v. Sue Ann Ascough (NFP) - "James C. Ascough (“Husband”), appeals the trial court’s decree that dissolved his marriage to Sue Ann Ascough (“Wife”), and raises the following restated issues: I. Whether the trial court’s unequal property division was an abuse of discretion under the circumstances before it; and II. Whether the trial court’s decree was internally contradictory and incomplete and, therefore, erroneous. We vacate and remand."
P & H Motors, Inc., Vivian K. Aichele, and Frances A. Tucker v. Paula M. Dailey (NFP) "P&H Motors, Inc. (“P&H”), Vivian Aichele, and Frances Tucker (collectively, “Appellants”) appeal a September 18, 2008 judgment of partition. Appellee Paula Dailey has filed a motion for attorneys’ fees. We affirm the judgment and deny the request for attorneys’ fees.
"The parties present various issues, which we restate as follows: I. Whether Appellants’ notice of appeal was timely; II. Whether Dailey had an interest in the disputed properties that would support the partition of the properties pursuant to Indiana Code Section 32-17-4-1; III. Whether the court committed reversible error by finding that the other two-thirds owners were Aichele and Tucker, despite a quitclaim to P&H; and IV. Whether Appellants’ appeal is frivolous and/or brought in bad faith such that an award of attorneys’ fees would be appropriate."
Eric D. Smith v. J. David Donahue, et al (NFP) - "Eric D. Smith, an inmate in the Indiana Department of Correction (“DOC”), appeals the dismissal of his complaint. We affirm. * * *
"Here, Smith suggests that to pursue administrative remedies would be fruitless as prior grievances have been rejected or no remedies have been provided; therefore, the DOC would inevitably rule against him in the future. Nevertheless, that would not amount to futility. See id. Because Smith has failed to exhaust his administrative remedies or show futility, the trial court lacked subject matter jurisdiction over his complaint. Accordingly, it properly dismissed the complaint."
In Lorene Kitts v. Howard K. Kitts (NFP), a 9-page, 2-1 opinion, Judge Kirsch writes:
Lorene Kitts (“Lorene”) appeals the trial court’s division of marital property in her dissolution with Howard K. Kitts (“Howard”). Lorene raises the following restated issue: whether the trial court abused its discretion by making an equal division of the marital estate. We reverse and remand with instructions. * * *NFP criminal opinions today (6):
We hold that in light of the significant income disparity between the parties that an equal division of the marital assets is neither just, nor reasonable and that the trial court abused its discretion in ordering an equal division. We remand with instructions to re-distribute the marital estate providing that Lorene is entitled to receive eighty per cent (80%) of the marital estate and Howard, twenty per cent (20%). * * *
In light of our decision to remand for a re-distribution of the marital estate, we believe that Lorene will have sufficient property to support herself rendering maintenance unnecessary.
Lorene finally argues that the trial court erred by using the coverture fraction value of Howard’s GM pension when dividing the marital estate. In the list of marital assets and their division between the parties, the trial court listed the GM pension with a value of $3,786.05. Lorene suggests that the trial court should have used $29,610.44, the present value of the accrued pension benefits as of the date of separation. Lorene argues that by using the coverture fraction value of the pension, the trial court made an unequal division of the assets. * * *
In this case, Lorene accepted the coverture fraction value of the pension at trial. Consequently, we do not find that the trial court abused its discretion in the treatment of Howard’s GM pension because Lorene invited the error.
Reversed and remanded with instructions.
NAJAM, J., concurs.
BAKER, C.J., concurs in part and dissents in part with separate opinion. [which concludes] Under these circumstances, I believe it was improper for the majority to conclude that the evidence in the record—of which there was none, including on the cost of the insurance coverage she is requesting—sufficed to find an abuse of discretion and reverse. Even more disconcerting is the majority’s decision to award Lorene more than she requested—she merely asked that Howard continue to pay for her to remain on his health insurance plan; the majority has gone several steps farther and, on no basis whatsoever that I can see, made its own calculations and ordered Howard to pay her monthly maintenance of $660 for the rest of her life. Thus, I would affirm the trial court in this—and every regard.
Posted by Marcia Oddi on June 17, 2009 01:09 PM
Posted to Ind. App.Ct. Decisions