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Thursday, August 13, 2009

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Jeffrey L. Kimbrough v. State of Indiana , a 32-page opinion, CJ Baker writes:

Appellant-defendant Jeffrey L. Kimbrough appeals his conviction for Battery with a Deadly Weapon, a class C felony, claiming that 1) the jury selection process was improper; 2) the trial court erred in admitting certain evidence at trial; 3) the jury was improperly instructed; 4) the State did not adequately rebut his claim of self-defense; 5) the restitution order was excessive; 6) he was improperly ordered to pay fines, court costs, and public defender fees because no indigency hearing was held; and 7) his trial counsel was ineffective.
Although we find no reversible error, we remand this cause with instructions that the trial court clarify its restitution order. * * *

In light of our discussion above, we conclude that there was no error in the juror selection process and that the 911 tape was properly admitted into evidence. We further find that the trial court did not err in admitting a police officer's testimony regarding the comments that Peoples made to him about the incident, or in permitting Peoples to testify about the amount of time that he was in pain. The trial court also properly permitted Peoples to testify as to why Curtis entered the room during the fight, and the trial court did not err in instructing the jury as to the definition of “serious bodily injury.” Finally, we conclude that the evidence was sufficient to rebut Kimbrough's self-defense claim

NFP civil opinions today (3):

Nightingale Home Healthcare, Inc. v. Suzie Oliva (NFP) - "Nightingale Home Healthcare, Inc. (“Nightingale”) appeals from the trial court’s grant of summary judgment in favor of its former employee, Suzie Oliva. Specifically, Nightingale argues that the trial court erred by refusing to consider its summary judgment materials, and that if the court had done so, it would have found a genuine issue of material fact which precluded summary judgment. Because Nightingale filed its summary judgment materials after the time for a response had expired without previously making a motion to the trial court for a continuance before time expired, the trial court correctly refused to consider the belated materials. Because summary judgment was properly granted, we affirm. * * *

"Specifically, Nightingale argues that it timely filed both its motion for enlargement of time and its summary judgment materials because Oliva’s counsel had agreed to an enlargement of time. In the event we find the documents untimely, Nightingale argues that the trial court had discretion to accept the belated documents. Nightingale also argues that, had the trial court considered its summary judgment materials, it would have determined that there are genuine issues of material fact which preclude summary judgment."

Rolla G. Trent v. Rodney L. Richard (NFP) - "The issue before us is whether there is a genuine issue of material fact regarding Officer Richard's employment status at the time of the accident. This is because if at the time of the accident, Officer Richard was acting within the scope of his employment as a City of Peru police officer, he is immune from personal liability. * * *

"In light of this designated evidence, and more particularly in light of the applicable Indiana case precedent, we hold that the trial court correctly determined that notwithstanding Officer Robert's personal interest and motivation in responding to the emergency dispatch, as a matter of law, Officer Robert was acting within the scope of his employment at the time of the accident. Accordingly, we affirm the trial court's grant of summary judgment."

Darryl Van Swol and Jan Van Swol v. ISG Burns Harbor, LLC and Donald Bowens (NFP) - "Appellants-plaintiffs Darryl and Jan Van Swol appeal the trial court's order dismissing their complaint against appellees-defendants ISG Burns Harbor, LLC (ISG), and Donald Bowens for lack of subject matter jurisdiction. The Van Swols argue, among other things, that the trial court erroneously concluded that Darryl was an employee of ISG, meaning that his claim for injuries sustained on the job must be raised under the Worker's Compensation Act. Finding that Darryl was not an employee of ISG and that the trial court has jurisdiction over the Van Swols' complaint, we reverse and remand for further proceedings on the complaint. * * *

"There are two factors that weigh slightly in favor of a finding of employment—right to discharge and establishment of work boundaries. The remaining factors—mode of payment, provision of tools and equipment, belief of parties, right to control, and length of employment—weigh significantly against a finding of employment. And indeed, when we step back and consider the evidence as a whole, it is apparent that ISG disclaimed all employer-related responsibilities—on paper and in practice—until Darryl filed this lawsuit. Even when Darryl was injured, ISG declined to provide medical treatment, create an incident report, or investigate the accident. Those decisions were not inappropriate if Darryl was an independent contractor, but ISG may not now act as if that it considered Darryl to be an employee and treated him as such.

"Under these circumstances, we can only conclude that the trial court erred by finding that Darryl was an employee of ISG. We hold that the balance of evidence tips against that conclusion and that the trial court does, in fact, have jurisdiction over the Van Swols' claims and should not have dismissed the complaint."

NFP criminal opinions today (2):

Myron Tools v. State of Indiana (NFP)

Edward A. Grady v. State of Indiana (NFP)

Posted by Marcia Oddi on August 13, 2009 11:57 AM
Posted to Ind. App.Ct. Decisions