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Tuesday, January 25, 2011

Ind. Decisions - Court of Appeals issues 5 today (and 3 NFP)

For publication opinions today (5):

In Adoption of L.E.; D.H. v. J.H. and J.E., an 8-page opinion, Judge May concludes:

The court erred when it failed to consider Stepfather’s objection and grant his to vacate the adoption because Stepfather was L.C.E.’s legal custodian pursuant to the Johnson County order. We therefore reverse the grant of Grandfather’s petition for adoption.

Moreover, because the Johnson County court had entered a custody order involving L.C.E., it currently holds jurisdiction over any issues related to his custody. Thus the Lawrence circuit court has no jurisdiction and Grandfather’s petition must be dismissed. Reversed.

In Jeffery Curry, et al. v. Andrew Whitaker, et al., a 12-page opinion, Judge Vaidik writes:
Jeffery T. Curry and Davina L. Curry appeal the trial court’s grant of summary judgment in favor of Andrew Whitaker and Grace Santa-Cruz Chavez on the Currys’ complaint for invasion of privacy by intrusion, invasion of privacy by false light, and intentional infliction of emotional distress. Finding no genuine issue of material fact and that Andrew and Grace are entitled to judgment as a matter of law, we affirm the trial court.
In Darlene Baca v. RPM, Inc., c/o Patty Brown, a 6-page opinion, Judge Bailey writes:
Pursuant to a policy or practice of Tippecanoe Superior Court 4, Darlene Baca, a disabled and indigent small claims litigant, was ordered to perform four hours of community service in order to have her claim set for a hearing. The trial court certified its order for interlocutory appeal and this Court accepted jurisdiction. Baca presents the sole issue of whether the informal local rule requiring community service is enforceable. We hold that it is not a duly promulgated local rule and is unenforceable. The interlocutory order for community service is reversed. * * *

Acting pro se, Baca attempted to file a claim for the return of her security deposit from a former landlord. Unemployed, disabled, and indigent, Baca lacked the $76 filing fee but was informed by court personnel that she could perform sixteen hours of community service in order to have her complaint filed. Baca contacted Indiana Legal Services. * * *

Subsection (A)[of Indiana Rule of Trial Procedure 81] includes a specific prohibition of standing orders: "Courts shall not use standing orders (that is, generic orders not entered in the individual case) to regulate local court or administrative district practice"‖ We agree with Baca that the practice of Tippecanoe Superior Court is essentially a standing order, in circumvention of the requirements of Trial Rule 81(B) for the proper promulgation of local court rules. It is, accordingly, unenforceable. Reversed.

In Phyllis Hardy, et al. v. Mary Jo Hardy, an 18-page opinion, Judge Brown writes:
Carlos and Phyllis Hardy were married on December 28, 1967. Carlos worked at NSWC Crane and had a life insurance policy with Federal Employees' Group Life Insurance (“FEGLI”) through his employer. [He subsequently divorced and remarried, then died Aug. 9, 2008.] * * *

The issue is whether the trial court erred in granting Mary Jo's motion for summary judgment and in denying the Plaintiffs' motion for summary judgment. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. * * *

The Plaintiffs argue in general that the court erred in granting Mary Jo's motion for summary judgment because FEGLIA does not preempt their claims. * * *

While the Plaintiffs cite opinions from some of our sister states, we find the approach taken by the Seventh Circuit and numerous federal and state courts to be the more compelling approach. Accordingly, we conclude that FEGLIA preempts the Plaintiffs' state law claims. * * *

Consequently, we conclude that the trial court did not err in granting Mary Jo's motion for summary judgment and denying the Plaintiffs' motion for summary judgment.

For the foregoing reasons, we affirm the trial court's grant of Mary Jo's motion for summary judgment and denial of the Plaintiffs' motion for summary judgment.

In Frank J. Akey, Personal Rep. of the Estate of Wayne Akey v. Parkview Hospital, et al. , an 11-page opinion, Sr. Judge Sullivan concludes:
In this case, having excluded Mirro’s expert testimony, the trial court concluded that Akey had failed to demonstrate a genuine issue of material fact on the question of causation. We have concluded that Mirro’s evidence should have been considered. Mirro’s affidavit and deposition testimony give rise to a genuine issue of material fact as to whether the erroneous administration of thrombolytic drugs caused Wayne Akey’s cerebral hemorrhage and subsequent death. Therefore, the trial court’s grant of summary judgment must be reversed
NFP civil opinions today (1):

Term. of Parent-Child Rel. of M.T.; R.T. v. IDCS (NFP)

NFP criminal opinions today (2):

Martel K. Settles v. State of Indiana (NFP)

Shelisa Wimbush v. State of Indiana (NFP)

Posted by Marcia Oddi on January 25, 2011 10:09 AM
Posted to Ind. App.Ct. Decisions