Tuesday, February 22, 2011
Ind. Decisions - Court of Appeals issues 6 today (and 10 NFP)
For publication opinions today (6):
In Craig Dennis v. Board of Public Safety of Fort Wayne, Indiana , a 13-page opinion, Chief Judge Robb writes:
The Board of Public Safety of Fort Wayne, Indiana (the “Board”) placed Craig Dennis on indefinite unpaid leave from his employment as a police officer. Several months later, following his acquittal of a criminal charge, the Board reinstated Officer Dennis's employment but denied his request for back pay. Officer Dennis then filed a complaint for judicial review, which the trial court dismissed, concluding it lacked subject matter jurisdiction. Officer Dennis appeals the trial court's order of dismissal. He raises two issues, which we restate as: 1) whether the Board's actions in placing Officer Dennis on indefinite unpaid leave and later denying his request for back pay constitute a suspension subject to judicial review under Indiana Code section 36-8-3-4; and 2) whether the Board's decision was final, such that the thirty-day time period to file for judicial review began to run, from the date the Board placed Officer Dennis on indefinite unpaid leave, or instead from the date it denied his request for back pay. We conclude Officer Dennis's indefinite unpaid leave pending the outcome of the criminal charge was a suspension of greater than five days, thus subject to judicial review, and the Board's decision became final when it denied Officer Dennis's request for back pay, such that his complaint for judicial review was timely filed. We therefore reverse the trial court's order of dismissal and remand for further judicial review proceedings.InAllstate Insurance Company v. Gary R. Love, an 11-page opinion, Judge Riley writes:
Appellant-Defendant, Allstate Insurance Company appeals the trial court's Order refusing to set aside a default judgment entered in favor of Appellee-Plaintiff, Gary R. Love, with respect to Love's Complaint asserting underinsured motorist benefits. We affirm, in part, reverse, in part, and remand for further proceedings. * * *State of Indiana v. Andy J. Velasquez, II - "In conclusion, we find no abuse of discretion in the giving of a preliminary instruction pursuant to Evidence Rules 105 and 404(b). We do, however, find that the trial court erred in excluding the testimony of witnesses under Evidence Rules 802 and 704(b)."
[W]e agree with Love that Allstate's failure to timely raise the issue of unliquidated damages before the trial court constitutes waiver of the issue on appeal.
Notwithstanding the above, Indiana courts prefer to decide cases on their merits and to give the parties their day in court. Therefore, we will review the issue of unliquidated damages as if Allstate did raise it in a timely manner.
Here, Allstate's main argument is that UIM damages are unliquidated and therefore can still be contested before the trial court despite the default judgment. We agree.
We find that UIM damages are unliquidated because they are not a sum certain and they cannot be reduced to fixed rules and mathematical precision. * * *
[W]e conclude that the trial court's award of $225,000 was interlocutory and therefore Allstate may still appear and be heard as to the amount of damages resulting from the judgment.
James C. Taylor v. State of Indiana - "Appellant James C. Taylor appeals his convictions of burglary, a Class A felony, Indiana Code section 35-43-2-1 (1999); criminal deviate conduct, a Class B felony, Indiana Code section 35-42-4-2 (1998); and attempted rape, a Class B felony, Indiana Code sections 35-42-4-1 (1998) and 35-41-5-1 (1977). Taylor also appeals the jury’s verdict that he is guilty but mentally ill of a second charge of criminal deviate conduct and of sexual battery, a Class D felony, Indiana Code section 35-42-4-8 (1998). Finally, Taylor appeals the jury’s determination that he is a habitual offender, Indiana Code section 35-50-2-8 (2005), and the sentences that the trial court imposed for his convictions. We affirm."
Keith Hoglund v. State of Indiana - "Appellant/Defendant Keith Hoglund appeals from his conviction of and sentence for Class A felony Child Molesting. Hoglund contends that the trial court abused its discretion in admitting testimony regarding whether the victim was falsifying or exaggerating stories of Hoglund’s molestation of her, whether the trial court abused its discretion in sentencing him, and whether his fifty-year sentence is inappropriately harsh. We affirm"
Paul J. Kocielko v. State of Indiana - "This matter comes before us on a petition for rehearing by the State. The State asks that we reconsider our decision with regard to the vacation of Kocielko’s conviction for Sexual Misconduct with a Minor as a Class C felony. We grant rehearing and affirm the decision of the trial court except for the imposition of a double habitual offender enhancement."
NFP civil opinions today (4):
NFP criminal opinions today (6):
Posted by Marcia Oddi on February 22, 2011 10:37 AM
Posted to Ind. App.Ct. Decisions