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Friday, March 18, 2011
Ind. Decisions - Court of Appeals issues 3 today (and 1 NFP)
For publication opinions today (3):
In Clinton County, et al. v. Jacqueline R. Clements, et al. , an 18-page opinion, Judge Barnes writes:
The County raises two issues, which we consolidate and restate as whether the trial court erred by granting summary judgment to Clements on her claim of governmental immunity. On cross appeal, Clements raises one issue, which we restate as whether the trial court abused its discretion by denying her motion for attorney fees and costs. * * *In Kimberly Devlin v. Daniel Peyton , a 6-page opinion, Judge Bradford concludes:
The designated evidence demonstrated that Manatron’s $5,000 proposal was not submitted until months after the County accepted Nikish’s proposal. There is no designated evidence suggesting that Clements was aware of the $5,000 proposal during the February meetings with the County Council and County Board. Even if Clements made a statement to the Council or the Board that it would cost $200,000 for Manatron to upgrade its software, that alleged statement was a statement of opinion, and a claim for intentional misrepresentation cannot rest on a statement of opinion. Moreover, the County was accepting proposals for dot net software, and there is no designated evidence showing that Manatron’s $5,000 upgrade was comparable to the dot net software. The trial court properly found that no genuine issue of material fact existed regarding an intentional misrepresentation and that Clements was entitled to judgment as a matter of law. * * *
[Issue II] requires us to interpret statutes governing the reimbursement of a government employee’s attorney fees. * * *
The plain language of Indiana Code Section 34-13-3-5(e) does not specifically limit the governmental entity’s duty to reimburse the employee even where the governmental entity has filed the action against the employee and would seem to require reimbursement here. However, the trial court denied Clements’s motion based on State v. Evans, 810 N.E.2d 335 (Ind. 2004).
In Evans, the Attorney General filed a complaint against a county prosecutor for reimbursement of public funds that were “misappropriated, diverted or unaccounted for.” Evans, 810 N.E.2d 336. Before filing an answer, the prosecutor filed a motion for appointment of counsel, which the trial court granted. On interlocutory appeal, our supreme court reversed. The court noted Indiana Code Section 33-2.1-9-1(c)(2), which required the Attorney General to defend or the executive director of state court administration to hire outside counsel for a judge or prosecuting attorney sued for civil damages or equitable relief arising out of the scope of the judge or prosecuting attorney’s duties. However, it held that the statute’s objective was to “protect officeholders from litigation by those dissatisfied with the decisions they make” and that absurd results would occur if the Attorney General’s office was litigating and financing both sides of the suit. The court looked to IC 4-6-2-1, which required the Attorney General to defend all state officers unless the suit is brought against them by the state, for the legislature’s intent. However, the court specifically left for another day whether “the statute would afford reimbursement to a defendant who prevails.”
The situation left for another day in Evans is the situation we have before us now. Although our supreme court concluded in Evans that it would be absurd to require the Attorney General to finance both sides of the litigation against the prosecutor accused of misappropriating funds during the litigation, it specifically left open the possibility of reimbursing an employee who prevails in such an action. Here, the County sued Clements, but Clements has prevailed on summary judgment. As our supreme court noted, the statute’s objective is to “protect officeholders from litigation by those dissatisfied with the decisions they make,” which is exactly the situation here. The County was dissatisfied with decisions made regarding the tax software and filed an unsuccessful and, at best, highly questionable action against Clements. * * *
Here, we conclude that interpreting Indiana Code Section 34-13-3-5(e) to preclude payment of Clements’s attorney fees would be unjust. Where, as here, a county has filed an unsuccessful and highly questionable action against its former auditor, it would be unjust to deny her request for reimbursement of her attorney fees. We conclude that Clements is entitled to reimbursement of her attorney fees under a plain reading of Indiana Code Section 34-13-3-5(e). The trial court abused its discretion by denying Clements’s request.
Even assuming that transfer [from the Adoption Court to to the Dissolution Court] might otherwise be appropriate, Father points to no authority, and our research has revealed none, that allows a trial court, absent the approval of the originating court or appellate court, to sua sponte assume jurisdiction over a case pending in another trial court. Consequently, to the extent that the Dissolution Court’s findings and conclusions related to whether it had jurisdiction over the adoption proceeding and addressed the merits of the adoption, those findings and conclusions are vacated. The only issue properly before the Dissolution Court was the question of parenting time for Father. Because Mother does not take issue with the Dissolution Court’s ruling regarding Father’s parenting time, we affirm the Dissolution Court’s judgment to the extent that it addresses that issue.In Annette (Oliver) Hirsch v. Roger Lee Oliver, a 29-page, 2-1 opinion, Judge Barnes writes:
Annette (Oliver) Hirsch (“Mother”) appeals several rulings by the trial court related to child support from her ex-husband, Roger Lee Oliver (“Father”), for their daughters, Courtney and Elizabeth. We reverse and remand. * * *NFP civil opinions today (0):
We reverse the trial court's emancipation date for Courtney of September 23, 2009, and conclude she was emancipated no earlier than December 10, 2009. We remand for the trial court to recalculate the amount of child support Father has overpaid, and to apportion the payment of uninsured medical expenses incurred by Elizabeth and Courtney in 2009, in accordance with this opinion. We also remand for entry of a post-secondary education expense order as to Father. Finally, we reverse the award to Father of attorney fees and his current wife's travel expenses. Reversed and remanded.
VAIDIK, J., concurs.
BAKER, J., concurs in part and dissents in part with opinion. [that begins, at p. 25 of 29] I respectfully dissent from the majority's conclusions regarding the date of Courtney's emancipation and Father's obligation to contribute to Courtney's post-secondary educational expenses.
NFP criminal opinions today (1):
Posted by Marcia Oddi on March 18, 2011 01:04 PM
Posted to Ind. App.Ct. Decisions