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Monday, April 25, 2011

Ind. Decisions - Court of Appeals issues 6 today (and 13 NFP)

For publication opinions today (6):

In BP Products North America, et al. v. Indiana Office of Utility Consumer, et al. , a 17-page opinion, Sr. Judge Sharpnack writes:

Appellants BP Products North America, Inc. (“BP”), and United States Steel Corporation (“U.S. Steel”) appeal from a decision made by the Indiana Utility Regulatory Commission (“the Commission”) involving Appellee Indiana Office of Utility Consumer Counselor and Appellee/Cross-Appellant Northern Indiana Public Service Company (“NIPSCO”). We reverse and remand in part and affirm in part.

The following restated issues are dispositive:
I. Whether the Commission erred in determining that BP was acting as a “public utility” as that term is defined under Indiana law.
II. Whether the Commission erred in holding that BP violated Indiana's Service Area Assignments Act, a statute governing electricity suppliers. * * *

The Commission erred in its interpretation of the controlling statutes and case law as they apply to BP's contracts with U.S. Steel, Ineos, Praxair, and Marsulex. Accordingly, we reverse the Commission's order as it applies to these contracts, and we remand with instructions that the Commission vacate this portion of the order. We affirm the Commission's order as it pertains to BP's contract with the City of Whiting. Reversed and remanded in part and affirmed in part.

In Sharon S. York, et al. v. Donald Fredrick, et al. , a 17-page opinion, Judge Kirsch writes:
[I] Here, none of the Yorks was involved with making the funeral arrangements for Johnson and had little, if any, contact with the Defendants. The upset experienced by the Yorks upon learning that Johnson's casket and vault had been damaged during the burial does not rise to the same level of egregiousness as the situation in Blackwell. As all of the Yorks testified, the remains were not lost and there was no damage to Johnson's remains. Further, as previously stated, they were not present during the burial, and they voluntarily exposed themselves to the exhumation by either being present when it occurred or by later viewing pictures and video taken when it occurred. We therefore conclude that the present case is distinguishable from Blackwell. The trial court did not err in dismissing the Yorks' claims of negligent infliction of emotional distress for failure to state a claim.
In Allan B. Zukerman, et al. v. Robert L. Montgomery, et al. , an 18-page opinion, Judge Brown writes:
The Zukerman Parties raise two issues, which we revise and restate as whether the court erred in granting the motions to enforce the mediated settlement agreement. We reverse and remand. * * *

Based upon the record and the language of the Settlement Agreement, we conclude that the material and essential terms of the Settlement Agreement are not reasonably definite and certain so that the intention of the parties may be ascertained. See Wenning, 827 N.E.2d at 629 (holding that the contract which involved the conveyance of real property was not enforceable as a matter of law because it was too indefinite in its essential terms, finding that the subject matter of the contract was not identifiable from the terms of the contract, and noting that a contract's material terms must be reasonably definite and certain so that the intention of the parties may be ascertained, and that the court cannot re-write and then enforce contracts which to the knowledge of the court, the parties themselves did not enter into). Accordingly, the trial court erred in granting the consolidated motions to enforce the Settlement Agreement. We reverse the court's grant of the consolidated motions to enforce the Settlement Agreement and remand for further proceedings

In Melissa Kay Sneed v. State of Indiana, an 11-page opinion, Chief Judge Robb concludes:
Sneed’s $25,000 bail is not excessive, but the trial court abused its discretion by requiring cash only bail and denying Sneed’s request for the option of a surety bond. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
In In Richard Sigo, Jr. v. State of Indiana , a 14-page opinion, Chief Judge Robb writes:
Richard Sigo, Jr. brought this lawsuit against his insurer, Prudential Property and Casualty Insurance Company (“Prudential”), to recover for the fire loss of his home. Prudential contends Sigo caused the fire and has refused to pay the claim. Concurrently with this civil litigation, Sigo was charged and tried for arson of his home, and was acquitted by a jury. At issue in this interlocutory appeal is the trial court's grant of Prudential's motion in limine to exclude from the civil jury trial on Sigo's breach of contract claim any evidence concerning Sigo's criminal trial and acquittal of arson. Sigo raises one issue on appeal, which we restate as whether the trial court abused its discretion in weighing the probative value of the evidence against the danger of unfair prejudice to Prudential. We conclude the trial court did not abuse its discretion in finding the probative value of Sigo's criminal trial and acquittal was substantially outweighed by the danger of unfair prejudice, and we therefore affirm.
In Barry T. Owens v. State of Indiana , an 8-page opinion, Judge Darden writes:
Barry T. Owens appeals from his sentence, following a jury trial, for two counts of Class B felony dealing in cocaine and one count of Class D felony maintaining a common nuisance. We affirm.

ISSUES: 1. Whether the trial court erred in imposing court costs without specifying in its sentencing order that Owens would not be imprisoned for nonpayment thereof. 2. Whether the trial court erred in imposing public defender reimbursement fees as a condition of Owens' probation. * * *

[1] Before 2002, our Supreme Court applied the general rule “that when fines or costs are imposed upon an indigent, the trial court must expressly state that the defendant shall not be imprisoned for failing to pay the fine.” * * *

In 2002, the Whedon Court reiterated the general rule; however, it rejected the proposition “declaring that trial courts' sentencing orders must necessarily recite an express prohibition upon imprisonment for failure to pay fines or costs.” * * *

[2] Here, as in Rich and Kimbrough, the matter of Owens' indigency is not yet ripe for appellate review, because he has yet to complete his executed sentence. Thus, at the time of initial sentencing, the trial court was under no obligation to make a determination of Owens' ability to pay. Accordingly, we conclude that the trial court did not abuse its discretion when it failed to hold a hearing to determine Owens' ability to reimburse the Public Defender Fund at the time of his initial sentencing.

NFP civil opinions today (4):

Renee Wilson v. Indiana Horse Racing Commission (NFP)

Liberty Mutual Fire Insurance Co. v. Gloria D. Tussey (NFP)

Term. of Parent-Child Rel. of K.V.; P.V. v. IDCS (NFP)

Margaret Roupp, et al. v. Robert Roupp (NFP)

NFP criminal opinions today (9):

Jerry Williams v. State of Indiana (NFP)

Dametrick M. Gray v. State of Indiana (NFP)

Eric Nevels v. State of Indiana (NFP)

Kurtis Shorter v. State of Indiana (NFP)

Malcolm Armour v. State of Indiana (NFP)

Calvert Byrd v. State of Indiana (NFP)

Zuryzaday J. Flores v. State of Indiana (NFP)

Marlonda Tigner v. State of Indiana (NFP)

Anthony Price, Jr. v. State of Indiana

Posted by Marcia Oddi on April 25, 2011 11:31 AM
Posted to Ind. App.Ct. Decisions