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Wednesday, August 03, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In T.W. v. Review Board, a 10-page opinion, Judge Barnes concludes:

Although we are concerned about T.W.’s failure to disclose his relationship with PLS to the Department, the mere failure to disclose the relationship is insufficient to support the denial of benefits under Indiana Code Section 22-4-13-1.1(a). The fact that was not disclosed or that was falsified must also result in a disqualification, ineligibility, or reduction in benefits. The evidence here does not support a conclusion that T.W.’s relationship with PLS would disqualify him from receiving benefits, reduce his benefits, or render him ineligible for benefits or extended benefits.

Conclusion. The record does not support the Review Board’s conclusion that T.W. was self-employed and ineligible to receive benefits. We reverse the Review Board’s order and remand for proceedings consistent with this opinion.

In Brian D. Hayes v. Westminster Village North, Inc., an 8-page opinion, Sr. Judge Barteau wrotes:
Plaintiff-Appellant Brian Dale Hayes, as administrator of the Estate of Dorothy Rodarmel (“Hayes”), appeals the trial court’s grant of summary judgment to Defendant-Appellee Westminster Village North, Inc. (“Westminster”). We reverse and remand. * * *

[The trial court granted] Westminster’s motion for summary judgment, determining that Hayes’ “allegation of medical negligence and proposed allegation of wrongful death as a result of medical negligence are barred by the statute of limitations.” * * *

Hayes contends that his claims against Westminster are not barred by the statute of limitations due to the savings clause set forth in Indiana Code section 34-11-6-1 (1998). That statute provides, “[a] person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed.” Id. The phrase “under legal disabilities” is defined to include persons who are “less than eighteen (18) years of age, mentally incompetent, or out of the United States.” Indiana Code § 1-1-4-5(24) (2002). * * *

Our analysis does not end with the determination that there is a dispute of fact as to whether Rodarmel was mentally incompetent and therefore under a legal disability. Indiana Code section 34-11-6-1 allows a plaintiff to bring suit up to two years after the disability is removed. Hayes does not dispute that Rodarmel’s disability ended when she died on December 14, 2007. Thus, the two-year period set forth in Indiana Code section 34-11-6-1 took effect when she died, and Hayes was permitted to file suit until December 14, 2009. It is uncontested that Hayes did not file this lawsuit until December 18, 2009. Consequently, Indiana Code section 34-11-6-1 alone does not permit Hayes’ claims to proceed.

Hayes filed his proposed complaint with the Indiana Department of Insurance on December 14, 2009, which was within the two-year period provided by Indiana Code section 34-11-6-1. Indiana’s Journey’s Account Statute (“JAS”) * * * is not an exception to the statute of limitations; it merely allows the continuation of a previous suit filed within the statute of limitations.

In Martin Roy Emerson v. State of Indiana, an 18-page, 2-1 opinion, Judge Bradford writes:
[I] Emerson contends that the prosecutor engaged in misconduct during voir dire and in opening and closing arguments to the jury during phase one of the trial. Specifically, he notes that the State repeatedly referred to him as a “bully” and contends that the State induced the jury to convict him for reasons other than guilt or innocence. * * *

The judgment of the trial court is affirmed.

BARTEAU, SRJ, concurs in part and dissents in part with opinion.
VAIDIK, J., concurs.

[SRJ Barteau's opinion begins, on p. 14 of 18] I concur in Section III of the majority's opinion. I respectfully dissent from the majority's resolution of Section I, on the issue of prosecutorial misconduct.6 Based on my review of the evidence, I conclude that the State's actions constituted both prosecutorial misconduct and fundamental error, and I would reverse Emerson's conviction for driving while intoxicated.

NFP civil opinions today (1):

Term. of Parent-Child Rel. of A.S., et al.; A.S. v. I.D.C.S. (NFP)

NFP criminal opinions today (6):

Dustin L. Coleman v. State of Indiana (NFP)

John G. Young v. State of Indiana (NFP)

David W. Glasgow v. State of Indiana (NFP)

Thaddeus Rodriguez v. State of Indiana (NFP)

Larry D. Nash-Aleman v. State of Indiana (NFP)

Michael E. Hurst v. State of Indiana (NFP)

Posted by Marcia Oddi on August 3, 2011 11:55 AM
Posted to Ind. App.Ct. Decisions