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Monday, September 19, 2011

Ind. Decisions - Court of Appeals issues 8 today (and 10 NFP)

For publication opinions today (8):

In John Haegert v. Margaret McMullan , a 20-page opinion, Judge Kirsch concludes:

From the materials designated to the trial court, the inference to be drawn from the facts and circumstances is that McMullan’s actions that were at issue were justified. McMullan maintained a personal file on every English Department faculty member to assist her in evaluating their performance. Informal student complaints that were contained in the file were not used in Haegert’s evaluation per University policy. McMullan turned over the anecdotal file to Graban and Magan in connection with the investigation of her harassment complaint against Haegert. McMullan consistently stated that she wanted to stop Haegert’s pattern of harassing students and faculty of the University. We find that the trial court correctly granted summary judgment in favor of McMullan as to this claim.

Haegert also alleged that McMullan had engaged in intentional infliction of emotional distress. Again, the trial court granted summary judgment in McMullan’s favor. * * *

There is no properly designated evidence in the record to establish that McMullan intended to cause Haegert emotional distress. McMullan acted according to the scope of her responsibilities at the University, and filed a harassment complaint when she believed the University’s zero-tolerance policy had been violated. The trial court did not err by granting summary judgment in favor of McMullan on Haegert’s claim of intentional infliction of emotional distress.

John Haegert v. University of Evansville , a 23-page, 2-1 opinion in a related case, Judge Kirsh writes:
The Vanderburgh Superior Court granted summary judgment in favor of the University of Evansville (“the University”) in an action filed by John Haegert (“Haegert”), alleging that the University’s decision to terminate him for violation of its sexual harassment policy was a breach of his tenure contract. Haegert appeals from the trial court’s order, arguing that the trial court erroneously entered summary judgment in favor of the University and erroneously denied his motion for summary judgment. * * *

Because the University did not meet its burden of proving that Haegert had committed sexual harassment in the form of hostile work environment, we find that the trial court erred by granting summary judgment in favor of the University and dismissing with prejudice Haegert’s complaint against the University. We therefore reverse the trial court’s entry of summary judgment in favor of the University, and remand this matter to the trial court for further proceedings consistent with this opinion. Reversed and remanded.

MATHIAS, J., concurs.
VAIDIK, J., dissents with separate opinion. [that begins, at p. 19 of 23] I respectfully dissent from the majority’s decision to (1) reverse the trial court’s entry of summary judgment in favor of the University of Evansville on grounds that it did not establish by clear and convincing evidence that John Haegert committed sexual harassment in the form of hostile work environment and (2) remand the matter to the trial court for further proceedings. Simply put, I believe that this case is governed by the terms and conditions of Haegert’s employment contract with the University. That is, it is undisputed that Haegert’s employment contract incorporated a zero-tolerance harassment and sexual harassment policy and that Haegert was aware that a violation of his employment contract was cause for termination. According to Haegert’s employment contract, the University bore the burden of proving a violation by clear and convincing evidence. Contrary to my colleagues, however, I believe that the University has proved by clear and convincing evidence that Haegert’s August 25, 2004, incident with Margaret McMullan in the English Department lounge violated this policy. And because I believe that Haegert has received all the due process to which he was entitled, I would affirm the trial court’s entry of summary judgment in favor of the University.

In John M. Brewer and Susan B. Brewer v. Indiana Alcohol and Tobacco Commission, a 14-page opinion, Judge Crone writes:
John M. Brewer (“Brewer”) and his wife, Susan B. Brewer,1 appeal a negative jury verdict in their action against the Indiana Alcohol and Tobacco Commission (“ATC”) for false arrest and excessive force allegedly used against Brewer during a routine inspection of their bar, The Wooden Nickel. The state excise officers who conducted the inspection claimed that Brewer was confrontational and profane and that he disrupted them in their duties. They arrested him for disorderly conduct and hindering law enforcement. Brewer later asserted that he was injured during the handcuffing and arrest process and also suffered emotional and economic damage as a result of the arrest.

When a jury found against him, Brewer filed this appeal, claiming that the trial court erred in admitting and excluding certain evidence; denying his motion for judgment on the evidence on the issues of probable cause and contributory negligence; and instructing the jury on contributory negligence. Finding no reversible error, we affirm.

In Judy Fratter, et al. v. Stanley Rice, Larry Ratts, M.D. , a 16-page opinion, Judge Baker writes:
When the plaintiff went to the defendant-physician's office complaining of pressure and tenderness in his stomach, the physician's assistant performed an examination, administered an EKG, and interpreted those results to be nonspecific. The physician's assistant did not send the results to the doctor for an interpretation of the tests, a review of the charts, or for consideration as to whether the plaintiff should be referred to the hospital. Several hours after the plaintiff returned home, he died of a heart attack. An autopsy revealed the presence of gastritis and evidence of a heart attack. In the end, the jury determined that neither the physician nor his assistant were responsible for the plaintiff's death. Although the plaintiff suggests otherwise, we hold, among other things, that the trial court properly read the relatively new Indiana Model Civil Jury Instruction that defines “responsible cause” to the jury, rather than the Indiana Pattern Jury Instruction regarding proximate cause.

Appellant-plaintiff Judy Fratter, individually and as surviving spouse and personal representative of the estate of Joseph J. Fratter (Joseph), deceased, appeals a jury verdict entered in favor of appellees-defendants Stanley Rice and Larry D. Ratts, M.D. Specifically, Fratter argues that she is entitled to a new trial because the removal of one of the jurors on the second day of trial was error, that the trial court erred in giving a final instruction on “responsible cause,” that it was error to permit Rice to display a “scales of justice” demonstrative exhibit to the jury during closing argument, and that the motion to correct error was erroneously denied on the basis of newly discovered evidence. Finding that Fratter was not entitled to a new trial, we affirm the judgment of the trial court.

In A.J. v. Logansport State Hospital, a 36-page opinion (including a separate concurring opinion beginning on p. 32), Judge Crone writes:
After A.J. was charged with two counts of class A felony child molestation, he was found incompetent to stand trial and was committed to Logansport State Hospital (“Logansport”) for competency restoration services. After six months, A.J. had not attained competency, and Logansport initiated regular commitment proceedings as required by statute. Following a hearing, the trial court found A.J. mentally ill and dangerous and granted the commitment petition.

A.J. appeals, presenting several arguments: (1) that Logansport failed to comply with the statutory rule requiring that the commitment proceedings contain a report from a community mental health center; (2) that the trial court erred in admitting State's Exhibit 1, a psychological testing report completed by a Logansport employee for the purpose of assessing A.J.'s risk of sexual recidivism; (3) that there was insufficient evidence that he was dangerous; and (4) that he was denied due process because the trial court took into account that competency restoration services are offered only in state institutions and because he cannot be restored to competency. We conclude as follows: (1) that Logansport may be considered a community mental health center for the purpose of satisfying the statutory report requirement; (2) that State's Exhibit 1 was admissible as it constituted both a statement made for purposes of medical diagnosis and a report made in the course of a regularly conducted business activity; (3) that there was sufficient evidence that A.J. is dangerous; and (4) that the trial court's consideration of competency restoration services and the probability that he will attain competency did not violate his due process rights. Accordingly, we affirm.

In Michael R. Flanders v. State of Indiana , a 37-page opinion involving a pro se appellant, the second part Judge Crone's of case summary provides:
After Flanders was convicted of sexual misconduct with a minor, amendments to the sex offender registry statutes reclassified him as a sexually violent predator ("SVP"). In his petition for post-conviction relief, Flanders also challenged his designation as an SVP on four grounds: (1) classification as an SVP can happen only at sentencing; (2) the Department of Correction violated the separation of powers provisions of the Indiana Constitution by reclassifying him as an SVP; (3) reclassification without prior notice and a hearing violated his right to due process under both the federal and state constitutions; and (4) the amended version of the sex offender registry statutes violates the Indiana Constitution’s prohibition of ex post facto laws.

The State does not address these arguments, but asserts that the post-conviction court’s denial of these claims was correct because Flanders did not comply with Indiana Code Section 11-8-8-22 (titled "Petition to remove designation or register under less restrictive conditions"). On the contrary, Flanders complied with the version of Indiana Code Section 11-8-8-22 that was in effect at the time that he filed his petition for post-conviction relief, and we see no reason why a petition filed pursuant to that section may not be addressed in the same proceeding as a petition for post-conviction relief.

On the merits of Flanders’s arguments concerning his SVP status, we conclude that our supreme court has already rejected Flanders’s first three arguments. However, we conclude that a 2007 amendment that eliminated his eligibility to petition the court for termination of his SVP status is an ex post facto law that is unconstitutional as applied to Flanders. We also conclude that this violation can be remedied by reinstating his eligibility to petition for a change in status after his initial ten-year requirement to register has passed. Therefore, we affirm the post-conviction court in part and reverse in part.

In Bruce Stansberry v. State of Indiana, a 10-page opinion, Judge Bailey concludes:
It is a cornerstone of our judicial system that a defendant is innocent until proven guilty and the State bears the burden of proving every element of the offense. Fields v. State, 676 N.E.2d 27, 29-30 (Ind. Ct. App. 1997), trans. denied. Stansberry’s conviction lacked a finding of proof on one element, that of resistance, obstruction, or interference, and thus it must be reversed. Moreover, because the trial court’s decision to revoke Stansberry’s probation and his placement in Marion County Community Corrections was predicated upon his conviction for “Attempted Resisting Law Enforcement” these rulings must be reversed as well. We remand the matter to the trial court to determine Stansberry’s eligibility for credit time and credit for time served in the DOC before placing him back on probation and in Marion County Community Corrections. Reversed and remanded with instructions.
In Vaughn Reeves, Sr. v. State of Indiana

NFP civil opinions today (5):

DMS Real Estate, LLC v. Board of Zoning Appeals of the City of Terre Haute, Indiana (NFP)

Dwayne E. Gray v. Safeguard Real Estate Properties, et al. (NFP)

J.M. v. Review Board of the Indiana Department of Workforce Development and T.C. (NFP)

Vernon D. Scott v. David Merchant (NFP)

Kyle J. Bonebright v. Lori A. Bonebright (NFP)

NFP criminal opinions today (5):

Macklin Brown v. State of Indiana (NFP)

Marcus D. Brown v. State of Indiana (NFP)

Hunter O. Learning v. State of Indiana (NFP)

Evan J. Erickson v. State of Indiana (NFP)

Jeffrey Dean Washington v. State of Indiana (NFP)

Posted by Marcia Oddi on September 19, 2011 11:23 AM
Posted to Ind. App.Ct. Decisions