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Tuesday, December 20, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

Christopher A. Bryant v. State of Indiana - Affirmed.

In Commissioner of Labor on the Relation of Stephen R. Shofstall, Edward C. Posey, and Deborah Posey v. Int'l Union of Painters and Allied Trades, AFL-CIO, CLC District Council 91 , a 19-page, 2-1 opinion, Judge Riley writes:

Appellant-Plaintiff, the Commission of Labor On the Relation of Stephen R. Shofstall, Edward C. Posey, and Deborah N. Posey (collectively, Appellants), appeal the trial court’s summary judgment in favor of Appellee-Defendant, International Union of Painters and Allied Trades AFL-CIO, CLC District Council 91 (the Union), finding that Appellants are not entitled to accrued vacation pay. * * *

Based on the foregoing, we conclude that the trial court erred in awarding summary judgment in favor of the Union. We reverse and enter summary judgment in favor of Appellants and remand with instruct to the trial court to calculate Appellants’ vacation pay and to consider liquidated damages and attorney fees. In addition, we conclude that the trial court abused its discretion when it refused to strike certain paragraphs in Reis’ affidavit. Reversed and remanded with instructions.

MATHIAS, J. concurs
FRIEDLANDER, J. dissents with separate opinion [that begins, at p. 16]I believe the trial court was correct in all respects and therefore respectfully dissent. I will not undertake a detailed summary of what I perceive to be the fallacies in the Majority’s analysis. It suffices to say that, other than on matters of boilerplate law, my views diverge significantly from those of the Majority on virtually all of the positions adopted in route to its conclusions, up to and including the conclusions themselves.

In Lance McCloud v. State of Indiana , a 15-page opinion, Judge Kirsch writes:
In this interlocutory appeal, Lance McCloud appeals the trial court’s denial of his motion to dismiss the charges pending against him because he was not brought to trial within one year of the date he was charged with the offenses. McCloud raises two issues that we consolidate and restate as: whether the trial court erred in denying his motion to dismiss because his right to a speedy trial, provided by Rule 4(C) of the Indiana Rules of Criminal Procedure and the federal and state constitutions, was violated. * * *

Although it weighs in McCloud’s favor that, while in Indiana, he consistently and repeatedly sought to bring his case to trial, the length of the delay was not excessive, the cause of the delay was due to McCloud’s own act, his federal incarceration, which he did not take any affirmative steps to disclose to the State, and he has not shown or even alleged any prejudice because of the delay. We find that, on balance, the Barker factors indicate McCloud’s federal and state constitutional rights to a speedy trial were not violated. Accordingly, the trial court did not err by denying his motion to dismiss the charges pending against him because of an alleged constitutional violation. Affirmed.

NFP civil opinions today (10):

James R. Lockhart, Jr. v. Lisa (Lockhart) Guyer (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of H.W. and H.S.; T.S. v. Indiana Dept. of Child Services (NFP)

Gary Joe Harrison v. Bill Wilson (NFP)

Cherokee Development, Inc. v. Ohio Farmers Ins. Co. (NFP)

In Re: The Matter of the Term. of the Parent-Child Rel. of D.F. & R.F. and B.G. v. Indiana Dept. of Child Services (NFP)

Derrick D. Jeter, M.D. v. Medical Licensing Board of Indiana (NFP)

S. (M.) O. v. S.M. (NFP)

Great Hospitality Services, Inc. v. Karl Bauer (NFP)

In Re: The Paternity of P.B.; D.B. v. M.B. (NFP)

C.C. v. Review Board of the Ind. Dept. of Workforce Development and Employer (NFP)

NFP criminal opinions today (5):

William Taylor v. State of Indiana (NFP)

Christopher W. Hovis v. State of Indiana (NFP)

James A. Mudd v. State of Indiana (NFP)

Andrew M. Royer v. State of Indiana (NFP)

Thomas L. Kessinger v. State of Indiana (NFP)

Posted by Marcia Oddi on December 20, 2011 01:50 PM
Posted to Ind. App.Ct. Decisions