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Thursday, December 29, 2011

Ind. Decisions - Court of Appeals issues 5 today (and 17 NFP)

For publication opinions today (5):

In Natalia Robertson, Personal Rep. of the Estate of John Lee Cunningham, III v. Gene B. Glick Co., Inc., The Woods of Eagle Creek, Briarwood Apartments, LP, and Briarwood Apartments II, LP , a 14-page opinion, Chief Judge Robb writes:

John Cunningham was shot and killed while at his girlfriend’s apartment complex. More than two years after his death, Natalia Robertson, acting as personal representative of the Estate of John Cunningham, brought a wrongful death claim against the apartment complex and its parent companies. The trial court dismissed the claim, concluding it was untimely because Indiana’s General Wrongful Death Act requires that a wrongful death claim be brought within two years of the decedent’s death. Robertson raises one issue for our review, which we expand and restate as three: 1) whether Indiana Code section 34-11-6-1 should apply to Indiana’s General Wrongful Death Act; 2) whether Indiana’s wrongful death statutes violate the Privileges and Immunities Clause, Article 1, Section 23 of the Indiana Constitution; and 3) whether Indiana’s wrongful death statutes violate the Due Course of Law Clause, Article 1, Section 12 of the Indiana Constitution. Concluding section 34-11-6-1 does not apply to the General Wrongful Death Act and that our wrongful death statutes do not violate the Privileges and Immunities Clause or Due Course of Law Clause of the Indiana Constitution, we affirm the trial court’s dismissal of Robertson’s claim as untimely. * * *

Indiana Code section 34-11-6-1 does not apply because the GWDA is not subject to tolling. Robertson has failed to meet her burden that Indiana’s wrongful death statutes violate either the Privileges and Immunities Clause or the Due Course of Law Clause of the Indiana Constitution. We therefore affirm the trial court’s dismissal of Robertson’s wrongful death complaint.

In In the Matter of the Supervised Estate of Leah Yeley, Deceased; Larry Yeley v. Timothy Purdom, as Personal Rep. of the Estate of Leah Yeley , a 13-page opinion, Judge Bailey writes:
Larry Yeley (“Larry”) appeals the denial of his motion to correct error, which challenged a probate court order approving a settlement agreement reached pursuant to the adjudicated compromise of controversies provisions of the Indiana Probate Code. We reverse and remand.

Yeley presents three issues for review, which we consolidate and restate as two: I. Whether the probate court erroneously concluded that Yeley lacks standing to contest the settlement agreement; and II. Whether Yeley may participate in a will contest he did not initiate. * * *

The probate court simply imposed upon Larry the agreement reached by his siblings. This is in contravention of the compromise statute requiring a signature from each competent person having an interest or claim which will or may be affected by the compromise. As such, the trial court’s approval of the settlement agreement was in error.

Notwithstanding the unenforceability of the purported settlement agreement, we must decide whether Larry is prohibited from participation in the will contest. The other beneficiaries contend that, even if Larry was an interested party for purposes of settlement, he cannot pursue litigation because of the applicable statute of limitations, principles of waiver and estoppel, or accord and satisfaction. * * *

The brief record before us reveals no juncture at which Larry has affirmatively relinquished his right to litigate the validity of any or all of the testamentary documents at issue. * * *

Because it involves finding of facts, outside of our appellate role, we express no opinion as to whether an estate distribution in fact took place, was intended by the parties to constitute satisfaction of any and all claims Larry held against the estate, or whether such payment was restored. See State Comp. Ins. Fund v. WallDesign, Inc., 132 Cal. Rptr.3d 352, 355, n.1 (Cal. Ct. App. 2011) (reiterating, “if it is not in the record, it did not happen”).
Reversed and remanded for further proceedings consistent with this opinion.

In Moorehead Electric Co. v. Jerry Payne , an 11-page opinion, Judge Mathias writes:
Moorehead Electric Company, Inc. (“Moorehead”) appeals the Worker’s Compensation Board’s award of benefits to Jerry Payne (“Payne”). Mooreheard argues that the Board erred when it determined that Payne was entitled to benefits for an injury he sustained outside of the workplace but that arose from a prior, compensable injury. Concluding that the Board properly awarded benefits to Payne for the subsequent injury, we affirm.
Mario A. Allen v. State of Indiana - "Mario Allen appeals the LaPorte Superior Court’s denial of his petition for postconviction relief. Although Allen agrees with the post-conviction court’s finding that he was denied the assistance of appellate counsel, he argues that the proper remedy is a new trial. The State also agrees with the post-conviction court’s finding that Allen was denied the assistance of appellate counsel, but claims that the proper remedy is simply to permit Allen to proceed with the direct appeal that he was denied. We agree with the State and reinstate Allen’s direct appeal."

David L. Johnson, Jr. v. State of Indiana - "In sum, the trial court did not abuse its discretion when it denied Johnson’s tendered jury instructions on two lesser-included offenses of neglect of a dependent. The trial court also did not abuse its discretion when it permitted the State to introduce into evidence the social worker’s testimony. And the trial court’s conclusion that the State did not act out of vindictiveness when it included Count II in the amended indictment is not clearly erroneous. Thus, we affirm Johnson’s conviction."

NFP civil opinions today (6):

William Pond v. Paul B. McNellis and Linda Peters Chrzan (NFP)

Michael Loverde v. Thomas Kuehl (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of K.N., B.N., R.N., and G.N.; and C.N. v. Indiana Dept. of Child Services, Child Advocates Inc. (NFP)

Glenn D. Odom, II v. Indiana Dept. of Correction (NFP)

J.M. v. Review Board of the Indiana Dept. of Workforce Development (NFP)

Maria Espinoza v. Rosa Martinez, Mi Familia Tienda, and Nassirou Gado (NFP)

NFP criminal opinions today (11):

D.B. v. State of Indiana (NFP)

John W. Sawyer v. State of Indiana (NFP)

Troy Howard v. State of Indiana (NFP)

Miguel Esqueda v. State of Indiana (NFP)

Fred E. Gordon v. State of Indiana (NFP)

Robert Strickland v. State of Indiana (NFP)

Johnathon R. Aslinger v. State of Indiana (NFP)

Summer Belli-McIntyre v. State of Indiana (NFP)

Carrie Joan Garrett v. State of Indiana (NFP)

Michael W. Krauskopf, Sr. v. State of Indiana (NFP)

Thomas J. Tarrance v. State of Indiana (NFP)

Posted by Marcia Oddi on December 29, 2011 10:28 AM
Posted to Ind. App.Ct. Decisions