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Friday, December 30, 2011
Ind. Decisions - Court of Appeals issues 8 today (and 24 NFP)
For publication opinions today (8):
In Margaret Kosarko v. William A. Padula, Administrator of the Estate of Daniel L. Herndobler, Deceased , the issue is prejudgment interest. In a 9-page, 2-1 opinion (including a 4-page dissent)by Sr. Judge Barteau, the COA reverses the trial court’s denial of plaintiff-appellant's motion for prejudgment interest, concluding:
The trial court abused its discretion by denying Kosarko’s motion for prejudgment interest. Consequently, Kosarko is entitled to prejudgment interest in the amount of $79,627.40, which she requested in her motion. * * *In Mary Alice Manley and Gary Manley v. Ryan J. Sherer, M.D., and Sherer Family Medicine, a 12-page opinion by Sr. Judge Barteau, the COA reverses the trial court’s grant of Sherer's motion for summary judgment.
BAKER, J., concurs.
MAY, J., dissenting with separate opinion. [that concludes] Finally, even if I could concur with the majority’s decision to reverse the trial court’s denial of prejudgment interest, I could not concur with its decision to impose the $79,627.40 in pre-judgment interest Kosarko requested. Not only does that total erroneously contain interest for twelve months during which the judgment was delayed by Kosarko, but its imposition usurps the trial court’s authority to exercise its discretion in determining an appropriate amount of pre-judgment interest. See, e.g., Deel v. Deel, 935 N.E.2d 183, 188 (Ind. Ct. App. 2010) (remanding for trial court to consider request for pre-judgment interest). Permitting the trial court to determine the amount of prejudgment interest seems particularly appropriate where, as here, the legislature explicitly placed within the court’s discretion the setting of multiple values necessary to compute the amount of prejudgment interest due. See Ind. Code 34-50-4-8 (“court shall determine the period during which prejudgment interest accrues. . . .”); Ind. Code 34-50-4-9 (The court computes prejudgment interest based on the “simple rate of interest determined by the court,” but the rate must be between six and ten percent per year.). I would affirm the trial court’s denial of Kosarko’s petition for prejudgment interest and, therefore, I respectfully dissent.
Midwest Psychological Center, Inc. v. Indiana Dept. of Administration, Correctional Medical Services, Inc., n/k/a Corizon, Inc., Indiana Minority Health Coalition, Inc., et al. , a 21-page opinion, Judge Crone writes:
Midwest Psychological Center, Inc. (“Midwest”), is a for-profit business that provides mental health services. Indiana Minority Health Coalition, Inc. (“Minority Health”), is a non-profit organization that provides mental health services. Both have received certification from the Indiana Department of Administration (“IDOA”) as a minority business enterprise (“MBE”). Corizon, Inc., has a contract with the IDOA to provide mental health services. Corizon has a subcontract with Minority Health to provide some of the mental health services under the contract with the IDOA. Midwest filed a grievance with the IDOA, alleging that Minority Health was not eligible to be certified a MBE and asking the IDOA to decertify Minority Health, but it did not. * * *In Julie R. Waterfield Irrevocable Trust Agreement Dated October 21, 1997; Richard R. Waterfield and J. Randall Waterfield v. The Trust Company of Oxford and Julie R. Waterfield, Judge Bailey writes:
In summary, we conclude that Midwest lacks standing to challenge the contracts between Corizon and Minority Health and Corizon and the IDOA because it was not a party to the contracts, was not in privity with the parties, and was not a third party beneficiary of the contracts. Midwest cannot attain standing through Indiana Code Section 5-22-19-2 because it is not an aggrieved person. In addition, the allegations in Midwest's complaint do not show that it has standing to bring a judicial challenge to the IDOA proceedings regarding Minority Health's MBE decertification or the allegations of a conflict of interest. Accordingly, we affirm the trial court's grant of the Appellees' motions for judgment on the pleadings.
In sum, the trial court properly entered summary judgment for TCO and Julie. Richard and Randall’s claims for breach of fiduciary duty and breach of trust are time barred. And their claims for fraud and constructive fraud are not supported by any evidence of actual injury. As such, there is no genuine issue of material fact that precludes the entry of summary judgment for TCO and Julie, and we affirm the trial court’s entry of judgment as a matter of law.American Savings, FSB v. Steve H. Tokarski, Successor Personal Rep. of the Estate of John Wroblewski, on Behalf of the Estate - "Plaintiff-Appellee Steve H. Tokarski, in his capacity as successor personal representative of the Estate of John Wroblewski, filed a three-count complaint against Defendant-Appellant American Savings, FSB, in Lake Superior Court. Both parties filed motions for summary judgment. American Savings now appeals the trial court‟s order granting summary judgment in favor of Tokarski on the first two counts. We reverse and remand."
In Judy Ellis v. M&I Bank, a 10-page opinion, Chief Judge Robb writes:
Judy Ellis appeals the trial court’s order granting M&I Bank immediate possession of real estate in which she has a leasehold interest. We restate the issue as whether the trial court properly denied the Ellises’1 motion to correct error with regard to the order of possession. Concluding the order of possession was properly entered and the trial court therefore did not abuse its discretion in denying the motion to correct error, we affirm.In Marvelean Williams v. State of Indiana , a 6-page opinion, Judge Crone writes:
Indianapolis Metropolitan Police officers were dispatched to Marvelean Williams’s home to investigate a disturbance. Williams interfered with the investigation by yelling and ignoring orders to remain seated. Although Williams was not suspected of being involved in the initial disturbance, after her husband was arrested, the officers became concerned when she attempted to go into the kitchen that she might retrieve a weapon, and they decided to place her in handcuffs while they continued their investigation. When Williams resisted their efforts to handcuff her, she was arrested for resisting law enforcement. After a bench trial, Williams was convicted. On appeal, Williams argues that there is insufficient evidence that the police were lawfully engaged in their duties when they handcuffed her. Because the sole case that she relies on is distinguishable, we conclude that Williams has not shown that her conviction must be overturned. Therefore, we affirm.In Jeremy L. Peters v. State of Indiana, a 17-page opinion, Judge May writes:
Jeremy Peters appeals his conviction of Class B felony unlawful possession of a firearm by a serious violent felon (“SVF”). * * *NFP civil opinions today (8):
The use of Peters’ post-arrest, pre-Miranda silence during the State’s case-in-chief was not fundamental error because the evidence of his guilt was strong, the references to his silence were brief, and the references came amidst the narrative explaining the events after the crime. Additionally, the State presented sufficient evidence Peters committed Class B felony unlawful possession of a firearm by a serious violent felon, and his sentence was not inappropriate. Accordingly, we affirm Peters’ convictions and sentences.
NFP criminal opinions today (16):
Posted by Marcia Oddi on December 30, 2011 11:09 AM
Posted to Ind. App.Ct. Decisions