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Thursday, March 15, 2012

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Ayanna Wright and American Federation of State, County, and Municipal Employees, Council 62, Local 4009, AFL-CIO v. City of Gary, Indiana, a 28-page, 2-1 opinion, Sr. Judge Barteau writes:

Following an arbitration award in favor of Appellants Ayanna Wright and the American Federation of State, County, and Municipal Employees, Council 62, Local 4009, AFL-CIO (“AFSCME Local 4009” or, collectively with Wright, “the Union”), Appellee City of Gary, Indiana (“the City”), petitioned the trial court to vacate the award. The Union counterclaimed for enforcement of the award. Both parties moved for summary judgment. After a hearing, the trial court granted the City’s motion for summary judgment and denied the Union’s motion for summary judgment, vacating the arbitrator’s award. Concluding that the arbitrator did not exceed his powers by issuing the award to the Union, we reverse and remand. * * *

BAILEY, J., concurs.
BRADFORD, J., dissents with separate opinion. [that begins, at p. 25 of 28] I conclude that I cannot concur with the approach taken by the majority. I cannot agree with either the conclusion that we may not reach the legality of the CBA or the conclusion that the CBA’s conflict with Gary Ordinance 5882 should be resolved in favor of enforcing the CBA. Consequently, I respectfully dissent.

In Irmina Gradus-Pizlo, M.D., and Select Specialty Hospital Indianapolis, Inc. v. Donald Acton, an 11-page opinion, the issue is "Whether the trial court erred in its conclusion that genuine issues of material fact remain whether Acton properly filed his Proposed Complaint in accordance with the applicable statute of limitations under the Medical Malpractice Act." Judge Riley writes:
[W]ith an alleged act of malpractice occurring on March 12, 2006, the occurrence-based statute of limitations would have expired on Wednesday, March 12, 2008. With Acton’s discovery or trigger date placed on March 29, 2006, Acton had sufficient information that would have led a reasonably diligent person to the discovery
of malpractice during the remaining 1 year, 11 months, and 2 weeks of the two-year statute of limitations period. By filing his Proposed Complaint on April 1, 2008, we conclude that Acton’s cause is barred by the statute of limitations. * * *

[T]he continuing wrong ceased to exist on March 29, 2006 and the statute of limitations commenced to run. By filing his cause of action on April 1, 2008, Acton’s cause was time-barred by the statute of limitations. Therefore, we reverse the trial court’s denial of summary judgment and grant summary judgment to Dr. Gradus-Pizlo. * * *

Based on the foregoing, we that find that the trial court improperly denied summary judgment to Dr. Gradus-Pizlo and Selection Specialty Hospitals. We reverse the trial court’s denial and grant summary judgment to Dr. Gradus-Pizlo and Select Specialty Hospitals.

In Brad A. Altevogt, et al. v. Dennis L. Brand, et al., a 15-page opinion, Judge Mathias concludes:
The trial court did not err in rejecting the Plaintiffs’ claim of title of the disputed land by public dedication because the Plat did not dedicate the Indian Trail to the public, but instead indicated that the Indian Trail was for the use of the lot owners and their guests. The trial court also properly concluded that the Plaintiffs had not established all of the elements of adverse possession. Lastly, we do not read the trial court’s order as concluding that all lot owners were co-tenants of the Indian Trail. Therefore, the trial court properly granted summary judgment in favor of the Defendant back-lot owners.Affirmed.
Canon Harper v. State of Indiana - "The trial court did not abuse its discretion in admitting evidence from the purse or motel room, the evidence is sufficient to support Harper's convictions, and Final Instruction 7 does not constitute fundamental error. We therefore affirm Harper's convictions."

NFP civil opinions today (2):

T.H. b/n/f Sonja Lynetter (Walls) Fitzgerald v. Troy Hutchison (NFP)

KSM, LLC v. Lighthouse Storage, LLC, Lawyers Title Ins. Corp., Inc., and Kevin and Stephen Corp. (NFP)

NFP criminal opinions today (5):

Susan R. May v. State of Indiana (NFP)

Charles R. Smith v. State of Indiana (NFP)

Ernest Wireman v. State of Indiana (NFP)

Odonis D. Parker v. State of Indiana (NFP)

Shawn McDonald v. State of Indiana (NFP)

John Mitchem v. State of Indiana (NFP)

Tyson Keplinger v. State of Indiana (NFP)

Posted by Marcia Oddi on March 15, 2012 12:25 PM
Posted to Ind. App.Ct. Decisions