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Wednesday, April 18, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 14 NFP)

For publication opinions today (2):

In Todd Walters and Matenia Walters v. Aaron Austin and Herman & Goetz, Inc., a 6-page, 2-1 opinion, Judge Najam writes:

Todd and Matenia Walters (collectively “the Walterses”) appeal the trial court’s judgment on a jury verdict in favor of Aaron Austin and his employer, Herman & Goetz, Inc., (collectively “Defendants”) on the Walterses’ complaint for damages arising from a multi-vehicle accident. The Walterses present several issues for review. However, because we determine that we do not have jurisdiction, we do not reach the merits of this appeal. We dismiss. * * *

The Defendants contend that the appeal should be dismissed because the notice of appeal was filed thirty-one days after the trial court denied the first motion to correct error. The Walterses maintain that the relevant date for determining the timeliness of the notice of appeal is May 24, 2011, the date the trial court denied the amended motion to correct error. In support, they assert that the amended motion to correct error was “not filed in an effort to extend the filing deadline [for the notice of appeal] nor was it an attempt to ask the Trial Court to reconsider the motion as the Amended Motion to Correct Errors was filed before counsel for plaintiff[s] was notified that the original Motion to Correct Errors had been denied.” Response to Motion to Dismiss at *2. Therefore, the Walterses believe that they timely filed their notice of appeal. We cannot agree.

Indiana Trial Rule 53.4 provides in relevant part that repetitive motions “shall not delay the trial or any proceedings in the case, or extend the time for any further required or permitted action, motion, or proceedings under these rules.” We find that rule applicable here. The Walterses’ amended motion to correct error was nearly identical to the original motion to correct error, amending only non-substantive, typographical and grammatical errors in the original motion. Further, the amended motion was to “relate back” to the original motion. In effect, the amended motion was merged with the original motion, and the denial date of the original motion was May 23. We conclude that the amended motion to correct error was a repetitive motion and, therefore, the filing of the amended motion did not change the date for filing the notice of appeal. * * *

Dismissed.
RILEY, J., concurs.
DARDEN, J., dissents with separate opinion. [that concludes] The Walterses filed both of their motions to correct error well within the time period to do so; filed the amended motion to correct error only three days after filing the original motion; and filed the May 23 motion prior to receiving notice that the trial court had denied the May 20 motion. The Walterses clearly did not file the May 23 motion in an effort to extend the time for filing their notice of appeal. Accordingly, I do not believe that the interest of justice is served by treating the May 23 motion as a repetitive motion. I therefore would review this case on the merits.

In Alebro, LLC v. Review Board of the Indiana Department of Workforce Development and Jason Scheidell , a 13-page opinion, Judge Vaidik writes:
Alebro, LLC, appeals the decision of the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“Review Board”) granting its terminated employee, Jason Scheidell, unemployment benefits. Alebro argues that the Review Board erred in failing to admit documents as evidence at the hearing, used the wrong burden of proof, and erred in allowing Scheidell to rebut Alebro’s prima facie case of just cause for termination by arguing instead that he had committed a different terminable offense. We hold that if an employee’s explanation for the behavior that led to his termination is another terminable offense, that provides just cause for termination. We therefore reverse. * * *

BRAFORD, J., concurs.
CRONE, J., concurs with separate opinion. [which begins, at p. 10 of 13] I fully concur in the majority’s reasoning and result, but I write separately to express my disagreement with its disclosure of the full names of both the unemployment claimant and the employer in what I believe to be a contravention of Indiana law. * * *

Until the relevant provisions of Administrative Rule 9(G) are amended by our supreme court, I intend to continue to use initials in unemployment cases that I write.[1]
_________
[1] In the even more recent case of Chrysler Group, LLC v. Review Board of Indiana Department of Workforce Development, 960 N.E.2d 118 (Ind. 2012), our supreme court elected to identify the individual claimant by initials but identified the employer by name because it saw “little merit in attempting to conceal the identity of a global automotive manufacturer that faced a massive economic collapse in 2008 and whose initials are ‘C.G.’” No such considerations are at play here.

NFP civil opinions today (4):

In Re the Adoption of K.B.M. and L.B.M.; T.M. v. R.P.F. (NFP)

In Re the Paternity of K.S.; J.S. v. M.M. (NFP)

Margaret M. Hammond v. Review Board of the Indiana Dept. of Workforce Development and Porter County Commissioners (NFP)

Huntington Copper, LLC v. Conner Sawmill, Inc. (NFP)

NFP criminal opinions today (10):

Chad Jeremy Orme v. State of Indiana (NFP)

Justin A. Staples v. State of Indiana (NFP)

Dennis Mikel v. State of Indiana (NFP)

Ramon Crawford v. State of Indiana (NFP)

Jason Myers v. State of Indiana (NFP)

Derrick Mays v. State of Indiana (NFP)

Ronald Edward Madison, Jr. v. State of Indiana (NFP)

Brandon Ray Carter v. State of Indiana (NFP)

Jason A. Reber v. State of Indiana (NFP)

Michael Jackson v. State of Indiana (NFP)

Posted by Marcia Oddi on April 18, 2012 12:48 PM
Posted to Ind. App.Ct. Decisions