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Monday, August 13, 2012

Ind. Decisions - Court of Appeals issues 6 today (and 10 NFP)

For publication opinions today (6):

In Michael Thalheimer v. Ramon and Stacey Halum , a 13-page opinion, Chief Judge Robb concludes:

Thalheimer waived the issue of the Halums’s spoliation of evidence by not presenting the issue to the trial court. The economic loss doctrine did not preclude the Halums’s negligence claim. The trial court did not abuse its discretion in determining the contract warranty did not bar the Halums’s breach of contract claim, or in finding that Thalheimer’s work was of poor quality. Therefore we affirm, but the Halums’s request for attorney fees is denied.
In E.J., a minor by his mother and father Victor and Lynell Jeffrey v. Paul Okolocha, M.D., Okolocha Medical Corp., and Okolocha Medical, Pain and Weight, a 14-page opinion, Jude Crone writes:
This case involves a very unfortunate set of circumstances. A New York couple adopted what they thought was a healthy baby boy from Indiana who, unbeknownst to them prior to the adoption, has profound neurological deficits which cause significant and permanent learning and physical abnormalities. A prenatal sonogram performed by the birth mother’s doctor revealed significant brain abnormalities in the unborn baby. Prior to finalizing the adoption, the adoptive parents sought the prenatal records of the birth mother from her doctor as well as postnatal records of the birth mother and the baby from the hospital. Although they received the postnatal records from the hospital, which revealed no problems, the adoptive parents did not receive any prenatal records, including the sonogram report, because the birth mother’s doctor did not send them those records. Nevertheless, the adoption was finalized. The adoptive parents subsequently learned of the baby’s neurological deficits and resulting learning and physical abnormalities.

The adoptive parents filed a complaint for negligence against the birth mother’s doctor alleging that the doctor was negligent in failing to provide them the prenatal records when they requested them. The doctor filed a motion for summary judgment contending that he had no legal duty to release the prenatal records to the adoptive parents because the medical records authorization submitted to him did not comply with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The adoptive parents responded with a motion for partial summary judgment contending, as a matter of law, that the doctor owed them a duty to provide them with the prenatal records at the time they requested them. The trial court agreed with the doctor and entered summary judgment in his favor. On appeal, the adoptive parents argue that the trial court erred in entering summary judgment in favor of the doctor on the issue of duty and in failing to enter partial summary judgment in their favor on the same issue. Concluding as a matter of law that the doctor owed no duty to the adoptive parents, we affirm the judgment of the trial court. * * *

We are mindful of the great emotional and monetary harm suffered by the Jeffreys in this case. However, it cannot be ignored that the Jeffreys and their attorneys were in the best position to avoid the harm suffered. The Jeffreys and their attorneys finalized the adoption of E.J. despite the fact that they had not received V.S.’s prenatal records from Dr. Okolocha. Unfortunately, there were tragic consequences to that gamble. Nevertheless, we cannot find a duty in negligence when none exists. Summary judgment in favor of Dr. Okolocha is appropriate. The judgment of the trial court is affirmed.

In In the Matter of the Term. of the Parent-Child Rel. of Ma.J. and My.J.; and K.B. v. Indiana Dept. of Child Services , an 18-age opinion, Judge Crone writes:
Mother has stopped taking prescription medications and has been in compliance with the drug court program. Mother will serve no additional time if she successfully completes the program. Mother has not been involved in any new incidents of domestic violence, and she has not been in a relationship since her release. Mother has an appropriate home, has been working, and has been visiting regularly with the girls.

However, the trial court terminated Mother's parental rights, finding that the conditions that resulted in the children's removal would not be remedied. In light of the undisputed evidence that Mother had eight months of solid progress in each area of concern, we conclude that DCS did not meet its burden of demonstrating that the conditions resulting in removal would not be remedied. Therefore, we reverse.

In CSL Community Association, Inc. v. Clarence Ray Meador, a 12-page, 2-1 opinion, Judge Bailey writes:
Country Squire Lakes Community Association, Inc., a homeowner’s association, (HOA), appeals the trial court’s grant of Clarence Ray Meador’s (Meador) motion for declaratory judgment, which abrogated Meador’s obligation to pay HOA dues and assessments. We reverse. * * *

Here, the trial court concluded that because the amenities in the Community had not been maintained, the changes in the Community were so radical that the original purpose of the Community and the deed restrictions were destroyed. The trial court therefore abrogated Meador’s obligation to pay dues and assessments. The HOA responds that the trial court’s decision “conflicts with long-established Indiana contract law.” * * *

We recognize that the HOA’s financial mismanagement and a change in the demographics of the Community have led to a revenue shortfall and an inability to maintain the Community’s amenities, and we appreciate the trial court’s attempt to provide relief following these untenable circumstances. However, the relief provided is not one afforded under Indiana law, and thus we cannot affirm the judgment. The abrogation of Meador’s obligation to pay dues and assessments is not a remedy for these problems, but there are potential alternatives that Meador and the HOA can investigate.3 * * *

Because the evidence does not support the trial court’s conclusion that the changes in the Community were so radical that the original purpose of the Community and the deed restrictions were destroyed, the trial court erred in abrogating Meador’s obligation to pay dues and assessments. Reversed.

RILEY, J., concurs.
CRONE, J., dissents with separate opinion. [that concludes] Real-estate speculators have turned what once was a well-appointed, well-financed, well-maintained, and well-patrolled retirement and recreational community into an economically and infrastructurally devastated eyesore. As such, I believe that the trial court did not err in abrogating Meador’s obligation to pay dues and assessments under the Covenants. That said, because a lot owner’s ability to vote is contingent upon his payment of assessments, I would reverse the trial court’s ruling that Meador may retain his voting rights.

Anastazia Schmid v. State of Indiana - "Anastazia Schmid appeals the denial of her petition for post-conviction relief. * * * As Schmid has not demonstrated counsels’ alleged errors were prejudicial, we affirm the denial of her petition for post-conviction relief."

In Dennis Feyka v. State of Indiana, an 11-page opinion, Judge May writes:

Dennis Feyka appeals his conviction of Class A felony child molesting.1 He argues the prosecutor’s comments during closing argument were fundamental error and the evidence was insufficient to convict him because the victim’s testimony was incredibly dubious. We affirm. * * *

Feyka argues the State did not present sufficient evidence to convict him of Class A felony child molesting because his conviction “was based solely on the uncorroborated and inherently dubious testimony of the child in question and was contradicted in material ways by others present in the house.” * * *

We acknowledge the conflicting testimony and some inconsistencies in T.B.’s own statements. However, we cannot find equivocal, coerced, or inherently contradictory T.B.’s statements establishing the elements of the crime and why she knew Feyka was the person who molested her. That T.B. did not immediately identify Feyka at trial is insignificant; she testified she had known Feyka for seven or eight years and he was a friend of her parents. As for T.B.’s pretrial statement she did not know whether the incident was a dream, the State notes the prosecutor questioned T.B. at length and T.B. testified she was positive it was real.

The jury, having heard T.B.’s testimony and having had the opportunity to determine the credibility of the witnesses, found Feyka guilty of molesting T.B. We must decline Feyka’s invitation to invade the province of the jury by reweighing the evidence and reassessing witness credibility. * * *

As alleged prosecutorial misconduct was not fundamental error and there was sufficient evidence to support Feyka’s conviction, we affirm.

NFP civil opinions today (6):

Elsa M. McLaughlin v. John C. Clark and Zore's, Inc. (NFP)

Gene Hildebrandt v. Pepsi America a/k/a Globe Transport (NFP)

Marshall Jackson v. Beckie Bennett (NFP)

Sherri Hilenburg and Dennis Hillenburg v. Paul D. Reeves and Norma J. Reeves Revocable Trust; Paul Reeves, Norma J. Reeves and John Reeves (NFP)

In the Matter of the Term. of the Parent-Child Rel. of D.Y.; M.Y. v. Indiana Dept. of Child Services (NFP)

Term. of Parent-Child Rel. of E.Y., Minor Child; A.Y., Mother v. Indiana Dept. of Child Services, and Child Advocates, Inc. (NFP)

NFP criminal opinions today (4):

Warren Parks v. State of Indiana (NFP)

Cleverly Lockhart v. State of Indiana (NFP)

Rachel Ann Ruch v. State of Indiana (NFP)

Jeffrey M. Steffen v. State of Indiana (NFP)

Posted by Marcia Oddi on August 13, 2012 01:30 PM
Posted to Ind. App.Ct. Decisions