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Tuesday, August 28, 2012

Ind. Decisions - Court of Appeals issues 8 today (and 12 NFP)

For publication opinions today (8):

In FLM, LLC, and Daimler Chrysler Corp., n/k/a Chrysler LLC v. The Cincinnati Insurance Company, a 21-page opinion, with a separate concurring opinion, Judge Kirsch writes:

This appeal concerns insurance coverage for claims arising from the abandonment of foundry sand from the Indianapolis foundry of Daimler Chrysler Corporation, n/k/a Chrysler LLC, (“Chrysler”) by lessee International Recycling Inc. (“IRI”) on lessor FLM, LLC’s (“FLM”) property and the migration of the sand onto adjacent property. FLM filed a complaint seeking a declaration that IRI has coverage under IRI’s insurance policies with The Cincinnati Insurance Company (“Cincinnati”) for the environmental liabilities asserted against FLM and for FLM’s own action against IRI. Cincinnati filed a counterclaim, seeking a declaration that there was no coverage under the policy for the claims, and a third-party complaint for declaratory judgment that brought Chrysler into the case. Chrysler subsequently filed a counterclaim against Cincinnati for declaratory relief. The trial court granted summary judgment in favor of Cincinnati relating to the claims of FLM and Chrysler. FLM and Chrysler appeal raising several issues, of which we find the following dispositive: whether IRI’s abandonment of sand constitutes a “wrongful entry” or “invasion of the right of private occupancy” covered by the “personal injury” provisions of the insurance policies. We reverse and remand with instructions. * * *

VAIDIK, J., concurs.
BRADFORD, J., concurs in result with separate opinion. [which begins, at p. 17 of 21] Although I agree with the majority that there is coverage here, I reach my conclusion by another route. In my view, while the “personal injury” provisions of the Policies do not provide for coverage, the “property damage” provisions do. Consequently, I concur in result.

In Ann Rachelle Johnson v. Dr. A., Dr. B., and Medical Provider, a 10-page opinion, Judge Bailey writes:
[H]ere a nonparty has been ordered by a trial court to execute a broad Release with significant and unexplored legal consequences for that nonparty, and that order comes dangerously close to the type of “‘fishing expedition’” our discovery rules are intended to foreclose. Crawford v. State, 948 N.E.2d 1165, 1168 (Ind. 2011) (quoting State v. Cline (in re WTHR-TV), 693 N.E.2d 1, 6 (Ind. 1998). In such circumstances—and especially where the nonparty is not otherwise subject to the jurisdiction of an Indiana court—we think that Appellate Rule 14(A)(2) permits an interlocutory appeal as of right.

We nevertheless conclude we cannot exercise jurisdiction in this matter because Johnson’s appeal was not properly perfected. * * *

In other words, absent a clear showing of prejudice in a failed attempt to obtain a protective order, or the entry of an order making it clear that some sanction will be imposed upon a party or the nonparty subject to the order, an appeal from an order compelling a nonparty’s execution of a document is not properly perfected. * * *

It thus seems that the appropriate route for the Defendants here is to pursue an order from the trial court compelling Delnor to produce documents and then to use the appropriate Illinois process to obtain that production. However inefficient it may have been to follow the discovery procedures set forth in our Trial Rules—and whatever common practice among litigants may be—it is not clear to us that the trial court could sanction Johnson for Dr. DeBartolo’s failure to comply with the Order without abusing its discretion.

Nevertheless, because Johnson does not yet face actual prejudice from the trial court’s order, we dismiss her appeal.

In James T. Mitchell v. 10th and the Bypass, LLC, and Elway, Inc., a 15-page opinion, Judge Najam writes:
James T. Mitchell appeals from the trial court’s order that vacated partial summary judgment for Mitchell and against 10th and The Bypass, LLC (“the LLC”). The LLC and Elway, Inc. (“Elway”) filed a joint motion to vacate the partial summary judgment and tendered new evidence against Mitchell, and the trial court granted the motion and reinstated Mitchell as a defendant. Mitchell contends that, because the LLC and Elway did not move to alter the thirty-day time limit for the designation of evidence under Trial Rule 56(C) and partial summary judgment was entered, it was too late for the LLC and Elway to designate additional evidence. We conclude that the partial summary judgment was interlocutory under Trial Rule 56(C) and subject to revision under Trial Rule 54(B). Thus, we hold that the trial court did not abuse its discretion when it vacated its previously entered partial summary judgment. * * *

In sum, in this case the trial court entered two correct judgments. When the court entered the January Order, the designated evidence did not demonstrate a genuine issue of material fact as to Mitchell’s liability, and the court properly granted partial summary judgment for him as a matter of law. But because the judgment was and remained interlocutory, after the LLC tendered new evidence that established a genuine issue of material fact on the question of Mitchell’s personal liability, the trial court properly exercised its discretion to vacate the January Order and reinstate Mitchell as a defendant. The Order to Vacate was neither against the logic and effect of the facts and circumstances before the court nor contrary to law. Thus, we hold that the court’s Order to Vacate was not reversible error.

In Gunther Kranz and Carol Kranz v. Meyers Subdivision Property Owners Association, Inc.,Christopher Bartoszek, and Indiana Dept. of Natural Resources, a 7-page opinion, Judge Crone writes:
Gunther and Carol Kranz petition for rehearing in the case of Kranz v. Meyers Subdivision Property Owners Association, 969 N.E.2d 1068 (Ind. Ct. App. 2012). We grant rehearing solely to clarify why we believe that our interpretation of a regulation promulgated by the Department of Natural Resources (“the DNR”) is consistent with that of the agency’s. Therefore, we reaffirm our original opinion in all respects.
In Jamar Washington v. State of Indiana, an 11-page opinion, the jury instruction was at issue. Judge Barnes concludes:
[W]e conclude that the substance of the instructions tendered by Washington was adequately covered by the instruction given by the trial court, meaning the trial court did not abuse its discretion in refusing to give those instructions. * * *

Although we affirm Washington’s convictions, the State concedes that the trial court made a clerical error on the abstract of judgment. It states that Washington was convicted of Class D felony resisting law enforcement. The actual judgment of conviction, however, states that Washington was convicted of Class A misdemeanor resisting law enforcement. We therefore remand for the trial court to enter a corrected abstract of judgment accurately reflecting that Washington was convicted of Class A misdemeanor resisting law enforcement.* * *

Although we affirm Washington’s convictions, the State concedes that the trial court made a clerical error on the abstract of judgment. It states that Washington was convicted of Class D felony resisting law enforcement. The actual judgment of conviction, however, states that Washington was convicted of Class A misdemeanor resisting law enforcement. We therefore remand for the trial court to enter a corrected abstract of judgment accurately reflecting that Washington was convicted of Class A misdemeanor resisting law enforcement.

In K.W. v. State of Indiana, a 7-page opinion, Judge Najam writes:
K.W. appeals his adjudication as a delinquent child for committing resisting law enforcement, as a Class D felony when committed by an adult. K.W. presents a single issue for our review, namely, whether the State presented sufficient evidence to support the true finding. We reverse. * * *

The only reasonable inference to be drawn from the evidence is that Officer Smith was acting in his capacity as the school’s liaison officer and only with the intent to further an educational purpose, namely, to control a potential disturbance in the school hallway. But for the crime of resisting law enforcement to have been committed, Indiana Code 35-44-3-3 requires that a law enforcement officer be engaged in his duties as a law enforcement officer at the time of the offender’s forcible resistance. A school liaison officer is not a law enforcement officer under the statute, and neither is there any evidence in the record that Officer Smith was acting in his capacity as a law enforcement officer when he handcuffed K.W. Thus, we hold that K.W.’s adjudication for resisting law enforcement cannot stand.

In Terrell Hawkins v. State of Indiana, a 6-page opinion involving a pro se plaintiff re denial of educational credit time, Sr. Judge Garrard writes:
In the past, the State of Indiana funded postsecondary education programs in correctional facilities. However, in 2011 the General Assembly amended the governing statute, Indiana Code section 21-12-3-13, to provide that such funding cannot be used to assist an inmate who has been convicted of a felony and is confined for that felony in a penal facility. 2011 Ind. Acts 3791. The statutory amendment caused Ivy Tech to end its postsecondary education program at the point when Hawkins had completed two semesters of his associate’s degree program and was halfway done. As a result, Hawkins was unable to complete the degree program. He filed a Verified Petition for Additional Credit Time. The trial court denied Hawkins’ petition, and this appeal followed. * * *

Hawkins contends that the statutory amendment to Indiana Code section 21-12-3-13, which caused Ivy Tech to end the program through which he was pursuing his degree, violates federal and state constitutional prohibitions against ex post facto laws. * * *

Here, the statutory amendment that resulted in the end of the educational program in which Hawkins was participating applied prospectively rather than retroactively. Furthermore, although Hawkins may have lost an opportunity to obtain educational credit time, the amendment did not increase his twenty-year sentence or alter the definition of his criminal conduct. Consequently, his federal and state ex post facto claims fail. [More constitutional issues follow] * * *

[Finally] the statute by its plain language provides that an inmate is entitled to credit time only for completing a postsecondary degree program. It does not authorize partial credit for partial completion, and it does not compel the DOC to provide funding for a postsecondary degree program. We find no error.

In Anthony Mark Sewell v. State of Indiana, a 12-page opinion, Judge Kirsch writes:
Anthony Mark Sewell (“Sewell”) appeals his conviction of committing a sex offender residency offense as a Class D felony, contending that the evidence was insufficient to support his conviction and that the conviction violated the prohibition against ex post facto provisions in both the federal and state constitutions. * * *

In the present case, Sewell did not reside or own property within 1,000 feet of the church when he was convicted of child molesting. Nor has he shown that he resided in property which only later fell within a protected zone due to the establishment of a school or youth program center. Here, the law punishes the decision by Sewell, an offender against children, to take up residence within 1,000 feet of an existing youth program center. We conclude that because Sewell’s residency decision occurred after the enactment of the statute, Sewell’s prosecution does not violate state or federal ex post facto provisions.

NFP civil opinions today (4):

Gregory C. Walbridge v. JP Morgan Chase Bank, N.A. (NFP)

In the Matter of the Adoption of C.E.H., minor; W.S. and E.H. v. J.T.C. and S.L.C. (NFP)

Term. of Parent-Child Rel.: T.V. (Minor child) and M.M. (Father) v. The Indiana Dept. of Child Services (NFP)

In the Matter of M.S. (Minor Child), Child in Need of Services; M.S. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (8):

Donald E. Wrobel v. State of Indiana (NFP)

Kenneth Johnson v. State of Indiana (NFP)

David D. West v. State of Indiana (NFP)

Bradley Berry v. State of Indiana (NFP)

Londale D. Madison v. State of Indiana (NFP)

William Bruce v. State of Indiana (NFP)

Steven Wayne Minor v. State of Indiana (NFP)

Gerald W. Town v. State of Indiana (NFP)

Posted by Marcia Oddi on August 28, 2012 01:39 PM
Posted to Ind. App.Ct. Decisions