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Friday, August 31, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 5 NFP)

For publication opinions today (5):

In Seabrook, Dieckmann & Naville, Inc. v. Review Board of the Indiana Dept. of Workforce Development and Monica Hilbert, a 10-page opinion, Judge Brown writes:

Seabrook Dieckmann & Naville, Inc. appeals a decision by the Review Board of the Indiana Department of Workforce Development in favor of Monica Hilbert with respect to Employee’s claim for unemployment benefits. Employer raises several issues which we restate as whether the Board erred in concluding that Employee’s employment was not terminated for just cause. We reverse and remand. * * *

Based upon the evidence and testimony above and in the record before the ALJ and Board, we conclude that Employer showed that Employee breached a duty in connection with work which was reasonably owed Employer and that Employee’s conduct was of such a nature that a reasonable employee of Employer would understand that the conduct was a violation of a duty owed Employer. Accordingly, Employee was discharged for just cause.

In Patricia J. Barrow and Charlie Hanka v. City of Jeffersonville, Jeffersonville Planning and Zoning Dept., Jeffersonville Board of Zoning Appeal, Jeffersonville Building Comm., et al. , a 13-page opinion, Judge Kirsch writes:
The Plaintiffs raise several issues on appeal, which we consolidate and restate as:
I. Whether the statute of limitations established in Indiana Code section 34-11-2-6 is applicable to this case, specifically whether the Director of the City’s Planning and Zoning Department and the City’s Building Commissioner are public officers; and
II. Whether the Plaintiffs’ cause of action is barred by the statute of limitations.
We affirm in part, reverse in part, and remand.

The Plaintiffs argue that the trial court erred when it found Hicks and Segraves were public officers protected by the statute of limitations contained in Indiana Code section 34-11-2-6. They contend that Hicks and Segraves were not public officers because they did not meet the necessary criteria to be considered a public officer in Indiana. The Plaintiffs assert that the individual must serve in a position that is either elected or appointed, that such position must have sovereign power prescribed by law not contract, and that the individual must have taken an oath of office within thirty days of taking office. Because Hicks and Segraves did not meet any of these criteria, the Plaintiffs claim that the statute of limitations in Indiana Code section 34-11-2-6 does not apply to the facts of this case.

This case presents an issue of first impression in Indiana as we have found no Indiana authority defining public officer as it applies to Indiana Code section 34-11-2-6. Although both sides cite to Indiana cases and statutes defining public officer, the cited authorities do not specifically define the term public officer as it is used in Indiana Code section 34-11-2-6. * * *

Taking all of these authorities into consideration, we believe that in order for an individual to be a public officer under Indiana Code section 34-11-2-6, it must be determined that the individual holds a position for which duties are prescribed by law to serve a public purpose. We further conclude that the taking of an oath is not required to be a public officer, but the fact that one has been taken is a strong indicator of the position being one of a public officer. Having established a definition of public officer to be used when applying Indiana Code section 34-11-2-6, we now proceed to apply the definition to the present case. * * *

The trial court did not err when it determined that Hicks and Segraves were public officers and that the statute of limitations in Indiana Code section 34-11-2-6 was applicable to this case. * * *

Under Indiana Code section 34-11-2-6, an action against a public officer growing out of liability incurred by doing an act in the public officer’s capacity must be commenced within five years after the cause of action accrues. * * *

We conclude that the earliest date on which the Plaintiffs could have known of the injury on which they based their complaint was November 30, 2005, which is the date upon which their cause of action accrued. The statute of limitations began running on that date, and under Indiana Code section 34-11-2-6, their action was required to be commenced within five years of that date. The Plaintiffs filed their complaint on August 16, 2010, which was within five years of the date on which the cause of action accrued. Therefore, the Plaintiffs’ complaint was timely filed within the statute of limitations, and the trial court erred in granting summary judgment in favor of the Defendants.

In Wabash County Young Men's Christian Association, Inc. f/k/a Wabash Community Service v. Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson, a 10-page opinion, Judge Brown concludes:
Sliding into second base, notwithstanding its rigidity, is an activity inherent in the nature of playing baseball or softball and we conclude that Taylor’s injury was derived from a risk inherent in the nature of the activity. See id. at 584-585 (observing that the plaintiff was injured when attempting to mount her horse and concluding that the plaintiff’s damages were inherent in the nature of the activity of horse riding and that the trial court did not err by granting summary judgment to the defendants). The release attached to the YMCA’s motion to dismiss indicated that the owner of the field would not be responsible for any injury or medical expenses “incurred while participating in practice or playing in a game.” Appellant’s Appendix at 12. Based upon the language in the release, we conclude that the YMCA met its burden of making a prima facie showing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law and that the burden then shifted to Taylor who did not designate any evidence to show that an issue of material fact existed. Accordingly, we conclude that the trial court erred by denying the YMCA’s motion for summary judgment.
In Term. of the Parent-Child Rel. of: B.F. (Minor Child), and M.G. & S.F. (Father & Mother) v. The Indiana Dept. of Child Services, a 5-page opinion, Judge Riley writes:
[W]e find the dispositive issue to be: Whether the trial court committed fundamental error in terminating the Parents’ parental rights when the child was removed under a dispositional decree for less than six months. * * *

Here the petition only alleged that “[B.F.] has been removed from the Parents for at least six month under a dispositional decree on March 30, 2010.” (DCS Ex. No. 2). However, it is undisputed that the trial court entered the dispositional decree on May 25, 2010 whereas the termination petition was filed on October 10, 2010, less than four months after entry of the dispositional decree and less than nine months following B.F.’s removal from Mother’s home. Further, there is no evidence that the trial court ever entered a finding under I.C. § 31-34-21-5.6. Therefore, the only requirement alleged under I.C. § 31-35-2-4(b)(2)(A) was not true. Consequently, DCS failed to comply with the termination of parental rights statute and the trial court committed reversible error in granting the involuntary termination petition. See In re K.E., 963 N.E.2d at 602.

CONCLUSION. Based on the foregoing, we conclude that the trial court committed fundamental error in terminating the Parents’ parental rights to B.F. and reverse and remand for further proceedings consistent with this opinion. Reversed and remanded.

In Alice Lee v. State of Indiana , a 7-page opinion, Judge Kirsch writes:
Alice Lee (“Lee”) appeals her conviction for attendance at an animal fighting contest1 as a Class A misdemeanor. On appeal, Lee raises the following restated issue: whether Indiana Code section 35-46-3-10, which defines the offense, is unconstitutionally vague. * * *

Lee contends that Indiana Code section 35-46-3-10 is unconstitutionally vague because its language fails “to inform an ordinary person of what conduct is prohibited.” * * *

As applied to this offense, Lee’s vagueness argument amounts to claiming that the statute’s failure to further define “attend” authorizes the prosecution of anyone who is in the vicinity of an animal fighting contest without regard to their intent. * * *

Lee has failed to carry her “heavy burden” of proving that Indiana Code section 35-46-3-10 is unconstitutionally vague. The evidence supports the trial court’s judgment of guilt. Affirmed.

NFP civil opinions today (2):

Carroll S. Channel, Trustee of the Revocable Living Trust of Carroll S. Channel dated August 21, 2000, et al. v. Tim Maffatt and Bill Moffatt (NFP)

Term. of the Parent-Child Rel. of S.S., minor child, and D.S., mother, and W.S., father; D.S. and W.S. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (3):

Roderick Vandrell Lewis v. State of Indiana (NFP)

Jeremy Lamar Lloyd v. State of Indiana (NFP)

B.C. v. State of Indiana (NFP)

Posted by Marcia Oddi on August 31, 2012 02:04 PM
Posted to Ind. App.Ct. Decisions