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Wednesday, September 19, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 2 NFP)

For publication opinions today (5):

In Columbus Regional Hospital v. Clyde Amburgey, Individually and as Executor of the Estate of Moreen Amburgey, a 13-page opinion, Judge Brown writes:

Columbus Regional Hospital (the “Hospital”) appeals the trial court’s denial of its request for partial summary judgment. The Hospital raises one issue which we revise and restate as whether the court erred in failing to enter summary judgment in its favor on the basis that the expiration of the statute of limitations with respect to two physicians foreclosed the suit brought by Clyde Amburgey, in his individual capacity and as administrator of the estate of his wife Moreen (collectively, “Amburgey”), against the Hospital. We affirm. * * *

Initially, we review Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147-153 (Ind. 1999), in which the Indiana Supreme Court discussed apparent or ostensible agency. The Court held that where a plaintiff alleges negligence was not committed by a hospital, but instead by a physician working at the hospital, the plaintiff must present a theory by which a court can find the hospital vicariously liable for the actions of a physician who practices there. * * *

With this background in mind, we turn to the issue of whether the expiration of the statute of limitations regarding any claim against Dr. Xu or Dr. Harris forecloses Amburgey’s claim against the Hospital. * * *

While Indiana has not addressed this specific issue, we observe that some of our sister states have concluded that the running of a statute of limitations with respect to a physician does not preclude a complaint against a hospital on a theory of vicarious liability and apparent authority. * * *

In light of Sword and the foregoing authorities which we find persuasive, as well as our review of the designated evidence in this case, we conclude that the trial court did not err in denying Amburgey’s Motion for Partial Summary Judgment and in finding that genuine issues of material fact exist regarding the claim of apparent agency.

In L.H. Controls, Inc. v. Custom Conveyor, Inc., a 41-page opinion, Judges Barnes writes:
L.H. Controls, Inc., (“LH”) appeals the trial court’s entry of judgment in favor of Custom Conveyor, Inc., (“CCI”) in the amount of $1,467,587.61. We affirm in part, reverse in part, and remand.

The restated issues before this court are:
I. whether the trial court properly awarded CCI $1,149,470 in lost profit damages for LH’s breaches of its contract with CCI;
II. whether the trial court properly concluded LH was contractually required to indemnify CCI for attorney fees and costs CCI incurred in this litigation; and
III. whether the trial court properly calculated the amount of contractual chargebacks to which CCI was entitled against LH and properly awarded CCI a money judgment for those chargebacks. * * *

We reverse the trial court’s award of lost profit damages to CCI in the amount of $1,144,470.00. We also reverse the award of $133,328.53 in attorney fees to CCI and the award of damages of $82,184.10 for CCI’s chargebacks, as well as the $5,259.38 set-off for LH the trial court had allowed against the $82,184.10. We affirm the award of $7,077.00 and $928.86 in costs related to CCI’s removal of the mechanic’s lien against Honda’s property. Together with the damages LH does not challenge on appeal ($59,696.60, $39,375.00, and $5,787.00), this will result in a total award to CCI of $112,864.46. We remand for the trial court to make the necessary corrections to its judgment.

In Lavelle Malone v. Keith Butts and Bruce Lemmon, a 10-page opinion in a case involving apro se appellant, Judge Brown writes:
Lavelle Malone, pro se, appeals from the trial court’s order granting a motion to dismiss filed by Keith Butts, Superintendent of the Pendleton Correctional Facility and Bruce Lemmon, Commissioner of the Indiana Department of Correction (collectively, the “DOC”). Malone raises one issue which we revise and restate as whether the court erred in dismissing his Action for Mandate for failure to state a claim upon which relief can be granted. We affirm.
In Duane Turner v. State of Indiana, a 27-page opinion, Judge Riley writes:
Turner raises two issues on appeal, which we restate as the following:
(1) Whether the post-conviction court erred in determining that Turner’s life sentence without parole is constitutional; and
(2) Whether Turner received effective assistance of counsel. * * *

Based on the foregoing, we conclude that (1) the post-conviction court did not err in denying Turner’s motion for summary disposition and granting the State’s motion for summary judgment on the constitutionality of Turner’s life sentence without parole. Further, the post-conviction did not err in denying Turner’s petition for post-conviction relief based on ineffective assistance of trial counsel. With one exception, we find that the post-conviction court did not err in denying Turner’s petition for post-conviction relief based on ineffective assistance of appellate counsel for failure to raise issues during Turner’s direct appeal. However, we conclude that Turner has met his burden to prove by a preponderance of the evidence that his appellate counsel was ineffective by failing to challenge his conviction for Class A robbery resulting in serious bodily injury and we therefore remand with instructions to reduce the Class A felony robbery conviction to a class B felony robbery conviction.

In Michael Carpenter v. State of Indiana , an 11-page opinion, Judge Barnes writes:
Carpenter raises one issue, which we restate as whether the trial court properly admitted evidence found when officers attempted to serve an arrest warrant at the residence where he was living. * * *

We conclude that the officers did not violate Carpenter’s Fourth Amendment rights when they entered the house’s curtilage pursuant to an arrest warrant and looked into the bathroom window. * * *

The officers here had reason to believe that Howard lived at the residence and was present, and thus, the degree of suspicion was moderate. The degree of intrusion into Carpenter’s residence was minimal, and the extent of the law enforcement needs was moderate. We conclude that the officers’ entry into the curtilage and looking into the bathroom window did not violate Article 1, Section 11 of the Indiana Constitution.

NFP civil opinions today (0):

NFP criminal opinions today (2):

Kenneth Kelly v. State of Indiana (NFP)

Bruce Kevin Pond v. State of Indiana (NFP)

Posted by Marcia Oddi on September 19, 2012 12:19 PM
Posted to Ind. App.Ct. Decisions