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Tuesday, October 30, 2012

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In Boulder Acquisition Corp. (n/k/a Affiliated Computer Services, LLC), et al. v. Unemployment Insurance Appeals of the Indiana Dept. of Workforce Development , a 13-page opinion, Chief Judge Robb concludes:

BAC did not acquire the organization, trade, or business, or substantially all the assets of the Subsidiaries, nor did the Subsidiaries transfer all or a portion of their trade or business to BAC. Thus, BAC is not a successor employer to the Subsidiaries pursuant to either Indiana Code section 22-4-10-6(a) or Indiana Code section 22-4-11.5-7, and the Subsidiaries’ unemployment experience accounts should not have been combined with BAC’s account, nor should the contribution rates of BAC and the Subsidiaries have been recalculated, other than the recalculation of BAC’s rate due to its merger with ACS. We therefore reverse and remand to the Department to adjust their respective experience accounts accordingly, and to refund any over-payment by BAC and/or the Subsidiaries. Reversed and remanded.
In Indiana Gas Company, Inc. and Southern Indiana Gas and Electric Company, et al. v. Indiana Finance Authority (IF) and Indiana Gasification, LLC (IG), a 2-1, 42-page opinion, the panel reverses the Utility Regulatory Commissions' order approving a Substitute Natural Gas Purchase and Sale Agreement (Contract) between the IFA and IG. The opinion defines the issues as: (1) Whether the Commission erred in approving the Contract when the Contract defined “retail end use customer” in a manner contrary to the statutory definition of the same term. (2) Whether the Commission exceeded its jurisdiction when it approved the Contract. (3) Whether the Utilities and the Industrial Group have standing to appeal the Commission’s approval of the Contract. Judge Riley concludes:
Based on the foregoing, we conclude that (1) the Utilities and the Industrial Group’s claims are justiciable; (2) the Commission did not exceed its jurisdiction when it approved the Contract; and (3) the Contract’s definition of retail end use customer inappropriately included industrial transportation customers, even though the Legislature did not intend industrial transportation customers to be subject to the SNG Act as retail end use customers. We reverse the Commission’s order approving the Contract. Reversed.

DARDEN, S. J. concurs
ROBB, C. J. concurs in part and dissents in part with separate opinion: I concur in all but the final disposition of the well-considered opinion of the majority in this case. The majority reverses the Commission’s regulatory approval of the Contract because the definition of “retail end use customer” in the Contract deviates from the statutory definition. I do not believe reversal of the Commission’s approval of the Contract in its entirety is necessary. * * *

I would hold, with the exclusion of that part of the Contract definition of retail end use customers which applies to transportation customers, that the Contract was properly approved by the Commission.

In In the Matter of the Estate of Nathaniel Kappel v. William Kappel, Judith Kappel, and Mark Kappel, a 17-page opinion, Judge Bailey writes:
For more than forty years, brothers Nathaniel Kappel (“Nathaniel”) and William Kappel (“William”) were amicable partners in a farming operation, with each holding an insurance policy on the life of the other. Upon Nathaniel’s death in 2004, the attorney for the Estate of Nathaniel Kappel (“the Estate”) filed in the Hendricks Superior Court, probate division, a petition to marshal assets, seeking recovery of $750,000 insurance proceeds paid to William. William and his son, Mark Kappel (“Mark”), filed claims against the Estate, for $350,000 and $299,000, respectively, and William and his wife, Judith Kappel (“Judith”), filed a Complaint for Contribution as to a mortgage and taxes on the brothers’ farmland. The Estate counterclaimed, suing William and Judith for conversion. The Estate also sought a partnership accounting. The claims were consolidated and, at the conclusion of a bench trial, the probate court denied the Estate recovery of the insurance proceeds, directed William and Mark to withdraw their claims against the Estate, and denied the complaint for contribution. The Estate now appeals. We affirm. * * *

The probate court judgment denying the Estate recovery of insurance proceeds is not clearly erroneous. Nor is the refusal of the probate court to order the Estate to pay attorney’s fees erroneous. Affirmed.

In Mark Carter and John E. Carter, Co-Personal Rep. of the Estate of John O. Carter, M.D., Deceased v. Loretta Robinson, Individually and as Admin. of the Estate of John E. Robinson, Deceased , a 21-page opinion, Judge Riley writes:
Appellant-Defendants, Mark Carter and John E. Carter, co-personal representatives of the Estate of John O. Carter, M.D., deceased (Dr. Carter), appeal the verdict in the amount of $550,0000 in favor of Appellee-Plaintiff, Loretta Robinson, Individually and as Administratix of the Estate of John E. Robinson, Deceased (Robinson), following Robinson’s Complaint for medical malpractice. We affirm. * * *

Based on the foregoing, we hold that (1) the trial court did not abuse its discretion when it allowed Robinson’s pathologist to testify as an expert witness pursuant to Indiana Evidence Rule 702; (2) the trial court appropriately excluded the testimony of Dr. Carter’s expert witness because he was not timely disclosed to Robinson; and (3) the trial court properly instructed the jury ["hindsight" issue]. With respect to Robinson’s cross-appeal, we deny his request for appellate attorney fees pursuant to Indiana Appellate Rule 66(E).

NFP civil opinions today (1):

In the Matter of the Revocable Trust of Mary Ruth Moeder (NFP)

NFP criminal opinions today (4):

State of Indiana v. Christopher Holloway (NFP)

Kevin Reaves v. State of Indiana (NFP)

Thomas R. Clements v. State of Indiana (NFP)

Demetriese Gunn v. State of Indiana (NFP)

Posted by Marcia Oddi on October 30, 2012 11:28 AM
Posted to Ind. App.Ct. Decisions