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Wednesday, November 14, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 0 NFP)

For publication opinions today (2):

In John Fox v. Nichter Construction Co., Inc., a 20-page, 2-1 opinion, in a case involving the Wage Payment Statute and the Wage Claims Statute, Judge Kirsch writes:

John Fox (“Fox”), the employee-claimant, appeals from the trial court’s denial of his motion to correct error from an order of dismissal with prejudice, contending that the trial court erred in dismissing his wage claim for lack of subject matter jurisdiction. * * *

The trial court erred by dismissing Fox’s claim with prejudice for lack of subject matter jurisdiction. We reverse the trial court’s order and remand this matter to the trial court with instructions to enter an order that Fox’s claim is dismissed without prejudice under Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted, including the failure to name the real party in interest. Thus, Fox may proceed to refile his claim setting forth the reassignment by the DOL. “A dismissal without prejudice is not a determination of the merits of a complaint and does not bar a later trial of the issues.” Wood v. Zeigler Bldg. Materials, Inc., 436 N.E.2d 1168, 1170 (Ind. Ct. App. 1982).

Affirmed in part, reversed in part, and remanded.

NAJAM, J., concurs.
MAY, J., dissents with separate opinion. [which begins, at p. 19] I believe dismissal of Fox’s wage claim action was correct, and I therefore respectfully dissent. Fox’s case is not factually or legally distinguishable from Quimby v. Becovic Mgmt Group, Inc., 946 N.E.2d 30, 33-34 (Ind. Ct. App. 2011), reh’g denied, trans. denied, and thus Quimby controls. * * *

The amici’s explanation of the DOL’s intent is informative, and its recent changes are a helpful step toward clarifying the procedures by which a voluntarily-separated employee may pursue wage claims. But I do not think Quimby may be distinguished on those grounds.

In Clinton Couch v. State of Indiana, a 10-page opinion, Judge Bradford writes:

Couch ultimately pled guilty to five counts of Class A felony child molesting, Class C felony child exploitation, and Class D felony possession of child pornography, and the trial court sentenced him to an aggregate sentence of ninety-one years of incarceration. Couch contends that his sentence is inappropriately harsh and that the trial court abused its discretion in admitting, at sentencing, the testimony of two other alleged victims. We affirm.
NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on November 14, 2012 10:42 AM
Posted to Ind. Sup.Ct. Decisions