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Friday, December 14, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 10 NFP)

For publication opinions today (5):

In Brenda Alexander v. Donald Alexander, a 10-page, 2-1 opinion, Judge Bailey writes:

Brenda Alexander (“Wife”) appeals the denial of her motion to correct error, which challenged the omission of an award of incapacity maintenance in the decree dissolving her marriage to Donald Alexander (“Husband”). She presents the sole issue of whether she is entitled to an award of incapacity maintenance. We affirm. * * *

Although there was evidence that Wife had physical limitations and received disability payments, there was also evidence that she was college-educated, that she had recently provided child care for pay, and that her limitations would not entirely preclude sedentary work. We will not reverse a judgment merely because we might have, on the same evidence, reached a different conclusion. Wilder-Newland, 967 N.E.2d at 560. The denial of Wife’s request for incapacity maintenance is not clearly erroneous. Affirmed.

CRONE, J., concurs.
RILEY, J., dissents with separate opinion. [that begins at p. 7, and concludes] In light of these special findings and without a determination of the effect of such disability payments on Brenda’s ability to support herself, I cannot conclude that the trial court properly exercised its discretion to deny Brenda an award of incapacity maintenance when its special findings would otherwise authorize an award. See Cannon, 758 N.E.2d at 527. Thus, the trial court’s denial of incapacity maintenance under these circumstances was contrary to law and an abuse of discretion. I would therefore remand to the trial court with instructions to determine the propriety of Brenda’s request for incapacity maintenance.

In Christine Banks v. Timothy R. Banks, a 10-page opinion, Judge Barnes writes:
Christine Banks appeals the trial court’s reduction of the amount of spousal maintenance she receives from her ex-husband, Timothy Banks. We affirm.

The dispositive issue we address is whether there is sufficient evidence to support the trial court’s modification of spousal maintenance. * * *

The trial court was permitted to modify and reduce Timothy’s spousal maintenance obligation to Christine solely upon the basis of evidence related to the parties’ respective finances and Timothy’s health, and that evidence justifies the reduction of Timothy’s obligation from $500 per month to $40 per week. We affirm.

In A Plus Home Health Care Incorporated v. Kathleen Miecznikowski, a 9-page opinion, Judge Najam writes:
A Plus Home Health Care, Inc. appeals the decision of the Indiana Worker’s Compensation Board in favor of Kathleen Miecznikowski on her claim for worker’s compensation. A Plus raises a single issue for our review, namely, whether Kathy’s claim arose out of her employment. We affirm. * * *

On August 27, 2011, Kathy worked for A Plus as a home health care registered nurse. While visiting a patient at the patient’s home, Kathy realized that she had left some medical equipment in her car, and she returned to her car to retrieve the equipment. On her way back inside the patient’s house, Kathy lost her footing and fell on a concrete sidewalk, injuring her left arm and hand. * * *

Kathy’s evidence submitted to the SHM and credited by both the SHM and the Board demonstrated that her injuries both did not arise from a personal risk and did arise from a neutral risk. Because the injuries arose from a neutral risk, they were incidental to Kathy’s employment and, therefore, compensable. Accordingly, we affirm the Board’s decision in favor of Kathy.

In Granite State Insurance Company v. Robert Lodholtz and Pulliam Enterprises, Inc., an 11-page, 2-1 opinion, Judge Bradford writes:
Robert Lodholtz was seriously injured while working in a facility operated by Pulliam Enterprises, whose commercial general liability carrier was Granite State Insurance Company. On June 24, 2011, Lodholtz sued Pulliam, who contacted York Rick Services, Granite State’s claims administrator, ten days later. York requested and received an extension of time to respond to Lodholtz’s claim, but did not. As a result, default judgment on the question of liability was entered in favor of Lodholtz on August 23, 2011, and the issue of damages was set for trial. On August 24, York sent a letter to Pulliam’s private counsel urging Pulliam to “take immediate action to vacate the default judgment and defend itself in the matter.”

Taking matters into its own hands as York had suggested, Pulliam decided to settle with Lodholtz instead of moving to vacate the default judgment. Among other things, Lodholtz agreed that he would not proceed against Pulliam to collect his damages but would instead seek to collect from Granite State and York. About a week after the settlement, Granite State offered to represent Pulliam while reserving the right to deny coverage, an offer Pulliam refused. About two weeks after that, Granite State moved to intervene. The trial court denied Granite State leave to intervene and awarded Lodholtz approximately $3.9 million in damages. In a case that brings to mind the admonition, “Be careful what you wish for, you may receive it[,]”1 we conclude that the trial court did not abuse its discretion in denying Granite State leave to intervene. * * *

ROBB, C.J., concurs.
BAKER, J., dissents with opinion. [that begins on p. 9] I respectfully dissent from the majority’s decision to affirm the trial court’s denial of Granite State’s motion to intervene. In my view, Granite State has demonstrated that its interest in the tort suit is sufficient to support intervention, that its interest is in danger barring intervention, and that its interest is not currently being protected, thus satisfying the requirements of Indiana Trial Rule 24(A)(2). * * *

I part ways with the majority’s view that Granite State sought to intervene simply “because it did not like the results” when Pulliam and Lodholtz settled. Slip op. at 7, n.3. In short, I believe that the trial court erred in denying Granite State’s motion for leave to intervene.

In Melissa Patterson v. State of Indiana , a 9-page, 2-1 opinion, Judge Friedlander writes:
Melissa Patterson was charged with two counts of aiding, inducing, or causing invasion of privacy as a class A misdemeanor, an offense set out in Ind. Code Ann. § 35-46-1-15.1(5) (West, Westlaw current through 2012 2nd Reg. Sess.). Upon interlocutory appeal, Patterson appeals from an order denying her motion to dismiss those charges, presenting the following restated issue for review: Can a protected person who is the subject of a no-contact order be criminally liable for aiding, inducing, or causing another person to violate that order? We reverse and remand. * * *

In summary, our General Assembly has determined that where a protected person invites the subject of a protective order to violate the terms of the order, such is irrelevant to the subject’s guilt. As the Ohio court aptly noted, “Protection orders are about the behavior of the respondent and nothing else. How or why a respondent finds himself at the petitioner’s doorstep is irrelevant. To find appellant guilty of complicity would be to criminalize an irrelevancy.” Id. at 648. We agree and conclude that the General Assembly did not intend that the prohibitions in I.C. § 35-46-1-15.1 should be applied to a protected person under a no-contact order. The statute’s prohibitions are explicitly addressed only to the actions of the restrained party. Therefore, Patterson cannot be convicted of aiding, inducing, or causing an invasion of privacy as alleged in CM-936 and CM-1026 and the trial court erred in denying her motion to dismiss those charges. We remand with instructions to do so.

BROWN, J., concurs.
PYLE, J., dissents with separate opinion. [that reads in full] The majority holds that a protected person under a no-contact order issued pursuant to Indiana Code § 35-46-1-15.1 cannot be convicted of aiding, inducing, or causing another to violate that order. The opinion ably outlines the policy supporting this view. However, I believe that the plain language of the statutory regime used by our General Assembly permits the prosecution of a protected person who deliberately seeks to aid another to disobey a court order for protection. While the majority’s policy position may, in fact, be consonant with the General Assembly’s intent, I believe it should be left for the legislative branch to explicitly exclude the prosecution of protected persons. As a result, I would affirm the trial court’s judgment.

NFP civil opinions today (2):

In the Matter of the Term. of the Parent-Child Rel. of: MS. and M.T.; and A.H. and T.S. v. The Indiana Dept. of Child Services (NFP)

Henry Coyne Woodward v. Kimberlee Ann Norton (NFP)

NFP criminal opinions today (8):

Bert S. Watkins, II v. State of Indiana (NFP)

Nicholas Corbin v. State of Indiana (NFP)

Brian Taskey v. State of Indiana (NFP)

William C. Davis v. State of Indiana (NFP)

Benito D. Lesiak v. State of Indiana (NFP)

Dewayne Walker v. State of Indiana (NFP)

Kenneth Meer v. State of Indiana (NFP)

Miles A. Parker v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 14, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Support for gay-marriage ban wavering: Powerful Indiana Republican Kenley changes his stance"

So reports Maureen Hayden of CNHI Statehouse Bureau this morning in the Anderson Herald Bulletin. Some quotes:

INDIANAPOLIS — The last time the Indiana General Assembly took up the issue of putting a same-sex marriage ban into the state Constitution, state Sen. Luke Kenley voted for it.

But he’s not going to make that choice again.

Noting what he called the “rapidly evolving” shift in public opinion reflected in a poll released Thursday, the influential, conservative Republican said he’ll oppose such a measure if, as expected, it comes up for debate in the 2013 session.

“I don’t think putting it in the Constitution is a good idea,” said Kenley, the powerful Senate appropriations committee chairman who describes himself as a supporter of traditional marriage.

“I really value the institution of heterosexual marriage,” Kenley said. “But I do not think that putting a statement in the (state) Constitution which runs down or is bigoted toward people who have a different kind of loving relationship, that I may not understand, is going to be productive.”

Kenley weighed in on the issue Thursday during a break in a legislative preview conference in Indianapolis. Earlier in the day, conference attendees heard the results of a new poll that shows most Hoosiers hold views like Kenley: While most aren’t ready to legalize same-sex marriage, they also don’t want to amend Indiana’s Constitution to ban it. * * *

Kenley is in no way ready to legalize same-sex marriage, which is banned by law in Indiana. But he is ready to put a stop to a process that started in 2011. That’s when the Legislature voted overwhelming for a proposed constitutional amendment that bans both same-sex marriage and prohibits civil unions.

That vote was just the first step: To amend the Constitution, the Legislature must vote to approve the identical language again in the 2013 or 2014 legislative sessions, then send the issue to voters in the 2014 general election.

Only one Republican in the GOP-controlled General Assembly voted no on the measure during that 2011 vote: state Rep. Ed Clere of New Albany.

Clere, who continues to oppose the measure for a long list of reasons, said he won’t be the only Republican to vote against it the next time. “Clearly, a shift has occurred,” he said.

Clere said he’s been approached by state lawmakers who voted for the constitutional ban in 2011 but are now wavering in their support.

Some want to wait on the U.S. Supreme Court, which recently announced it will take up the issue, looking at both the constitutionality of a federal law that bans gay marriage and California’s decision to put a ban on same-sex marriage in that state’s Constitution.

But also prompting their concern is how the issue may conflict with the Republicans’ promise to focus this next session on boosting Indiana’s economy. Several prominent Indiana-based companies — including pharmaceutical giant Eli Lilly and engines-maker Cummins Inc — oppose the measure. They say it hurts the ability of Indiana businesses to recruit top talent and sends a message that the state is an intolerant place to work and live.

“We’re still recovering from a prolonged economic recession,” Clere said. “To the extent that action on the marriage amendment could have a negative impact on economic development and job creation activities, it’s the wrong time to bring it up.”

[MORE] "Poll shows same-sex marriage support; most Hoosiers say no to constitutional ban" is the headline to this long story today by Mary Beth Schneider in the Indianapolis Star. Some quotes:
Putting the ban into Indiana’s constitution has seemed like a virtual certainty. Indiana’s House and Senate overwhelmingly voted for the proposed amendment in 2011. To get it before Indiana voters for a referendum in the 2014 election, lawmakers need only to approve it a second time in either the 2013 or 2014 sessions.

But that timetable is now looking a little less certain.

The U.S. Supreme Court has said it will take up the issue on two fronts: by looking at the constitutionality of a federal law that denies same-sex couples the federal benefits available to heterosexual married couples and by examining the legality of California’s state constitutional ban on gay marriage.

Coupled with changing attitudes, as shown in this new poll and others, some observers are saying that Indiana’s lawmakers should wait, at least until the Supreme Court acts, before rushing to get this issue on the 2014 ballot.

“It would be ridiculous to spend state dollars, time and resources on something” that the Supreme Court could find unconstitutional, said Aaron Schaler, president of Indiana Stonewall Democrats, an organization of gay, lesbian and transgendered Democrats.

Ryan England, a 31-year-old Indianapolis man who wants to marry his partner, 29-year-old Ben Snyder, said he doesn’t see why the legislature would even discuss this issue before the Supreme Court rules.

“It seems like they should have better things to do, and this is making its way through the legal system as it is,” he said.

In fact, legislative Republican leaders and Indiana’s incoming governor, Mike Pence, have not made its passage a part of their legislative agenda, focusing instead on tax cuts, education and job creation.

Thursday, at a legislative conference, House Speaker Brian Bosma, R-Indianapolis, said he expects a lawmaker will file a bill on the proposed constitutional amendment and it will be handled the same as any other bill.

Neither polls nor the Supreme Court, he indicated, will influence what happens.

“There have been some that have suggested we should wait to see what happens (in the Supreme Court) before taking action. I’m not certain that that’s advisable at this point,” he said.

“Will it be a priority? No. Will it be addressed? Just like any other idea of the 1,500 ideas that will be addressed this year, I’m sure there will be discussion about whether they should proceed.”

But, Bosma added: “It’s not about who can marry. It’s about who decides. It has been my personal opinion that it’s appropriate for elected officials to decide this and not unelected judges as has happened in some states.”

"State GOP to take up gay-union amendment" is the heading to Niki Kelly's story today in the Fort Wayne Journal Gazette. Some quotes:
Indiana state law already limits marriage to between one man and one woman.

But supporters want the public policy inserted into the state constitution so judges can’t later overturn it.

State courts have already upheld the law once.

The proposed amendment specifically says, “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

The second sentence would ban future legislators from enacting civil unions in the future, and might affect things like same-sex health benefits.

The General Assembly must approve the measure again in 2013 or 2014 before Hoosiers would get the final say on the matter with a statewide vote in the fall of 2014. Not acting this year doesn’t slow the process.

Senate Democratic Leader Tim Lanane of Anderson said no matter how much Republicans want to keep the discussion reasonable and calm there is a perception that this is an attack.

“And quite frankly it is. We’re placing discrimination into the constitution,” he said.

He noted a new poll released Thursday by The Bowen Center for Public Affairs at Ball State University showed only 38 percent of Hoosiers support the constitutional ban on same-sex marriage while 54 percent oppose.

More than a majority of Hoosiers also support civil unions that would give gay couples the same rights and benefits as married couples.

“This is an opportunity for us to step into the 21st century,” Lanane said. “The trend is clear on this issue. It is crystal clear. Talk to your kids, talk to your grandkids if you want to about this. They don’t get it.”

Bosma said he hasn’t seen the new poll but “Hoosiers are roughly divided on this issue and from my perspective that doesn’t change any approach. Unlike some I discourage my team from making decisions by polling.”

Gov.-elect Mike Pence declined to get involved in the topic Thursday, saying it is up to the legislature to set its agenda.

Instead, he is focusing on jobs and setting up a new administration.

In the past he has supported marriage between one man and one woman.

Gov. Mitch Daniels also is staying out of the fray, refusing in a meeting with a few reporters Thursday to comment on the appropriateness of a constitutional ban.

He did say he supports children growing up in intact homes, pointing to evidence that it lowers poverty. When asked if intact families extend to same-sex couples, he said yes.

“Well, it sure beats single parenthood. I’m personally familiar with some folks who I think are doing a very good job of parenting in a same-sex environment.

"Put marriage amendment on hold" was the title to an editorial yesterday in the Indianapolis Star. Some quotes:
The U.S. Supreme Court has just given the Indiana General Assembly a breather, if lawmakers and their leadership will only recognize it.

By agreeing to hear two cases involving the volatile issue of same-sex marriage and domestic partnerships, the high court has sent a clear signal to state governments to hold off on making decisions of their own.

Regardless of where one stands on the debate over state-sanctioned unions, the upcoming decisions on same-sex marriage bans in California's constitution and in federal law will provide essential guidance. Until then, any state action runs the risk of wasting effort and money while causing unnecessary acrimony. * * *

If the language of Indiana's proposed amendment passes muster, the process of placing it before the public would not have been affected by delay. If the proposal doesn't comply with the new standard, state lawmakers could then decide whether to rewrite or drop the effort altogether. In either case, Hoosiers will benefit from a year of welcome peace and more time dedicated to more pressing work.

Posted by Marcia Oddi on Friday, December 14, 2012
Posted to Indiana Government

Ind. Decisions - "Indiana high court considers capping punitive damage"

The Supreme Court heard oral argument yesterday in the case of State of Indiana v. John Doe, a direct appeal by the State of a trial court opinion. See this Dec. 10th "ILB upcoming oral arguments" for links to the trial court opinion and background.

Charles Wilson of AP has a long story on the oral argument, reported here in the South Bend Tribune. Some quotes:

INDIANAPOLIS -- A top state attorney defended Indiana's punitive damages law Thursday against claims that it renders trials meaningless by forcing judges to reduce awards in lawsuits without telling jurors.

Solicitor General Thomas Fisher asked the Indiana Supreme Court to overturn a Marion County judge's decision that found the law treads on judicial independence and violates the right to trial by jury guaranteed in the state constitution.

The judge refused to reduce a $150,000 punitive damages award to a man who claimed his uncle, a Roman Catholic priest, sexually abused him when he was 17. The judge had told jurors they could consider the priest's "reprehensible conduct" when they decided on damages.

Under Indiana law, juries in civil cases can award punitive damages of up to three times the amount of compensatory damages they decide on, but there is a $50,000 cap. The state gets a three-quarter share, which goes to a fund that helps victims of violent crime.

In this case, jurors gave the man $50,000 in compensatory damages and awarded triple punitive damages for a total of $200,000.

The priest appealed the punitive damages award, citing the $50,000 limit, but the judge rejected his appeal, saying the cap violated the state constitution. The state then intervened, seeking its 75 percent share. The judge denied the state's request, and the state appealed.

Patrick Noaker, who represents the man called John Doe in court documents, told the justices that secretly reducing the amount jurors decide to award plaintiffs after hearing the evidence infringes on the principle of trial by jury.

"It's a charade. It's a complete charade," Noaker said. He added, "We have to let the jury make a decision and whether we agree with it or not, we have to live with that decision."

Fisher disagreed, saying jurors don't necessarily need to know about the cap.

"The idea that the legislature doesn't want to confuse jury deliberations with the knowledge that there is some sort of cap is based on the idea that they don't want the jury to be somehow misguided by that extraneous fact," he said. "So what they're doing is setting up a process -- a step by step process -- designed to keep the jury insulated from extraneous information and at the same afford the appropriate timing for the cap to be in place."

Justice Robert Rucker questioned that reasoning.

"The problem with this statute, isn't it that it puts a cap and then it says once the jury deliberates, once the jury returns its verdicts after hearing all the evidence and awards punitive damages, you, mister trial court and judge, you are now instructed to reduce those damages," Rucker said. "It seems to me that that's part of the problem at least in terms of the separation of powers."

Noaker said it would have been within the legislature's power to completely bar punitive damages, or to have judges instruct jurors to limit their awards, but not to compel judges to reduce those amounts after the jury makes a decision.

Posted by Marcia Oddi on Friday, December 14, 2012
Posted to Ind. Trial Ct. Decisions