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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 December 14, 2012 10:21 AM
Posted to Ind. App.Ct. Decisions