« Ind. Courts - More on: Marion County public defender accused in prostitution sting | Main | Ind. Law - "Criminal records expungement bill moves forward" »

Thursday, January 31, 2013

Ind. Decisions - Court of Appeals issues 6 today (and 22 NFP)

For publication opinions today (6):

Mark S. Weinberger, M.D., et al. v. Gloria Gill

In Paul D. Edwards v. Zobeida E. Bonilla-Vega, a 6-page opinion, Judge May writes:

Paul Edwards (Husband) appeals the distribution of marital assets as part of the dissolution of his marriage to Zobeida E. Bonilla-Vega (Wife). He presents three issues for our review, one of which we find dispositive: Whether the settlement proceeds from Husband’s action against his former employer, which commenced prior to the dissolution proceedings and was finalized before the dissolution was final, were properly included and valued as a marital asset. We affirm. * * *

Husband claims the settlement proceeds from the chose in action is not subject to distribution in the marital estate because the exact amount of damages, if any, were not known at the time Wife filed for dissolution. Wife asserts the settlement proceeds should be included in the distribution of assets because the chose in action was a property right that existed before she filed for dissolution. * * *

Herein, Husband settled his in chose in action with his former employer in November 2010, which was between the filing of the dissolution petition and the date of the final hearing on August 22 – 24, 2011. Therefore, the decision whether to include the property settlement monies in the marital estate was entrusted to the sound discretion of the trial court, and we cannot say the trial court abused its discretion when it included Husband’s tort claim settlement monies in the marital pot and divided them accordingly.

In Henry Wagler, Barb Wagler and Henry and Barb Wagler, LP v. Fort Wayne-Allen County Department of Health , an 8-page opinion, Judge Crone writes:
Henry and Barb Wagler built their home in an unincorporated area of Allen County and had their own septic systems installed. The Fort Wayne-Allen County Department of Health (“the Department”) petitioned for injunctive relief and moved for summary judgment, claiming that the Waglers were required to obtain a construction permit from the Department prior to installing their septic systems. The Waglers filed a cross-motion for summary judgment, claiming a statutory exemption from the permit requirement. The trial court entered summary judgment for the Department.

On appeal, the Waglers renew their statutory exemption argument. We conclude that the statute is inapplicable and therefore affirm the trial court.

In Virginia E. Alldredge and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis v. The Good Samaritan Home, Inc., a 12-page opinion, Judge Baker writes:
In this case, we consider an issue of first impression, namely, whether and to what extent the doctrine of fraudulent concealment tolls the two-year deadline for filing claims contained within Indiana’s Wrongful Death Act (the “WDA”).

Virginia E. Alldredge and Julia A. Luker, as co-personal representatives of the Estate of Venita Hargis (collectively, “the Plaintiffs”), filed a wrongful death complaint against The Good Samaritan Home, Inc. (“Good Samaritan”) twenty-three months after learning that Good Samaritan had allegedly fraudulently concealed the nature of Hargis’s death. Concluding that the WDA’s two-year deadline had been equitably tolled but that the Plaintiffs nevertheless failed to file their complaint within a reasonable time, the trial court granted Good Samaritan’s motion for summary judgment.

The Plaintiffs argue that the two-year time frame required by the WDA for the filing of claims is a statute of limitations, not a condition precedent to the filing of a wrongful death claim, and that Indiana Code section 34-11-5-1 (the “Fraudulent Concealment Statute”) should have applied to toll the statute of limitations such that they had a full two years to file their complaint after learning of Good Samaritan’s fraudulent concealment. Furthermore, the Plaintiffs argue that the reasonable time standard used by the trial court violates equal protection principles and that public policy concerns require a uniform standard for determining when the statute of limitations runs after it has been tolled by fraudulent concealment.

We conclude that the WDA’s two-year limitations period is in fact tolled by fraudulent concealment and that plaintiffs whose wrongful death claims have been fraudulently concealed beyond the WDA’s limitations period have a full two years after the concealment is or should be discovered with reasonable diligence in which to file their claims. Accordingly, we affirm the trial court’s judgment in part and reverse in part. * * *

That being said, we observe that when these types of cases arise, it may be preferable for the trial court to bifurcate the issues of negligence and fraudulent concealment from the issue of damages in the interest of saving judicial time and resources. This is because the application of the fraudulent concealment doctrine to the WDA still requires a decedent’s personal representative to show not only the underlying negligence that resulted in the decedent’s death but also that the underlying negligence has been fraudulently concealed by the defendant.

In In Re: The Paternity of A.S.: Melissa Slansky v. Mary Doffin-Syler, and Bradley Howell, a 13-page opinion, Judge Pyle writes:
M.S. (“Mother”) appeals the trial court’s order awarding custody of her daughter, A.S., to the maternal grandmother, M.D (“Grandmother”). * * *

We reverse and remand with instructions that the trial court vacate its award of physical custody to Grandmother, thereby returning custody to Mother. The trial court shall determine the details of Father’s visitation. It shall also determine what, if any, visitation rights are due to Grandmother under the Grandparent Visitation Act.

In Brian Kendrick v. State of Indiana , a 5-page opinion, Judge May writes:
Brian Kendrick appeals his sentence on remand for Class A felony attempted murder, Class B felony robbery, and Class A misdemeanor carrying a handgun without a license. He contends the trial court erred when, after we vacated his two convictions of Class C felony feticide, it again sentenced Kendrick to fifty-three years. We affirm. * * *

When resentencing, a trial court may not “impose a more severe penalty than that originally imposed unless the court includes in the record of the sentencing hearing a statement of the court’s reasons for selecting the sentences that it imposes which includes reliance upon identifiable conduct on the part of the petitioner that occurred after the imposition of the original sentence.” Ind. Post-Conviction Rule 1(10)(b). Kendrick argues the trial court erred when, on resentencing, it increased his sentence for Class A attempted murder by eight years. We disagree.

On appeal of a sentence, our court “should focus on the forest – the aggregate sentence – rather than the trees – consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). While Kendrick’s sentence for Class A felony attempted murder increased from thirty years to thirty-eight years, his aggregate sentence, fifty-three years, did not change. Therefore, the trial court did not impermissibly increase Kendrick’s sentence. See Hicks v. State, 729 N.E.2d 144, 147 (Ind. 2000) (affirming resentencing of defendant when enhancement increased sentence for murder but aggregate sentence remained the same). We accordingly affirm.

NFP civil opinions today (4):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of V.M. and M.A. v. Indiana Department of Child Services (NFP)

In Re the Termination of the Parent-Child Rel. of N.W. and D.W. v. Indiana Department of Child Services (NFP)

In Re the Involuntary Termination of the Parent-Child Rel. of S.F.; C.P. v. The Indiana Dept. of Child Services (NFP)

Bernard Carter, Prosecuting Attorney, Lake County, John Buncich, Sheriff of Lake County, and Indiana Dept. of Correction v. Tim J. Hurd (NFP)

NFP criminal opinions today (18):

French Tibbs v. State of Indiana (NFP)

Schwala M. Royal v. State of Indiana (NFP)

Marvin Willis v. State of Indiana (NFP)

Joseph J. Rheubottom, Jr. v. State of Indiana (NFP)

Steve Pigg v. State of Indiana (NFP)

Michael A. O'Brien v. State of Indiana (NFP)

Brian Buffington v. State of Indiana (NFP)

Edmond MIller v. State of Indiana (NFP)

Joey Saylor v. State of Indiana (NFP)

Richard Keith Lazur v. State of Indiana (NFP)

Jovan Fitzhugh v. State of Indiana (NFP)

Melvin Sanders v. State of Indiana (NFP)

Dustin L. Grissom v. State of Indiana (NFP)

Darrol Fox v. State of Indiana (NFP)

Keith A. Harlow v. State of Indiana (NFP)

Torrey Pargo v. State of Indiana (NFP)

Reuban L. Strong, Jr. v. State of Indiana (NFP)

Toby Webster v. State of Indiana (NFP)

Posted by Marcia Oddi on January 31, 2013 12:45 PM
Posted to Ind. App.Ct. Decisions