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Wednesday, May 22, 2013

Ind. Decisions - Court of Appeals issues 4 today (and 19 NFP)

For publication opinions today (4):

In Lydia Lanni v. National Collegiate Athletic Association, et al. , a 15-page opinion, Judge Riley writes:

This cause comes before us as a result of a civil tort action filed by Lanni against the NCAA, the University of Notre Dame Du Lac (Notre Dame), and the United States Fencing Association (USFA). Lanni, a spectator, was struck in the left eye by a fencing sabre causing a severe injury while at an allegedly NCAA sanctioned fencing match at Notre Dame. On February 8, 2012, Lanni filed her Complaint, alleging that the NCAA was negligent by (1) failing to undertake a hazard and risk analysis prior to commencing the fencing match, (2) failing to select and/or supervise qualified officials, and (3) failing to supervise the competition to insure hazards and risks were consistently monitored to prevent injuries. * * *

Lanni’s main argument focuses on the trial court’s treatment of the NCAA’s Motion which combined a motion based on T.R. 12(B)(6) with a motion based on T.R.56. Specifically, she claims that pursuant to the language of T.R. 12(B)(6), the trial court was required to notify her prior to considering the NCAA’s Motion as a motion for summary judgment and the trial court was mandated to award her a reasonable time to conduct discovery. * * *

Based on the foregoing, we conclude that the trial court erred when it converted the NCAA’s Motion into a motion for summary judgment without awarding Lanni a reasonable opportunity to present relevant materials in opposition to the motion for summary judgment; and the trial court did not abuse its discretion by denying Lanni’s motion to strike Shaul’s affidavit, designated by the NCAA. Reversed in part, affirmed in part, and remanded for further proceedings.

In Gersh Zavodnik v. Brian Richards and NJGOLFMAN.COM a/k/a Savva's Golf Enterprises a/k/a PROGOLFJERSEYCITY@YAHOO.COM and Steve Panayiotov, et al., a 4-page opinion on rehearing, Judge Barnes writes:
Gersh Zavodnik petitions for rehearing following our decision in Zavodnik v. Richards, 984 N.E.2d 699 (Ind. Ct. App. 2013). With the following clarifications, we reaffirm our decision in all respects. * * *

We, therefore, clarify that although Zavodnik must obtain reinstatement of his original complaints under their original cause numbers, such reinstatement could be ordered by a judge other than Judge Oakes, if Judge Oakes indeed were to recuse himself from any future attempts at reinstatement. In all other respects, we reaffirm our original decision.

In Charles A. Walker v. State of Indiana , a 16-page opinion, Judge Crone writes:
Charles Walker appeals the denial of his petition for post-conviction relief. He claims that his trial and appellate counsel provided ineffective assistance in failing to challenge the sufficiency of evidence to support a habitual offender finding against him and in failing to challenge the habitual offender jury instructions and verdict form. Finding no clear error in the post-conviction court’s judgment, we affirm.
In Mark L. Jordan v. State of Indiana , an 8-page opinion, Judge Baker writes:
In this case, before a criminal defense attorney could file a notice of appeal on behalf of his client, he was fighting for his life against a recurrence of cancer to which he succumbed only a few months later. His client, appellant-petitioner Mark Jordan, who had been ill-informed and apparently mistaken regarding the details and status of his appeal, filed a petition for relief under Indiana Post-Conviction Rule 2, seeking to file a belated appeal. The trial court denied this petition without a hearing or specific findings.

We conclude that this was error, inasmuch as Jordan was without fault in failing to file a timely notice of appeal in light of his attorney’s terminal illness. Accordingly, we reverse and remand for further proceedings consistent with this appeal. * * *

Although a rigid application of those factors to the facts of this case may lead to the result reached by the trial court, as stated above, each case must be decided on its own facts. To be sure, those factors certainly excluded the indispensable fact that Jordan’s attorney became terminally ill almost immediately following Jordan’s sentencing hearing. In short, we decline to say that a post-conviction petitioner is at fault for failing to file a timely notice of appeal when his attorney becomes terminally ill shortly after the sentencing hearing, and the petitioner is incarcerated.

NFP civil opinions today (7):

Mary K. Wallskog v. ACS (Affiliated Computer Services), et al. (NFP)

S.R. v. R.S.Y. and T.L.Y. (NFP)

Heather Hill v. Daryl Hill (NFP)

In Re: The Paternity of K.S.: M.M. (Mother) v. J.S. (Father) (NFP)

In the Matter of the Term.of the Parent-Child Rel. of: N.S. and D.S. v. The Indiana Dept. of Child Services (NFP)

Charles E. Justise, Sr. v. Marion County Jail, Indiana Dept. of Correction, Jerry Huston, Karen Richards, and Stephen Hall (NFP)

Term. of the Parent-Child Rel. of: D.F. & H.D. (Minor Children), and J.D. (Mother) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (12):

In Re the Matter of: D.L. v. State of Indiana (NFP)

Paul Reese v. State of Indiana (NFP)

Freddie L. McKnight, III v. State of Indiana (NFP)

Tyler E. Burton v. State of Indiana (NFP)

Shawn Tyler Miller v. State of Indiana (NFP)

Xxavier Jones v. State of Indiana (NFP)

Fiona C. Lee v. State of Indiana (NFP)

Candace Hernton v. State of Indiana (NFP)

Jerry Lee Slisz v. State of Indiana (NFP)

Zebulan Hildebrand v. State of Indiana (NFP)

Thomas Dunigan v. State of Indiana (NFP)

Coriyahvon Lamont Outlaw v. State of Indiana (NFP)

Posted by Marcia Oddi on May 22, 2013 11:43 AM
Posted to Ind. App.Ct. Decisions