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Friday, May 31, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 18 NFP)

For publication opinions today (2):

In Linda Huffman, Individually and as Personal Rep. of the Estate of Jerry Huffman, Deceased v. Dexter Axle Company & Evans Equipment Co. , a 19-page opinion, including a separate concurring opinion, Judge Pyle writes:

Linda Huffman, individually and as the Personal Representative of the Estate of Jerry Huffman, appeals the trial court’s grant of summary judgment to Dexter Axle Company on Linda’s claim of negligence. We reverse and remand for further proceedings. * * *

As a matter of law, Dexter owed a duty to Huffman on the day of the accident. Genuine issues of material fact exist as to the remaining elements of Linda’s claim. We reverse and remand this case to the trial court for further proceedings.

ROBB, C.J., Concur.
MAY, J., Concur in result with opinion. [which begins, at p. 18 of 19]: I agree we should reverse summary judgment for Dexter for the reasons the majority states: Dexter owed Huffman, its invitee, a duty and there are fact issues as to breach and proximate cause. However, I believe it is unnecessary, and therefore inappropriate, to address OSHA regulations, DOT regulations, the interpretation and application of those regulations, preemption, and congressional intent in this relatively straightforward premises liability case. * * *

[and concludes]“As with diamonds, the principal difficulty in overly broad holdings is inclusions -- clouding what should be clear statements of the holding with other assertions that should instead have been treated as dicta.” Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1017 (2005). It is a basic rule of jurisprudence that courts decide only so much as is necessary to resolve the cases before them. Pointon v. State, 267 Ind. 624, 630, 372 N.E.2d 1159, 1162 (1978) (DeBruler, J., concurring). “Too much dicta leads to confusion, and requires too much subsequent explanation.” McArter v. Rhea, 30 S.E. 128, 129 (N.C. 1898). I can accordingly concur only in the result.

In Christie Wilson v. State of Indiana , a 14-page opinion, Judge Brown writes:
Christie Wilson appeals the trial court’s order finding her in contempt. Wilson raises one issue which we revise and restate as whether the trial court abused its discretion when it found her in contempt. On cross-appeal, the State argues that this court does not have jurisdiction and that this case is moot because Wilson did not timely appeal the trial court’s order granting her immunity. We affirm. * * *

[Re jurisdiction]
We first address the State’s argument that this court does not have jurisdiction and that this case is moot because Wilson did not timely appeal the trial court’s November 8, 2012 Order Granting Use Immunity. * * * While some of Wilson’s arguments may to some extent raise the issue of the validity of the November 8, 2012 order, we cannot say that all of Wilson’s arguments pertain only to the validity of that order. Consequently, we will address the merits of Wilson’s argument to the extent that she contends that the trial court erred in finding that she was in contempt.

[Re Contempt] * * * Three types of immunity may be granted a witness in exchange for her testimony. Caito, 459 N.E.2d at 1182. Transactional immunity prohibits the State from criminally prosecuting the witness for any transaction concerning that to which the witness testifies. Id. at 1182-1183. Use immunity prohibits use at a subsequent criminal proceeding of testimony compelled of the witness. Id. at 1183. Derivative use immunity prohibits admission against a witness in a subsequent criminal prosecution of evidence obtained as a result of the witness’s compelled testimony. * * *

Thus, we cannot say that the trial court abused its discretion in finding Wilson in contempt on the basis of the Fifth Amendment. * * *

Based upon Caito, which was decided about twenty years ago, we cannot say that the Indiana Constitution requires transactional immunity or that the trial court’s finding of contempt was an abuse of discretion.

NFP civil opinions today (5):

Gary W. Moody v. Beverly Martin, Director of the Johnson Co. Public Library Dist.; The Board of Trustees of the Johnson Co. Public Library Dist.; Brian J. Deppe, et al. (NFP)

Charles R. Chulchian v. Rivoli Center for the Performing Arts, Inc., and Indianapolis Eastside Revitalization Corp. (NFP)

In the Matter of the Term. of the Parent-Child Rel. of: C.T. & N.T.; and J.T. and B.T. v. The Indiana Dept. of Child Services (NFP)

Penni Williams v. John Mark Williams (NFP)

Thomas M. Slaats v. Sally E. Slaats (NFP)

NFP criminal opinions today (13):

In Alvino Pizano v. Gregory F. Zoeller, et al. (NFP), a 7-page opinion with an appellant pro se, Judge Najam writes:

Alvino Pizano appeals the court’s denial of his petition for post-conviction relief when it granted the State’s motion for summary disposition of his petition for habeas corpus relief. Pizano presents a single issue for review, namely, whether the Indiana Department of Correction (“DOC”) wrongly withheld educational credit time he allegedly earned under Indiana Code Section 35-50-6-3.3. We consider a single dispositive issue sua sponte: whether the post-conviction erred when it denied his petition by summary disposition. We reverse and remand. * * *

We conclude that the post-conviction court erred when it granted the State’s motion for summary disposition of Pizano’s petition for habeas relief. Because there exists a genuine issue of material fact as to whether Pizano has met his burden to show that he had earned a bachelor’s degree during his period of incarceration, he is entitled to a hearing on his petition. As such, we reverse and remand for further proceedings consistent with this decision.

David Mark Frentz v. State of Indiana (NFP)

LaWanda White v. State of Indiana (NFP)

Daniel Rodgers-Conwell, Jr. v. State of Indiana (NFP)

Rhonda Johnson v. State of Indiana (NFP)

Kevin Speer v. State of Indiana

McLynnerd Bond, Jr. v. State of Indiana (NFP)

Jimmy Dale Edwards v. State of Indiana (NFP)

Joshua Shay Morris v. State of Indiana (NFP)

Donte Carter v. State of Indiana (NFP)

Brandon M. Ebeyer v. State of Indiana (NFP)

Dominick Irby v. State of Indiana (NFP)

Jason Davison v. State of Indiana (NFP)

Posted by Marcia Oddi on May 31, 2013 11:50 AM
Posted to Ind. App.Ct. Decisions