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Friday, June 21, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)

For publication opinions today (3):

In Gasser Chair Company, Inc. v. Marlene J. Nordengreen, Horseshoe Hammond, LLC, d/b/a Horseshoe Casino, a 9-page opinion, Judge May writes:

Marlene Nordengreen sued Horseshoe Casino and Gasser Chair Company, alleging she was injured at Horseshoe while using a chair Gasser manufactured. The trial court granted summary judgment for Horseshoe but denied Gasser’s motion. Gasser appeals, arguing the trial court should not have granted summary judgment for Horseshoe because Horseshoe did not provide evidence the Gasser chair was the proximate cause of Nordengreen’s injury; it did not apply the correct standard of care by Horseshoe to its invitees; and there were issues of fact as to Horseshoe’s knowledge of a defect on its premises. We affirm the summary judgment for Horseshoe.

On cross-appeal, Horseshoe argues the trial court erred to the extent it determined certain third-party claims Horseshoe made against Gasser became moot by virtue of the summary judgment for Horseshoe. We agree and remand for consideration of those claims. * * *

In the case before us, the evidence was that Horseshoe inspected the chairs daily.3 There had been no reported problems with the chair Nordengreen used. When a gas cylinder fails, the chair generally “doesn’t collapse all at once.” (App. at 163.) Instead, when someone sits on it, “it starts to drift downward.” (Id.) Gasser did not warn Horseshoe a gas cylinder could suddenly fail, or warn it about what might happen if a gas cylinder failed. While the trial court noted there had been unspecified “issues” with gas cylinders on one-half of one percent of the chairs at Horseshoe, none of the problems had resulted in injuries. We cannot find a genuine issue of fact as to Horseshoe’s knowledge the chair was a dangerous condition on its premises, and summary judgment for Horseshoe was not error.

In John M. Mayer, Jr., as Special Administrator of the Estate of Paige R. Winn, Deceased v. Michael. W. Davis, a 10-page opinion, Judge Bradford writes:
On October 12, 2007, Appellee-Plaintiff Michael Davis was injured when the vehicle he was driving collided with a vehicle that was being driven by Paige Winn. Winn subsequently died of unrelated causes. On September 25, 2009, Davis filed a civil suit against Winn’s Estate, claiming to have suffered personal injuries and lost employment wages as a result of the October 12, 2007 automobile accident. Following a two-day jury trial, the jury awarded Davis $60,000, and the trial court entered a judgment reflecting this amount. Soon thereafter, Winn’s Estate filed a motion to amend the judgment, claiming that Davis’s recovery was limited to the funds available under Winn’s insurance liability policy because, pursuant to the time limitations set forth in the probate code, Davis failed to timely file his claim against Winn’s Estate. The trial court denied this motion.

We conclude that Davis’s claim against Winn’s Estate was not filed in a timely manner, and, as a result, Davis is barred from recovering any funds from the Estate. Davis’s recovery is limited to funds recovered from Winn’s insurance carrier in the amount of Winn’s insurance liability policy limits. However, the trial court did not abuse its discretion in denying the motion to amend the judgment because the judgment is a valid judgment despite the fact that the excess judgment cannot be collected from Winn’s Estate. Accordingly, we affirm.

In Constance Anderson V. State of Indiana, a 7-page opinion, Judge May writes:
Constance Anderson appeals following her convictions of two counts of Class D felony criminal mischief and five counts of Class A misdemeanor animal cruelty. She presents two issues for review:
1. Whether her three-year sentence was an abuse of discretion; and 2. Whether Anderson’s sentence is inappropriate in light of her character and offenses. * * *

Anderson’s convictions of animal cruelty required the State to prove that Anderson recklessly, knowingly, or intentionally abandoned or neglected an animal by restraining it in a manner that seriously endangered the animal’s life or health. See Ind. Code § 35-46-3-7. Anderson and her roommate resided at the Elmer Street property in 2006, but left the property around 2010 due to its dilapidated state. They left upwards of eighty-five cats in that dwelling with inadequate nourishment. The air quality test showed ammonia levels four times higher than normally expected for a living space. Anderson kept upwards of thirty-seven dead cats in her refrigerators and freezers. As a consequence of Anderson’s actions another 103 cats had to be euthanized. Anderson’s conduct far exceeded the necessary showing under these counts, and permitted an enhanced sentence.

As to Anderson’s character, she knew the state of affairs in the two properties and ignored the problem. Despite her education and occupation in the mental health profession, Anderson exhibited a lack of concern for the well-being of the cats. Nor did she exhibit concern for the welfare of her neighbors when she permitted the Elmer Street property to become an environmental hazard.

We cannot find Anderson’s sentence inappropriate based on her offense or character.

CONCLUSION. Anderson has not demonstrated the trial court abused its discretion in its consideration of mitigating factors. Additionally, we decline to exercise our authority to revise a sentence under App. R. 7(B) as Anderson’s sentence cannot be said to be inappropriate in light of her character and the nature of her offense. Affirmed.

NFP civil opinions today (1):

In the Matter of Minor Children Alleged to be in Need of Services, R.C. and J.C., Minor Children, D.S. Mother, and E.S. Stepfather v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (2):

Mark A. Sheese v. State of Indiana (NFP)

Kenneth Alexander v. State of Indiana (NFP)

Posted by Marcia Oddi on June 21, 2013 10:11 AM
Posted to Ind. App.Ct. Decisions