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Tuesday, September 03, 2013

Ind. Decisions - Court of Appeals issues 4 today (and 8 NFP)

For publication opinions today (4):

In Peru City Police Department and City of Peru v. Gregory Martin, a 10-page opinion, Judge Bailey writes:

City of Peru Chief of Police Steve Hoover (“Chief Hoover”) recommended the termination of Gregory Martin (“Martin”) from the City of Peru police force on account of excessive force and conduct unbecoming an officer with regard to his repeated use of a Taser upon an elderly nursing home patient. The City of Peru Board of Public Works and Safety (“the Board”) conducted a hearing and terminated Martin’s employment. On appeal, the trial court entered judgment reversing the termination decision, finding the Board decision to be unsupported by substantial evidence and arbitrary and capricious. The City of Peru and the Peru City Police Department now appeal, presenting the sole issue of whether the trial court erroneously substituted its decision for that of the Board. * * *

In sum, there is substantial evidence supporting the Board’s decision. It is not “patently unreasonable.” Woods, 703 N.E.2d at 1091. The trial court disregarded evidence favorable to that decision, credited the testimony of witnesses that the trial court did not personally hear, and misstated evidence regarding the scope of Martin’s training. In short, the trial court reweighed the evidence and reassessed the credibility of witnesses.

Substantial evidence supports the Board’s findings, and its decision to terminate Martin for use of excessive force and conduct unbecoming an officer was not arbitrary and capricious. Reversed.

In Peter F. Amaya v. D. Craig Brater, M.D., In his Capacity as Dean and Director of Indiana University School of Medicine; The Board of Trustees of Indiana University; et al. , a 25-page opinion, Judge Brown writes:
Peter F. Amaya was dismissed from Indiana University School of Medicine (“IUSM”) for failure to maintain acceptable professional standards by allegedly cheating on an examination. Amaya appeals the trial court’s summary judgment ruling [in favor of the school and its officials]. * * *

Based upon the summary judgment materials and designated evidence, we conclude that Amaya has not met his burden to establish that the trial court erred in finding there was no genuine issue of material fact as to Counts I and II of Amaya’s second amended verified complaint and in granting the University’s second motion for summary judgment as to those claims.

For the foregoing reasons, we affirm the trial court’s summary judgment in favor of the University.

In TP Orthodontics, Inc., Christopher K. Kesling, DDS, MS, Adam Kesling, and Emily Kesling, Individually and derivatively on behalf of TP Orthodontics, Inc. v. Andrew C. Kesling, et al. , a 17-page opinion, Judge Vaidik writes:
In 2010, three sibling shareholders, Christopher, Adam, and Emily Kesling (“the siblings”), filed suit against their brother, Andrew Kesling, on behalf of the family business, TP Orthodontics (“TPO”). In response, TPO’s board of directors established a special litigation committee to determine whether to pursue the siblings’ derivative claims against Andrew, the president of TPO. After an investigation, the committee issued a written report in which it recommended pursuing some of the siblings’ claims but not others. If a special litigation committee rejects derivative plaintiffs’ claims, Indiana law requires that those claims be dismissed, provided that the committee was disinterested and acted in good faith in reaching its decision. In accordance with Indiana law, TPO filed a motion to dismiss the rejected claims and attached a heavily redacted copy of the committee’s report. The siblings demanded access to the unredacted report, but TPO refused to produce it. The trial court ultimately ordered TPO to produce the report, and this interlocutory appeal followed.

The issue before us is whether a corporation must give derivative plaintiffs access to the report that the corporation relies on when seeking dismissal of the plaintiffs’ claims. We conclude that the corporation’s arguments against production are outweighed by basic considerations of necessity and fairness. Derivative plaintiffs must show that the special litigation committee was not disinterested or did not act in good faith in order to survive a corporation’s motion to dismiss. The best evidence of whether the committee acted in good faith is the committee’s report explaining how it so acted. Not only do derivative plaintiffs need the report in order to challenge the committee’s good faith, our trial-court judges need this report to make informed decisions.

We acknowledge that attorney-client privilege will undoubtedly infiltrate many of these reports; indeed, it is entirely conceivable that part of any special litigation committee’s reasoning for rejecting a claim will be based on counsel’s advice that a claim is unlikely to succeed on the merits or too costly given the prospects of success. And in such a case, the very reason that the committee acted in good faith is because of an attorney’s advice. Thus, we find that where a corporation forms a special litigation committee, and the corporation later requests dismissal of derivative plaintiffs’ claims based on the findings of that committee, privilege as to the committee’s report is waived. We affirm the trial court’s order compelling production of the special litigation committee report and remand for further proceedings.

In Marion Turner v. State of Indiana, a 7-page opinion, Judge Bailey writes:
Marion Turner (“Turner”) appeals his conviction for Dealing in Cocaine, as a Class A felony. We affirm.

Turner presents two issues for review: I. Whether testimony of statements allegedly made by a confidential informant was erroneously excluded as hearsay; and II. Whether the evidence was insufficient to prove his predisposition to deal cocaine. * * *

We find no reversible error in the trial court’s exclusion of testimony that the C.I. offered an increased purchase price. The State presented sufficient evidence of Turner’s predisposition to commit the charged crime to overcome the defense of entrapment.

NFP civil opinions today (2):

Yulanda C. Petty v. John T. Petty (NFP)

In the Matter of the Termination of the Parent-Child Relationship of E.M., L.M., & G.M., and S.M. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (6):

Kem Duerson v. State of Indiana (NFP)

Ruben Mancillas, Jr. v. State of Indiana (NFP)

Dwight McPherson v. State of Indiana (NFP)

Guy Ivester v. State of Indiana (NFP)

Robert J. Winings v. State of Indiana (NFP)

Robert Small v. State of Indiana (NFP)

Posted by Marcia Oddi on September 3, 2013 12:56 PM
Posted to Ind. App.Ct. Decisions