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Thursday, September 12, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

For publication opinions today (3):

In Gina Albright v. Review Board of the Indiana Dept. of Workforce Development and the Starke County Sheriff's Dept., a 13-page opinion, Judge Crone writes:

Gina Albright worked as a 911 dispatcher for the Starke County Sheriff’s Department (“the Department”).1 After a firecracker exploded behind her, she experienced hearing loss, vertigo, and tinnitus. She received sick leave and worker’s compensation. After her doctor determined that she was capable of returning to work, Albright did not return to work by taking sick days, vacation days, and bereavement days. After Albright failed to show up for her scheduled shift and call the Department to inform it of her absence, the Department terminated her employment.

Albright filed a claim for unemployment benefits with the Indiana Department of Workforce Development (“DWD”), which found that she was discharged for just cause and ineligible for unemployment benefits. The denial of her claim for unemployment benefits was ultimately affirmed by the DWD Review Board (“Review Board”).

Albright appeals the denial of her claim for unemployment benefits, arguing that the Review Board’s decision is contrary to law. Specifically, she contends that there was insufficient evidence to support its finding that she was discharged for just cause because she knowingly violated a reasonable and uniformly enforced rule. She also argues that the Review Board erred in failing to find that she had a medically substantiated physical disability and therefore was not subject to disqualification for unemployment benefits. We conclude that the Review Board’s denial of her claim is not contrary to law and therefore affirm.

ILB: Also on p. 1 of the opinion, a long footnote on the continuing COA issue of whether a statute/Adm Rule 9 combo requires that claimants and employers in workers comp cases be kept confidential. The upshot seems to be that the Supreme Court said "no", unless there is an affirmative request (Recker, 12/29/11, p.2 note 4 at end: "Pursuant to Administrative Rule 9(G)(1.2), in light of the absence of an affirmative request for continued confidentiality of the identities of the employee and the employing entity, we fully identify the parties."), and "yes" in J.M., 10/17/12, p.2 note 1). The COA in its footnote today cites the J.M. footnote, but then continues: "Although there is no indication of the supreme court having issued an order that footnote 1 was being amended or entering notice thereof on the official docket maintained by the clerk of the supreme court, a different version of footnote 1 has been published in West’s Northeastern Reporter." The new, West footnote conforms to the Recker rule requiring an affirmative request for confidentiality. The version set out in West is the official version: "Thus, even though the original version of footnote 1 still exists on the supreme court’s website and no order of amendment was issued or entry of amendment appears on the docket, it would appear that we are required to follow West’s version of J.M. In light of the most recent version of footnote 1, we are using the names of the claimant and the employer in this case because the parties have not requested the use of initials." [The ILB discussed a related problem in the July 12, 2013 post, headed "Current process for dealing with corrected appellate opinions poses perils."]

In John Luttrell v. Melinda Luttrell, a 13-page opinion, Chief Judge Robb writes:

John Luttrell appeals the trial court’s awards and division of property following his divorce from Melinda Luttrell. John presents three restated issues on appeal: 1) whether the trial court properly divided the marital estate; 2) whether the trial court abused its discretion in awarding spousal maintenance to Melinda; and 3) whether the trial court abused its discretion in its award of attorney’s fees. Concluding that the trial court abused its discretion only in regards to consideration of the Luttrell’s children’s student loans, we affirm in part and remand in part. * * *

Concluding that the trial court properly excluded Melinda’s lump sum SSDI payment, improperly excluded from consideration the Luttrells’ liability on their children’s student loans, otherwise properly divided the estate, and properly awarded maintenance and attorney’s fees, we affirm in part and remand for proceedings consistent with this opinion.

In Brian Russell v. State of Indiana, an 11-page opinion with a separate concurring opinion, Judge Bradford writes:
Appellant-Defendant Brian Russell appeals his conviction for Class C misdemeanor operating a vehicle while intoxicated. LaPorte County Sherriff’s Deputy Andrew Hahn subjected Russell to an investigatory stop after concerned citizen Wayne Bogart called 911 to report Russell as a possible intoxicated driver. At trial, Appellee-Plaintiff the State of Indiana presented evidence obtained as a result of the stop, which the trial court admitted over Russell’s motion to suppress. Because Bogart provided police with specific information regarding where, when, and how Russell could be identified, and because Deputy Hahn corroborated this information with his own observations, we conclude that Bogart’s tip was sufficiently reliable to support reasonable suspicion under the Fourth Amendment. Under Article I, Section 11, we conclude that Deputy Hahn had reasonable suspicion to stop Russell because Bogart provided police with a reliable tip, Deputy Hahn’s request for Russell’s driver’s license and registration was minimally intrusive, and the need to remove intoxicated drivers from the road warranted an immediate police response. The judgment of the trial court is affirmed. * * *

Because Russell’s rights under the Fourth Amendment and Article I, Section 11 were not violated, the trial court acted within its discretion in admitting evidence obtained as a result of Deputy Hahn’s investigatory stop of Russell’s vehicle. The judgment of the trial court is affirmed.

MAY, J., concurs.
BAILEY, J., concurs in result with opinion. [that begins, at p. 10] I concur with the result of the majority; however, given Russell’s waiver of a Fourth Amendment challenge to the stop leading to his arrest, I write separately because I do not think that this Court should address the merits of that issue.

NFP civil opinions today (8):

Flora Birdsong v. Illinois Central School Bus (NFP)

Jeffrey Griebel v. Lehsa Griebel (NFP)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of K.M.(Minor Child) and C.M.(Mother) and R.M.(Father) v. Indiana Department of Child Services (NFP)

In Re the Termination of the Parent-Child Rel. of H.W. (Minor Child) and D.F. (Father) v. The Indiana Dept. of Child Services (NFP)

Phillip J. Troyer v. Tracy L. Troyer (NFP)

In Re the Termination of the Parent-Child Rel. of El.S. and Et.S. (Minor Children) and M.S. (Mother) v. The Indiana Dept. of Child Services (NFP)

Jeff Pierrard v. Wright Implement 1, LLC (NFP)

Thomas I. Goode v. Hendricks County Planning and Building Commission (NFP)

NFP criminal opinions today (8):

Willie Ambros Norman v. State of Indiana (NFP)

Adolfo Lopez v. State of Indiana (NFP)

Thelma Lindsey v. State of Indiana (NFP)

Darren L. Bunch v. State of Indiana (NFP)

Oscar Diaz-Flores v. State of Indiana (NFP)

Stephen R. Harvey, Jr. v. State of Indiana (NFP)

Gregory Voltaire v. State of Indiana (NFP)

Christopher D. Davies v. State of Indiana (NFP)

Posted by Marcia Oddi on September 12, 2013 11:32 AM
Posted to Ind. App.Ct. Decisions