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Wednesday, September 18, 2013

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

For publication opinions today (4):

In Anonymous, M.D. and Life Care Centers of America, Inc., d/b/a Lane House v. Evelyn Hendricks , a 14-page opinion, Judge Barnes writes:

Anonymous, M.D., and Life Care Centers of America, Inc., d/b/a Lane House (collectively “Lane House”) appeal the trial court’s denial of their motion to compel arbitration in a lawsuit filed by Evelyn Hendricks. We reverse and remand.

The reordered and restated issues before us are: I. whether an arbitration agreement signed by Hendricks’s health care representative, Marjorie Benge, binds Hendricks; and II. whether the arbitration agreement is still effective despite the unavailability of the arbitrator named in the agreement. * * *

Benge’s signature on the arbitration agreement is binding upon Hendricks under the undisputed facts of this case, and that agreement is not rendered impossible to perform and invalid because of NAF’s unavailability to conduct the arbitration. We reverse and remand for further proceedings consistent with this opinion.

In Lifeline Youth & Family Services v. Installed Building Products, Inc. d/b/a Momper Insulation, a 12-page opinion, Judge Pyle writes:
Lifeline Youth & Family Services (“Lifeline”) appeals the trial court’s denial of its motion to correct error following a jury verdict and award of damages entered in favor of Lifeline and against Installed Building Products, Inc. d/b/a Momper Insulation (“Momper”). We affirm. * * *

As noted above, we do not have a transcript of the jury trial because Lifeline did not request transcription of the trial. Therefore, we have no specific information regarding the evidence presented to support the jury’s damages verdict, any discussions or objections surrounding the trial court’s jury instructions on damages, or the procedural events surrounding the jury’s verdict awarding damages.

Lifeline’s failure to submit a transcript of the jury trial is in contravention of Indiana Appellate Rule 9(F)(5), which provides that an appellant’s Notice of Appeal shall designate “all portions of the Transcript necessary to present fairly and decide the issues on appeal.” Appellate Rule 9(F)(5) further provides that, “[i]f the appellant intends to urge on appeal that a finding of fact or conclusion thereon is unsupported by the evidence or is contrary to the evidence, the Notice of Appeal shall request a Transcript of all the evidence.”

Our Indiana Supreme Court has addressed an appellant’s failure to include a transcript on appeal when factual issues are presented and held that “‘[a]lthough not fatal to the appeal, failure to include a transcript works a waiver of any specifications of error which depend upon the evidence.’” In re Walker, 665 N.E.2d 586, 588 (Ind. 1996) (quoting Campbell v. Criterion Group, 605 N.E.2d 150, 160 (Ind. 1992)). Because Lifeline relies on the evidence presented during the jury trial in support of its argument challenging the amount of the jury’s damages verdict, we must conclude that Lifeline has waived any such damages argument and has failed to prove that the trial court abused its discretion by denying its motion to correct error.

In Brenda Hall v. Dallman Contractors, LLC, Shook, LLC and AT&T Services, Inc., a 13-page opinion, Judge Barnes writes:
Brenda Hall appeals the grant of summary judgment in favor of AT&T Services, Inc., (“AT&T Services”). We reverse and remand.

The dispositive issue is whether the designated evidence establishes that Hall’s negligence claim against AT&T Services is barred by the exclusive remedy provision of the Worker’s Compensation Act (“the Act”). * * *

Because there are genuine issues of material fact regarding whether AT&T Services was Hall’s employer or a joint employer, AT&T Services has not established that Hall’s negligence claim against it was barred by the exclusive remedy provision of the Act. Thus, summary judgment for AT&T Services was improper. We reverse and remand.

In Mario A. Allen v. State of Indiana, a 15-page opinion, Judge Riley writes:
Appellant-Defendant, Mario A. Allen (Allen), appeals his conviction for Count I, attempted robbery, a Class B felony, Ind. Code §§ 35-42-5-1; -41-5-1; Count II, robbery, a Class B felony, I.C. § 35-42-5-1; and his adjudication as an habitual offender, I.C. § 35-50-2-8. We affirm. * * *

Based on the foregoing, we conclude that (1) the trial court properly admitted and excluded certain evidence; (2) the State presented sufficient evidence beyond a reasonable doubt to sustain Allen’s conviction; and (3) the trial court did not violate Allen’s right to a speedy trial.

NFP civil opinions today (1):

Certain Properties Being Sold for Delinquent Taxes; Tax Sale Certificate #3910192 Parcel #39-0-17-114-024.000-007; Norman Eggers v. MLP Services, LLP and Jefferson County, IN. Auditor, et al. (NFP)

NFP criminal opinions today (7):

Anthony Michael Davis v. State of Indiana (NFP)

David Barbee v. State of Indiana (NFP)

Billye D. Gaulden v. State of Indiana (NFP)

Carlos Lamonte Minor v. State of Indiana (NFP)

Jennifer Barber v. State of Indiana (NFP)

Sanders Johnson v. State of Indiana (NFP)

Ryan Schonabaum v. State of Indiana (NFP)

Posted by Marcia Oddi on September 18, 2013 11:16 AM
Posted to Ind. App.Ct. Decisions