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Monday, October 07, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 7 NFP)

For publication opinions today (3):

In Daniel B. Buffkin v. Glacier Group, a 27-page opinion in a case involving an independent contractor, Judge Brown writes:

The issue is whether the trial court’s grant of a preliminary injunction is clearly erroneous. Buffkin maintains that the non-competition provision of the Agreement is unenforceable because it is unreasonable, that the Agreement does not protect a legitimate interest of Glacier, that the restrictions on activity and geographic scope are overly broad under the circumstances, and that thus the trial court abused its discretion by issuing a preliminary injunction enforcing the provision. Specifically, Buffkin argues that Paragraph 6 of the Agreement has several deficiencies, namely, that under the circumstances of his engagement with Glacier he did not gain a competitive advantage through his relationship with Glacier and thus it would not be unfair for him to compete, that the restriction simply seeks to quash honest competition which is not a legitimate use of a non-competition provision, that the scope of the restricted activity is overly broad in that it improperly seeks to prohibit him from working for a competitor in any capacity and restricts harmless activity, and that the geographic scope of the restriction is overly broad in that it prohibits activity in areas where Buffkin did not have transactions. Buffkin also asserts that the court abused its discretion when it improperly employed the blue pencil doctrine to alter the non-competition provision. * * *

Buffkin maintains that there is no reasonable likelihood of success in this case because Paragraph 6 of the Agreement is unreasonable and unenforceable. He argues that the provision does not protect a legitimate interest of Glacier, that the scope of the restricted activity is unreasonable and overly broad, and that the geographic scope of the restriction is unreasonable. We thus address whether the conclusion that Glacier has shown by a preponderance of the evidence a reasonable likelihood of success at trial is clearly erroneous. * * *

Based upon the language of the Agreement and the record, and keeping in mind that non-competition agreements are strictly construed against the employer, see Press-A-Dent, 849 N.E.2d at 668-669, we conclude that Paragraph 6 of the Agreement, to the extent that it protects a legitimate interest of Glacier, is unreasonable in terms of the activities it prohibits and its geographic restraints. Accordingly, the non-competition covenant in the Agreement was unenforceable. See Dicen, 839 N.E.2d at 689 (finding that the covenant not to compete exceeded the bounds of reasonableness and holding that thus the covenant was unenforceable). Glacier failed to meet its burden of showing a reasonable likelihood of success at trial. As a result, the court erred in granting its request for a preliminary injunction.

For the foregoing reasons, we reverse the trial court’s order and remand for further proceedings consistent with this opinion.

The Estate of Richard A. Mayer, and Spangler, Jennings & Dougherty v. Lax, Inc., and David Lasco, a 46-page opinion, Judges Barnes writes:
For the foregoing reasons, we reverse the trial court’s order and remand for further proceedings consistent with this opinion.

The dispositive issues we address are:
I. whether statements made by Mayer in counterclaims filed against Lax and Lasco were absolutely privileged and thus cannot support Lax and Lasco’s claims for defamation, abuse of process, malicious prosecution, negligent supervision and/or retention, tortious interference with a business relationship, and tortious interference with a contract;
II. whether Lax and Lasco’s claim against Spangler Jennings for malicious prosecution survives Mayer’s death;
III. whether there are any genuine issues of material fact precluding summary judgment in favor of the Estate and Spangler Jennings on Lax and Lasco’s abuse of process claim; and
IV. whether Lax and Lasco may seek punitive damages against the Estate and/or Spangler Jennings.

In Dorian Gray Jackson v. State of Indiana, a 12-page opinion, Judge Brown writes:
Dorian Gray Jackson appeals his convictions for possession of a narcotic drug with intent to deliver as a class A felony, two counts of dealing in a narcotic drug as class B felonies, and possession of marijuana as a class A misdemeanor. Jackson raises one issue, which we revise and restate as whether the trial court abused its discretion by admitting evidence obtained following the traffic stop and arrest of Jackson. We affirm. * * *

The police observed Jackson in a white Dodge Stratus on other buys and during surveillance. The cooperating sources had told police that they believed that the Stratus was used to go to Chicago to retrieve more heroin. Without a search warrant, Undercover Officer 8621 placed a GPS device on the Stratus. The GPS device was used to assist with visual surveillance and to determine that the Stratus had gone to Chicago and was traveling back to the Elkhart area on March 30, 2011. Once the police had observed that the Stratus was going to Chicago, they decided that a traffic stop would be initiated, if possible, when the Stratus returned to Elkhart.

NFP civil opinions today (5):

Robert Walke and Karen Walke v. Kitley Law Office, P.C., (NFP)

Gordon B. Dempsey v. JPMorgan Chase Bank, N.A. (NFP)

In Re: The Paternity of J.K., A.K. v. T.L. (NFP)

In Re The Paternity of I.B., K.H. v. I.B. b/n/f L.B. (NFP)

In the Matter of the Civil Commitment of S.I. v. Midtown CMHC (NFP)

NFP criminal opinions today (2):

Marie Castner v. State of Indiana (NFP)

Michael Morrisey v. State of Indiana (NFP)

Posted by Marcia Oddi on October 7, 2013 11:22 AM
Posted to Ind. App.Ct. Decisions