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Wednesday, December 18, 2013

Ind. Decisions - Court of Appeals issues 5 today (and 14 NFP)

For publication opinions today (5):

In Ralph Stockton v. Falls Auctioneers and Realtors and Peggy Buck as Trustee of the Peggy Buck Trust, a 16-page opinion, Judge Brown concludes:

There are questions of fact regarding whether Stockton’s fall was caused in part by the length of the grass and whether Buck controlled the length of the grass. It cannot be said as a matter of law that Buck owed no duty to Stockton and Buck was not entitled to summary judgment on this basis.

For the foregoing reasons, we reverse the trial court’s order granting Buck’s motion for summary judgment and remand for further proceedings.

In Mark S. Weinberger, M.D. v. Estate of Phyllis R. Barnes, Deceased, By Peggy Hood as Personal Representative, Joe Clinkenbeard, P.A., et al., a 15-page opinion, Judge Friedlander writes:
In Indiana, Ind. Code Ann. § 34-51-3-6 (West, Westlaw current with all 2013 legislation) allocates the lion’s share of punitive damage payments to the State. In this case, we must decide whether the statute empowers the State to intervene in otherwise private litigation, ostensibly to protect its interest in a punitive damage award. Concluding that I.C. § 34-51-3-6 confers no such authority, and acknowledging that the only proper parties to this litigation have reached a post-trial settlement agreement, we dismiss. * * *

Intervention after the entry of judgment is disfavored, but permitted under extraordinary and unusual circumstances. * * *

We need not resolve the specific issue of whether intervention at the appellate level is permitted because we conclude that under I.C. § 35-51-3-6, the State is not permitted to intervene at any stage of the proceedings. The State was not involved in the underlying incident. It had no rights or duties that were implicated in the physician/patient relationship between Barnes and Weinberger. The State has an interest in this matter only to the extent the legislature says it does. Thus, the statute creating and conferring status upon the State in punitive-damages cases is the sole repository of authority governing the State’s participation in the litigation. * * *

In sum, I.C. § 34-51-3-6 does not permit the State to become a party to otherwise private litigation at any stage of the proceedings, and we therefore reverse this court’s prior order granting the State’s motion to intervene. Because the only proper parties to this appeal have amicably resolved their dispute, there is nothing left for us to decide; accordingly, we dismiss. Upon petition by the parties, the trial court shall vacate the damages judgment against Weinberger.

In Local 1963 of the United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW v. Madison County, Indiana, Madison County Assessor, and Madison County Recorder, an 18-page opinion, Judge Riley writes:
Issue. Whether the trial court erred in concluding, as a matter of law, that the Board of County Commissioners (Commissioners) and County Council (Council) had no authority to encroach upon the rights of the Assessor and Recorder to appoint and discharge deputies. * * *

Based on the foregoing, we conclude that the trial court properly issued summary judgment for the County Group because, as a matter of law, the Commissioners and Council had no authority to execute a CBA interfering with the independence of the Officials in appointing and discharging their deputies and employees.

George A. Nunley v. State of Indiana , a 4-page opinion, Chief Judge Robb writes:
The State has petitioned this court for rehearing of our decision dated October 2, 2013. In our opinion we held, in relevant part, that the trial court erred in allowing the State to amend the habitual offender allegation after the jury was empaneled. Nunley v. State, 995 N.E.2d 718, 726 (Ind. Ct. App. 2013). We concluded that the amendment was made after the commencement of trial and that it prejudiced Nunley’s substantial rights and therefore was not allowed under any subsection of Indiana Code section 35-34-1-5, which deals with amendments to an information. Accordingly, we reversed the habitual offender enhancement to Nunley’s sentence. Id. at 725. We write now to clarify our decision, and we affirm our opinion in all respects.
In Paul J. Coy v. State of Indiana, an 18-page opinion, Judge Vaidik writes:
Paul Coy and his friend Mike Ducheteau raced cars on a two-lane road in Anderson, Indiana. Coy drove as fast as 106 miles per hour before losing control of the car and crashing it into a group of trees on the side of the road, killing one passenger, Darian Hurn, and seriously injuring his other passengers, A.K. and Z.M. Coy now appeals his convictions for one count of Class C felony reckless homicide and two counts of Class D felony criminal recklessness. Finding that the trial court properly declined to give a lesser-included instruction, there was not a fatal variation in the charging information, the trial court did not abuse its discretion by considering aggravators and failing to consider or give proper weight to mitigators, and Coy’s sentence is appropriate in light of the nature of the offenses and his character, we affirm.
NFP civil opinions today (7):

In Re the Matter of the Paternity of T.L.T.: State of Indiana, as Child's Next Friend ex rel. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: E.B., K.B., T.B., and M.J., (Minor Children) and J.W., (Mother) v. The Indiana Department of Child Services (NFP)

Masoud Azimi on behalf of Amir Mansour Azimi, Deceased v. Clarian Health Partners d/b/a Methodist Hospital, Kyle Yancey, M.D., Steve S. Shin, M.D., David M. Kaehr, M.D., et al (NFP)

In the Matter of the Termination of the Parent-Child Relationship of : B.M.B. and B.A.B., Minor Children, R.B., Father v. Indiana Department of Child Services (NFP)

Lynda Rollins v. Graycor Construction Company, Inc., Graycor Industrial Constructors, Inc., Graycor Industrial Constructors, LLC, Graycor Construction Company, LLC, and Graycor, Inc. (NFP)

In the Matter of the Termination of the Parent-Child Relationship of L.N.C. and L.G.C.; J.T. v. Indiana Department of Child Services (NFP)

In the Matter of the Involuntary Termination of the Parent-Child Relationship of: P.K. (Minor Child) and D.K. (Mother) v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (7):

Willie Gates v. State of Indiana (NFP)

Timothy J. Fugate v. State of Indiana (NFP)

Frederick M. Dial v. State of Indiana (NFP)

Thomas Dillman v. State of Indiana (NFP)

Guy Ivester v. State of Indiana (NFP)

Andre Moton v. State of Indiana (NFP)

Christopher L. Aders v. State of Indiana (NFP)

Posted by Marcia Oddi on December 18, 2013 11:28 AM
Posted to Ind. App.Ct. Decisions