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Friday, July 25, 2014

Ind. Decisions - Court of Appeals issues 5 today (and 3 NFP)

For publication opinions today (5):

In Phyllis Dodson, as Special Administrator of the Estate of Eboni Dodson, Deceased v. Curt D. Carlson, Carmel Hotel Company, d/b/a Grille 39, Seven Corners, Inc., et al., a 9-page opinion, Judge May writes:

On February 22, 2010, Curt Carlson was driving home from a business meeting over dinner and drinks at the Renaissance Hotel in Carmel, Indiana. He struck a disabled vehicle on the side of I-465 and its driver, Eboni Dodson, was killed. Dodson’s estate (hereinafter “Dodson”) sued Carlson’s employer, Seven Corners, Inc., and others. The trial court granted summary judgment for Seven Corners on the ground there was no issue of fact as to whether Carlson was acting in the scope of his employment when he hit Dodson’s car. We affirm. * * *

Dodson brought a wrongful death and negligence action against Carlson, the hotel, and Seven Corners. Dodson alleged Seven Corners was liable for Carlson’s actions under a theory of respondeat superior. The trial court entered summary judgment for Seven Corners, noting “It is assumed from the case citations of the parties that Indiana case law has not addressed a circumstance involving an employee consuming alcohol within the course of scope of [sic] employment, and then immediately engaging in a non-employment related activity, such as driving home.” * * *

Carlson was not acting in the scope of his employment at the time of the accident. The doctrine of respondeat superior is limited by the “going and coming” rule: “an employee on his way to work is normally not in the employment of the corporation.” * * *

That Carlson’s drinking before he drove home might have been in some way work-related does not render inapplicable the “going and coming” rule. * * *

As there was no designated evidence that would suggest Carlson was outside the “going and coming” rule, the trial court properly entered summary judgment for Seven Corners, and we accordingly affirm.

In Joseph D. Barnette, Jr., and Charlene Barnette, and City of Carmel Department of Community Services, Division of Building and Code Services, et al. v. US Architects, LLP, Albert D. Bowen, et al., a 19-page opinion, Judge Crone writes:
Carmel residents Albert D. Bowen and Julie A. Bowen hired US Architects to design what the Carmel Zoning Ordinance (“the Ordinance”) categorizes as an accessory building. The Bowens submitted the design plans to the Carmel Department of Community Services (“the DCS”), which issued a building permit and a certificate of occupancy. The Bowens’ neighbors, Joseph D. Barnette, Jr., and Charlene Barnette, complained to the DCS about the height of the Bowens’ building. The DCS notified the Bowens that their building violated the height limits of the Ordinance and advised them to apply for a variance with the Carmel/Clay Board of Zoning Appeals (“the BZA”), which they did. The BZA denied the variance. The Bowens did not appeal the DCS’s determination that their building is too tall, nor did they appeal the BZA’s denial of a variance. The DCS again notified the Bowens that their building violated the Ordinance, that they had to bring it into compliance, and that the DCS would be withdrawing the certificate of occupancy. The Bowens did not appeal that determination.

Instead, the Bowens and US Architects (collectively “the Plaintiffs”) filed a complaint for declaratory relief against the DCS and the BZA (collectively “the City”), seeking an interpretation of the Ordinance and a determination that their building complied with it. The City filed a motion for judgment on the pleadings based on the Bowens’ failure to exhaust their administrative remedies and counterclaimed for both an injunction ordering the Bowens to bring their building into compliance with the Ordinance and a civil penalty for a zoning violation. The Barnettes filed a motion to intervene, which the trial court granted, and joined the City’s motion for judgment on the pleadings. The Plaintiffs filed a motion for summary judgment. * * *

On appeal, the Plaintiffs contend that the appeal is moot because the Barnettes cannot enforce the Ordinance on the City’s behalf. We conclude that the appeal is not moot because a party of record in the trial court is a party on appeal, and we may grant appropriate relief to any party. Also, as intervenors and parties to the judgment, the Barnettes may appeal the trial court’s judgment to the extent that it is adverse to the interests that made intervention possible in the first place.

The Barnettes contend that the declaratory judgment action should be dismissed for lack of subject matter jurisdiction because the Bowens failed to exhaust their administrative remedies. We agree. The DCS is not estopped from enforcing the Ordinance because the relevant facts were equally known by or accessible to the Bowens and the City. And because the Bowens failed to exhaust their administrative remedies, which would have afforded them due process, they cannot complain about a due process violation. Therefore, we reverse and remand with instructions to dismiss the Plaintiffs’ declaratory judgment complaint as to the Bowens and for further proceedings consistent with this opinion, such as reconsideration of the City’s counterclaims.

Finally, US Architects contends that the trial court erred in determining that it lacks standing to bring a declaratory judgment action. Because any injury suffered by US Architects would be derivative of that suffered by the Bowens, and because it may not seek an advisory opinion for guidance in designing future buildings, we affirm the trial court on this issue and remand with instructions to dismiss the Plaintiffs’ declaratory judgment complaint as to US Architects.

In sum, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

In Chris T. Collins v. State of Indiana , a 12-page opinion, Judge Robb writes:
Chris Collins, pro se, appeals the post-conviction court’s denial of his petition for post-conviction relief, raising the following issues for our review: (1) whether the post-conviction court erred by denying Collins’s request for subpoenas; (2) whether Collins was denied the right to assistance of counsel at his guilty plea hearing where he was represented by a certified legal intern; (3) whether Collins’s plea was knowing, intelligent, and voluntary; and (4) whether Collins was denied the right to effective assistance of counsel. Concluding the post-conviction court’s denial of Collins’s request for subpoenas was not an abuse of discretion and that its denial of Collins’s petition for post-conviction relief was proper, we affirm.
In Jennifer L. Patch v. State of Indiana , a 7-page opinion, Judge May writes:
Jennifer L. Patch appeals her conviction of Class B felony conspiracy to commit burglary. She asserts two issues on appeal: 1. Whether the evidence was sufficient to support her conviction, and 2. Whether the trial court properly denied her motion for mistrial when the prosecutor conferred with a State’s witness between direct and cross examinations. We affirm.
In Michael B. Eliseo v. State of Indiana, a 6-page opinion, Judge May writes:
Michael B. Eliseo appeals an order that he pay $300.00 for a supplemental public defender service fee and $166.00 in court costs. He asserts the trial court abused its discretion in imposing a public defender fee larger than $100.00 and erred in assessing the fee and costs without an explicit finding that he was able to pay. We affirm. * * *

Michael B. Eliseo appeals an order that he pay $300.00 for a supplemental public defender service fee and $166.00 in court costs. He asserts the trial court abused its discretion in imposing a public defender fee larger than $100.00 and erred in assessing the fee and costs without an explicit finding that he was able to pay. We affirm.

NFP civil opinions today (1):

Merrill C. Roberts v. Unlimited, LLC d/b/a Remax Unlimited and Matthew A. Gunning (NFP)

NFP criminal opinions today (2):

Kelsey Lynn Wilson v. State of Indiana (NFP)

Andrew Prairie v. State of Indiana (NFP)

Posted by Marcia Oddi on July 25, 2014 01:08 PM
Posted to Ind. App.Ct. Decisions