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Wednesday, August 20, 2014
Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)
For publication opinions today (2):
In Goodrich Quality Theaters, Inc. and Roncelli, Inc. v. Fostcorp Heating and Cooling, Inc., Wilson Iron Works, Inc., Johnson Carpet, Inc., d/b/a Johnson Commercial Interiors, a 25-page opinion, Judge Robb writes:
Goodrich Quality Theaters, Inc. (“Goodrich”) and Roncelli, Inc. (“Roncelli”) (collectively, “Roncelli”) appeal the trial court’s judgment in favor of Fostcorp Heating and Cooling, Inc. (“Fostcorp”), Wilson Iron Works, Inc. (“Wilson Iron”), and Johnson Carpet, Inc. d/b/a Johnson Commercial Interiors (“Johnson Carpet”) (collectively, “the appellees”) on various breach of contract claims, foreclosure of mechanics’ liens, and the award of attorney fees that all stem from construction of the Portage 16 IMAX movie theater (“the theater”). Roncelli raises the following issues, which we consolidate and restate as: (1) whether the trial court’s retroactive decree that its May 1, 2012 order was a final judgment renders Roncelli’s appeal untimely; (2) whether the trial court erred in interpreting Roncelli’s contract with Wilson Iron; (3) whether the trial court erred in interpreting Roncelli’s contract with Johnson Carpet; and (4) whether the trial court erred in awarding attorney fees to the appellees. Concluding the appeal was timely filed and the judgments are supported by the findings, but it was an abuse of discretion for the trial court to award attorney fees, we affirm in part and reverse in part.In Kindred Nursing Centers, d/b/a Royal Oaks Health Care and Rehabilitation Center v. The Estate of Carrie Etta McGoffney, a 9-page opinion, Judge Bradford writes:
Carrie Etta McGoffney was a resident of the Royal Oaks Health Care and Rehabilitation Center, a facility operated by Appellant-Petitioner Kindred Nursing Centers (“Royal Oaks”), from September 30, 2008, until June 30, 2009. Carrie, who is now deceased, had two daughters, Ivy and Kelly McGoffney, and a granddaughter, Kelly’s daughter Keeli Mayes. In December of 2010, at a time when Ivy was Carrie’s sole guardian and attorney-in-fact, Kelly filed a proposed complaint in superior court alleging medical malpractice against Royal Oaks on behalf of Carrie. Around that time, the Vigo Probate Court, which had established Ivy’s guardianship, issued an order providing Kelly with the authority to pursue a medical malpractice action on Carrie’s behalf. Royal Oaks challenged the Probate Court’s order and also filed a motion to dismiss the proposed complaint in superior court on the basis that Kelly did not have standing. The Probate Court declined to rescind its order, but the superior court dismissed the complaint filed by Kelly in late December of 2011.NFP civil opinions today (4):
In early January of 2012, the Probate Court removed Ivy as Carrie’s guardian and appointed Keeli in her place. The next month, Keeli filed what she styled an amended proposed medical malpractice complaint against Royal Oaks. In May of 2012, Royal Oaks filed for summary judgment on the basis that the filing by Keeli was untimely. In November of 2012, Carrie died. Kelly was appointed personal representative of Appellee-Respondent Carrie’s estate (“the Estate”), and the Estate was substituted as plaintiff in the proposed complaint against Royal Oaks. The trial court eventually denied Royal Oaks’ summary
judgment motion, and we accepted jurisdiction over Royal Oaks’ interlocutory appeal. Royal Oaks argues that because neither Indiana Trial Rule 15(C), the tolling the provisions of the Medical Malpractice Act, nor the Journey’s Account Statute (“the JAS”) apply, the trial court erred in allowing the Estate’s proposed complaint to proceed. Concluding that the JAS applies to revive Keeli’s complaint, we affirm.
NFP criminal opinions today (6):
In Brandon Brummett v. State of Indiana (NFP), a one-paragraph opinion on rehearing the panel writes:
The State seeks rehearing following our opinion, Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014), arguing that this Court failed to apply an appropriately high standard for fundamental error when reversing appellant-defendant Brandon Brummett’s convictions for child molesting due to prosecutorial misconduct. The State argues that this Court should apply the fundamental error standard as recently articulated by our Supreme Court in Ryan v. State, 9 N.E.3d 663 (Ind. 2014), handed down June 3, 2014. We issue this opinion on rehearing but re-affirm our original decision in all respects, finding that the prosecutorial misconduct present in this case was much more egregious than that in Ryan and concluding that the prosecutor’s misconduct did amount to fundamental error under the standard now to be used. Although we have granted rehearing, we reverse and remand for further proceedings.The ILB last wrote about this case July 30th, in a post headed "Petition for rehearing filed by State in recent COA prosecutorial misconduct decision." The June 2nd Brummett opinion was For Publication. Oddly, this denial of a petition for rehearing has been designated Not for Publication by the panel, meaning this denial "shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case." This may present a dilemma to an attorney citing the original Brummett opinion, but denied the ability to cite it subsequent history ...
Posted by Marcia Oddi on August 20, 2014 10:37 AM
Posted to Ind. App.Ct. Decisions