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Monday, September 08, 2014

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

For publication opinions today (3):

In Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. v. Duke Energy Indiana, Inc., Indiana Office of Utility Consumer Counselor, a 23-page opinion, Judge Kirsch writes:

Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Sierra Club, and Valley Watch, Inc. (collectively, “Intervenors”) appeal the order of the Indiana Utility Regulatory Commission (“the Commission”) approving Duke Energy Indiana, Inc.’s (“Duke”) request to include power plant construction costs incurred from October 1, 2011 through March 31, 2012 in a rate adjustment rider. On appeal, Intervenors raise the following restated issues:

I. Whether the Commission erred when it authorized Duke to pass on to ratepayers 100% of Duke’s requested financing costs for the period under review when the Commission’s authorization was made in the absence of findings of fact and conclusions thereon regarding costs incurred during a three-month delay; and

II. Whether the Commission erred by allowing Duke to consider 50% of the power plant to be “in-service,” and thereby increase customer rates, despite Duke’s admission that the plant had not reached its “In-Service Operational Date” as that term was defined in a Commission-approved settlement agreement to which Duke was a party, when such determination was made in the absence of Commission findings of fact and conclusions thereon. * * *

We remand to the Commission for actions consistent with this opinion.

In Department of Financial Institutions, State of Indiana v. Michael Massey, an 8-page opinion, Judge Kirsch writes:
The Indiana Department of Financial Institutions (“the DFI”) appeals following the trial court’s reversal of the DFI’s decision to deny Michael Massey a Mortgage Lender Originator’s (“MLO”) license. The DFI now appeals, presenting two issues that we restate as follows: I. Whether the DFI has made a prima facie showing that it is the MLO licensing authority; and II. Whether the DFI has made a prima facie showing that it acted within its discretion when it denied Massey an MLO license on character and fitness grounds. We reverse. * * *

Through its citation to SAFE and FLML, the DFI has met its prima facie burden of showing, in this case, that it is the licensing authority for MLOs who operate in Indiana. * * *

The DFI Board voted unanimously to deny Massey a license based upon character and fitness grounds, among other things. The DFI argues that it acted within its discretion when it denied Massey a license on those grounds. * * * 750 Ind. Admin. Code 9-3-2(b)... permits the DFI to deny a MLO to an applicant who does not meet its character and fitness requirements. Massey had convictions for armed robbery, possession of marijuana with intent to deliver, and possession of a firearm by a felon for which he served a total of ten years. The ALJ determined that the DFI acted within its discretion when it denied Massey an MLO license on character and fitness grounds due to those convictions. Appellant’s App. at 21. Based upon the facts that were not in dispute below and our prima facie standard of review in this case, the DFI has established that it acted within its discretion when it denied Massey an MLO license.

In Lori A. Henderson v. Reid Hospital and Healthcare Services, a 19-page, 2-1 opinion, Judge Kirsch writes:
Lori A. Henderson appeals the trial court’s order granting summary judgment in favor of Reid Hospital and Healthcare Services (“the Hospital”). She specifically contends that it was error to grant summary judgment because the trial court utilized the wrong standard when it held that the Hospital did not have a duty to remove the ice that had accumulated on its premises until the freezing fog had ceased and that genuine issues of material fact existed as to whether the Hospital used reasonable care under the circumstances when it cleared its premises of ice. We reverse and remand. * * *

BAILEY, J., concurs.
MAY, J., dissents with separate opinion. [that begins, at p. 17] The majority is correct that whether a particular act or omission is a breach of duty is generally a question of fact for the jury. N. Indiana Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003). But it can be a question of law where the facts are undisputed and only a single inference can be drawn from those facts. Id. This is such a case. Only a single inference -- that the Hospital exercised reasonable care -- can be drawn from the undisputed facts. The Hospital was therefore entitled to summary judgment and I must respectfully dissent.

NFP civil opinions today (0):

NFP criminal opinions today (5):

Jessica Lewis v. State of Indiana (NFP)

Raymond Shelley v. State of Indiana (NFP)

Gary Wilder v. State of Indiana (NFP)

Thomas W. Badgley v. State of Indiana (NFP)

Steven C. Peters v. State of Indiana (NFP)

Posted by Marcia Oddi on September 8, 2014 11:39 AM
Posted to Ind. App.Ct. Decisions