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Tuesday, December 30, 2014

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

For publication opinions today (5):

In Jeffrey Hewitt v. Westfield Washington School Corp; Board of School Trusties of Westfield Washington School Corp. et al., a 16-page opinion, Judge Bailey writes:

Plaintiff-Appellant Jeffrey Hewitt (“Hewitt”) brought claims alleging breach of contract and denial of due process against his former employer, Defendants-Appellees Westfield Washington School Corporation (“the School Corporation”), Board of School Trustees of Westfield Washington School Corporation (“the Board”), Superintendent Mark F. Keen (“Keen”), and four individual Board members (“the Board Members”) (collectively, “the School”), after the School terminated Hewitt’s employment as an elementary school principal upon discovering he had an intimate relationship with a subordinate teacher. Hewitt appeals the trial court’s grant of summary judgment on both claims in favor of the School. * * *

The School has failed to carry the “onerous burden” of showing that there are no genuine issues of material fact and that the School is entitled to a judgment as a matter of law on Hewitt’s breach of contract and due process claims. Accordingly, the trial court erred in granting summary judgment in favor of the School. We therefore remand for further proceedings.

In Donald Snemis, Commissioner of the Ind. BMV; and Melvin Wilhelm, Prosecuting Atty. v. Joseph P. Mills, a 6-page opinion, Judge Pyle writes:
Appellant/Respondent, Donald Snemis, the Commissioner of the Indiana Bureau of Motor Vehicles, and Melvin Wilhelm, Prosecuting Attorney, (collectively, “the BMV”) appeal the trial court’s order vacating the suspension of Appellee/Petitioner Joseph P. Mills’ (“Mills”) driver’s license. Mills qualified as an habitual traffic violator (“HTV”) in August 2008, and, as a result, the BMV notified him in January 2012 that his license would be suspended for ten years. Mills filed a petition for judicial review of the BMV’s notice, arguing that it was untimely and constituted “extreme unfairness” since the BMV had waited several years after he qualified as an HTV to suspend his license. The trial court agreed that the BMV’s delayed notice was unfair and vacated Mills’ suspension.

On appeal, the BMV claims that there are factual errors in the trial court’s findings because the trial court miscalculated the time between Mills’ qualification as an HTV and the BMV’s notice. The BMV also argues that the court erred in vacating Mills’ suspension because the doctrine of laches does not apply to HTV adjudications. We reverse and remand with instructions for the trial court to reinstate the BMV’s adjudication against Mills because we conclude that Mills had the burden of proof on appeal and did not fulfill that burden as he did not file an appellee’s brief. We reverse and remand.

In Peerless Indemnity Insurance Co. v. Moshe & Stimson Llp, Sarah Moshe, and Justin Stimson , a 9-page opinion, Chief Judge Vaidik writes:
Sarah Moshe, Justin Stimson’s sister and former law partner, sued her brother in Marion Superior Court alleging, among other things, defamation. Justin made a claim under Moshe & Stimson LLP’s insurance policy for defense and indemnification. Peerless Indemnity Insurance Company, the firm’s insurer, filed a summary-judgment motion arguing that it had no duty to defend and indemnify Justin due to a clause in the policy that excluded coverage for certain employment-related practices, including defamation. The trial court initially ruled in Peerless’s favor, but it later reversed course and ordered Peerless to defend and indemnify Justin.

On appeal, Peerless argues that the employment-related exclusionary clause is unambiguous and bars coverage. We agree. Because Justin’s alleged actions toward his sister were employment-related, the exclusionary clause applies. We reverse the trial court and remand with instructions to enter summary judgment in Peerless’s favor on the issue of coverage.

In Metro Holdings One, Llc, Exproman, Inc., and Quaker Sales & Distribution v. Flynn Creek Partner, Llc , a 38-page opinion, Judge Pyle concludes:
Here, the terms of the parties’ Purchase Agreement allowed for Flynn Creek, upon default by Metro, to choose a remedy at law or equity, and the parties agreed that Flynn Creek’s equitable remedy included “the right” to specific performance. After Metro did not perform its obligation to purchase the Phase 2 Property, Flynn Creek chose to seek an equitable remedy and chose to assert its right to specific performance. We will not invalidate a remedy for which the parties have contracted. See Humphries, 789 N.E.2d at 1036. Based on the language contained in the four corners of the Purchase Agreement, we conclude that the trial court did not err by granting summary judgment to Flynn Creek on its claim for specific performance.
In Brandan Jones v. State of Indiana, an 8-page opinion, Judge Friedlander writes:
Brandan Jones appeals following a guilty verdict for class D felony Assisting a Criminal.1 Jones raises a single issue for our review: Did the State present sufficient evidence to support a finding of guilt? We affirm. * * *

When Officer Hutson approached the vehicle, he observed a male driver and a male passenger in the front seat. Both men provided Officer Hutson with state identification cards. After returning to his patrol car and checking the identification provided by Bennie Stigler, the man in the driver’s seat, Officer Hutson discovered that Stigler’s driver’s license was suspended for life. Before returning to the SUV to arrest Stigler, Officer Huston called for backup. A few minutes later, Officer Robert Lawson arrived, and both officers approached the vehicle. To their surprise, however, Jones, the passenger, was now in the driver’s seat, and Stigler, the driver, was now in the passenger seat. The officers removed both men from the car and placed them in handcuffs. Officer Hutson asked Jones why he had switched seats, and he denied doing so. During this conversation, Officer Hutson smelled an odor of alcoholic beverages on Jones’s breath. * * *

The crux of Jones’s argument on appeal is that in order to convict him of assisting a criminal as a class D felony, the State was required to prove not only that Stigler had committed a class C felony, but also that Jones was aware that Stigler was committing a class C felony by driving after his license was forfeited for life in violation of Ind. Code Ann. 9-30-10-17. * * *

The only mental element the State must prove in order to support a conviction for assisting a criminal is intent to hinder the assisted party’s apprehension or punishment, regardless of whether the crime is charged as misdemeanor or a felony. In order to prove such intent, the State would need to prove that the assisting party had reason to believe that the assisted party was subject to apprehension or punishment[.]

NFP civil opinions today (5):

Sonia Long, et al. v. Heartland Residential Services, Inc., et al. (NFP)

William Lee, Sr. v. Anonymous Psychologist I (NFP)

Adolph L. Buckner v. HSBC Mortgage Services, Inc., and LSF8 Master Participation Trust (NFP)

Michelle Barnes and Raymond Surzycki v. Prairie Horse Farms, Llc (NFP)

Timothy S. Enders v. Estate of Randall Enders (NFP)

NFP criminal opinions today (9):

Timothy Johnson v. State of Indiana (NFP)

Kevin D. Morris v. State of Indiana (NFP)

William E. Bowen v. State of Indiana (NFP)

Darren Rayford v. State of Indiana (NFP)

Justin Knight v. State of Indiana (NFP)

Demerius Shaw v. State of Indiana (NFP)

Ryan Allen Klug v. State of Indiana (NFP)

Armana Cottrell v. State of Indiana (NFP)

Wiley Parsons v. State of Indiana (NFP)

Posted by Marcia Oddi on December 30, 2014 11:05 AM
Posted to Ind. App.Ct. Decisions