Wednesday, December 31, 2014
Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)
For publication opinions today (2):
In Clifford Garrett and Judith Ann Garrett v. Paul T. Spear and Linda Spear, a 5-page opinion, Judge Robb writes:
On February 6, 2013, the trial court granted summary judgment in favor of Paul and Linda Spear (collectively, “Spear”) and against Clifford and Judith Garrett (collectively, “Garrett), and ordered Spear to obtain and record a survey reflecting a property line. Following an affirmance by this court on appeal, Spear filed a notice of compliance with that order, and the trial court made a Chronological Case Summary entry on May 16, 2014, stating that Spear complied with the February 6 order, and reaffirmed the same in an order on June 5, 2014 in response to Garrett’s motion to correct error. Garrett appeals, raising one issue for our review, which we restate as follows: whether the trial court’s denial of Garrett’s motion to correct error was an abuse of discretion. Concluding the trial court did not abuse its discretion, we affirm. * * *In Alfredo D. Rodriguez, as Permanent Guardian of the Person and Estate of Miriam Rodriguez, and Alfredo D. Rodriguez, Individually v. United States Steel Corporation , a 9-page opinion, Judge Najam writes:
Garrett asserts there is no evidence to support a finding that Spear complied with the trial court’s order, but Garrett makes this argument without pointing to anything obligating Spear to prove his compliance in the first place. The trial court’s February 6 order does not contain any direction that the parties submit evidence of their compliance with that order, and Garrett fails to identify an Indiana Trial Rule or local rule that requires a party to affirmatively prove compliance with a court order. From our perspective, Spear’s notice to the trial court is sufficient to support the trial court’s CCS entry reflecting compliance with the court’s order. If Garrett believes that Spear has failed to comply with the court’s February 6 summary judgment order, it is incumbent upon him to enforce the judgment in further proceedings.
Alfredo Rodriguez, individually and as permanent guardian of the person and estate of Miriam Rodriguez, appeals the trial court’s grant of summary judgment in favor of United States Steel Corporation (“U.S. Steel”) on Alfredo’s negligence claim. Alfredo presents three issues for our review, but we address only one dispositive issue, namely, whether the trial court erred when it concluded that U.S. Steel did not owe a duty to Miriam. We affirm. * * *NFP civil opinions today (2):
Alfredo contends that U.S. Steel owed third-party motorists, and, therefore, Miriam, a duty when it permitted Faught to work long hours for several consecutive days without any policy or training to combat employee fatigue. Consequently, he argues, the trial court erred when it entered summary judgment in favor of U.S. Steel. We disagree. * * *
Considering each of the three Webb factors, we hold that U.S. Steel did not owe Miriam a duty of reasonable care. While, in general terms, her injury was reasonably foreseeable, she had no relationship with U.S. Steel, and public policy strongly counsels against the imposition of a duty on employers to monitor worker fatigue. In sum, we do not believe reasonable persons would recognize such a duty and agree that it exists. Absent such a duty, U.S. Steel is entitled to summary judgment, and we affirm the trial court’s entry of summary judgment in favor of U.S. Steel.
In Dolen Glenn v. Dick Brown and Indiana Department of Correction (NFP), an 8-page opinion with a pro se appellant, Judge Bailey writes:
Pro-se appellant Dolen Glenn (“Glenn”) appeals the denial of his motion to correct error, which challenged the dismissal of his complaint against the Indiana Department of Correction (“DOC”), Superintendent Dick Brown (“Brown”), and other DOC employees.1 He presents the sole issue of whether the trial court properly dismissed his complaint. We reverse and remand. * * *ILB Note: The ILB believes that this opinion, the reversal of a a prisoner's suit against DOC, deserves the ILB appellation: Why is this decision NFP?
Glenn asserts that he has raised a First Amendment challenge in that freedom to read is akin to freedom of speech. He directs our attention to King v. Fed. Bureau of Prisons, 415 F.3d 634 (7th Cir. 2005), an appeal presenting very similar circumstances to those of the instant appeal. * * *
We find this reasoning persuasive and thus disagree with the trial court’s determination of frivolousness. Glenn’s complaint has a basis in law, specifically, the First Amendment to the United States Constitution. Although he ultimately may not prevail, we cannot say – absent development of a factual basis to permit application of the Turner factors – that he states no claim upon which relief could be granted.
The trial court perceived other infirmities in Glenn’s complaint * * * However, this is not the role of the trial court in conducting its review pursuant to Indiana Code section 34-58-1-2.
The statutory language plainly provides for an additional level of scrutiny of a prisoner’s claims. However, we do not believe that the statutory scheme at issue is designed to allow a trial court judge to become an advocate for one party or sua sponte raise an affirmative defense on a party’s behalf.
We reverse the dismissal and remand for further proceedings consistent with this opinion.
NFP criminal opinions today (6):
In Michael Whicker v. State of Indiana (NFP), a 7-page opinion, Judge Bradford writes:
Approximately six years after the trial court accepted the parties’ plea agreement and sentenced Whicker in accordance therewith, Whicker filed a petition to reduce his Class D felony conviction to a Class A misdemeanor. The State responded by acknowledging that while it had previously agreed that it would not object to any such request, the applicable three-year statutorily-prescribed period for Whicker to file a petition to reduce his Class D felony conviction to a Class A misdemeanor had long since passed. The trial court subsequently denied Whicker’s petition. We affirm. * * *Willie Harrison v. State of Indiana (NFP)
Because the three-year time frame in Indiana Code section 35-38-1-1.5 is jurisdictional and Whicker does not fall within the narrow exception created by Troxell, we conclude that as a result of Whicker’s failure to file his petition to reduce his Class D felony conviction to a Class A misdemeanor within the statutorily-prescribed timeframe, the trial court lacked jurisdiction over Whicker’s petition. Accordingly, we further conclude that the trial court did not err in denying Whicker’s petition.
 We note that the Attorney General’s Office, which represents the State on appeal, has filed a belated appearance and requested permission to file a belated appellate brief. In requesting permission to file a belated appellate brief, the Attorney General’s Office explains that it failure to file a timely appellate brief was due to the fact that Whicker’s counsel failed to serve the Attorney General’s Office with notice of the instant appeal or with a copy of Whicker’s Appellant’s brief. We take this opportunity to remind Whicker’s counsel that the Attorney General represents the State in all criminal appeals, see Appellate Rule 17(A), and, as such, must be provided with service of the notice of appeal as well as all briefs and motions filed in connection to said appeal. Because the law is so well settled in favor of the State on the questioned raised by Whicker, we have decided to proceed on the merits and without the delay attendant to allowing the Attorney General to file a belated brief.