« Ind. Gov't. - General Assembly will hold voluntary ethics training session today | Main | Ind. Decisions - 7th Circuit decides one Indiana case today »

Wednesday, January 14, 2015

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In J.P. et al. v. Mid American Sound, et al., a 12-page opinion, Judge May writes:

Jordyn Polet was injured when the stage collapsed at a concert at the Indiana State Fair. Polet declined the State’s settlement offer, and the State distributed, to the claimants who were willing to settle, all the money available under the Indiana Tort Claims Act (ITCA) cap of five million dollars. After her parents sued the State and others, the State asserted, as an affirmative defense, that the ITCA made it immune to Polet’s claim.

Polet moved for partial summary judgment on the State’s affirmative defense it was immune under the ITCA. The trial court denied her motion. Polet argues the limits on the State’s aggregate tort liability, as applied to her, violate the Indiana Constitution’s open courts and equal privileges guarantees. * * *

The application of the ITCA aggregate liability cap to Polet did not violate the open courts clause of the Indiana constitution, nor was Polet in a class of persons treated unequally compared to other claimants seeking relief under the ITCA. We accordingly affirm.

In Christopher Schmidt v. Indiana Insurance Co., C&F Insurance Group, Llc, and Bart Stith, an 8-page opinion, Judge May writes:
Christopher Schmidt appeals summary judgment for Indiana Insurance, C&F Insurance Group, and Bart Stith (collectively, “Appellees”). He presents multiple issues for our review, which we consolidate and restate as whether the trial court erred in granting summary judgment because there were genuine issues of material fact. We reverse in part, affirm in part, and remand. * * *

Summary judgment was not proper for Agents because Schmidt designated evidence that gave rise to a genuine issue of material fact. However, as Schmidt did not do so in response to Indiana Insurance’s motion for summary judgment, summary judgment for Indiana Insurance was proper.

In In Re: The Marriage of Gertiser; Kevin Gertiser v. Anne Stokes (formerly Gertiser), a 7-page opinion, Judge May writes:
Kevin Gertiser appeals the denial of his petition to terminate the spousal maintenance he pays to his ex-wife, Anne Stokes. Kevin asserts the court abused its discretion by continuing the spousal maintenance and by ordering him to pay Anne’s attorney fees. We reverse and remand. * * *

Although the trial court is correct that Anne’s ability to earn income has not changed, the court abused its discretion by denying Kevin’s petition to terminate spousal maintenance because it did not consider the substantial income and assets now available to Anne pursuant to her marriage to Paul. Accordingly, the trial court should have terminated the spousal maintenance. Additionally, following the statutes regarding modification of child support, modification may be retroactive to the date of filing the petition. See Ind. Code § 31-16-8-1 (states the circumstances wherein such an order may be modified). See also Ind. Code § 31-16-16-6(b)(1) (a court may modify an obligor’s duty to pay after notice of the petition has been served). * * *

The trial court ordered the attorney fees “[b]ecause of the wide disparity in the party’s incomes.” (App. at 16.) As noted above, when including all resources available to Anne, no such disparity exists. Rather, Anne has more resources available to pay attorney fees than does Kevin. Accordingly, the trial court abused its discretion in ordering such fees be paid by Kevin. See Bartlemay v. Witt, 892 N.E.2d 219, 232 (Ind. Ct. App. 2008) (attorney fees held to be erroneous when order relied on erroneous factual findings).

NFP civil opinions today (4):

Celebration Worship Center, Inc. v. Patrick Tucker and Carolyn P. Tucker a/k/a Patty Tucker (NFP)

In the Matter of the Term. of Parent_Child Relationship of: K.N. and M.B. v. The Ind. Dept. of Child Services (NFP)

Terry McMillian v. Donna McMillian (NFP)

Do.D. v. De.D. (NFP)

NFP criminal opinions today (5):

Michael Brown v. State of Indiana (NFP)

Anthony Ervin v. State of Indiana (NFP)

Dominique Hughes v. State of Indiana (NFP)

Adam White v. State of Indiana (NFP)

Travis Wilson v. State of Indiana (NFP)

Posted by Marcia Oddi on January 14, 2015 11:24 AM
Posted to Ind. App.Ct. Decisions