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Tuesday, February 03, 2015

Ind. Decisions - Court of Appeals issues 4 opinions today (and 10 NFP memorandum decisions)

For publication opinions today (4):

In Nick Hunckler v. Air Source-1, Inc., Timothy Miller and Kelly A. Brannen, an 11-page opinion, Judge Baker writes:

Nick Hunckler appeals the trial court’s grant of summary judgment in favor of appellees Timothy Miller and Air Sorce-1, Inc., (Air Sorce-1) regarding his personal injury claim. Finding that material issues of fact exist, thereby precluding summary judgment, we reverse and remand for proceedings consistent with this opinion. * * *

Hunckler argues that the trial court erred when it granted summary judgment in favor of Miller and Air Sorce-1. He contends that the trial court erred in determining that he was a “volunteer” and maintains that the trial court erred in applying the volunteer duty of care as stated in Thompson v. Owen, 141 Ind. App. 190, 218 N.E.2d 351 (Ind. Ct. App. 1966), to his negligence claim. * * *

Hunckler argues that Thompson does not apply to him because the case at bar is not a premises liability case. Miller concedes that this is not a premises liability case, but argues that the volunteer doctrine is not limited to premises liability cases. In May 2001, the Supreme Court of Michigan addressed the continued relevance of the volunteer doctrine, and abandoned it entirely. James v. Alberts, 626 N.W.2d 158, 161-162 (Mich. 2001). It stated that it would “return this area of law to traditional agency and tort principles, comfortable that they will better resolve the matters to which the doctrine might have applied.” Id. at 162.

We now adopt the same approach. We will continue to rely on traditional tort and agency principles and, to the extent it was ever applied, abandon the volunteer doctrine. Therefore, it follows that ordinary negligence principles apply in the instant case. We find that there are genuine issues of material fact as to duty, causation, breach, and damages. * * *

Kirsch, J., concurs, and
Robb, J., concurs in result with opinion. [which begins, at p. 10] respectfully concur in result, believing, as the majority does, that there are genuine issues of material fact which preclude judgment for Miller as a matter of law.

I, however, find it unnecessary to discuss Thompson v. Owen at all, let alone “abandon” the volunteer doctrine it espoused. First, as the majority notes, Thompson may not even be binding precedent, as the majority in that case agreed only on the result, not the analysis.

In R.B. v. K.S. , a 10-page opinion, Judge Baker writes:
R.B. (Father) appeals the order of the trial court granting him legal custody of his children and ordering that parenting time be equally shared with K.S. (Mother). The order further specified that Father is to pay to Mother child support in the amount of $876 per week. Father argues that this award is clearly erroneous. Finding that the amount of child support was determined in accordance with the Indiana Child Support Guidelines and finding no other error, we affirm. * * *

Finally, Mother requests appellate attorney fees pursuant to Indiana Appellate Rule 66(E), which provides: “The Court may assess damages if an appeal, petition, or motion, or response, is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorney’s fees.” While we have decided against Father, we do not believe that this appeal was frivolous or in bad faith. In particular, this Court had yet to address the relevance of Grant v. Hager subsequent to the 2010 amendments to the Guidelines. Consequently, we decline to order Father to pay Mother’s appellate attorney fees.

In Antonio Garcia v. State of Indiana , a 10-page opinion, Judge Crone writes:
Antonio Garcia appeals his conviction for class D felony possession of a schedule III controlled substance (a hydrocodone/acetaminophen pill). He argues that the pill found in a container discovered in his pants pocket during a search incident to arrest was taken in contravention of his state constitutional right against unreasonable search and seizure and was therefore inadmissible. Specifically, he contends that even though he was lawfully arrested and the search of his person incident to arrest was reasonable, it was unreasonable for the police to open the container. We conclude that the search of the container was unreasonable under the Indiana Constitution, and therefore the pill was inadmissible. Accordingly, we reverse Garcia’s conviction. * * *

In sum, Officer Robinett had no safety concerns to justify opening the container and also had no reasonable suspicion that it held any illegal substances. We conclude that given the facts of this case, it was unreasonable under the Indiana Constitution to open the container found in Garcia’s pants pocket during a search incident to arrest. Accordingly, the pill was inadmissible. Therefore, we reverse Garcia’s conviction for class D felony possession of a schedule III controlled substance. Reversed.

In Dustin McFadden v. State of Indiana , an 8-page opinion, Chief Judge Vaidik writes:
Dustin McFadden was convicted of Class B felony criminal confinement and Class B misdemeanor battery. The trial court sentenced McFadden to six months for battery and fourteen years for criminal confinement. McFadden now appeals, challenging the sufficiency of evidence underlying his criminal-confinement conviction. He also argues that his sentence for criminal confinement is inappropriate. Because there is no independent evidence to establish confinement beyond the evidence used to establish that McFadden committed battery, we conclude that the evidence is insufficient to support McFadden’s criminal-confinement conviction. We therefore reverse and remand with instructions.
NFP civil decisions today (4):

In the Matter of the Termination of the Parent-Child Relationship of: A.W. (Minor Child) and A.W. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In Re: the Paternity of D.Y.E., M.D. (Father) v. A.G. (Mother) (mem. dec.)

Chris Schumacher v. Theresa Martin-Schumacher (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: T.P., K.P., and D.P., minor children, and D.S., Mother, and B.P., Father v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (6):

Andrew Wedge v. State of Indiana (mem. dec.)

Mark A. Kimmel v. State of Indiana (mem. dec.)

Fabian Gomez v. State of Indiana (mem. dec.)

Travis J. Monroe v. State of Indiana (mem. dec.)

Everett Harry Koonce, Jr. v. State of Indiana (mem. dec.)

Julie Wright v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 3, 2015 11:02 AM
Posted to Ind. App.Ct. Decisions