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Thursday, October 15, 2015

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 8 NFP memorandum decision(s))

For publication opinions today (4):

In The Branham Corporation v. Newland Resources, LLC and John E. Bator, et al., a 27-page opinion, Sr. Judge Sharpnack writes:

This is the fourth appeal in this litigation between the parties stemming from a contract for assistance in negotiation for the provision of water and sewer utility services in Boone County. Here, the trial court granted The Branham Corporation’s motion to voluntarily dismiss without prejudice proceedings supplemental to execution of garnishment against certain garnishee defendants, conditioning the same upon the payment of the attorney fees incurred by the garnishee defendants up to the time of the filing of the motion to dismiss. The trial court later issued an amended order establishing the amount of the various attorney fee awards, setting a deadline for the payment of those fees, and ordering the dismissal be converted to a dismissal with prejudice in the event of nonpayment of the fees by the established deadline. The trial court’s order was stayed pending appeal. Branham now appeals and John E. Bator, a garnishee defendant, cross-appeals. We affirm.
In The Bar Plan Mutual Insurance Company v. Likes Law Office, LLC; Kevin L. Likes; Rickey D. Whitaker; and Cheryl L. Whitaker , a 23-page opinion, Judge Rley writes:
Appellant-Third-Party Defendant and Counter/Cross-Claimant, The Bar Plan Mutual Insurance Company (Bar Plan), appeals the trial court’s summary judgment in favor of Appellees-Third-Party Plaintiffs and Counter/Cross-Defendants, Likes Law Office, LLC; Kevin L. Likes, Esq. (Likes) and Rickey D. and Cheryl L. Whitaker (Whitaker), concluding that Likes made no material misrepresentation in his application for an insurance policy issued by the Bar Plan and was therefore entitled to coverage under the Bar Plan’s policy. We reverse. * * *

Based on the foregoing, we conclude that the trial court erred in granting summary judgment to Likes because the undisputed evidence establishes that Likes failed to timely notify the Bar Plan of the Claim and therefore is now precluded from coverage under the Policy. In addition, we find that the trial court abused its discretion when it admitted paragraph 4 of Likes’ affidavit and paragraphs 15-23 and 26 of Sagalow’s affidavit.

In Robert Hicks v. Marion Thatcher, in his official capacity as Unit Team Manager, and the Indiana Department of Correction, a 10-page opinion involving a pro se plaintiff, Sr. Judge Darden writes:
Robert Hicks appeals the trial court’s grant of summary judgment in favor of Marion Thatcher, in his official capacity as Unit Team Manager, and the Indiana Department of Correction (DOC). We affirm. * * *

In his brief to this Court, Hicks contends that inmates in the general population of ISP are treated differently from inmates in the Honor Unit in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The crux of Hicks’ argument is that he wants to have all the same privileges that are reserved for those offenders in the Honor Unit, specifically more time out of his cell each day, weekly visits, access to more microwaves and additional time throughout the day to use them, the use of weight equipment, and the opportunity to buy and use an Xbox gaming system. * * *

The Appellees have established that the disparate treatment complained of by Hicks bears a rational relation to a legitimate penological interest. As a whole, prison security is a primary, legitimate governmental interest that is influenced by things such as fostering responsibility and good behavior in inmates and using inmates as role models for other inmates. Conversely, Hicks has failed to demonstrate discrimination that was instituted for the purpose of causing adverse effects on the general population of inmates at ISP. The opposite is true; the Honor Unit at ISP, with its attendant privileges, was created to have positive effects on the behavior of the general population. As a panel of this Court previously noted, inmates do not forfeit all constitutional protections by reason of their conviction and confinement in prison. Faver v. Bayh, 689 N.E.2d 727, 730 (Ind. Ct. App. 1997). However, incarceration does bring about the necessary withdrawal or limitation of many privileges and rights, which is justified by the considerations underlying our penal system, including deterrence of crime, rehabilitation of inmates, and institutional safety and security

In John A. Hill, III and Susan Hill v. Steven N. Rhinehart, M.D. and Fort Wayne Medical Oncology and Hematology, Inc.; John F. Csicsko, M.D. and David P. Lloyd, M.D., as Individuals, et al, a 26-page opinion, Judge Riley writes:
Appellants-Plaintiffs, John A. Hill (Hill) and Susan Hill, appeal the trial court’s judgment in favor of Steven N. Rhinehart, M.D. (Dr. Rhinehart) and Fort Wayne Medical Oncology and Hematology, Inc.; John F. Csicsko, M.D. (Dr. Csicsko) and David P. Lloyd, M.D. (Dr. Lloyd), as individuals, and Cardiovascular Associates of Northeastern Indiana, LLC, a professional corporation; and Thomas P. Ryan, D.O. (Dr. Ryan). We affirm. * * *

Based on the foregoing, we conclude the trial court properly granted judgment on the evidence in favor of Drs. Lloyd and Csicsko; Hill was not prejudiced by the entry of the judgment on the evidence against two of the physicians; and the trial court properly tendered Jury Instruction No. 23 which advised the jury that physicians are not liable for an error in diagnosis or treatment when exercising reasonable care.

NFP civil decisions today (1):

W.P. v. Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (7):

In Douglas Bragg v. State of Indiana (mem. dec.), a 17-page, 2-1, 3-opinion ruling, Judge Riley writes:

Douglas Bragg (Bragg), appeals his conviction for criminal deviate conduct, a Class A felony, Ind. Code § 35-42-4-2 (2012); sexual battery, a Class C felony, I.C. § 35-42-4-8 (2012); and theft, a Class D felony, I.C. § 34-43-4-2 (2013). We affirm.

Bragg raises one issue on appeal, which we restate as: Whether the trial court abused its discretion when it denied Bragg’s motion to strike a prospective juror for cause because the juror was a deputy attorney general. * * *

During the venire, one of the prospective jurors volunteered that he was “not a law enforcement officer per se” but that he was a “deputy attorney general [and] a supervisor in [the] appeals division,” working very closely with the criminal appeals attorneys. As such, he felt “a little uncomfortable about serving as a juror.” When questioned by Bragg that he is “probably leaning towards favoring the State or being biased by the State,” the prospective juror responded that he had “been doing that for a long time [and] [s]o there’s a natural tendency probably.” * * *

When asked by the trial court “assuming you were throughout here as a juror—throughout the whole trial, and at the end of the day, you didn’t think the State met the burden of proof, would you be able to enter a finding of not guilty,” the prospective juror replied, “Yes.” He added, however, “I’m just uncomfortable about it from a [] professional [] point of view.” After the trial court refused to strike the prospective juror for cause, Bragg peremptorily struck him. * * *

Later during voir dire, Bragg used his last peremptory challenge and also requested to remove two other jurors for cause because they “were pretty clear that they did not want to be on this jury, they did not feel that they could be fair” even though they did say “that they would follow the instructions.” (Tr. p. 207). Bragg also requested an additional peremptory challenge because he believed that “the attorney general should have been struck for cause” so he could have used it to strike another objectionable juror. After the trial court rejected the for-cause challenges and denied Bragg’s request for an additional challenge, Bragg declined to accept the jury venire. The trial court allowed Bragg to make a record of his denial. At the close of the jury trial, the jury returned a guilty verdict on one Count of Class A criminal deviate conduct, one Count of Class C felony battery, and Class D felony theft. * * *

Accordingly, because I do not find presumed bias in the case of a prospective juror who is a deputy attorney general under the circumstances before me, I cannot conclude that the trial court abused its discretion in denying Bragg’s challenge for cause. Based on the foregoing, I conclude that the trial court properly denied Bragg’s motion to strike for cause. Affirmed.

Bailey, J. concurs in result with separate opinion
Barnes, J. concurs in part and dissents in part with separate opinion

Bailey, Judge, concurring in result [begining on p. 9]Weisheit v. State, 26 N.E.3d 3 (Ind. 2015). Thus, I write separately to explain my reasoning. * * *

According to our supreme court’s guidance in Weisheit, a conclusory allegation of forced acceptance of biased jurors is not nearly enough to support reversal.

For the foregoing reasons, I conclude that Bragg has not established grounds for reversal of his conviction. I concur in the result reached, that is, the affirmation of Bragg’s convictions for Criminal Deviate Conduct and Theft.

Barnes, Judge, concurring in part and dissenting in part [beginning on p. 15] I concur with Judge Bailey’s conclusion that Juror S was subject to removal for cause because, as a deputy attorney general with responsibility for criminal appeals, he was at least impliedly biased in favor of the State.

However, I dissent from Judge Bailey’s conclusion that Bragg failed to establish reversible error in the denial of his for-cause challenge to Juror S. As our supreme court has succinctly explained, “If on appeal you then prove both the erroneous denial [of a challenge for cause] and that you were unable to strike another objectionable juror because you exhausted your peremptories, you are entitled to a new trial, full stop.” Merritt v. Evansville-Vanderburgh Sch. Corp., 765 N.E.2d 1232, 1237 (Ind. 2002). * * *

I understand Bragg is accused of committing a very serious and heinous crime. However, our judicial system is premised on the theory that even the least pleasing criminal defendant gets a “fair shake.” I do not think that happened here. The fairness and impartiality of the jury can certainly be called into question.

I believe Juror S should have been subject to a cause challenge, removed, and that Bragg has satisfied the exhaustion rule. As such, I believe his convictions should be reversed, and the cause remanded for a new trial.

Dwight Neal v. State of Indiana (mem. dec.)

Ricardo Minney v. State of Indiana (mem. dec.)

Joseph McDonald v. State of Indiana (mem. dec.)

Samuel Hampton v. State of Indiana (mem. dec.)

Shawn Thayer v. State of Indiana (mem. dec.)

Ricardo Montanez v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on October 15, 2015 11:52 AM
Posted to Ind. App.Ct. Decisions