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Thursday, December 31, 2015

Ind. Decisions - Court of Appeals issues 10 opinion(s) today (and 18 NFP memorandum decision(s))

For publication opinions today (10):

In East Point Business Park, LLC, Fieldview Properties, LLC, and Karen Rusin v. Private Real Estate Holdings, LLC , a 33-page opinion, Judge Mathias writes:

Appellants-Defendants East Point Business Park, LLC (“East Point”), Fieldview Properties, LLC, (“Fieldview”) and Karen Rusin (“Rusin”) (collectively “the Defendants”) challenge the Lake Superior Court’s grant of summary judgment in favor of Appellee-Plaintiff Private Real Estate Holdings, LLC (“PREH”), in PREH’s foreclosure action against the Defendants. * * *

In conclusion, we hold that the Defendants filed their designated evidence in an untimely fashion and that such evidence should therefore not be considered. We also hold that the trial court did not err in denying the Defendants’ motion to strike the affidavit of Arshad Malik, which was submitted by PREH in support of its motion for summary judgment. The Defendants’ argument that the Bank made an oral agreement to a fourth loan renewal is barred by the relevant Illinois statute of frauds, which, as a substantive law, is applicable to the interpretation of the loan agreements. We also conclude that the Bank did not breach the loan agreements by reneging on the alleged oral agreement or by failing to fund the last draw request by the Defendants. Lastly, the foreclosure action is not prevented by the Bank or PREH’s allegedly unclean hands.

In Hoker Trucking, LLC and Linda L. Phillips v. Pamela K. Robbins, as Adminstratrix of the Estate of Mike Douglas Robbins, Deceased, a 4-page opinion on a petition for rehearing, Judge Riley writes:
Robbins has now filed a petition for rehearing in which she contends that the prejudgment interest was not awarded on the attorneys’ fees, as we alluded to in our opinion, but on the $6,000,000.00 jury verdict. As such, she asserts SCI Propane is not applicable, and instead we should have followed the directives of the prejudgment interest statute, I.C. Ch. 34-51-4, which notes in section 1 that prejudgment interest “applies to any civil action arising out of tortious conduct.” We agree. Thus, we grant rehearing for the limited purpose of addressing the prejudgment interest award; in all other respects, we affirm our original opinion.
In John Collip, M.D. v. Vickie Ratts on behalf of Robert A.J. Ratts, deceased, and Little Creek Family Health Center, LLP, a 17-page opinion, Judge Baker writes:
Dr. John Collip had a contractual relationship with Dena Barger, who is a nurse practitioner and owns her own medical practice. Pursuant to their Collaborative Practice Agreement (CPA), Dr. Collip was to collaborate with Barger and oversee her prescriptive authority. Specifically, he was to review at least 5% of her charts on a weekly basis to evaluate her prescriptive practices. On March 30, 2009, Robert Ratts, one of Barger’s patients, died as a partial result of mixed drug intoxication.
[2] Dr. Collip brings this interlocutory appeal challenging the trial court’s order granting partial summary judgment in favor of Vickie Ratts, Ratts’s mother, on her medical malpractice claim. The trial court held as a matter of law that Dr. Collip had a duty to Ratts even though he had never treated Ratts as a patient.

The Indiana General Assembly has enacted a complex and detailed statutory scheme that authorizes nurse practitioners to provide medical services. We infer from the language of the statute that one of the purposes of this legislation was to provide the public with greater access to affordable healthcare. The legislature also sought to ensure the safety of the public by requiring that when prescribing legend drugs, nurse practitioners must be overseen by a licensed physician. We hold as a matter of law that physicians who undertake this responsibility owe a duty to the nurse practitioner’s patients to fulfill their contractual obligations with reasonable care. We affirm and remand. [ILB emphasis]

In Steven E. Dotlich v. Tucker Hester, LLC, an 18-page opinion, Judge Brown writes:
Steven E. Dotlich appeals the trial court’s entry of summary judgment in favor of [attorney] William Tucker with respect to Dotlich’s malpractice claim against Tucker. Dotlich raises five issues which we consolidate and restate as whether the court erred in entering summary judgment in favor of Tucker. We affirm.
In Carl Summerhill v. Craig Klauer, a 21-page opinion, Judge Baker writes:
Carl Summerhill sued Craig Klauer for negligence following a collision between Summerhill’s moped and Klauer’s motorcycle. Following trial, a jury declined to find Klauer liable. Summerhill now appeals that judgment, arguing that the trial court erred in excluding certain evidence and that he was prejudiced as a result. We agree with Summerhill that the trial court erred in excluding the testimony of an accident reconstructionist that Summerhill sought to call on his behalf. Accordingly, we must remand for a new trial. We discuss Summerhill’s other arguments to assist the trial court and the parties upon retrial.
In Daniel Harris v. Donald Brewer, Donald Crockett, and Thomas Lamb, Orange County Commissioners as governing body of the Orange County Highway Dept., a 26-page opinion, Judge Pyle writes:
Appellant/Plaintiff, Daniel Harris (Harris), appeals the trial court’s grant of summary judgment in favor of Donald Brewer, Donald Crockett, and Thomas Lamb, Orange County Commissioners, as governing body of the Orange County Highway Department (“Highway Department”) (collectively, “Orange County”), on Harris’s claims of wrongful termination and defamation. Harris was terminated from his employment with the Highway Department as a result of his alleged consumption of alcohol prior to operating a Highway Department vehicle. He subsequently filed wrongful termination and defamation claims, amongst others, against Orange County. Orange County filed a motion for summary judgment on the claims, and the trial court granted the motion. * * *

On appeal, Harris argues that the trial court erred in granting summary judgment on both claims. With respect to his wrongful termination claim, he asserts that the trial court should have ruled that he was not an at-will employee because it should have interpreted the Orange County Highway Department’s Handbook of Personnel Policy (“the Handbook”) as a valid unilateral employment contract stipulating that Harris’s employment could only be terminated for just cause. Alternatively, Harris argues that even if the Handbook did not constitute a valid employment contract, an exception to Indiana’s presumption of employment-at-will applied to him. * * *

We affirm the trial court’s grant of summary judgment on Harris’s wrongful termination claim because: (1) the Handbook did not constitute a valid unilateral contract; and (2) an exception to the employment-at-will doctrine did not apply to Harris. We also affirm the trial court’s grant of summary judgment on Harris’s defamation claim because Orange County had a qualified privilege to deliver Harris’s termination letter and there were no genuine issues of material fact. As we also conclude that the evidence Orange County challenges in its cross-appeal is not dispositive, we need not address whether the trial court erred in denying Orange County’s motion to strike evidence.

In D.A. v. State of Indiana, a 17-page, 2-1 opinion, Judge Najam writes [ILB emphasis]:
D.A. appeals the trial court’s denial of his request to apply an expungement order to the records of a civil forfeiture proceeding that arose from the same facts underlying his now-expunged convictions. D.A. raises a single issue for our review, which is an issue of first impression: whether our expungement statutes apply to the records of civil forfeiture proceedings. We hold that, on these facts, the trial court erred when it did not apply the expungement order to the records of D.A.’s civil forfeiture proceeding. * * *

The expungement statutes are inherently remedial and, as such, should be liberally construed to advance the remedy for which they were enacted. ... The purpose of our expungement statutes is to “give individuals who have been convicted of certain crimes a second chance by not experiencing many of the stigmas associated with a criminal conviction . . . .” ... That purpose would be frustrated by providing only incomplete or partial relief. Accordingly, we hold that, where, as here, a civil forfeiture is ancillary to a criminal conviction and the nexus between the civil forfeiture and the criminal conviction is established, a defendant may petition the trial court to expunge the records of that civil forfeiture along with the records of the related criminal conviction. In other words, where the factual basis for a criminal conviction and a civil forfeiture are the same, the records of the civil forfeiture proceeding relate to the person’s conviction for purposes of our expungement statutes. Because the trial court erred when it concluded otherwise, we reverse the trial court’s judgment and remand for further proceedings. Reversed and remanded.

Kirsch, J., concurs.
Barnes, J., dissents with separate opinion. [which begins, at p. 15] I respectfully dissent. I certainly understand, as the majority recognizes, that the overarching purpose of the expungement statutes is to remove “stigmas” associated with criminal convictions and to allow a fresh start for persons who meet the statutory requirements. ... However, I do not believe we are free to add language to the statutes to permit the expungement of records related to civil forfeitures. * * *

Finally, I believe it is appropriate to consider the practical effect of expungement. As noted by the majority, despite arguments by D.A. to the contrary in his reply brief and at oral argument, the trial court addressed his expungement request as falling under Indiana Code Section 35-38-9-4. An expungement under this section does not result in sealing of the conviction records; instead, they remain public records. Ind. Code § 35-38-9-7(b). Thus, the fact of D.A.’s conviction will remain readily available to the public. Even if a conviction record is sealed under Indiana Code Section 35-38-9-6, in this day and age it will be practically impossible to prevent internet access to a person’s criminal record. In other words, the expungement cannot as a practical matter literally wipe a person’s slate clean in the eyes of an intrusive and technologically-savvy public. The effect of expungement, despite this public access and knowledge, comes through Indiana Code Section 35-38-9-10, which prohibits discrimination against someone based on an expunged criminal conviction. D.A. is entitled to this protection, regardless of whether his civil forfeiture record is expunged. I conclude he has received all the protection to which he is entitled by expungement of records directly related to his conviction and that he is not additionally entitled to expungement of the civil forfeiture judgment. These statutes, in my view, promise the erasure of a conviction, not anonymity and not more than the statutory language speaks to.

Nathan Polson v. State of Indiana

Kyle W. Dilts v. State of Indiana

Shawn Jaco v. State of Indiana

NFP civil decisions today (5):

Jesse Eads and Total Image Exteriors, LLC d/b/a TIE Tree Services v. Patrick Turner (mem. dec.)

Jeffrey E. Duermitt v. Odyssey Healthcare, Inc. (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: C.G., I.G., and S.G. (Minor Children), and J.G. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of: K.R. (minor child) and T.R. (mother) v. The Ind. Dept. of Child Services (mem. dec.)

CM Sunshine Home Healthcare v. Review Board of the Indiana Dept. of Workforce Development and Kimberly McClam (mem. dec.)

NFP criminal decisions today (13):

Wanetta Marie Lloyd v. State of Indiana (mem. dec.)

Tamara Fitzgerald v. State of Indiana (mem. dec.)

Daniel R. Ross v. State of Indiana (mem. dec.)

Herbert Popp v. State of Indiana (mem. dec.)

Richard Green Burns v. State of Indiana (mem. dec.)

Javier Morales, Jr. v. State of Indiana (mem. dec.)

Omar Davis v. State of Indiana (mem. dec.)

David Rabinowitz v. State of Indiana (mem. dec.)

Jonathan L. Slone v. State of Indiana (mem. dec.)

Jorge Navarro v. State of Indiana (mem. dec.)

Richard L. Berg, Jr. v. State of Indiana (mem. dec.)

Joshua T. Trammell v. State of Indiana (mem. dec.)

Dontaye Singletary v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 31, 2015 05:49 PM
Posted to Ind. App.Ct. Decisions