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Wednesday, May 18, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (3):

In Craig Neibert v. Jody A. Perdomo , an 18-page opinion, Judge Crone writes:

In this interlocutory appeal, Craig Neibert challenges the trial court’s grant of involuntary dismissal of his implied contract and unjust enrichment claims against his ex-girlfriend Jody A. Perdomo, arising out of the renovation of one house and the construction of another. He submits that the trial court erred in (1) granting Perdomo’s motion for involuntary dismissal before he had rested his case; (2) concluding that he had not presented evidence of breach of implied contract and/or unjust enrichment sufficient to survive Perdomo’s motion for involuntary dismissal; (3) excluding an expert witness’s report concerning the value of Neibert’s renovation, excavation, and construction services; (4) failing to issue special findings of fact as part of its interlocutory order; and (5) failing to address his claim for replevin in its interlocutory order. Finding that the uncontroverted evidence is sufficient to support Neibert’s contractual claims, we conclude that the trial court clearly erred in granting Perdomo’s motion for involuntary dismissal. Finding this issue dispositive, we need not address the remaining issues, except for the admissibility of Neibert’s expert witness’s report, as it relates to the record on remand. As such, we reverse and remand for proceedings consistent with this opinion.
In Jack Sheets v. David Birky, Interra Credit Union, Curt Bechler, and Venture International, LLC., a 17-page oopinion, Judge Bailey writes:
Jack Sheets (“Sheets”) was discharged from his employment with Interra Credit Union (“Interra”). He subsequently filed a complaint alleging that Interra Vice-President David Birky (“Birky”) had committed defamation per se, for which Interra was vicariously liable; and that management consultant Venture International, LLC (“Venture”) and its owner, Curt Bechler (“Bechler”), had been negligent in the monitoring of Sheets’s condition after sick leave, had negligently investigated and reported a hotline call, had breached a fiduciary duty, and had intentionally interfered with Sheets’s employment-at-will contract with Interra. Summary judgment was granted to Birky and Interra; partial summary judgment was granted to Venture and Bechler. Negligence and tortious interference claims against Venture and Bechler proceeded to trial, and a jury found in favor of the defendants. Sheets challenges the grant of summary judgment to Birky and Interra and the judgment in favor of Venture and Bechler on the claim of interference with an employment contract. We affirm. * * *

Recent Indiana decisions clarify that defamation per se as to one’s profession involves actual misconduct as opposed to a generalized opinion. * * *

Birky’s communication regarding Sheets did not impute occupational misconduct without resort to extrinsic evidence. The trial court properly concluded, as a matter of law, that Birky’s statements did not constitute defamation per se. Accordingly, the trial court properly granted summary judgment on this claim to Birky and Interra. * * *

Sheets did not demonstrate that the rejected instruction was a correct statement of the law, supported by evidence of record, and not covered by other instructions of the trial court. As such, he has demonstrated no abuse of discretion.

Conclusion. Summary judgment was properly granted on the defamation per se claim. The trial court did not abuse its discretion when it refused Sheets’s incomplete instruction on the protection afforded by Indiana law to an at-will employment contract.

In Lonny Hodges v. State of Indiana, a 19-page two opinion ruling, Judge Crone writes:
While on probation for other crimes, Lonny Hodges was charged with class C felony possessing chemical reagents or precursors with intent to manufacture a controlled substance, and class D felony possession of methamphetamine. The evidence supporting these charges was discovered during a warrantless search of a garage on Hodges’s property. Hodges filed a motion to suppress the evidence, arguing that the warrantless and suspicionless search violated his constitutional rights pursuant to both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. The trial court denied the motion. The trial court certified its decision at Hodges’s request, and we accepted jurisdiction of this interlocutory appeal. Finding no constitutional violation, we affirm the denial of the motion to suppress. * * *

In State v. Vanderkolk, 32 N.E.3d 775 (Ind. 2015), a Fourth Amendment case, our supreme court very broadly held that “Indiana probationers and community corrections participants who have consented or been clearly informed that the conditions of their probation or community corrections program unambiguously authorize warrantless and suspicionless searches, may thereafter be subject to such searches during the period of their probationary or community corrections status.” * * *

Affirmed.
Bailey, J., concurs.
Vaidik, C.J., concurs in result with opinion. [that begins, at p. 12] I agree with the result reached by the majority, but I do not agree that State v. Vanderkolk, 32 N.E.3d 775 (Ind. 2015), bars all probationers who are subject to search conditions from raising lack-of-reasonable-suspicion challenges to probation searches. I do not believe that is what our Supreme Court held in Vanderkolk, and extending Vanderkolk to apply to all probationers is inconsistent with United States Supreme Court precedent. However, because reasonable suspicion existed to search Hodges’ garage, I respectfully concur in result.

NFP civil decisions today (0):

NFP criminal decisions today (2):

Eric Heinrichs v. State of Indiana (mem. dec.)

Michael Joseph Mueller v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 18, 2016 12:51 PM
Posted to Ind. App.Ct. Decisions