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Wednesday, November 30, 2016

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (4):

In Mark Vinup v. Joe's Construction, LLC and Joe Getz and Property-Owners Insurance Company v. Joe's Construction, LLC and Joe Getz, a 19-page opinion, Judge Kirsch writes:

After Mark Vinup (“Vinup”) was injured on the job while working for Joe’s Construction, LLC and Joe Getz (together, “Joe’s Construction”), Vinup filed a lawsuit against Joe’s Construction seeking damages for his personal injuries. The commercial general liability insurer for Joe’s Construction, PropertyOwners Insurance Company (“Property-Owners”), filed a declaratory judgment action, seeking a declaration that, pursuant to a policy exclusion, it had no duty to defend and no duty to pay any judgment that might be rendered against Joe’s Construction or Joe Getz (“Getz”). The trial court consolidated the declaratory judgment action with Vinup’s action, and, thereafter, Property-Owners and Joe’s Construction each filed a motion for summary judgment. The trial court granted both motions, and Vinup now appeals, raising several issues that we consolidate and restate as: Whether the trial court erred when it determined as a matter of law that Vinup was an employee of Joe’s Construction at the time he was injured. We affirm. * * *

Property-Owners maintain that Vinup was not a “temporary worker” as that term is defined in the Policy. Property-Owners emphasizes that a “temporary worker,” as defined in the Policy is someone who is “furnished to the insured to substitute for a permanent employee or to meet seasonal or short-term workload conditions.” Id. at 112 (emphasis added). Vinup was neither “furnished” to Joe’s Construction by some other party nor was he substituting for a permanent employee. Therefore, Property-Owners asserts, Vinup did not qualify under the Policy’s definition of “temporary worker.” We agree. Vinup testified that Getz asked for his help with the Aberdeen Project, and Getz testified likewise, stating that he offered the work to Vinup. Id. at 154, 193. Under the plain language of the Policy, Vinup was not a “temporary worker,” and the trial court did not err when it granted Property-Owners’s motion for summary judgment.

In Judi Simek, and Scott Everett v. Christopher Nolan d/b/a Lakeside Farm, LLC, and William P. McCall, III, an 11-page opinion, Judge Crone writes:
Judi Simek brings an interlocutory appeal from the trial court’s denial of her motion to reconsider its previous denial of her motion to dismiss the claims filed against her by Christopher Nolan d/b/a Lakeside Farm, LLC, and William P. McCall, III (collectively “the Plaintiffs”). Specifically, Simek asserts that dismissal is warranted pursuant to Indiana Rule of Trial Procedure 12(B)(2) because the trial court lacks personal jurisdiction over her. We agree and therefore reverse and remand with instructions for the trial court to dismiss the Plaintiffs’ claims against Simek. * * *

Simek’s sole relationship with this litigation is the fact that she appears to have a current business arrangement with Everett regarding the ownership of Cinnamon Beach. There are no facts to indicate that she personally initiated, expected, or encouraged contacts with Indiana such that she could have reasonably foreseen being haled into court here. This case is a prime example of when a defendant cannot be haled into a jurisdiction solely as a result of the unilateral activity of another party and/or a third person. Simply put, Simek does not have a substantial connection to Indiana, and therefore she cannot be said to have purposely availed herself of the trial court’s jurisdiction.

In sum, Indiana lacks specific jurisdiction over Simek. Her alleged conduct, even when viewed in the light most favorable to the Plaintiffs, did not establish a substantial connection between herself and this State, and thus cannot support personal jurisdiction. Simek has established prima facie error in the trial court’s denial of her motion to reconsider her motion to dismiss for lack of personal jurisdiction. Consequently, we reverse and remand with instructions for the trial court to dismiss the Plaintiffs’ claims against Simek.

In Hannum Wagle & Cline Engineering, Inc. d/b/a HWC Engineering, Inc., Marlin A. Knowles, Jr., Jonathan A. Day, Tom Mobley, and David Lancet v. American Consulting, Inc., et al., a 41-page opinion (including a concurring opinion) involving "a lawsuit for, among other things, breach of contract" a non-compete agreement and a preliminary injunction. Judge Kirsch writes the majority opinion, affirming the trial court. Judge Baker's concurring opinion, which begins on p. 40:
I am compelled to concur fully with the majority opinion, but I write separately to voice my serious concerns about the extreme breadth of clause two of the relevant provision in the Knowles Agreement. Specifically, Knowles may not “solicit or communicate with any such customers for the purpose of selling, providing, attempting to sell or provide, or assisting any person or entity in the sale or provision of, any Competing Products/Services[.]” HWC Appellant’s App. p. 135-37 (emphasis added). To tell a person who works in sales that he may not even communicate with past or potential clients is to take away his proverbial bread and butter. He may no longer schmooze. That is far too draconian to sit comfortably with me. And in this case, it goes a step farther, because the past and potential clients are all government employees, which takes it even farther into an overly restrictive realm.

We have largely moved as a society from an economy of goods to an economy of services. The disfavor with which this State views restrictive covenants should be heightened, in my view, where the purported irreparable harm cannot be quantified—which is almost always the case when it is the provision of services that is at the heart of a restrictive covenant. Under these circumstances, I believe only the narrowest of restrictive covenants should be enforceable, and I do not believe that clause two of the Knowles Agreement qualifies. With the current state of caselaw, however, I am compelled to concur fully with the majority opinion.

In Sauntio Carter v. State of Indiana, an 18-page opinion (including a concurring opinion), Judge Riley writes:

Carter claims that there is insufficient evidence to uphold his battery conviction. * * *

It is well established that “[a] parent has a fundamental liberty interest in maintaining a familial relationship with his or her child.” Willis v. State, 888 N.E.2d 177, 180 (Ind. 2008). Included within this fundamental liberty interest is “the right of parents ‘to direct the upbringing and education of children,’ including the use of reasonable or moderate physical force to control behavior.” Id. (internal citation omitted) (quoting Pierce v. Soc’y of Sisters, 268 U.S. 510, 534- 35 (1925)). However, the State also “has a powerful interest in preventing and deterring the mistreatment of children[,]” and “the potential for child abuse cannot be taken lightly.” Id. Thus, prosecutors and courts are left with the difficult task of determining “when parental use of physical force in disciplining children turns an otherwise law-abiding citizen into a criminal.” * * *

In order to convict a parent for battery where parental privilege is asserted, “the State must prove that either: (1) the force the parent used was unreasonable or (2) the parent’s belief that such force was necessary to control [his or] her child and prevent misconduct was unreasonable.” Id. (citing Restatement of the Law (Second) Torts, § 147 (1965)). Here, the State does not contest the reasonableness of Carter’s belief that the use of force was necessary. Rather, the State maintains that Carter exerted unreasonable force in disciplining M.C., such that the parental privilege is negated.

While there “are no bright-line rules” as to what is considered “proper and reasonable parental discipline of children[,]” the Indiana Supreme Court has adopted the view that “[a] parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for [the child’s] proper control, training, or education.’” * * *

Ultimately, the trial court concluded that Carter’s use of force—i.e., at least fourteen strikes with a belt which resulted in significant bruising and lasting pain—exceeded reasonableness, and on appeal, we are mindful of the trial court’s role in weighing the evidence and assessing witness credibility to determine whether a parent’s actions were justified as reasonable parental discipline. See Smith, 34 N.E.3d at 255. Although we are troubled by the lack of clear guidance for parents to be able to distinguish between reasonable discipline and battery, it was the trial court’s duty to balance the Willis factors, and we decline to reweigh the evidence. Thus, we conclude that there is sufficient evidence to support Carter’s conviction for battery resulting in bodily injury. * * *

Robb, J. concurs
Crone, J. concurs with separate concurring opinion [that begins on p. 16]

As noted above, “prosecutors and courts are left with the difficult task of determining ‘when parental use of physical force in disciplining children turns an otherwise law-abiding citizen into a criminal.’” Slip op. at 6-7 (quoting Willis, 888 N.E.2d at 180). I write separately to suggest that our supreme court made that task much more difficult by importing the vague reasonableness standard of the Restatement of Torts into the criminal arena. * * *

That being said, courts must step in where legislatures decline to tread, so unless and until the General Assembly enacts clearer guidelines for parental discipline (or our supreme court adopts a more workable standard), trial judges and jurors must rely on their experience and judgment to determine when parents cross over the blurry line that separates lawful from unlawful conduct, and appellate courts must give those determinations significant deference. For that reason, I reluctantly concur in my colleagues’ affirmance of Carter’s battery conviction.

NFP civil decisions today (3):

In the Termination of the Parent-Child Relationship of J.P.: J.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

Kenneth Slate v. The Health and Hospital Corporation of Marion County, Indiana, Public Health Division (mem. dec.)

In the Term. of the Parent-Child Relationship of: A.F. (Minor Child), and D.F. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (10):

Matthew C. Elzey, Jr. v. State of Indiana (mem. dec.)

Ronnie Bradfield v. State of Indiana (mem. dec.)

Jeremy Shrum v. State of Indiana (mem. dec.)

Darrell A. Williams v. State of Indiana (mem. dec.)

Brian K. Wynne v. State of Indiana (mem. dec.)

Zachary Clark v. State of Indiana (mem. dec.)

Sammie L. Binion v. State of Indiana (mem. dec.)

Corey Brown v. State of Indiana (mem. dec.)

Brent A. Clemons v. State of Indiana (mem. dec.)

Muhamed Dugonjic v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on November 30, 2016 11:38 AM
Posted to Ind. App.Ct. Decisions