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Thursday, March 02, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (3):

In Central Indiana Podiatry, P.C., Northwest Surgery Center, LLC, d/b/a Foot & Ankle Surgery Center, f/k/a Foot & Ankle Surgery Center, LLC and Anthony E. Miller, D.P.M. v. Barnes & Thornburg, LLP, an 11-page opinion on rehearing, Judge May writes:

We grant rehearing to acknowledge and adopt our Indiana Supreme Court’s holding in Nichols v. Amax Coal Co., 490 N.E.2d 754, 755 (Ind. 1986), reh’g denied, and affirm the trial court’s grant of summary judgment on grounds different than those expressed in our earlier opinion. * * *

Conclusion. As there is no evidence creating a genuine issue of material fact from which a reasonable jury could conclude B&T concealed information from the Miller Parties, and as Miller’s contradictory testimony in two different lawsuits cannot create an issue of material fact, we conclude the trial court did not err when it granted summary judgment in favor of B&T. We grant rehearing to acknowledge, adopt, and apply our Indiana Supreme Court’s holding in Nichols; vacate our prior opinion, Podiatry, 62 N.E.3d 440 (Ind. Ct. App. 2016); and affirm the trial court’s grant of summary judgment for B&T.

Bailey, J., concurs.
Crone, J., concurs with separate opinion. [that reads in full] I agree with the granting of rehearing in this case. I write separately to reiterate my concerns about “allowing attorneys to prospectively insulate themselves from liability for future acts of legal malpractice” under Indiana Rule of Professional Conduct 1.8(h), which, in my view, “subverts the very nature of the attorney-client relationship.” Cent. Ind. Podiatry, 62 N.E.3d at 449, 450.

In Michael R. Pilkington v. Karen A. Pilkington, a 13-page opinion, Sr. Judge Shepard writes:
Michael Pilkington sued his stepmother, alleging she breached her duties as trustee of a trust created by her late husband, Michael’s father. The trial court dismissed the complaint with prejudice for lack of subject matter jurisdiction. We conclude that the court has authority to adjudicate Michael’s complaint, and reverse. * * *

The trial court did err in dismissing the complaint with prejudice. This cause is remanded for further proceedings on whether Michael’s beneficiary interest in the trust survived the bankruptcy. In all other respects, the trial court’s decision is affirmed without prejudice to Michael refiling his complaint once the dispositive question regarding his remainder interest has been decided.

In Larenda Jones v. State of Indiana, a 15-page opinion, Judge Mathias writes:
Larenda Jones (“Jones”) appeals the order of the Marion Superior Court revoking her placement in community correction and sentencing her to serve the remainder of her executed sentence at the Department of Corrections (“DOC”). On appeal, Jones presents two issues, which we reorder and restate as: (1) whether the trial court erred by failing to inform Jones of her release date, and (2) whether the trial court denied Jones the right to speak in allocution. Concluding that the trial court did not err in failing to inform Jones of her release date but that the trial court did err by refusing to let Jones speak in allocution, we reverse and remand. * * *

Pyle, J., concurs.

Baker, J., concurs with a separate opinion. [that begins on p. 14] I fully concur with the majority opinion. I write separately to urge our Supreme Court to revisit its interpretation of the right of allocution as codified in Indiana Code section 35-38-1-5. For two reasons, I believe that a broader interpretation of “sentencing” would be the best practice. First, the right of allocution, in my view, is a fundamental right of every criminal defendant who faces a potential loss of freedom. Furthermore, every trial judge who is about to order said loss of freedom is aided when a defendant is permitted to explain to the court the potential consequences of a prison term. This is no less true in the context of a revocation of probation than it is in the context of the original pronouncement of the defendant’s sentence. I believe that a broader interpretation of “sentencing” should encompass probation revocation proceedings so that this fundamental right is secure during each point in time when the defendant faces a loss of freedom.

Second, I believe that a consistent rule will be easier for trial judges to manage. * * * For these two reasons, I hope that our Supreme Court will revisit this issue, holding that Indiana Code section 35-38-1-5 does, in fact, apply to probation revocation proceedings.

NFP civil decisions today (3):

In the Termination of the Parent-Child Relationship of: Ic.G. and Ib.G. (Minor Children) and M.G. (Mother) and B.G. (Father) v. The Indiana Department of Child Services (mem. dec.)

Kevin L. King v. Mary E. King (mem. dec.)

Karen Fielder v. Hamilton Southeastern Schools (mem. dec.)

NFP juvenile and criminal decisions today (2):

Joetta S. Sells v. State of Indiana (mem. dec.)

Martin A. Davis, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 2, 2017 12:46 PM
Posted to Ind. App.Ct. Decisions