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Tuesday, June 29, 2004

Indiana Decisions - 13 Court of Appeals Decisions Today

Kenneth Reed, et al. v. Munster Plan Commissioner & Town Council (6/29/04 IndCtApp) [Civil Procedure]
Baker, Judge

[The Reeds appeal the trial court’s order dismissing the Reeds’ claims against appellees for lack of standing with regards to a zoning challenge.] Specifically, the Reeds assert that they have standing because the zoning ordinance and the amendatory ordinance rezoning the subject property are town-wide in their application. Finding that the trial court correctly held that a one-half mile distance from the Reeds’ home to the disputed property was too far to confer standing, we affirm. * * *

In the case before us today, the trial court found that the Reeds’ home is approximately one-half mile away from the rezoned property, which is a greater distance of separation than that found in [Bagnall v. Town of Beverly Shores (Ind. 2000)]; therefore, the record supports the trial court’s determination that the Reeds failed to show that they were aggrieved by the rezoning due to their proximity. We also agree with the trial court’s determination that the Reeds failed to allege injuries that “are somehow unique to them as a result of the rezoning.” In essence, the Reeds allege increased traffic and various environmental concerns but no special injury other than that which would be sustained by the community as a whole.

That said, the distinction that the Reeds make that the Bagnall court reviewed a variance—which is local in nature—and the action that they today petition the court to review is a rezoning—which is town-wide—is not persuasive. IC 36-7-4-1003(a) cited above, which provides that persons aggrieved have standing to petition for a writ of certiorari, applies to decisions of the legislative body as well as the board of zoning appeals. Similarly, the declaratory judgment statute, IC 34-14-1-2, that requires a person to be affected, applies to statutes or municipal ordinances, which displays our legislature’s intent that it apply to decisions that are town-wide.
Finally, the Reeds cite to Borsuk and Lake County Trust Company v. Town of St. John in an attempt to solidify their argument that a rezoning dispute can be challenged by a petition for writ of certiorari. 800 N.E.2d 217 (Ind. Ct. App. 2003). However, Borsuk involved a landowner challenging a zoning decision affecting his own property, and it is therefore not persuasive in determining whether the Reeds have standing in this case. Moreover, we note that our supreme court has granted transfer on Borsuk, and therefore it lacks precedential value.

Finally, because we hold that the Reeds lack standing to bring judicial review, we need not address whether notice was sufficiently provided for those who do have standing to request a judicial review of the rezoning. As a result, we conclude that the trial court’s dismissal of the Reeds’ action was proper.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and BAILEY, J., concur

Billy Julian v. State of Indiana (6/29/04 IndCtApp) [Criminal Law & Procedure]

City of Gary, et al. v. Michael Conat (6/29/04 IndCtApp) [Alternative Dispute Resolution]

Deborah Wilkinson v. Robert Swafford (6/29/04 IndCtApp) [Torts; Evidence]

Karen L. Vannatta v. Patricia Chandler, et al. (6/29/04 IndCtApp) [Civil Procedure]
Darden, Judge

On July 9, 2003, Scheetz filed a motion to dismiss the Hamilton Superior Court complaint "pursuant to Trial Rule 12(B)(8) of the Indiana Rules of Trial Procedure," arguing that the claims asserted by Vannatta therein concerned the "same residential real estate transaction" and involved "the same facts and parties as the action pending in the Marion Superior Court." Vannatta opposed the motion, arguing that it was "not the same action" because this was "a tort case" whereas the Marion Superior Court case was "a breach of contract case"; there were "different defendants"; and the Knoxes' presence was "not needed for just adjudication" of the tort case against Scheetz. Scheetz's reply asserted that Vannatta sought "the same remedy against the Knoxes in the Marion Superior Court suit as . . . against [Scheetz] in the [Hamilton] Superior Court case" and that the parties were "substantially the same in both suits." * * * Vannatta contends that the trial court erred in granting Scheetz's T.R. 12(B)(8) motion to dismiss "because the cases are not the same." We agree. * * *

Scheetz does not dispute that the Hamilton Superior Court has subject matter jurisdiction to consider the tort claim brought by Vannatta; nor does it dispute the court's personal jurisdiction and jurisdiction of the case. The facts before us lead us to conclude that neither the parties, the subject matter nor the remedies of the two actions brought by Vannatta are "substantially the same" so as to warrant invocation of T.R. 12(B). Therefore, we cannot find that T.R. 12(B)(8) prevents Vannatta from pursuing her causes of action against different defendants in two different courts. Accordingly, we find that the dismissal with prejudice was error and must be reversed. We reverse.
SHARPNACK, J., and BAILEY, J., concur|

Short on Cash.Net of New Castle v. Department of Financial Institutions (6/29/04 IndCtApp) [ ]
Bailey, Judge
Appellant-Respondent Short on Cash.Net of New Castle, Incorporated (“Short on Cash”) appeals the trial court’s grant of a preliminary injunction in favor of Appellees-Petitioners Department of Financial Institutions (“Department”) and Steve Carter, Attorney General of Indiana (collectively referred to as “Appellees”). We affirm.

Issue. [W]hether the trial court abused its discretion by, first, invoking the per se rule applicable to preliminary injunctions because Short on Cash is not in the business of issuing small loans and, therefore, its business operations do not violate Indiana Code Section 24-4.5-7-410 and, second, granting the petition for preliminary injunction absent a showing of irreparable harm. * * *

Lastly, the evidence shows that Short on Cash is located in the same building, uses the same phone number, and has the same principal and president as a small loan business known as Short on Ca$h. Short on Ca$h offered small loans to consumers “with contractual provisions for a single payment due approximately two weeks after the loan was made.” This evidence supports the trial court’s finding that Short on Cash’s sale of Internet service is merely a guise for its operation as a small loan business. Thus, Short on Cash, which operates without a usury license, is in violation of Indiana Code Section 24-4.5-7-410. Accordingly, the trial court did not err when it invoked the per se rule in this case and, therefore, did not abuse its discretion when it granted the preliminary injunction in favor of Appellees in the absence of a showing of irreparable harm. For the foregoing reasons, we affirm the trial court’s grant of a preliminary injunction. Affirmed.
BAKER, J., and FRIEDLANDER, J., concur

Donna K. Stites v. State of Indiana (6/29/04 IndCtApp) [Criminal Law & Procedure]
Crone, Judge
* * * Following our decisions in Sinn, Thompson, and Badger, we reverse the denial of Stites’s amended petition for post-conviction relief and vacate her conviction and sentence. The State may reprosecute Stites for Dutell’s murder. Reversed.
BAKER, J., and BARNES, J., concur
In the Matter of the Adoption of M.L.L., Mary Ann Lowe v. Jeffrey White (6/29/04 IndCtApp) [Family Law]
Najam, Judge
* * * Indiana Code Section 31-19-9-2 provides in relevant part that a consent to adoption “may be executed at any time after the birth of the child either in the presence of: (1) the court; [or] (2) a notary public . . . .” Because the evidence shows that Lowe executed her consent in the presence of a notary public, her consent is valid. The trial court did not err when it granted the Whites’ adoption petition. Affirmed.
RILEY, J., concurs.
KIRSCH, C.J., concurs with separate opinion.

* * * I write separately only to note the anomaly in Indiana law that provides extensive protections for parents whose parental rights are being involuntarily terminated, but that provides almost no protections for parents who are voluntarily terminating their rights through adoption. On the one hand, we provide counsel, notice and hearing, and the full panoply of rights to individuals who have abused or neglected their children; on the other, we provide no protection for the parent who believes she is acting in the best interests of her child in giving the child up for adoption. A homeowner who buys home improvements through a conditional sales contract has the right to disclosures and the right to rescind the contract within a specified period of time. Shouldn’t we provide as much protection to a parent who is giving up her child for adoption as we do to a person buying vinyl siding?

Avemco Insurance Company, et al. v. Sally McCarty, et al. (6/29/04 IndCtApp) [Insurance]
Riley, Judge
Appellants-Defendants, Avemco Insurance Company, HCC Life Insurance Company, and Pacific Life Insurance Company (collectively, the “medical stop loss insurers”), appeal the trial court’s Order granting Appellee-Plaintiff, State ex rel. Sally McCarty, Commissioner of Insurance for the State of Indiana (the Commissioner), complaint for preliminary injunction and entry of injunctive relief in her favor. We affirm
Marsha Ledbetter v. Robert Hunter, et al. (6/29/04 IndCtApp) [Medical Malpractice; Constitutional Law]
Riley, Judge
[Plaintiff, Marsha Ledbetter] appeals the trial court’s Order in favor of [Defendants, Robert Hunter, M.D., Lawrence Benken, M.D. and Ball Memorial Hospital]dismissing Ledbetter’s medical malpractice claim under the Privileges and Immunities Clause of the Indiana Constitution. We reverse and remand for further proceedings.

ISSUE. Ledbetter raises one issue on appeal, which we restate as follows: whether the trial court erred in dismissing Ledbetter’s medical malpractice claim, holding that the statute of limitations for minors, contained in the Indiana Medical Malpractice Act, did not violate the Privileges and Immunities Clause of the Indiana Constitution. * * *

Based on our analysis of the evidence under Collins’ two-pronged test, we conclude that the classification between minors injured by medical malpractice and minor victims of other torts is no longer reasonably related to the goal of maintaining sufficient medical treatment and controlling malpractice insurance costs. See Collins, 644 N.E.2d at 80. Furthermore, we find that within the class of minors injured by medical malpractice, not all minors are all treated equally. See id. Consequently, we hold that the Indiana Medical Malpractice Act’s statute of limitations as it applies to minors, violates the Privileges and Immunities Clause of the Indiana Constitution, and thus we declare it to be unconstitutional.

CONCLUSION. Based on the foregoing, we conclude that the trial court erred in dismissing Ledbetter’s medical malpractice. Reversed and remanded, for further proceedings consistent with this opinion.
KIRSCH, C.J., and NAJAM, J., concur

Donna Schriber v. Anonymous & Eagle Care Inc., et al. (6/29/04 IndCtApp) [ ]

Randall & Ramona Farr v. Laidig Concrete, Inc. [Master/Servant]

Roy Britt v. State of Indiana (6/29/04 IndCtApp) [Criminal Law & Procedure]
Bailey, Judge

* * * Once the State established possession of marijuana by cultivation, I.C. § 35-48-4-11(2), it also established possession of marijuana, I.C. § 35-48-4-11(1). Thus, the two offenses are not distinct offenses under the same elements test. Indiana Code Section 35-38-1-6 prohibits the entry of judgment for “an included offense.” Here, possession of marijuana is the included offense because it is established by less than all the elements required to establish possession of marijuana by cultivation. Accordingly, we remand to the trial court with instructions to vacate the conviction and sentence for Count II, possession of marijuana. Affirmed in part; remanded with instructions.
BAKER, J., and FRIEDLANDER, J., concur

Posted by Marcia Oddi on June 29, 2004 01:57 PM
Posted to Indiana Decisions