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Thursday, April 28, 2005

Ind. Decisions - Court of Appeals posts four today

William R. Dixon v. State of Indiana (4/28/05 IndCtApp) [Criminal Law & Procedure]


Abdinasir Abdirizak v. Review Board of Indiana (4/28/05 IndCtApp) [Unemployment Compensation]
Barteau, Senior Judge

* * * Abdirizak presents two issues for our review, one of which is dispositive: whether the Review Board erred by affirming the administrative law judge’s (“ALJ”) decision denying Abdirizak unemployment benefits where Abdirizak claimed he never received notice of the hearing. * * *

There are two facets of due process at work in this case. The first is Abdirizak’s opportunity to be heard on his lack of notice. See Carter, 526 N.E.2d at 719. Abdirizak has not had an opportunity to present evidence on the notice issue because his Application for Leave to Introduce Additional Evidence to Review Board was denied without hearing. If Abdirizak is able to show that he did not receive notice of the hearing, then he was not afforded an opportunity to be heard and, thus, he was not afforded due process on his underlying substantive claim. This brings us to the second facet of due process with which we are concerned: Abdirizak’s right to be heard on the underlying substantive claim. See id. Therefore, given the circumstances, an evidentiary hearing on Abdirizak’s claim of inadequate notice is necessary in order to determine whether the requirements of due process have been met in this case.

CONCLUSION. Based upon the foregoing discussion and authorities, we conclude that the Review Board erred by affirming the administrative law judge’s (“ALJ”) decision denying Abdirizak unemployment benefits where Abdirizak claimed he never received notice of the hearing. Reversed and remanded to the Review Board for proceedings consistent with this opinion.
NAJAM, J., and VAIDIK, J., concur


J.D. v. State of Indiana (4/28/05 IndCtApp) [Criminal Law & Procedure]

Charles Daugherty v. Dearborn Co., Indiana, et al (3/30/05 IndCtApp) [Tort Claims Act]
[Initially NFP]
Hoffman, Senior Judge

* * * Therefore, the requirement that the notice be given within the 180-day period is strictly construed. Our courts have held, in construing prior versions of the ITCA statutes, that the notice statute is to be strictly construed as to giving timely notice to the proper officers, but liberally construed as to whether the notice is sufficiently definite as to time, place, nature, etc. of the injury. See Burggrabe v. Board of Public Works of City of Evansville, 469 N.E.2d 1233, 1235 (Ind. Ct. App. 1984). Thus, a substantial compliance analysis was not necessary. The trial court did not err by entering an order granting summary judgment in favor of the County. Daugherty’s potential claim was barred as a matter of law by his failure to give notice within 180 days of the occurrence. There was no question of fact regarding that issue to survive the County’s motion for summary judgment. Affirmed.
VAIDIK, J., and CRONE, J., concur

Posted by Marcia Oddi on April 28, 2005 01:49 PM
Posted to Ind. App.Ct. Decisions