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Friday, August 25, 2006

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

As the ILB wrote yesterday:

The ILB is trying to develop an approach to the new wealth of Court of Appeals opinions posted each day. One problem over the past two days has been that the day's opinions have not all been posted at the same time, and the latest postings on the Court site then seem to become intermingled with those posted earlier in the day, making it harder to keep track.

What the ILB will try to do is keep all its CA postings for one day in one entry. If additional cases are posted later in the day by the Court, they will be added to the end of the appropriate listing, and the entry heading will bear the note: "Updated".

The ILB will try to do brief summaries of the FP cases each day, as it has in the past, plus the civil NFPs. Criminal NFPs will not be summarized or linked (except for a general link to the court page). But should a NFP criminal case attract attention, such as a newspaper story, or a grant of transfer, the ILB may go back and add content.

That last statement is exactly what happened today as a result of the Evansville Courier& Press coverage of the Court's NFP ruling yesterday in Adam Miley v. State of Indiana (NFP).

Two additional developments: The Clerk's Office has gone back and posted all the NFP opinions issued starting with April 21st, the date of the Supreme Court order. What the ILB hopes to do over the weekend is to go back and update the ILB entries from the 21st and 22nd to include the newly-available NFPs.

Second, the Supreme Court has now posted its Aug. 21st order (already available in this ILB entry), via a press release dated Aug. 24th.

For publication opinions today (4):

In Charles E. Hellums v. Alan D. Raber, a 7-page opinions, Judge Crone writes:

Charles D. Hellums appeals the trial court’s grant of Alan Raber’s motion for summary judgment. We reverse and remand.

We restate the issue as whether there is a genuine issue of material fact as to whether Alan’s actions were a proximate cause of Hellums’s injuries.

In In the Matter of the Guardianship of E.N., Adult, a 19-page 2-1 opinion (with the dissent beginning on p. 17), Judge Friedlander writes:
In this lawsuit, the Brothers appeal the trial court’s approval of an estate plan filed by the Children in their capacity as E.N.’s co-guardians. *** We affirm. * * *

BARNES, Judge, dissenting with separate opinion

I respectfully dissent. Although Judge Friedlander’s majority opinion is thoughtful and “solves” the long-standing dispute between the Brothers and the Children, the evidence indicates to me that the last will made while E.N. was competent left his estate to the Brothers and that today’s decision is in conflict with that intention. * * *

Because of the extreme disparities in E.N.’s wishes and the decline of his mental capacity toward the end of his life, I believe it is unwise to completely disregard the intentions clearly indicated in E.N.’s 1997 will, as this will appears to have been made while E.N. was competent. I am troubled, to say the least, that the Children who were specifically disinherited in this will, were subsequently permitted to effectively rewrite E.N.’s will to their benefit. Although Indiana Code Section 29-3-9-4 certainly permits the creation of estate plans in some situations, I am hesitant to allow the statute to be used to override an estate plan or will created by the protected person before the guardianship proceedings were initiated. Because the statute only permits, and does not require, the authorization of a guardian’s plan, I believe this dispute is better resolved in a probate proceeding.

In Chickamauga Properties, Inc. v. Hershall Barnard and Joyce E. Barnard, a 13-page opinion, Judge May concludes:
The trial court correctly concluded Dixon’s use of the access road ripened into a prescriptive easement in the early 1990s. The easement was not abandoned by nonuser. The adverse possession tax statute is inapplicable. Accordingly, we affirm.
In State of Indiana v. Thomas A. Cook, a 9-page, 2-1 opinion (with the dissent beginning on p. 6), Judge May writes:
The State appeals the grant of Thomas A. Cook’s motion to suppress evidence obtained from his trash. The police seized Cook’s trash because his name was on a list of customers who had purchased products from Worm’s Way, a garden supply company. The presence of Cook’s name on that customer list did not give police “articulable individualized grounds,” State v. Litchfield, 849 N.E.2d 170, 173 (Ind. Ct. App. 2006) (“Litchfield II”), for suspecting Cook of illegal activity. We accordingly affirm the grant of Cook’s motion to suppress. * * *

BAKER, Judge, dissenting.

I respectfully dissent from the majority’s decision to affirm the trial court’s grant of Cook’s motion to suppress. In particular, I part ways with the determination that the State failed to establish a reasonable suspicion for seizing the trash in these circumstances.

* * * I believe that the “specific indicia of reliability” requirement was satisfied here under the Terry standard. Therefore, I reject the notion that the seizure of Cook’s trash was merely random and based on some inchoate hunch by police officers that Cook “might” be in possession of contraband. For these reasons, I vote to reverse the trial court’s grant of the motion to suppress.

NFP civil opinions today (3):

In Terry R. Huber v. United Farm Family Mutual Insurance Company (NFP), a 7-page opinion with interesting details of how insurance disputes over property damage valuation may be resolved, Judge Crone concludes:

In conclusion, we hold that neither Huber’s claims nor their underlying issues are barred by the doctrine of res judicata. Huber has alleged that Farm Bureau acted fraudulently and that the umpire was biased. Since res judicata does not apply and Huber has alleged an appropriate ground for setting aside the appraisal, Farm Bureau is not entitled to judgment as a matter of law. Therefore, we reverse and remand for further proceedings.

In the Matter of S.L., a Child Alleged to Be in Need of Services (NFP) - "We conclude that sufficient evidence was presented to support the trial court’s determination that S.L. was a CHINS."

In the Matter of the Adoption of C.C., J.M. and A.M. (NFP) - "For the foregoing reasons, we affirm the trial court’s denial of Hayes’s petition to adopt the Children."

NFP criminal opinions today (6) (link to cases):

Antonio Tutson v. State of Indiana (NFP)

Alexander Antonio Lopez v. State of Indiana (NFP)

Natividad Balderas v. State of Indiana (NFP)

Kelly L. Stacy v. State of Indiana (NFP) - see 8/27/06 ILB entry

Andrew Stacy v. State of Indiana (NFP) - see 8/27/06 ILB entry

Michael Keys v. State of Indiana (NFP)

Posted by Marcia Oddi on August 25, 2006 12:04 PM
Posted to Ind. App.Ct. Decisions