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Thursday, December 07, 2006

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In KLR Incorporated v. Indiana Unemployment Insurance Review Board and Jeffrey D. Howard, a 6-page opinion, Judge Najam writes:

KLR Incorporated d/b/a Subway Sandwiches and Salads (“KLR”) appeals from a decision by the Unemployment Insurance Review Board of the Indiana Department of Workforce Development (“Review Board”) affirming the findings and conclusions of an Administrative Law Judge (“ALJ”), which granted Jeffrey Howard’s application for unemployment benefits. KLR presents a single issue for our review, namely, whether the Review Board erred when it determined that KLR had not presented sufficient evidence to overcome the presumption that KLR received actual notice of the ALJ hearing. We reverse and remand with instructions.
In Jason Burkett v. W.T., a 4-page opinion, Judge Mathias writes:
Jason Burkett (“Burkett”) filed a petition in Cass Circuit Court for visitation to his minor son. His petition was denied and Burkett appeals pro se. Concluding that Burkett is entitled to a hearing on his petition pursuant to Indiana Code section 31-14-14-1, we reverse and remand for proceedings consistent with this opinion.
NFP civil opinions today (2):

In Elizabeth Thomas v. Oolman Dairy (NFP), a 15-page opinion, Judge Baker writes:

Appellant-intervenor Elizabeth Thomas appeals from the trial court’s order reversing the decision of appellee-respondent Blackford County Area Board of Zoning Appeals (the Board) and requiring the Board to hold an evidentiary hearing on an application for special exception filed by appellee-petitioner Oolman Dairy, LLC (Oolman). Finding that the Board’s decision was arbitrary, capricious, and contrary to law, we affirm the judgment of the trial court. * * *

As we concluded above, the Board accepted the withdrawal of the First Application without prejudice. Having done so, the Board is required by statute and by due process to hold a hearing on the Second Application. Ind. Code § 36-7-4-920(a) (“[t]he board of zoning appeals shall fix a reasonable time for the hearing of administrative appeals, exceptions, uses, and variances”); City of Hobart Common Council v. Behavioral Inst. of Ind., LLC, 785 N.E.2d 238, 246-47 (Ind. Ct. App. 2003) (holding that boards of zoning appeals must comply with due process and “the constitutional standards of being orderly, impartial, judicious, and fundamentally fair”). Indeed, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” McKinney v. McKinney, 820 N.E.2d 682, 688 (Ind. Ct. App. 2005) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Therefore, the Board was required as a matter of law to hold a public hearing on the Second Application and the trial court properly ordered it to do so. The judgment of the trial court is affirmed.

[Note - The ILB had a number of entries about this case.]

Termination of Parent Child Rel. of A.W., B.W., C.W., E.W., S.W., V.W., and K.H. (NFP)

NFP criminal opinions today (2) (link to cases):

Thomas E. Glover v. State of Indiana (NFP)

Bart Wyman v. State of Indiana (NFP)

Posted by Marcia Oddi on December 7, 2006 10:29 AM
Posted to Ind. App.Ct. Decisions