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Tuesday, March 27, 2007

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

In 600 Land Development, Inc. v. Metropolitan Board of Zoning Appeals of Marion County, et al. , a 27-page opinion, Judge Robb writes:

600 Land, Inc., an Indiana corporation, appeals the trial court’s denial of its motion for partial summary judgment and order affirming the decision of the Metropolitan Board of Zoning Appeals of Marion County (the “BZA”), denying 600 Land’s petition for a special exception. On appeal, 600 Land raises three issues, which we restate as: (1) whether the Industrial Zoning Ordinance of Marion County (the “IZO”) allows 600 Land to operate a solid waste transfer station and recycling facility on its property without seeking a special exception; (2) whether the BZA’s denial of 600 Land’s petition was based on sufficient evidence; and (3) whether the procedure through which the BZA denied 600 Land’s petition deprived 600 Land of due process. We conclude that the IZO does not allow the operation of a waste transfer station without a special exception. However, we reverse, as we also conclude that the BZA’s denial of the petition was not based on sufficient evidence. * * *

Conclusion We hold that the IZO requires 600 Land to obtain a special exception for the operation of its proposed transfer station, and that the trial court properly denied 600 Land’s motion for summary judgment on this issue. However, we conclude that the findings the BZA made in denying 600 Land’s petition for a special exception were unsupported by the evidence and that therefore its denial of 600 Land’s petition was an abuse of discretion. Thus, we remand to the trial court with instructions to remand to the BZA with instructions to grant 600 Land’s petition. Affirmed in part, reversed in part, and remanded.

In Precedent Partners I, L.P., et al. v. Michelle Hulen, et al. , a 9-page opinion, Judge Najam writes:
On August 25, 1995, fifteen-year-old Michelle was riding her bike along Meadows Boulevard, a dedicated public street and main thoroughfare in The Meadows, when she turned onto a cross street and collided with a pickup truck being driven by Jose Guardado. Guardado was driving in The Meadows in connection with his work installing drywall at one of the residences. He was an employee of, or independent contractor for, Best Drywall. Guardado was not employed by and did not have any relationship with either Precedent or the Association. As a result of the collision, Michelle sustained significant and permanent bodily injuries. * * *

The law does not impose a duty on a business to guard against injury to the public from the negligent acts of someone over whom the business has no control and which injury occurs off the business’ premises. Snyder Elevators, Inc. v. Baker, 529 N.E.2d 855, 859 (Ind. Ct. App. 1988), trans. denied. Neither Precedent nor the Association was accountable for the conduct of Guardado and neither controlled the premises where the accident occurred. We hold that the trial court erred when it denied Precedent’s and the Association’s joint summary judgment motion. We reverse and remand with instructions to enter summary judgment in favor of Precedent and the Association and against the Hulens. Reversed and remanded with instructions.

Thomas Jones v. State of Indiana - "Appellant-Defendant Thomas Jones (“Jones”) appeals his conviction for Class D felony possession of a narcotic drug in Marion Superior Court following a bench trial. On appeal, Jones asserts that the trial court erred by allowing the State to amend the charging information one week before trial. Concluding that the trial court did not err, we affirm."

Nicholas A. Radick v. State of Indiana, a 12-page opinion with a dissent beginning on p. 7. involves a question of double jeorpardy. Judge Sharpnack writes:

Despite any inconsistency in the verdicts, the convictions are permissible because they are supported by sufficient evidence. See, e.g., Slate v. State, 798 N.E.2d 510, 519-520 (Ind. Ct. App. 2003) (holding that the jury’s guilty verdict for the offense of operating a vehicle while intoxicated as a Class A misdemeanor was not wholly inconsistent with its acquittal of the defendant on the charge of public intoxication).

For the foregoing reasons, we affirm Radick’s convictions for operating a vehicle while intoxicated causing death as a class C felony and operating a vehicle with a controlled substance listed in Schedule I or II as a class C misdemeanor. Affirmed.

CRONE, J. concurs SULLIVAN, J. dissents with separate opinion [ which begins] The jury did not find Radick guilty of causing death with respect to the two charged offenses. There was only one death as a result of Radick’s conduct. The causing-death element of the charged offense of operating with a controlled substance was eliminated by the jury verdict, thereby averting one double jeopardy problem. However, that fact does not cure what I perceive to be a separate double jeopardy impediment to the two convictions.

In T.S. v. State of Indiana , a 27-page opinion, Judge Robb writes:
T.S., a minor, appeals from a proceeding in which he was adjudicated a juvenile delinquent based on the juvenile court’s finding that T.S. committed an act that if committed by an adult would be the crime of possession of marijuana, a Class A misdemeanor. On appeal, T.S. raises the sole issue of whether the trial court erred in denying T.S.’s motion to suppress evidence he claims was obtained in violation of Article I, Section 11 of the Indiana Constitution, and the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Concluding that the procedure through which the evidence against T.S. was obtained did not violate T.S.’s federal or state constitutional rights, we affirm. * * *

Conclusion We hold that Sergeant Driskell acted as a school resource officer in furtherance of educationally related goals, and that therefore, the reasonableness standard of T.L.O. applies to his seizure of T.S. We further hold that T.S. was seized within the meaning of the Fourth Amendment, but that this seizure was reasonable. Finally, we hold that the seizure was reasonable under the Indiana Constitution. Because the procedure through which the State obtained the evidence against T.S. complied with both the United States and Indiana constitutions, the trial court properly admitted the evidence.

NFP civil opinions today (2):

Geoffrey Massey v. Kristina M. (Massey) Higgins (NFP) - "Geoffrey Massey (“Father”) appeals from the trial court’s order modifying the parenting time he has with his minor daughter, H.M. Father raises two issues for our review, which we consolidate and restate as whether the trial court abused its discretion in reducing Father’s parenting time due to the distance between Father’s residence and the residence of Kristina Higgins (“Mother”), with whom H.M. lives. We affirm."

Joan Schmitt v. City of Evansville (NFP) - "Joan Schmitt filed a small claims action against the City of Evansville, the City of Evansville Board of Public Works, and the City of Evansville Sewer and Water Utility (“City”). She appeals the trial court’s order granting the City’s Motion for Judgment on the Evidence. We affirm. * * * Here, Buchanan testified that the defect had existed for three to six months. The sewer was underground, not subject to observation. There was no evidence that the City knew or should have known of the condition. To the contrary, Schmitt stated plainly that she had not had any problems with the sewer prior to this incident. Regardless of whose responsibility it was to maintain the defective “Y connection,” the City cannot be found liable for Schmitt’s damages absent evidence that the City had actual or constructive notice of the defect."

NFP criminal opinions today (10):

Dwayne Noble v. State of Indiana (NFP)

Darryl L. Abron v. State of Indiana (NFP)

Richard Parrott v. State of Indiana (NFP)

In the Matter of D.S. v. State of Indiana (NFP)

Christopher Kyner v. State of Indiana (NFP)

David Kirk v. State of Indiana (NFP)

Michael Ray Hiser v. State of Indiana (NFP)

Jake Carroll v. State of Indiana (NFP)

Timothy Kopkey v. State of Indiana (NFP)

Joe M. Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on March 27, 2007 01:25 PM
Posted to Ind. App.Ct. Decisions