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Sunday, April 22, 2007

Ind. Decisions - Court of Appeals issues 6 Friday (and 9 NFP)

For publication opinions today (7):

Linda Nolan v. Richard Taylor, et al - Here is how the Washington Times-Herald described the history of this situation in its "Looking Back on '06" column:

Martin County Clerk: From the moment John Hunt won a precinct committee election in November 2005, he has faced problems as Martin County Clerk. In January, he faced a lawsuit from Linda Nolan, who claimed Hunt’s election was rigged, and on June 7, he was arrested by Circuit Court Judge Joe Howell, who charged him with criminal contempt of court.

In May, Hunt lost a primary battle with Nolan, a former chief deputy clerk. Nolan would not win the general election in November when Shoals native Julie Fithian won by only 40 votes. Hunt will continue as clerk through 2007.

In the 11-page opinion issued Friday, Judge Robb writes:
Linda Nolan appeals the trial court’s order denying her Petition to Challenge Results of Caucus, dissolving a preliminary injunction issued by the trial court, and declaring John Hunt the pro tempore Clerk of the Martin Circuit Court. On appeal, Nolan raises many issues,1 but we find one issue dispositive: whether the trial court had jurisdiction to hear Nolan’s challenge to the results of a political caucus held to appoint a pro tempore court clerk. Concluding that the trial court did not have jurisdiction, we affirm in part, and remand with instructions to dismiss. * * *

We hold that the trial court had no jurisdiction to hear Nolan’s petition or motions for preliminary injunction and temporary restraining order. Therefore, the trial court properly dissolved the preliminary injunction. We remand with instructions that the trial court enter an order of dismissal as to Nolan’s petition.

In the Matter of Contempt: John R. Hunt v. Martin Circuit Court , an 8-page opinion, concerns the situation last summer reported in the ILB, including this quote from Washington Times-Herald from June 9, 2006: "Martin County Clerk John Hunt spent about two and a half hours in jail Wednesday when Circuit Court Judge Joe Howell charged him with criminal contempt of court just before 4 p.m." (See also these entries and included links from 9/27/06 and 9/29/06). Chief Judge Baker wrote on Friday:
John R. Hunt, the Circuit Court Clerk of Martin County, appeals the trial court’s finding that he was in direct criminal contempt. Specifically, Hunt argues that the judgment was erroneous because the trial court lacked jurisdiction over the matter and that the contempt finding must be set aside “because there was no hearing that the court could attach a direct violation to.” Concluding that it was error to find Hunt in direct criminal contempt in these circumstances, we reverse the judgment of the trial court. * * *

In light of our discussion above, we conclude that the trial court erred in holding Hunt in direct criminal contempt. Indeed, Hunt’s purported misrepresentations to the trial court regarding the release of Holt’s bond rose to the level of indirect contempt—at best—which required notice, an opportunity to be heard, and other due process protections. Finally, in the event that Holt is owed money from the clerk’s office that is due and unpaid, she may be permitted to file a separate cause of action against Hunt for the return of those funds. The judgment of the trial court is reversed.

In State of Indiana v. Karl D. Jackson , an 18-page opinion, Judge Robb concludes:
We conclude that the OWHTV statute requires that the defendant have actual knowledge that his or her license has been suspended because that person has been determined to be an HTV (Habitual Traffic Violator). We further hold that the trial court did not abuse its discretion in finding that Jackson rebutted this presumption, notwithstanding the fact that Jackson failed to comply with the statutory requirement that he notify the BMV of a change in address. Affirmed.
Linda Palmer v. Comprehensive Neurologic Services - "Linda Palmer (“Palmer”), Personal Representative of the Estate of Harlan Hunt Palmer, appeals following her medical malpractice action in which the jury awarded damages and the court permitted setoff, resulting in a zero-dollar judgment against Appellees-Defendants, Comprehensive Neurologic Services, P.C. (“CNS”) and Mark A. Muckway, M.D. (“Dr. Muckway”)." Affirmed.

In Paternity of H.R.M., Steven Gaddie v. Rachel Manlief, a 16-page opinion, Judge Robb writes:

Steven R. Gaddie appeals the trial court’s order granting Rachel D. Manlief’s motion to modify visitation. Gaddie raises two issues, which we restate as whether the trial court abused its discretion in allowing a clinical social worker to testify regarding statements made to her by a child during interviews, and whether the trial court abused its discretion in admitting a “Family Support Specialist’s” notes of home visitations. Concluding that the social worker’s testimony and the family specialist’s notes both constitute hearsay, and that neither falls within an exception to the rule against the admission of hearsay, we reverse and remand with instructions that the trial court conduct another hearing. * * *

We conclude that Fowler’s testimony regarding H.M.R.’s statements was inadmissible hearsay not falling within the exception for statements made in the furtherance of medical treatment. We further hold that Martin’s notes were not admissible pursuant to the business records exception to hearsay based on the insufficiency of the supporting affidavit. Finally, we conclude that the admission of this evidence was not harmless error.

Robert Luhrsen v. State of Indiana - "It was within the trial court’s discretion to sentence Luhrsen to enhanced consecutive sentences, and his sentence is appropriate given the nature of the offense and the character of the offender. We affirm."

NFP civil opinions today (3):

In the Mtr. of the Involuntary Termination of the Parent-Child Relationship of C.B., J.G., and R.B., minor children and their mother Christina Beltran v. Marion Cty. Div. of Family & Children, et al. (NFP) - Affirmed.

Termination of Parental Rights of N.L.E. and K.D.M., Mindy Lee Warthan v. Tippecanoe County Division of Child Services (NFP) - Affirmed.

Ronald Walters v. Marlene Walters (NFP) - "Ronald Walters appeals the trial court’s division of property decree in the dissolution of his marriage to Marlene Walters. We affirm in part and reverse in part. The sole restated issue is whether the trial court properly ordered Ronald to make an “equalization payment” of $114,350 to Marlene as part of the property division decree."

NFP criminal opinions today (6):

Robert Roberts v. State of Indiana (NFP)

Rodney T. Williams v. State of Indiana (NFP)

Jacob Wright v. State of Indiana (NFP)

Randall E. Willis v. State of Indiana (NFP)

David Brown v. State of Indiana (NFP)

Michael Thomas v. State of Indiana (NFP)

Posted by Marcia Oddi on April 22, 2007 03:22 PM
Posted to Ind. App.Ct. Decisions