The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 9 today (and 11 NFP)

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Monday, April 30, 2007

Ind. Decisions - Court of Appeals issues 9 today (and 11 NFP)

For publication opinions today (9):

Robin England v. April England - Judge Robb: "Robin England (“Husband”) and April England (“Wife”) were divorced in 2006. As part of the decree of dissolution, the trial court valued the marital assets, including the value of living on the property on which the marital residence sits, and divided them equally between the parties. Husband now appeals, contending that the trial court erred in including a defeasible interest in real property as a marital asset and in its valuation of that interest. Concluding that the trial court properly considered the value of Husband’s continued use and occupancy of what was the marital property in dividing the marital assets, and also concluding that the value the trial court assigned to Husband’s interest is supported by the evidence, we affirm. * * * The trial court did not abuse its discretion in considering Husband’s continued residence on the Rumpke property in dividing the marital assets, or in valuing that interest at $152,437. The judgment of the trial court is affirmed."

Chi Yun Ho, M.D. v. Loretta M. Frye - "Under such circumstances, res ipsa is applicable. [cite omitted] The Fryes met their burden of showing a prima facie case of negligence against Dr. Ho. IThe burden then shifted to Dr. Ho to explain how he met the standard of care. Dr. Ho responded by designating evidence that he met the appropriate standard of care and that the surgery nurse reported to him that the sponge counts were correct. In essence, Dr. Ho contended that he did not breach his duty to Frye because the nurse had the duty to count the sponges and miscounted. However, under Funk, a surgeon cannot “delegate the absolute authority and responsibility to a nurse or nurses to account for sponges and to thus escape responsibility himself.” [cite omitted] As in Cox, Dr. Ho’s explanation is “not free of the inference of negligence,” and Dr. Ho failed to carry his burden of proof. [cite omitted] The Fryes were, therefore, entitled to partial summary judgment on their claim against Dr. Ho. We reverse and remand for a new trial on the Fryes’ damages."

Wayne Township, Marion County, Indiana v. Indiana Dept. of Local Government Finance, and Martha Womacks

Lokmar Y. Abdul-Wadood v. Capt. Batchelor, et al - "Lokmar Y. Abdul-Wadood, pro se, appeals the dismissal of his complaint against three employees of the Indiana State Prison: Captain Batchelor, and Lieutenants Kruper and Pittman (collectively, “the defendants”). We affirm. * * * Abdul-Wadood filed his complaint in the trial court a mere six months after the events alleged to have violated his rights. This suggests he did not see any administrative proceedings through to a final conclusion. Therefore, the trial court did not have jurisdiction over his complaint and properly dismissed it."

Indiana State Board of Education v. Brownsburg School Corp., Board of School Trustees - "In this case, the trial court’s order resolved the sole question presented for review—“whether Indiana Code section 20-8.1-3-17.3(b) [(recodified as Indiana Code § 20-33-2-12(b))] bestows upon [Brownsburg] the discretion to deny students from non-public, non-accredited, or non-approved schools, including home educated students, to enroll in less than a full time schedule unless an IEP is in effect.” Appellant’s App. p. 19. The trial court answered the question affirmatively, and nothing remained for further determination by the agency. Moreover, the children who initiated this appeal are no longer seeking part-time enrollment. Thus, the trial court acted appropriately in not remanding the case for further proceedings."

In William C. Foreman v. State of Indiana , a 14-page opinion (in a case where the record shows Jack Crawford, former lottery commissioner, represents the defendant), Judge Friedlander writes:

In this interlocutory appeal, William C. Foreman appeals the trial court’s order denying his motion to dismiss. Foreman presents the following issue of first impression: Does the penalty for Indiana Code Ann. § 4-30-14-4 (West 2002)—disclosure of confidential information relating to the lottery, a class A felony—violate article 1, section 16 of the Indiana Constitution? * * * Here, the legislature classified the penalty for disclosure of confidential information relating to the lottery as a class A felony. Given the historical backdrop of when I.C. § 4-30-14-4 was enacted, the expressed intent of maintaining the integrity of the lottery, the potential effect the commission of the crime could have on citizens of this state, and the difficulty in detecting the crime, the legislature could have reasonably determined that a severe penalty was required for the offense of disclosing confidential lottery information. Furthermore, we are not free “to set aside the legislative determination as to the appropriate penalty merely because it seems too severe.” State v. Moss-Dwyer, 686 N.E.2d at 112. In light of the presumption of constitutionality of statutes, and the heavy burden on the party asserting unconstitutionality, we are not convinced that the penalty for disclosure of confidential lottery information violates the proportionality provision of the Indiana Constitution."

Cameron M. Niemeyer v. State of Indiana - "Niemeyer’s twelve-year sentence was not inappropriate in light of his character and the offense. We accordingly affirm."

Russell Prewitt v. State of Indiana - Sharpnack: "Because the trial court only had the statutory authority to do one of the three options in Ind. Code § 35-38-2-3(g), not two of the options, we remand for resentencing."

Crone, concurring: "I reluctantly agree with the majority’s reliance on Sharp and its interpretation of Indiana Code Section 35-38-2-3(g) in reversing the trial court’s sentencing order. * * * I write separately to observe that our supreme court’s opinion in Stephens v. State, 818 N.E.2d 936 (Ind. 2004), which was issued subsequent to Sharp, emphasizes the importance of flexibility in probation proceedings."

Steve Markland v. State of Indiana - "Appellant-defendant Steven E. Markland appeals his conviction for Theft,1 claiming insufficiency of the evidence. Markland also argues that the trial court erred in ordering him to make restitution for costs relating to the disinterment and cremation of a body. Finding no error, we affirm the judgment of the trial court."

NFP civil opinions today (5):

In the Matter of the Termination of Parent-Child Relationship of M.H.; April Hill v. Putnam County Department of Child Services (NFP)

In the Matter of the Parent-Child Relationship of L.A.P., Barbara Parsons and Willie Parsons v. Elkhart County Department of Child Services (NFP)

Dennis Ray Peterson v. Dennis Meyer, et al. (NFP)

Brandy Chase, Inc. v. Big Rock Development, LLC (NFP)

Michael M. Cubel v. Debra A. Cubel (NFP)

NFP criminal opinions today (6):

Randy VanArsdale v. State of Indiana (NFP)

Bryan K. Catlett v. State of Indiana (NFP)

Rodney Plumley v. State of Indiana (NFP)

David D. Barany v. State of Indiana (NFP)

Charlie Herbst v. State of Indiana (NFP)