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Monday, May 21, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

James E. Cox v. Kandice A. Cantrell - a 22-page opinion: "We conclude that the trial court’s order transferring jurisdiction of the custody proceedings to the Michigan court was not contrary to either Indiana or Michigan law, that its telephonic conference with the Michigan court did not violate Father’s due process rights, and finally that the trial court did not commit prima facie error in transferring jurisdiction of the case to Michigan. Affirmed."

E. Mitchell Roob, Jr., et al. v. Jannis Fisher, et al. - "In our original published opinion, we concluded that neither Medicaid Providers nor Recipients have a private right of action pursuant to Section 1983. Roob v. Fisher, 856 N.E.2d 723 (Ind. Ct. App. 2006). The Appellees have filed a petition for rehearing in which they point out that the State conceded the issue of Recipient standing at the trial court level. Moreover, the State did not explicitly challenge the Recipients’ standing in its opening appellate brief. We concluded in our original opinion that the State’s limited mention of the Recipients in its opening brief was sufficient to keep the issue alive. Id. at 732-33. In light of the State’s concession below, however, we now find that it has waived the issue of the Recipients’ standing. Thus, we grant rehearing for the limited purpose of vacating that portion of our original opinion that holds that the Recipients do not have standing in this matter. In all other respects, we deny the petition for rehearing."

In Joel M. Schumm v. State of Indiana, a 27-page opinion in which attorney and IU Law prof Joel Schumm represented himself, Judge Robb writes:

Following a jury trial, Joel M. Schumm appeals the determination that he operated a vehicle with improper taillights, a Class C infraction. On appeal, Schumm raises six issues, which we expand and restate as:
1. whether the trial court properly denied Schumm’s motion for summary judgment;
2. whether the trial court properly denied Schumm’s Batson challenge;
3. whether the trial court abused its discretion in excluding evidence relating to the United States Department of Transportation (the “DOT”) regulations, and refusing to instruct the jury on these regulations;
4. whether the trial court abused its discretion in refusing Schumm’s tendered instructions relating to the civil nature of the case;
5. whether the trial court abused its discretion in excluding evidence relating to the Fort Wayne Police Department’s (the “FWPD”) Standard Operating Procedures (“SOPs”);
6. whether the trial court properly refused to allow Schumm to proceed pro se and with co-counsel; and
7. whether the trial court abused its discretion in allowing a deputy prosecutor to testify regarding discussions with Schumm.

We conclude that the trial court properly denied Schumm’s motion for summary judgment, but that it improperly overruled his Batson challenge. Therefore, we must remand for a new trial. Because the remaining issues are likely to recur on remand, we will discuss them as well, although they are not necessary to our decision to reverse. * * *

After the trial court refused to grant the State’s attempt to strike juror number 6 for cause, the State used one of its peremptory challenges to strike the juror. Then, the following exchange took place:

Schumm: I would make a Batson challenge. She’s the only African American on the jury.
Court: Are you an African American?
Schumm: No, but I have the right to assert that regardless of - -
Court: How?
Schumm: The U.S. Supreme Court has said so, Your Honor. A number of causes can raise a Batson challenge. Third party standing, even if on behalf of the juror.
State: I’ll have to re-read Batson. That’s not my understanding * * *
Conclusion We conclude that the trial court properly denied Schumm’s motion for summary judgment, but that it improperly denied Schumm’s Batson challenge. Therefore, we reverse and remand for proceedings consistent with this opinion.
NFP civil opinions today (5):

Richard Brown v. Kristi Brown (NFP) - custody, affirmed.

Mark and Marcia LaForest v. Rosemark Homes of South Bend (NFP) - real estate contract.

Adoption of T.S.N., Patrick Vestal v. Mathew Scott Nordhoff (NFP) - "[W]e conclude that Nordhoff established Vestal failed to communicate significantly with T.S.N. for a period of at least one year, and therefore, Vestal’s consent to adoption was not required pursuant to Indiana Code section 31-19-9-8(a)(2)."

Robert and Barbara Williams v. Keystone RV (NFP) - breach of warranty claim.

Charles W. Koehler v. William H. Culpepper, Jr. (NFP) - this is a 2-1 NFP decision. Chief Judge Baker's opinion begins:

Appellant-third-party-plaintiff Charles W. Koehler appeals from the trial court’s dismissal of his third-party complaint against appellee-third-party-defendant William H. Culpepper, Jr. Koehler raises a number of arguments, one of which we find dispositive—that Koehler’s claims against Culpepper arise under the employment agreement between Koehler and his employer, SePRO Corporation (SePRO) such that Culpepper is required to submit to binding arbitration. Finding that Koehler’s third-party claims do not fall under the scope of the employment agreement, we affirm the judgment of the trial court.* * *

Judge Friedlander's 4-page dissent begins:] I believe Koehler’s claims arise under the written Agreement and therefore should be submitted to arbitration per that agreement. I respectfully dissent from the Majority’s ruling to the contrary.

NFP criminal opinions today (8):

State of Indiana v. Wilburn R. Adams (NFP) - "The State of Indiana appeals from the Jay Superior Court’s grant of a suppression motion filed by Wilburn R. Adams (“Adams”). The State raises one issue, which we restate as: whether the trial court erred when it suppressed evidence of a warrantless blood draw. Concluding that the investigating police officer did not have probable cause to believe that Adams was driving while intoxicated when he offered Adams a chemical test, we affirm."

Timothy J. Allen v. State of Indiana (NFP)

Christopher Kinds v. State of Indiana (NFP)

Darrell Warren v. State of Indiana (NFP)

Ronald R. Klemmeck v. State of Indiana (NFP)

Charles Cleary, Jr. v. State of Indiana (NFP)

William L. White, Jr. v. State of Indiana (NFP)

Adrian D. Riggs v. State of Indiana (NFP)

Posted by Marcia Oddi on May 21, 2007 01:21 PM
Posted to Ind. App.Ct. Decisions