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Wednesday, July 18, 2007
Ind. Decisions - Court of Appeals issues 2 today (and 12 NFP)
For publication opinions today (2):
Charles Jack v. State of Indiana - "Defendant-Appellant Charles Jack appeals his convictions of and sentence for murder, a felony (Ind. Code § 35-42-1-1; Ind. Code § 35-41-2-4), and of conspiracy to commit murder, a Class A felony (Ind. Code § 35-41-5-2). We affirm. Jack raises two issues for our review, which we restate as: I. Whether separate convictions for murder and conspiracy to commit murder violate the Double Jeopardy clause of the Indiana Constitution. II. Whether the sentence imposed by the trial court was appropriate. * * * I. In view of the jury instructions and the evidence presented, we find no sufficiently substantial likelihood that the evidentiary facts used by the jury to establish the essential elements of
aiding, inducing, or causing murder may have also been used to establish the essential elements of conspiracy to commit murder. * * * II. Although Flynn pulled the trigger, the murder would not have occurred without Jack’s planning of the murder, the conspiracy to commit the murder, the set-up of the victim, and assistance to facilitate Flynn’s escape. With reference to Jack’s character, we note that Jack’s full-time job was breaking the law. In performing his job, he planned and facilitated Teague’s murder."
In Rory S. Bond and Raven Bond v. Walsh & Kelly Inc., and Town of Merrillville, a 6-page opinion, plaintiffs sued the town and the paving contractors for an accident involving a drop-off from the edge of the repaved street to the shoulder. Senior Judge Hoffman writes:
We first note that there has been a change in the law with regard to negligence actions and the work of contractors, such as Walsh & Kelly in the present case. The old rule, known as the acceptance rule or the completed and accepted rule, stated that contractors do not owe a duty of care to third parties after the owner has accepted the work. In Peters v. Forster, 804 N.E.2d 736 (Ind. 2004), our supreme court abandoned the acceptance rule as an “outmoded relic” in favor of what has been termed the modern rule or foreseeability doctrine. The modern rule provides that a contractor is liable for injuries or death of third persons after acceptance by the owner where the work is reasonably certain to endanger third parties if negligently completed. * * * However, in adopting this new rule, the court noted that a contractor’s liability under this doctrine is not absolute; rather, a plaintiff must still establish the elements of negligence: (1) a duty owed to the plaintiff; (2) a breach of that duty by the defendant; and (3) the breach proximately caused plaintiff’s damages. There is no breach of duty, and consequently no negligence, where a contractor merely follows the plans or specifications given to him by the owner so long as the plans are not so obviously dangerous or defective that no reasonable contractor would follow them. * * *NFP civil opinions today (5):Walsh & Kelly was hired only to re-pave Randolph Street. Town indicated to Walsh & Kelly that it would stripe the road and place the shoulder stone. Therefore, per the plan, Walsh & Kelly did not stripe the road or fill the drop-off at the edge of the pavement. Town’s delay in striping the road and filling the shoulder had nothing to do with the re-paving performed by Walsh & Kelly. There is neither evidence that the plans for the re-paving by Walsh & Kelly were obviously defective, nor is there evidence that the re-paving was performed negligently. Thus, the designated evidence does not create a genuine issue of material fact as to whether the plans were so obviously dangerous or defective that no reasonable contractor would follow them.
Based upon the foregoing discussion and authorities, we conclude that the trial court did not err by entering summary judgment in favor of Walsh & Kelly.
In the Matter of the Termination of the Parent-Child Relationship of G.S.; Treasa and Jason Smallwood v. Indiana Department of Child Services (NFP) - termination, affirmed.
In Dr. Beverly R. Newman v. Indiana Pesticide Review Board (NFP), a 5-page opinion involving a standing question, Judge Mathias writes:
Newman filed an incident report, alerting the State Chemist to a potential violation of the pesticide use and application statutes. The ensuing investigation and any potential sanctions by IPRB were directed at Gold Seal as a state-licensed pesticide applicator. Thus, Newman could not be “aggrieved” by IPRB’s action, or as appears to be the case here, inaction on the State Chemist’s investigation.In the Matter of T.F. v. Vanderburgh County Department of Child Services (NFP) - "T.F. was found to be a child in need of services (“CHINS”) by the Vanderburgh Superior Court. From the record before us, it appears that the trial court did not issue findings of fact and conclusions of law, and therefore, we remand this case to the trial court for proceedings consistent with this opinion."Nor is Newman a party to the agency proceedings. AOPA provides that a “party” to a administrative proceeding is “(1) a person to whom the agency action is specifically directed; or (2) a person expressly designated in the record of the proceedings a party to the proceedings.” [IC] 4-21.5-1-10. As addressed above, Newman is not a person to whom agency action was specifically directed. Newman argues that she is a party to the agency proceedings because her name appears in the agency record as the petitioner. Newman’s name appears listed as petitioner because she drafted her various petitions to IPRB that way, and IPRB responded to her filings. Several of the documents Newman points to in support of her argument that she is party to the proceeding specifically find that she lacks standing.
The trial court properly dismissed Newman’s petition for judicial review. Affirmed.
In Indiana Department of Financial Institutions, et al. v. Payday Today, Inc., et al. (NFP), an 8-page opinion, Judge Mathias' opinion begins:
The Lake Circuit Court entered a preliminary injunction against the Indiana Department of Financial Institutions (“the IDFI”) enjoining it from revoking the lender licenses of Payday Today, Inc. and SMS Finance, Inc. The IDFI appeals and raises the following dispositive issue, which we restate as: whether the trial court lacked subject matter jurisdiction to grant a preliminary injunction because the Appellees failed to exhaust their administrative remedies. We reverse and remand this matter to the trial court with instructions to dismiss the Appellees’ complaint for lack of subject matter jurisdiction.Jeffrey Alholm v. Rebecca Alholm (NFP) - "Jeffrey now appeals the division of marital property and the attorney’s fees award. We affirm."In 2006, the IDFI revoked Payday Today’s lender licenses after determining that it had improperly sought treble damages, attorney fees, and other damages in its collection efforts. The IDFI concluded that in numerous collection proceedings, Payday Today sought treble damages and attorney fees by alleging fraud on a financial institution, which is contrary to law because licensees under the Small Loan Act are not financial institutions. The IDFI also asserted that Payday Today did not prove or attempt to prove that its borrowers’ checks were used to defraud it as required by the Small Loan Act. Payday Today filed a Petition for Review and Petition for Stay of its license revocation with the IDFI.
NFP criminal opinions today (7):
Nathaniel F. Sanders v. State of Indiana (NFP)
Derry Vaughn v. State of Indiana (NFP)
Linda D. Jones v. State of Indiana (NFP)
Jana Lynn Brandle (Cannon) v. State of Indiana (NFP)
Christopher Slocum v. State of Indiana (NFP)
Lonnie Hall v. State of Indiana
Chad Bryant v. State of Indiana (NFP)
Posted by Marcia Oddi on July 18, 2007 12:40 PM
Posted to Ind. App.Ct. Decisions