The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 11 today (and 16 NFP)

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Monday, October 22, 2007

Ind. Decisions - Court of Appeals issues 11 today (and 16 NFP)

For publication opinions today (11):

In Joseph Guzik v. Town of St. John, Indiana , a 25-page opinion, Chief Judge Baker writes:

Appellant-plaintiff Joseph Guzik appeals the trial court’s grant of summary judgment in favor of appellees-defendants Town of St. John (the Town), and Town of St. John Metropolitan Police Commission (Police Commission) with regard to his claim for a declaratory judgment and injunctive relief, which stemmed from his allegedly coerced resignation as the Town’s police chief. * * *

We conclude that the trial court properly ordered various portions of Guzik’s affidavit to be stricken from the record. Additionally, while we find that the trial court properly granted the Town and Police Commission’s motion for summary judgment, we further conclude that the motion should also have been granted with regard to Guzik’s request for the return of his property. Thus, we affirm in part, reverse in part, and remand this cause to the trial court with instructions that it enter final judgment for the Town and Police Commission as to Guzik’s request for the return of his personal property.

In State of Indiana v. Raymond L. Washington, Jr., a 13-page, 2-1 opinion, Judge Kirsch writes:

The State of Indiana appeals the trial court’s order that granted Raymond L. Washington, Jr.’s motion to suppress marijuana that was seized from his pocket during a traffic stop. The sole restated issue is whether, when a person is stopped for a traffic infraction and there are no indicia of criminal activity, the police officer violates Article 1, Section 11 of the Indiana Constitution against unreasonable searches and seizures when he asks the individual if he is in possession of drugs. We affirm. * * *

We conclude that under the totality of the circumstances Officer Hoffman’s inquiry that asked whether Washington had any drugs on him or with him was unreasonable within the meaning of Article 1, Section 11 of the Indiana Constitution. Consequently, the trial court properly granted Washington’s motion to suppress the marijuana seized during the traffic stop.

ROBB, J., concurs.
BARNES, J., dissents with separate opinion. [that begins] I respectfully dissent. The question of whether a police officer can ask a motorist stopped for a traffic violation questions unrelated to the initial reason for the stop, aside from questions related to weapons, appears to be one of first impression in Indiana. The case law from other jurisdictions is mixed on this point, but I would side with those cases holding that police officers generally may ask such questions.

Joseph L. Florio and Connie Florio v. Ray Tilley and CalArk International, Inc. - "Here, the crux of the Florios’ argument is that, but for Tilley’s purportedly negligent speed, Tilley’s vehicle would have been at a different location when Oliver lost control of his vehicle, thereby avoiding the multiple-vehicle collision."

Jeannie Lewis-Levett v. Richard D. Day & Martha A. Day - "Although public policy favors home day care, we conclude that such policy is not violated by the enforcement of the restrictive covenants in this case. In other words, Indiana public policy favoring home day care does not supersede otherwise legitimate restrictive covenants prohibiting the use of lots in Golfview Estates for commercial purposes. Lewis-Levett operates a licensed day care home out of her residence, using sixty percent of her home for that purpose. She cares for twelve children, none of whom are related to her, and she concedes that there could be up to twelve vehicles entering and exiting Golf View Estates twice each day. On the facts presented in this case, we cannot say that the trial court erred when it granted summary judgment enjoining Lewis-Levett from operating a licensed day care home at her residence in Golf View Estates."

In Peggy Wiley v. Doris Mae McShane, et al. , an 8-page opinion, Judge Kirsch writes:

Peggy Wiley appeals the trial court’s order that required her to file a bond, pursuant to IC 29-1-7-19, after she filed a complaint challenging the validity of her deceased mother’s last will and testament. She raises five issues, but we find the following restated issue dispositive: whether the trial court abused its discretion when it set the will contest bond at $75,000. We reverse and remand.

Keith Bohlander v. Brenda Bohlander - "Keith Bohlander appeals the trial court’s order permitting his ex-wife, Brenda Bohlander, to claim a tax exemption for their daughter, J.B., for the 2006 tax year and requiring him to a pay for a portion of J.B.’s driver’s education classes and her church camp. We dismiss. * * * We address the dispositive issue, which we restate as whether Keith’s notice of appeal was timely filed."

In John Crist v. Creation of South-West Lake Maxinkuckee Conservancy District, et al., a 20-page opinion, Cheif Judge Baker writes:

Appellant-intervenor John Crist appeals the trial court’s order creating the South-West Lake Maxinkuckee Conservancy District (the Conservancy District). Specifically, Crist argues that (1) the trial court erred by withdrawing various signatures from the petition opposing the creation of the Conservancy District, (2) the Conservancy District is not contiguous as required by Indiana Code section 14-33-3-1, (3) the trial court erred by not specifically defining one of the seven districts within the Conservancy District, and (4) the trial court’s finding that the Conservancy District would promote public health is clearly erroneous. Although we conclude that the trial court erred by withdrawing ten signatures from the remonstrators’ petition, that petition still does not have the amount of signatures that are required to dismiss the petitioners’ petition. Finding no other error, we affirm the judgment of the trial court.

In Jerry & Linda Pardue v. Jerry & Linda Smith, et al., a 12-page opinion, Judge Bradford writes:

Appellants-Plaintiffs Jerry Pardue and Linda Pardue (collectively, “the Pardues”) appeal the trial court’s judgment, following a bench trial, in favor of Jerry Smith and Linda Smith (collectively, “the Smiths”), Stephen M. Carter and Carolyn Sue Carter (collectively, “the Carters”), and the Town of Plainfield (“Plainfield”) with regard to the alleged dedication of certain real property to Plainfield and an easement by necessity across the land.

The Pardues raise three issues on appeal, which we consolidate and restate as: (1) whether the trial court erred in determining that the disputed property had been dedicated to the public; and (2) whether the evidence was sufficient to support a claim for an implied easement by prior use. Plainfield, in turn, requests appellate attorneys’ fees pursuant to Indiana Appellate Rule 66(E).

Concluding that the trial court properly denied the Pardues’ requested relief, we affirm. Additionally, we decline Plainfield’s request for attorneys’ fees.

In Pinnacle Properties Development Group, LLC v. City of Jeffersonville, Indiana, a 5-page opinion, Judge May writes:

Pinnacle Properties Development Group, LLC (“Pinnacle”) appeals a ruling that the City of Jeffersonville (“City”) could transfer the delinquent sewer accounts of Pinnacle’s tenants to Pinnacle’s accounts. We reverse and remand. * * *

Ind. Code ch. 36-9-23 does not authorize a municipality to collect a delinquent sewer bill by any other means. See Ind. Code § 36-9-23-28 (“Any excess [balance] that remains due after application of the [deposit] forfeiture may be collected in the manner prescribed by section 31 or 32 of this chapter.”). Therefore, the trial court erred in holding the City could collect delinquent tenant bills by transferring the overdue balance from the tenant to the property owner without notice. See Ind. Code § 36-1-3-6(a) (when a statutory provision requires a power to be exercised in a specific manner, the municipality must exercise the power in that manner).

In James Butler v. Indiana Department of Insurance, et al., a 14-page opinion, Chief Judge Baker writes:

Appellant-plaintiff James Butler, as the personal representative of the Estate of Nondis Jane Butler (the Estate), appeals from the trial court’s judgment in favor of appellees-defendants Indiana Department of Insurance, as the administrator of the Patient Compensation Fund, and Clarian Health Partners, Inc. (Clarian) (collectively, the Fund). Specifically, the Estate argues that (1) the trial court erroneously admitted evidence regarding payments and benefits from Medicare and Medicaid in violation of the collateral source rule, and (2) the trial court erred by denying the Estate’s request to recover Nondis’s unpaid medical expenses pursuant to the Indiana Adult Wrongful Death Statute (AWDS).

We conclude that the trial court properly admitted evidence regarding the medical provider write-offs involving Medicare and Medicaid and any error resulting from the admission of the Medicare and Medicaid payments was harmless. We also conclude that, as a matter of law, the Estate was only entitled to recover the amount of actual pecuniary loss incurred as a result of Nondis’s medical expenses; therefore, the trial court properly denied its claim for additional compensation, and we affirm the judgment of the trial court.

In Robert D. Storey v. State of Indiana , a 15-page opinion, Judge Vaidik writes:

Following re-trial, Robert D. Storey (“Storey”) appeals his convictions and sentences for Possession of Methamphetamine in Excess of Three (3) Grams with Intent to Deliver and Manufacture of Methamphetamine in Excess of Three (3) Grams. Storey argues that his separate convictions for these two crimes violate Indiana’s Double Jeopardy Clause, that the trial court abused its discretion in its consideration of the aggravating and mitigating circumstances, and that his sentence is inappropriate in light of the nature of the offenses and his character. Finding that the State sufficiently distinguished the possession offense from the manufacturing offense and provided independent evidence to support both convictions, we conclude that Storey’s possession and manufacturing convictions do not violate Indiana’s Double Jeopardy Clause. As to his sentence, we find that the trial court did not abuse its discretion in its consideration of the aggravating and mitigating circumstances in arriving at a sentence and that his sentence is not inappropriate.

NFP civil opinions today (4):

Diane Harmon v. George Jackson (NFP)

John Goodman v. Angie Sheely (NFP)

Allen R. Lane v. McDowell Builders, Inc., and C & D Technologies, Inc. (NFP)

Monica Conn Baker v. Delbert L. Baker (NFP)

NFP criminal opinions today (12):

Mark Pedzinski v. State of Indiana (NFP)

Paul Gossage v. State of Indiana (NFP)

Kory McGlan v. State of Indiana (NFP)

Terry Coffin v. State of Indiana (NFP)

Willie Kemp Walker v. State of Indiana (NFP)

Scottie Edwards v. State of Indiana (NFP)