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Wednesday, November 21, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 16 NFP)

For publication opinions today (4):

In Name Change of H.M.C., F.S.C., and S.A.C., b/n/f Tricia Gracey Tominack v. William Archie Curtis, a 7-page opinion, Judge May writes:

Tricia Gracey Tominack (“Mother”) appeals the denial of her motion to change her children’s last names to Tominack. We affirm. * * *

Because Mother has not demonstrated the court erred in finding the children’s best interests did not require a name change, we affirm the denial of the petition.

["Mother" is an attorney representing herself in this case Of particular interest are the COA's ftnotes.]

In Norman and Eileen Wendt v. State of Indiana , a 7-page opinion, Judge May writes:
In this consolidated appeal, Norman and Eileen Wendt challenge the admission of evidence seized at their home pursuant to a search warrant. The Wendts first assert there is no good faith exception to the exclusionary rule under the Indiana Constitution. They also argue the good faith exception is unavailable because the officer who sought the warrant acted in reckless disregard of the truth and misled the issuing magistrate regarding the reliability of his informant. We reaffirm the good faith exception under the Indiana Constitution, and we find the officer acted in good faith. The trial court therefore did not abuse its discretion by admitting the evidence, and we affirm.
In Casey Levenduski v. State of Indiana , a 12-page, 2-1 opinion, Judge May writes:
Casey Levenduski asserts the trial court should have suppressed evidence of methamphetamine production found in his home because police conducted an unlawful warrantless search of his property and then improperly obtained a search warrant based on that warrantless search. As the evidence was obtained pursuant to an overly broad “catch-all” provision of the warrant, it should have been suppressed even if the warrant was properly obtained. We therefore reverse and remand. * * *

The State has not demonstrated the evidence obtained pursuant to the illegal “catch-all” provision of the search warrant was found in plain view. It therefore should have been suppressed, * * *

SHARPNACK, J., concurs.
BAILEY, J., dissenting with separate opinion [which begins] I agree with my colleagues that the “catch-all” provision of the warrant is overly broad. But I disagree with their conclusion that all the methamphetamine-related evidence Levenduski sought to suppress was obtained pursuant to that provision of the warrant and, thus, should have been suppressed. In my view, the officers were proceeding under the valid portion of the warrant when they found the items at issue in plain view.

In Kenneth Monjar v. State of Indiana , a 10-page opinion, Judge Darden concludes:
Here, Thorton testified that Monjar “was trembling”; had “a strong odor of urine”; “was wet from his bottom down”; and “his eyes were bloodshot.” (Tr. 38). Thorton also testified that she observed Monjar “stumbling to his vehicle.” (Tr. 39). Thorton further testified that as Monjar backed out of his parking space, he “almost hit [a] semi,” and when he pulled his vehicle forward, “the front of the vehicle came up on [t]he curb . . . .” (Tr. 40). Officer Pritchard testified that he observed a “partially consumed” (Tr. 78) bottle of alcohol on the passenger’s seat of Monjar’s vehicle and that Monjar “was having [a] hard time standing on his own.” (Tr. 75-76). Officer Kitts testified that he could smell alcohol emanating from Monjar’s person and that Monjar’s eyes were “red [and] glassy . . . .” (Tr. 49). Officer Kitts also testified that he observed an open bottle of alcohol in Monjar’s vehicle. Finally, Officer Kitts testified that Monjar failed a field-sobriety test.

The evidence is sufficient for the trial court to have found that Monjar operated a vehicle while intoxicated. Monjar’s argument to the contrary amounts to an invitation to reweigh the evidence, which we will not do. Accordingly, we find that the evidence supports Monjar’s conviction for operating while intoxicated.

NFP civil opinions today (7):

Kenneth E. Gentry v. Pen Products, Herb Newkirk, Floyd Burton, Ed Jones (NFP) - "Gentry did not meet his burden to present a prima facie case of disability discrimination and overcome summary judgment, and the trial court properly granted summary judgment in favor of Defendants on all Gentry’s claims. The trial court did not abuse its discretion in denying Gentry’s motion for change of venue from the judge and both motions for default judgment. We affirm."

JP Morgan Chase Bank, as Trustee for Equity One ABS, Inc., Mortgage Pass-Through Certified Series #2003-1 v. Curtis M. Howell, et al. (NFP) - "“Equitable subrogation is a remedy to avoid an unearned windfall.” Id. at 653. Allowing Bank One’s lien to take priority over Equity One’s lien would result in an unearned windfall to Bank One, which had notice of the possible existence of a senior lien when it executed and recorded its mortgage. Based on the foregoing, we find that Equity One is entitled to equitable subrogation and that the trial court erred in denying Equity One’s request for entry of summary judgment in its favor. We reverse the trial court’s grant of Bank One’s summary judgment motion and remand with instructions to enter summary judgment in Equity One’s favor and for further proceedings consistent with this opinion. Reversed and remanded."

Terri L. (Snider) Irons v. Michael H. Snider (NFP) - "If she felt that the current parenting time order was not appropriate, Terri’s remedy was to seek a modification of that order, not defy it. Id. Yet Terri waited approximately two months after DCS filed the CHINS petitions before initiating any action to modify the parenting time. DCS’s involvement did not come as a surprise to Terri; rather, she personally contacted them to initiate an investigation into Michael. The findings of facts and conclusions thereon issued by the trial court were not clearly erroneous, and the trial court did not abuse its discretion when it found Terri in contempt of court."

Mary Ann Brown, et al. v. Gregory L. Wasson and Wasson Pioneer Realty (NFP) is a 2-1 opinion where the dissent begins: "I concur in the majority’s decision with regard to Brown’s negligence claim and claims for breach of the implied warranty of fitness for habitation, fraud, and deception. However, I respectfully part ways with the majority’s application of Indiana Code section 32-27-2-8.

"In the present case, Brown purchased and moved into her family’s new home in April of 1994. Thus, nearly ten years passed between the warranty date and the filing of her Complaint. See I.C. § 32-27-2-7. Accordingly, any claim related to the construction of the home must fall under I.C. § 32-27-28(a)(4) and must be considered a “major structural defect.” “Major structural defect” is defined by I.C. § 32-27-2-3 as “actual damage to the load bearing part of a new home, including actual damage due to: (1) subsidence; (2) expansion; or (3) lateral movement; of the soil affecting the load bearing function.” However, as Brown points out, beyond this statute there is virtually no case law to further help define what constitutes a major structural defect."

Jacqueline K. Poole v. Finley A. Rennacker (NFP) - "Jacqueline K. Poole appeals an order modifying child support to include college expenses. Poole asserts no change in circumstances justified modification, the effective date of the modification is erroneous, and the court miscalculated both child support and her arrearage. We affirm in part and reverse in part."

Paternity of S.A.S.G., Natalie A. Sprague v. James R. Green (NFP) - "Natalie A. Sprague (“Mother”) appeals the trial court’s order to change the surname of her minor child, S.A.S. We affirm. Issue: Mother questions whether the trial court abused its discretion by granting the petition for name change1 filed by S.A.S.’s biological father, James R. Green (“Father”)."

Termination of the Parent-Child Relationship of K.B.; Michael Black v. Marion County Department of Child Services and Child Advocates (NFP) - "Following remand, the trial court issued written findings of fact and conclusions thereon regarding its involuntary termination of Black’s parent-child relationship with his minor daughter, K.B. In this appeal, Black raises the following issue: whether the Marion County Department of Child Services (“DCS”) established that Black’s drug use, if it existed, posed a threat to K.B.’s well-being. We affirm. * * * Based on the record before us, sufficient evidence existed to support the trial court’s findings that the conditions that resulted in K.B.’s removal would not be remedied and that the continuation of Black’s parent-child relationship posed a threat to K.B.’s well-being."

NFP criminal opinions today (9):

Terry Kling v. State of Indiana (NFP)

Warren N. Dugan v. State of Indiana (NFP)

Jeremy Miller v. State of Indiana (NFP)

Shane Long v. State of Indiana (NFP)

Paul Ayala v. State of Indiana (NFP)

Adrian/Daniel Gonzalez v. State of Indiana (NFP)

Steven Dubree v. State of Indiana (NFP)

Robbie J. Means v. State of Indiana (NFP)

Herbert C. Huffman v. State of Indiana (NFP)

Posted by Marcia Oddi on November 21, 2007 01:38 PM
Posted to Ind. App.Ct. Decisions