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Monday, February 11, 2008

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In an 11-page opinion in a case involving the question of whether the Indiana Utility Regulatory Commission can trump (or finesse) the requirement of approval by US EPA, Application of South Haven Sewer Works, Inc., City of Portage v. South Haven Sewer Works Inc. , Judge Rley writes:

Appellant-Intervenor, City of Portage (the City), appeals the Indiana Utility Regulatory Commission’s grant of a Certificate of Territorial Authority to Appellee-Petitioner, South Haven Sewer Works, Inc. (South Haven), to render a sewage disposal service in additional rural areas of Porter County, Indiana. We reverse.

The City raises two issues on appeal, one of which we find dispositive and which we restate as: Whether the Indiana Utility Regulatory Commission (the Commission) erred as a matter of law when it determined that South Haven had lawful authority to expand its geographic service territory despite a federal consent decree that appears to prohibit South Haven’s expansion without the Environmental Protection Agency’s (EPA) approval. * * *

In sum, the unambiguous terms of the consent decree indicate an intent to prevent South Haven’s expansion beyond that which its facility could handle. An important component in effectuating that intent was the requirement to get EPA’s permission before increasing South Haven’s service area. Consequently, when South Haven petitioned the Commission for an expanded CTA without having acquired EPA’s approval, it did so without the lawful power and authority to provide services as required by I.C. § 8-1-2-89(e). Therefore, we hold that the Commission erred as a matter of law when it granted South Haven’s proposed expansion.

Based on the foregoing, we conclude that the Commission erred as a matter of law when it determined that South Haven had lawful authority to expand its geographic service territory. Reversed.

NFP civil opinions today (3):

Joyce Starkes Neely v. Davister Tiberon Corp., d/b/a Tiberon Trails Apts. (NFP) - "Neely filed the Davister complaint on April 3, 2006. The alleged injury occurred on or about May 24, 2002. Obviously, the Davister complaint was filed outside of the statute of limitations as set forth in Indiana Code section 34-11-2-4.

"Based on the face of the complaint, Neely has failed to state a claim upon which relief can be granted. Neely alleged negligence yet even if we assume that all of the facts alleged in the Davister complaint are correct, Neely still failed to include any facts in the complaint that would toll the statute of limitations or otherwise circumvent the requirement that an action for an injury to person be commenced within two years after the action accrues. We therefore conclude that the trial court properly dismissed Neely’s Davister complaint. Affirmed."

In In the Matter of I.M.A., K.A. v. J.T. (NFP), a 23-page opinion, Judge Robb writes:

In this consolidated appeal, K.A. challenges the trial court’s order granting physical and legal custody of I.M.A., K.A.’s daughter, to I.M.A.’s father, J.T., and the trial court’s subsequent order restricting K.A.’s parenting time. On appeal, K.A. raises three issues, which we consolidate and restate as whether the trial court abused its discretion 1) when it granted physical and legal custody of I.M.A. to J.T. and 2) when it restricted K.A.’s parenting time. We affirm, concluding the trial court acted within its discretion in both instances. * * *

The trial court did not abuse its discretion when it granted physical and legal custody of I.M.A. to Father or when it restricted Mother’s parenting time. Affirmed.

Commitment of E.L. v. Wishard Health Services, et al (NFP) - "Respondent-Appellant E.L. appeals an order of involuntary temporary commitment issued by the Mental Health Division of the Marion Superior Court. The commitment was sought by Petitioner-Appellee Wishard Health Services, Midtown Health Center (“Wishard”). We affirm."

NFP criminal opinions today (6):

Mark A. Jenkins v. State of Indiana (NFP)

James Bruce Weathers v. State of Indiana (NFP)

Misty Dawn Boyer v. State of Indiana (NFP)

Derek Morris v. State of Indiana (NFP)

Charles A. Kootz v. State of Indiana (NFP)

Ronnie Murry v. State of Indiana (NFP)

Posted by Marcia Oddi on February 11, 2008 01:44 PM
Posted to Ind. App.Ct. Decisions