The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 16 NFP)

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Tuesday, February 26, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 16 NFP)

For publication opinions today (5):

In John L. Richardson v. Susan E. Hansrote , an 18-page opinion, Judge Najam writes:

John L. Richardson (“Father”) appeals the trial court’s order denying his post-dissolution motion for rule to show cause why Susan E. Hansrote (“Mother”) should not be held in contempt. Father asserts three issues on appeal, which we restate as: 1. Whether the trial court erred when it determined that Father has a child support arrearage. 2. Whether errors by the clerk of the court, who mistakenly applied two of Father’s child support payments to the wrong account, are attributable to Father. 3. Whether the trial court erred when it determined that a child support obligation paid by an income withholding order is not paid until it is received in the clerk’s office where Mother had agreed to an income withholding order. We reverse and remand with instructions.

In Midwest Minerals v. Board of Zoning Appeals of the Area Plan Dept./Commission of Vigo County , an 11-page opinion, Judge Bradford concludes:

Given the special discretion afforded to zoning boards in such determination, we conclude that the BZA was within its discretion to deny Midwest’s application for a special permit based upon its finding that Midwest failed to meet its burden of proving that the proposed use would not be injurious to the public health, safety, or general welfare of the community. Furthermore, we conclude that the trial court did not err by affirming the BZA’s denial of Midwest’s request for a special exception on this ground. Because we affirm the trial court’s order on this ground, we conclude that it is unnecessary to consider whether Midwest presented substantial evidence to prove that the proposed use would not adversely affect the use or value of the other property in the immediate area in a substantially adverse manner or that the proposed use would be consistent with the general character of the zoning district and the Vigo County Comprehensive Plan. The judgment of the trial court is affirmed.

In Roderick Lee v. State of Indiana , a 17-page opinion (including a concurring opinion), Judge Robb writes:

Roderick Lee appeals the denial of his petition for post-conviction relief. On appeal, Lee raises two issues, which we restate as whether the post-conviction court properly denied Lee relief on his claims of ineffective assistance of trial and appellate counsel. We affirm, concluding the post-conviction court properly denied Lee relief with respect to both of his claims. * * *

Because cases decided after Lee was sentenced did not substantially alter Indiana’s double jeopardy jurisprudence, we conclude Lee has failed to establish that appellate counsel was deficient for the same reasons we concluded Lee failed to establish that trial counsel was deficient. See supra, Part Part II.A.; see also Burnside, 858 N.E.2d at 238 (stating that the same standard of review applies to claims of ineffective assistance of trial counsel and claims of ineffective assistance of appellate counsel). Thus, it follows Lee did not receive ineffective assistance of counsel based on counsel’s failure to raise the double jeopardy issue of direct appeal.

In Cricket Ridge, LLC v. Joseph Richard Wright, a 13-page opinion, Judge Bradford concludes:

We conclude that the comprehensive settlement between Cricket Ridge and Wright constituted a single contract, such that Cricket Ridge’s breach of one subpart relieved Wright of his duty to perform the others. It follows, then, that Cricket Ridge’s counterclaim that Wright is required to allow it to exercise an option on parcel F must fail. Moreover, we conclude that the trial court properly assessed interest on money Cricket Ridge deposited with the Johnson County Clerk, as it did not represent a proper tender to Wright. Finally, we conclude that the trial court erred in calculating damages based on a sale price of $89,962 for parcel D. We remand with instructions to recalculate Wright’s damages based on a sale price of $78,354 for parcel D. In all other respects, the judgment of the trial court is affirmed.

In Rainbow Community Inc. v. Town of Burns Harbor , an 18-page opinion, Judge Riley concludes:

Based on the foregoing, we conclude that the trial court erred in ordering Rainbow to perform a CCTV test on its permanent sewer line without first hearing all of Rainbow’s evidence in opposition and that this issue is not moot. We therefore reverse.

NFP civil opinions today (4):

John and Dorothy Beaty v. Joe R. Walters, Cheryl J. Walters, Brad McElheny, et al (NFP) - "The trial court properly did not assess any damages to the defaulted Russell. A damage award is not clearly supported by the evidence because contradicting witness testimony and unclear repair work existed. The trial court’s judgment denying any relief to the Beatys for the claims against McElheny and the Walters is sound and can be supported by valid legal theories. We affirm."

Invol. Term. of Parent-Child Rel. of A.S., H.S., and T.S.; and Kelly and Andrew Stacy (NFP) - "The DCS established by clear and convincing evidence the requisite elements to support the termination of Andrew’s and Kelly’s parental rights to the Children."

State of Indiana v. Renda Hall (NFP) - "Moreover, the purpose of an investigatory stop is not to establish reasonable suspicion, but to briefly detain a person when reasonable suspicion already exists. Here, by his own testimony, Trooper Burgess detained Hall in an effort to establish reasonable suspicion. This detention violated Hall’s Fourth Amendment rights. The State has not established that the trial court’s ruling was contrary to law. The trial court properly granted Hall’s motion to suppress."

Scottrade, Inc. v. Greg Rentschler (NFP) - "Greg Rentschler filed a claim against Scottrade, Inc., alleging he suffered a financial loss because of errors by Scottrade in handling his brokerage account. Scottrade appeals from the trial court’s entry of default judgment against it, raising the issue of whether the trial court erred in denying its motion to set aside the default judgment. Concluding that Scottrade demonstrated excusable neglect and made a prima facie showing of a meritorious defense, we reverse."

NFP criminal opinions today (12):

Charles Walker v. State of Indiana (NFP)

Delno Dalton v. State of Indiana (NFP)

Timothy L. Potter v. State of Indiana (NFP)

A.W. v. State of Indiana (NFP)

Walter Duggins v. State of Indiana (NFP)

Al Crittenden v. State of Indiana (NFP)

Susan R. Morris v. State of Indiana (NFP)

Jeffrey A. Arthur v. State of Indiana (NFP)

Marijane Stuck v. State of Indiana (NFP)

Charles Terrell v. State of Indiana (NFP)

Isaias Cadena v. State of Indiana (NFP)