« Ind. Decisions - 7th Circuit decides one Indiana case today | Main | Ind. Decisions - Transfer list for week ending March 7, 2008 »

Friday, March 07, 2008

Ind. Decisions - Court of Appeals issues 6 today (and 17 NFP)

For publication opinions today (6):

In Tony A. Bell v. State of Indiana , a 13-page opinion, CJ Baker wrties:

Appellant-defendant Tony A. Bell appeals his convictions for three counts of Dealing in Cocaine, a class A felony, and Possession of Cocaine, a class D felony. Bell argues that his class A felony convictions should be reversed because the State failed to establish a sufficient chain of custody of the drug evidence supporting his convictions. Additionally, Bell contends that he proved the statutory defense that he was within 1,000 feet of a public park at the request of an agent of a law enforcement officer.

Finding that Bell established that he was within 1,000 feet of a public park at the request of an agent of a law enforcement officer and finding no other error, we affirm in part, reverse in part, and remand with instructions to (1) amend the abstract of judgment by changing Bell’s convictions on three counts of dealing in cocaine from class A felonies to class B felonies; and (2) sentence Bell to twenty years imprisonment for each of the three class B felony dealing in cocaine convictions and three years for the class D felony possession of cocaine conviction, to be served concurrently, aggregating to a total sentence of twenty years imprisonment.

In Northern Indiana Public Service Company v. United States Steel Corporation, a 27-page opinion, Judge Bailey writes:
Northern Indiana Public Service Company (“NIPSCO”) appeals the Indiana Utility Regulatory Commission’s (“IURC” or “Commission”) grant of United States Steel Corporation’s (“U.S. Steel”) Motion for Summary Judgment. We reverse and remand. * * *

We review de novo an agency’s grant of summary judgment when it is based entirely upon principles of contract interpretation. Our analysis of the parties’ arguments leads consistently to the same conclusion. Regardless of whether the Contract for Power’s pricing provisions were ambiguous and regardless of whether its integration clause was ambiguous, summary judgment should be entered for NIPSCO.

We reverse and remand for the IURC to enter summary judgment for NIPSCO and to calculate the amount U.S. Steel owes NIPSCO for application of the market based price adjustment factor to the Demand Charge, effective October 1, 2005.

In Christine R.Scheible v. Fred Jackson, Ronald Smith, and Ray M. Scheible, a 17-page opinion, including a 4-page dissent, Judge Bailey concludes:
Control, rather than title, is the critical consideration in determining whether the vendor in a land-sale contract owes a duty to third parties. Whether Jackson exercised the requisite degree of control over the Property is a question of fact. We cannot say as a matter of law that Jackson lacked a duty of care to Travis. Therefore, the trial court erred in granting Jackson’s Motion for Summary Judgment. We remand this matter to the trial court for further proceedings. Reversed and remanded.

VAIDIK, J., concurs.
BAKER, C.J., dissents with opinion. [which begins] I respectfully dissent. I do not believe that there is a genuine issue of material fact regarding Jackson’s control of the Property. Furthermore, I believe that the result reached by the majority is extraordinarily bad public policy. This decision, which holds that a person who sells a parcel of land pursuant to a contract that explicitly transfers possession of the Property to the buyer and instructs the buyer to treat the Property as his own is somehow still responsible for conditions on that Property, extends liability to an uncomfortably attenuated degree.

In Derrick C. Smith v. State of Indiana , a 15-page opinion, CJ Baker writes:
A person commits aggravated battery by knowingly or intentionally inflicting injury on a person that causes protracted loss or impairment of the function of a bodily member or organ.1 The case before us requires us to address as an issue of first impression whether a tooth is a “bodily member or organ” within the definition of this statute. Relying on caselaw from other jurisdictions interpreting similar aggravated battery statutes, we conclude that a tooth is a “bodily member or organ” within the definition of Indiana’s aggravated battery statute.
Russell N. Carey and Lisa Carey v. Susan J. Haddock - "Russell N. Carey and Lisa Carey (collectively, “the Careys”) have filed a petition for rehearing asking that we reconsider our holding that their appeal is moot because they have accepted Susan J. Haddock’s payment in satisfaction of the judgment. See Carey v. Haddock, 877 N.E.2d 842 (Ind. Ct. App. 2007). In particular, the Careys assert that the trial court’s docket entries showing that their trial counsel filed a release of judgment against Haddock and obtained Haddock’s payment are erroneous entries. We grant the Careys’ petition but deny their requested relief."

William C. Nash v. State of Indiana - "In sum, there is sufficient evidence to support Nash’s conviction for Battery by Body Waste, as a Class C felony. Nash’s argument that the trial court did not assign enough weight to his mental illness as a mitigating circumstance is not an issue available for appellate review. Affirmed."

NFP civil opinions today (4):

In Re the Guardianship of M.E.T., a Protected Person v. Yolanda Poett and Julie E. Krcelich (NFP) - "Here, it is undisputed that M.E.T. had been living in Alabama with her daughter for six months before the petition for co-guardianship was filed in Indiana. There is no evidence that she was actually present in Indiana when the petition for co-guardianship was filed. Without actually being present in Indiana, M.E.T. was not a person residing in Indiana according to the statute. Thus, the trial court did not have subject matter jurisdiction, and its order is void ab initio. Reversed."

Metropolitan School District of Wabash County, Indiana v. Metropolitan School District of Wabash County Education Assn. (NFP) - "Nothing in the Contract prohibited the School Corporation from transferring teachers without regard to seniority so long as no teacher lost or would lose employment. Accordingly, the Arbitrator’s construction of the Contract so as to find a violation by the School Corporation is not a reasonably possible one. The School Corporation has met its burden to show that the Arbitrator’s decision should be vacated. The School Corporation, rather than the Association, is entitled to summary judgment. Reversed."

Erie Insurance Exchange, as Subrogee of Charles and Marlene Haskett v. Tom King, et al (NFP) - "Although it may have been preferable to consolidate both flooding instances into one lawsuit, each flooding occurrence creates a separate cause of action. The evidence potentially supporting each episode is not identical. Each flooding transpired on a different date, in a different bathroom, and caused different damage, including the degree of damage, to the Haskett’s home. Furthermore, the proceedings in Lawsuit I only referenced the flooding on August 11, 2003, and the resulting damage. The matter as to liability from the flooding on June 29, 2004, could not have been determined in Lawsuit I because that separate cause of action and its supporting evidence had not been presented to the trial court. * * * We therefore conclude that the trial court erred in granting summary judgment to King. Reversed and remanded."

Janeen L. Mathes v. Joseph W. Mathes (NFP) - "Appellant-respondent Janeen L. Mathes appeals the trial court’s order dissolving the marriage of Janeen and appellee-petitioner Joseph W. Mathes. Specifically, Janeen argues that (1) the trial court erred when it placed a value of $15,000 on the personal property it awarded to her and (2) the trial court erred when it divided the marital assets and debts of the parties. We affirm in part, reverse in part, and remand with instructions included herein."

NFP criminal opinions today (13):

State of Indiana v. Christopher Smith (NFP) - "Appellant-plaintiff State of Indiana (the State) appeals the trial court’s grant of appellee-defendant Christopher Smith’s motion to dismiss pending criminal charges based on an alleged violation of the Interstate Agreement on Detainers Act (IAD). Specifically, the State argues that the trial court’s grant of the motion to dismiss was premature because Smith failed to comply with the provisions regarding his request for a final disposition of charges pursuant to the IAD. Concluding that the trial court erred in granting Smith’s motion to dismiss, we reverse."

State of Indiana v. John J. Murphy (NFP) - "In sum, the trial court erred in suppressing the evidence seized from the garage and residence at 1110 East Copperline Road. The State acted pursuant to a valid search warrant supported by probable cause when it seized evidence from the garage. And the State lawfully seized evidence from within the residence after having been granted consent to search the residence by its owner, Peerman. However, the State failed to satisfy its burden to prove that the evidence seized from the truck was in accordance with established local policy. As such, we affirm only that part of the trial court’s order."

Gordon Mack Elkins v. State of Indiana (NFP)

Diaunte E. Adams v. State of Indiana (NFP)

Howard Harris v. State of Indiana (NFP)

Timothy Lee Richards, Sr. v. State of Indiana (NFP)

Ronnie Q. Henderson v. State of Indiana (NFP)

Greg Watkins v. State of Indiana (NFP)

Shaun A. Criglear v. State of Indiana (NFP)

Scott McIntire v State of Indiana (NFP)

Bobby A. Lomax v. State of Indiana (NFP)

Adrian Howard v. State of Indiana (NFP)

Norman Logan v. State of Indiana (NFP)

Posted by Marcia Oddi on March 7, 2008 12:46 PM
Posted to Ind. App.Ct. Decisions