The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 6 today (and 21 NFP)

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Friday, July 25, 2008

Ind. Decisions - Court of Appeals issues 6 today (and 21 NFP)

For publication opinions today (6):

Torin Herbert v. State of Indiana - "Torin Herbert appeals his convictions for class A felony dealing in cocaine, class D felony dealing in marijuana, and class D felony maintaining a common nuisance. We affirm.

"Issues I. Did the trial court abuse its discretion in admitting evidence seized following a traffic stop? II. Did the trial court abuse its discretion in excluding the testimony of Herbert’s witness regarding the tinting of his car windows?"

Scottie R. Adams v. State of Indiana - "Appellant-defendant, Scottie R. Adams, appeals his convictions for Voluntary Manslaughter, a class A felony, Carrying a Handgun Without a License, a class A misdemeanor, and the finding that he is a habitual offender. Specifically, Adams argues that the trial court erred in instructing the jury on the offense of voluntary manslaughter when he was charged only with murder and that the trial court abused its discretion in denying his motion for a mistrial. Finding no error, we affirm the judgment of the trial court."

In William Curtis, Gary Stewart and Walter Raines v. E. Mitchell Roob, Jr., Jeff Wells, a 7-page opinion, Judge May writes:

A class composed of persons who applied for Medicaid, were denied, and appealed the denial brought an action against the Indiana Family and Social Services Administration (“FSSA”). The class alleged FSSA violated the due process rights of Medicaid claimants with its policy that prohibits claimants from offering at the appeal hearing evidence of their disabilities that was not included in the initial application. The trial court granted FSSA’s motion to dismiss. We reverse. * * *

The Medicaid regulations explicitly refer to a de novo hearing. A number of courts have distinguished between de novo review, which would not permit consideration of new evidence, and a de novo hearing, which would. Under “de novo review,” the appellate court steps into the trial court’s position, reviews the same trial record, and redecides the issue, determining whether the trial court’s decision was right or wrong. * * *

A hearing de novo, by contrast, is generally not limited to the record below. * * *

In light of the purpose behind the Medicaid fair hearing regulations - to ensure that applicants have an opportunity to present evidence supporting their claims for benefits - and the authority to the effect the “de novo hearing” required by the regulations is one where additional evidence may be received, we cannot say the facts alleged in the complaint are “incapable of supporting relief under any set of circumstances.” Godby, 837 N.E.2d at 149. The complaint therefore should not have been dismissed and we must accordingly reverse.

In Titan Loan Investment Fund, L.P. v. Marion Hotel Partners, LLC, Dimple Patel, et al , a 6-page opinion, Judge Najam writes:

Titan Loan Investment Fund, L.P. (“Titan”) appeals from the trial court’s order granting the motion of Marion Hotel Properties, L.L.C. (“Marion”)1 to dismiss Titan’s motion in proceedings supplemental with prejudice. Titan recovered a money judgment and decree of foreclosure against Marion. The real estate was sold at a sheriff’s sale at which Titan bid the full amount of its judgment, and Titan was issued a sheriff’s deed. Titan contends that its bid did not represent the fair market value of the property and that it is entitled to recover on a deficiency. We conclude that the judgment was fully paid and satisfied by Titan’s bid at the sheriff’s sale and, therefore, hold that the trial court did not err when it granted Marion’s motion to dismiss proceedings supplemental. We affirm.

Andrew Richardson v. State of Indiana - "Andrew Richardson appeals the trial court’s order revoking his probation. Richardson raises one issue for our review, which we restate as follows: whether the State presented sufficient evidence to support the trial court’s finding that Richardson violated a condition of his probation. We reverse. * * *

"Having never informed Richardson that the conditions of his probation limited his freedom to travel, the State has failed to provide Richardson with fair notice that such conduct would constitute a violation of probation. Accordingly, the State did not present sufficient evidence to support its petition against Richardson, and the trial court’s order revoking Richardson’s probation must be reversed."

In Adoption of N.J.G., Erikka Gillis v. Carla & John Jackson, an 11-page opinion, CJ Baker writes:

Appellant Erikka Gillis appeals the trial court’s order denying her motion to withdraw her consent to the adoption of her child, N.J.G., by appellees-petitioners Carla Jackson and John Jackson. Erikka argues that the evidence in the record does not support the trial court’s conclusion that she consented to the adoption of N.J.G. in a way that complies with the relevant statute. Finding that Erikka’s consent was not valid because it was given before the child was born and did not follow the execution requirements of Indiana Code section 31-19-9-2, we reverse and remand for further proceedings. * * *

[T]he document was not executed in the presence of the court, a notary public, a representative of the department of family and children, or a licensed child placing agency. Consequently, it does not comply with Indiana Code section 31-19-9-2(a) and does not constitute a valid consent.

As a matter of law, therefore, we find that Erikka has never consented to N.J.G.’s adoption. Thus, to the extent that the trial court’s order concludes that Erikka consented to and may not contest N.J.G.’s adoption, we reverse.[3] This holding does not terminate the adoption proceedings, however, inasmuch as under certain circumstances, the biological mother’s consent may not be required for the adoption to occur. See I.C. § 31-19-9-8. The judgment of the trial court is reversed and remanded for further proceedings.
__________
[3] Inasmuch as we resolve the case in this way, we need not address Erikka’s argument that the initial agreement between Erikka and the Jacksons violates public policy. We note, however, that we are extraordinarily troubled by the parties’ arrangement, pursuant to which the Jacksons “loaned” Erikka approximately $2600 to cover certain debts and expenses and provided her with a vehicle but agreed to forgive the loan if the adoption was successful. At the worst, this contract veers uncomfortably close to an agreement to buy Erikka’s baby and, at the least, it exerted financial pressure on a single mother with limited means to give her baby up for adoption to avoid what would be a nearly crushing debt. Though we leave for another day whether such a contract is void pursuant to public policy, we feel compelled to note that we do not countenance this arrangement.

NFP civil opinions today (8):

Invol. Term. of Parent-Child Rel. of M.T.K.; B.D., Mother; J.D.K., Father v. Montgomery Co. Dept. of Child Services (NFP) - Affirmed.

Donita R. McMahon v. Joseph A. Lopat (NFP) - [This case involves the question of return of an engagement ring.] "Appellant-Defendant Donita R. McMahon appeals the jury’s decision in favor of Appellee-Plaintiff Joseph A. Lopat. We affirm.

"McMahon raises three issues for our review, which we restate as: I. Whether the trial court abused its discretion in allowing Lopat to enter a receipt into evidence. II. Whether the trial court abused its discretion in sustaining Lopat’s objection to the testimony of a particular witness. III. Whether the trial court abused its discretion in not giving an instruction on inter vivos gifts."

Invol. Term. of Parent-Child Rel. of S.W., and Carmen S. v. Marion Co. Dept. of Child Services, and Child Advocates, Inc. (NFP) - Affirmed.

David Sees & Robert Ables v. Koorsen Fire & Security, Inc. (NFP) - "David Sees and Robert Ables (collectively, “Appellants”) bring this interlocutory appeal of the trial court’s preliminary injunction in the action brought against them by Koorsen Fire & Security, Inc. (“Koorsen”). We affirm in part, reverse in part and remand.

"Issues. 1. Whether the trial court erred by entering an order that enjoined Ables from competing against Koorsen for a period of three years from the date of the order. 2. Whether the trial court improperly found that the Ables non-competition agreement’s restriction of competitive activities within a 100-mile radius of Fort Wayne was geographically reasonable. 3. Whether the trial court improperly found that Koorsen did not materially breach the terms of its non-competition agreement with Ables. 4. Whether the trial court erred in finding that the competitive activity restriction in Sees’ non-competition agreement was reasonable."

In Allison Black v. John Basham and Connie Basham d/b/a Basham Rentals (NFP), a 13-page, 2-1 NFP opinion, Judge Kirsch writes:

Allison Black appeals the trial court’s grant of summary judgment in favor of John and Connie Basham, d/b/a Basham Rentals (the “Bashams”), denying her premises liability claim. Black raises two issues on appeal, which deal with whether there were genuine issues of material fact rendering summary judgment inappropriate. We restate these issues as: I. Whether the Bashams owed Black a duty of reasonable care to protect her from the danger posed by the fifteen-inch drop from the apartment complex rear walkway to the alleyway below. II. Whether the drop from the apartment complex sidewalk was the proximate cause of Black’s fall. We reverse and remand. * * *

BAILEY, J., concurs.
FRIEDLANDER, J., dissents with separate opinion. [which begins] I would affirm summary judgment in favor of the Bashams, finding no breach of duty as a matter of law. Therefore, I respectfully dissent.

Steven Baysinger v. Christina Baysinger and Robert and Connie Karn, and Lance and Cary Witte (NFP) - "Appellant/Respondent Steven Baysinger appeals the trial court’s order denying his petition alleging contempt and his request for an in-chambers interview of his minor children to investigate allegations of abuse. We affirm."

Dawn Davis v. Horseshoe Casino (NFP) - "Dawn Davis appeals the decision of the Worker’s Compensation Board that she is entitled to no further benefits and has sustained no permanent partial impairment in connection with her work-related injury. Because the Board’s findings were sufficiently specific and are supported by the evidence, we affirm."

In Elizabeth Thomas v. Blackford Co. Area Board of Zoning Appeals, Oolman Dairy, Inc. (NFP), a 6-page opinion, Judge May writes:

Elizabeth Thomas appeals the dismissal of her petition for writ of certiorari from the Blackford County Board of Zoning Appeals (“BZA”). We reverse and remand. * * *

The evidence presented at the hearing demonstrated a genuine issue of material fact regarding Thomas’ standing. Pursuant to Ind. Code § 36-7-4-1003(a), Thomas has standing to file a petition for writ of certiorari if she is “aggrieved” by a decision of a board of zoning appeals * * * Viewed in Thomas’ favor, the evidence establishes an issue of fact as to whether Thomas will suffer unpleasant odors and a loss in property value. Therefore, resolution of the case under T.R. 56 was improper.

We remand to the trial court to afford the parties an opportunity to complete their presentation of evidence, if they have not done so already, and to render a decision on the merits. Reversed and remanded.

NFP criminal opinions today (13):

Rodney Robinson, Jr. v. State of Indiana (NFP)

DeWayne Calvin Higdon v. State of Indiana (NFP)

Terrence Wheeler v. State of Indiana (NFP)

Ervin Crabtree v. State of Indiana (NFP)

Charles Nichols v. State of Indiana (NFP)

Matthew Adam Jones v. State of Indiana (NFP)

Gary Scott Holland v. State of Indiana (NFP)

Dennis Feyka v. State of Indiana (NFP)

Mark Douglas v. State of Indiana (NFP)

Andre Davis v. State of Indiana (NFP)

Jarrell Watkins v. State of Indiana (NFP)