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Thursday, July 31, 2008

Ind. Decisions - Court of Appeals issues 6 today (and 14 NFP)

For publication opinions today (6):

In Robert L. Quakenbush v. Review Board of the Indiana Dept. of Workforce, et al. , an 8-page opinion, Sr. Judge Sharpnack writes:

The Review Board contends that the dismissal of Quakenbush’s appeal attempt is proper, even when the attempt was seemingly timely sent, if sent to the wrong fax number or address within the divisions of the Indiana Department of Workforce Development. Quakenbush submits documentation showing that he faxed a letter, to the attention of “Patricia” on November 15, 2007, to a different fax number than is listed on his determination notice. Quakenbush argues that Patricia told him which fax number to use, and that his appeal was timely filed. The Review Board argues that misinformation provided by a government employee should not be a basis for estoppel, especially in situations where the other party had access to the correct information. See Dennistarr Environmental, Inc. v. Indiana Dep’t. of Environmental Mgmt., 741 N.E.2d 1284, 1289-90 (Ind. Ct. App. 2001). * * *

The statute [IC 22-4-17-3] provides in relevant part that an appeal be taken by the party adversely affected by the decision of the ALJ within fifteen days after the date of notification or mailing of such decision. That decision was mailed to Quakenbush on November 7, 2007, and he faxed his notice of appeal to the Indiana Department of Workforce Development on November 15, 2007. Quakenbush did all that was required of him by statute in order to timely initiate the appeal of the ALJ’s dismissal of his appeal. Submitting the notice of appeal to a particular subdivision of the entity known as the Indiana Department of Workforce Development is not a statutory requirement. * * *

The DWD may not take advantage of its size and compartmentalization to frustrate this appeal because it was sent to the “wrong” subdivision of the larger entity.

CONCLUSION We conclude that the Review Board erred by dismissing Quakenbush’s appeal of the ALJ’s dismissal of his appeal from the adverse decision regarding his eligibility for unemployment benefits. The fax sent to the Indiana Department of Workforce Development was sufficient to timely initiate an appeal. Reversed and remanded.

In Susana Henri v. Stephen Curto , a 21-page 2-1 decision with 3 opinions, Judge Riley writes:
Appellant-Plaintiff, Susana Henri (Henri), appeals the trial court’s judgment in favor of Appellee-Defendant, Stephen Curto (Curto), finding that Curto did not rape her and awarding him $45,000 on his counterclaim. We reverse and remand for further proceedings.

Issues. Henri raises two issues for our review, one of which we find dispositive and which we restate as: Whether the trial court abused its discretion when it denied Henri’s motion to correct error. * * *

In sum, the trial court engaged in ex parte communications with the jury when it fielded the question from the jury without notifying the parties that the question had been submitted. See Rogers, 745 N.E.2d 995. Typically, we refuse to speculate as to how or why jurors come to their verdict. See, e.g., Newbill v. State, 884 N.E.2d 383, 392 (Ind. Ct. App. 2008). But, as here, where a party has submitted a sworn affidavit identifying ex parte communications and improper outside influences improperly brought to bear upon deliberating jurors, we must speculate to determine the effect of the influences on the fair determination of the evidence. The statement that was conveyed to the jury in response to its question misstated the law and likely affected the fair determination of the evidence by misinforming the jurors about their ability to abide by their conscientiously held opinions and their ability to prevent a verdict that they disagree with. Further, the outside influences likely compounded the error created by the ex parte communication. Therefore, we conclude that the presumption of error from the ex parte communication has not been rebutted, and the trial court abused its discretion by denying Henri’s motion to correct error. * * *

Reversed and remanded for further proceedings.

ROBB, J., concurs with separate opinion. [which begins] I concur fully in the majority opinion, but write separately to address certain points made by the dissent. * * *

BAKER, C.J., dissents with separate opinion. [which concludes] And while I acknowledge that if, in fact, the bailiff informed the jurors that they had to reach a unanimous verdict, the situation was not ideal, I simply do not find it sufficient to take the radical act of reversing a jury verdict and remanding for a new trial. For all of the reasons stated herein, I disagree with the majority’s resolution of this issue and would proceed to address the other arguments made by Henri on appeal.

In Michael Carpenter v. Shawna Carpenter , a 25-page opinion, Judge Robb writes:
Michael Carpenter (“Father”) appeals from the trial court’s order on his petitions for modification of child custody and child support; and for emancipation of child and for child support. Father raises four issues, which we restate as: 1) whether the trial court’s finding that Father’s son, B.C., was only partially capable of supporting himself was clearly erroneous; 2) whether the trial court improperly declined to order that Father be reimbursed for overpayment of a child support arrearage; 3) whether the trial court improperly modified the initial decree by allowing his former wife to claim two tax exemptions previously used by him; and 4) whether the trial court improperly determined the amount of weekly child support owed by Father. Concluding the evidence does not support the trial court’s finding that B.C. is only partially capable of supporting himself, we reverse and remand. We also conclude that the trial court’s findings do not support the re-assignment of the tax exemptions, and instruct the trial court to reconsider its determination after addressing the factors set out in the Child Support Guidelines. Finally, we direct the trial court to make findings of fact regarding Father’s overpayment, and to issue new findings regarding this issue. Because we are remanding for a new order, we need not address the fourth issue.
In Thomas E. Caraway v. State of Indiana , a 13-page opinion, Judge Riley writes:
Caraway raises one issue on appeal, which we restate as: Whether the trial court erred in denying his motion to suppress when Caraway was not advised of his right to counsel prior to signing an Agreement to Take Polygraph and Stipulation of Admissibility (stipulation agreement). * * *

In sum, we conclude that Caraway’s right to counsel attached immediately prior to Detective Herr’s request to sign the stipulation agreement. Caraway had to stand alone against the State, and make a decision that may damage his defense at trial. At that critical stage, the absence of Caraway’s right to an attorney derogated his right to a fair trial. Furthermore, as Caraway was never informed of his right to counsel prior to stipulating the results of a polograph examination, he could not have waived it. Accordingly, we conclude that the trial court improperly denied Caraway’s motion to suppress. * * *

Reversed and remanded.

BAKER, C.J., concurs.
ROBB, J., concurs in result with separate opinion. [which concludes] The timing of the advice of rights is an important distinction between Kochersperger and this case. On the basis that Caraway was not advised of and did not waive his right to counsel before signing the stipulation, rather than on the basis of the Sixth Amendment, I agree that the trial court should have granted Caraway’s motion to suppress, and I therefore concur in result.

In A.M. v. State of Indiana , a 7-page opinion, Judge Mathias writes:
A.M. was adjudicated a delinquent child in Marion Superior Court for carrying a handgun without a license, a Class A misdemeanor if committed by an adult. A.M. appeals and argues that the juvenile court abused its discretion when it admitted the handgun into evidence. Concluding that the handgun was properly admitted because the pat-down search which led to its discovery was not conducted in violation of the Fourth Amendment and Article I, Section 11 of the Indiana Constitution, we affirm.
In Yankee Park Homeowners Association, Inc. v. LaGrange County Sewer District, an 11-page opinion, Judge Brown writes:
Yankee Park Homeowners’ Association, Inc. (“Yankee Park”), appeals the trial court’s declaratory judgment in favor of the LaGrange County Sewer District (“District”). Yankee Park raises four issues, which we consolidate and restate as whether the trial court erred by finding that the District’s actions in defining the terms “mobile home” and “mobile home court” and classifying Yankee Park as a mobile home court rather than a campground were not arbitrary and capricious. We affirm. * * *

As in Bass Lake, the statutes and regulations governing the Indiana Department of Health may define mobile home community and campground differently than the District’s ordinance, but those definitions are not binding upon the District. The statutes governing the District do not define mobile home community or campground, and the District’s decision to classify properties containing mobile homes as mobile home courts rather than campgrounds regardless of the seasonal usage is rational. The District’s basis for distinguishing between mobile home courts and campgrounds was not arbitrary or capricious. Moreover, the District’s classification of Yankee Park as a mobile home court rather than a campground based upon the change was not arbitrary or capricious.NFP civil opinions today (2):

Term. of Parent-Child Rel. of L.B., and David L. v. Lake County Dept. of Child Services (NFP) - "We conclude that Father was not denied his constitutional right to due process when the juvenile court did not appoint counsel to represent him during the CHINS and termination proceedings. Further, the LCDCS established by clear and convincing evidence the requisite statutory elements to support the involuntary termination of Father’s parental rights to L.B. Affirmed."

Walsh & Kelly, Inc. v. International Contractors, Inc., Signature Properties, Inc., et al (NFP) - "Whether the trial court erred in granting Partial Summary Judgment to Developer, when Subcontractor has sought a mechanic’s lien against Developer’s property although Developer has already fully paid the general contractor for the work provided by Subcontractor. * * *

"We conclude that the trial court did not err in granting Partial Summary Judgment to Developer because the mechanic’s lien is invalid and unenforceable. Affirmed."

NFP criminal opinions today (12):

Marcus Brabson v. State of Indiana (NFP)

Jonathan Brewster v. State of Indiana (NFP)

Kenneth Faust v. State of Indiana (NFP)

Amanda Johnson v. State of Indiana (NFP)

Randall Winbush, Jr. v. State of Indiana (NFP)

Charles E. Perkins v. State of Indiana (NFP)

David M. Bolan v. State of Indiana (NFP)

Timothy Williams v. State of Indiana (NFP)

Michael Massie v. State of Indiana (NFP)

G.I.P., a Minor v. State of Indiana (NFP)

Terry Verhoeven v. State of Indiana (NFP)

Michael R. Bryant v. State of Indiana (NFP)

Posted by Marcia Oddi on July 31, 2008 11:54 AM
Posted to Ind. App.Ct. Decisions