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Wednesday, August 13, 2008

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Cemantha Sidell Wolljung v. Joseph Sidell, an 8-page opinion, Judge Najam writes:

Cemantha Sidell Wolljung (“Mother”) appeals from the trial court’s order granting a motion filed by Joseph Sidell (“Father”) to modify custody of the parties’ minor child, S.S. Mother presents a single issue for review, namely, whether the trial court abused its discretion when it granted Father’s motion based on Mother’s intent to relocate with the child. * * *

The relocation statutes do not require findings of fact, but, at a minimum, there must be evidence in the record on each of the factors listed in Indiana Code Section 31-17-2.2-1(b). We agree with Mother that the record before us does not demonstrate that the parties or the trial court fully considered or took into account the statutory factors in Indiana Code Section 31-17-2.2-1(b). Thus, we reverse the trial court’s order modifying custody and remand to the trial court with instructions to conduct another hearing on Father’s motion to modify custody and to hear evidence on each of the statutory factors. See Ind. Appellate Rule 66(C)(3). Absent exigent circumstances, the court shall order the parties to maintain the status quo vis-à-vis the child’s custody and parenting time under the trial court’s September 12, 2007, Order pending the outcome of the new hearing, which shall be conducted within thirty days from the date of this opinion. Reversed and remanded with instructions.

In Samara J. Copas v. State of Indiana , a 9-page opinion, Judge Najam wrties:
Copas raises a single issue for our review, which we restate as whether the State’s seizure of a blood sample from Copas while she was unconscious was supported by probable cause, as required by the Fourth Amendment to the United States Constitution. * * *

Our standard of review here is well-established: * * * “Significantly, ‘probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.’” Eaton v. State, 889 N.E.2d 297, 2008 Ind. LEXIS 497 at *3 (Ind. June 30, 2008) (quoting Gates, 462 U.S. at 245 n.13). * * *

All the relevant facts must be taken together, and the conclusion that Copas was operating the Suburban while intoxicated, while not a necessary conclusion, is within the “fair probability” required to establish probable cause. See Query, 745 N.E.2d at 771. While Copas might ultimately challenge the sufficiency of the State’s evidence at trial, her arguments are not enough to defeat the “fair probability” that she operated the vehicle while intoxicated, which is all that is required for probable cause. See, e.g., Ware v. State, 859 N.E.2d 708, 720 (Ind. Ct. App. 2007) (“The amount of evidence necessary to meet the probable cause requirement . . . is determined on a case-by-case basis, and is less than the level of proof necessary to establish guilt beyond a reasonable doubt.”) (quoting Ross v. State, 844 N.E.2d 537, 542 (Ind. Ct. App. 2006)), trans. denied. Accordingly, we affirm the trial court’s denial of Copas’ motion to suppress the blood evidence. Affirmed.

NFP civil opinions today (2):

Melinda, Gary, and Kady Smith v. American Service Ins. Co., Inc. (NFP) - "There is no question a failure to agree exists here. It is clear ASI never agreed to provide uninsured motorist benefits in an amount that Melinda believed was adequate, regardless of whether the amount ASI “offered” was $2,500 or $0. Thus, the Smiths were required to submit an arbitration demand within two years and they did not do so. We find the Smith’s arguments to be without merit.

"Conclusion. The trial court lacked discretion to consider the evidence presented by the Smiths at the summary judgment hearing, and the grant of the motion for summary judgment in favor or ASI was proper. We affirm the trial court."

Arbor Homes, LLC v. Beacon Pointe, LLC (NFP) - "Arbor Homes, LLC (“Arbor”) appeals the trial court’s authorization of Beacon Pointe, LLC’s (“Beacon”) sale of property to GMD Brown, LLC (“GMD”). We affirm.

"Arbor raises multiple issues, and Beacon urges us to dismiss the appeal as moot. We consolidate and restate the issues as: I. whether the appeal is moot because the sale of the property is complete; and II. whether the trial court abused its discretion in approving the sale to GMD."

NFP criminal opinions today (2):

Abel Lopez v. State of Indiana (NFP)

Jerald Anthony Minzey v. State of Indiana (NFP)

Posted by Marcia Oddi on August 13, 2008 01:01 PM
Posted to Ind. App.Ct. Decisions