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Friday, February 27, 2009

Ind. Decisions - A number of transfers granted today

The transfer list will not be available until Monday, March 2, but the ILB has received notice of six transfer petitions granted today, Feb. 27th.

Jim Kovach v. Caligor Midwest -- 49A04-0707-CV-406 -- 2 Petitions both granted -- 2/27/09 -- This was a 29-page, 2-1, July 26, 2008 COA opinion. See ILB summary here - 5th case. From the facts: "Matthew was prescribed 15ml, or one-half of the Cup’s volume, of Capital of Codeine. Although Nurse Robinette stated that she gave Matthew only 15ml of Codeine, Jim, who was in the room at the time, testified that the Cup was completely full. Matthew drank all of the medicine in the Cup. At 11:20 a.m., he was discharged from Surgicare. Later that day, after arriving home, Matthew went into respiratory arrest. He was transported to Bloomington Hospital, where he was pronounced dead of asphyxia due to an opiate overdose. The autopsy revealed that Matthew’s blood contained between 280 and 344 nanograms per ml of Codeine, more than double the recommended therapeutic level of the drug."

Anita Inlow v. Jason Inlow -- 29A02-0712-CV-1039 -- 2/27/09 -- This was a 2-1, Sept. 18, 2008 COA opinion. See ILB summary here. "She argues that Indiana Code § 34-23-1-1 requires the payment of funeral and burial expenses from a wrongful death award to a decedent’s estate only where the award specifies what portion is attributable to funeral and burial expenses. Concluding that Inlow’s funeral and burial expenses were properly reimbursed to his estate, we affirm."

State v. Jason Cioch -- 79A05-0804-CR-218 -- 2/27/09 -- This is a NFP opinion from Dec. 11, 2008 that I'm sorry to have missed the first time around. Judge Robb wrote:

The State brings this interlocutory appeal following the trial court’s suppression of evidence of the result of a breathalyzer test. On appeal, the State raises a single issue, which we restate as whether the trial court abused its discretion when it suppressed the breathalyzer test result printout because it contained an incorrect time of day. Concluding that the State has failed to meet its burden of establishing the foundation for admitting the evidence, we affirm. * * *

The statute and regulations regarding the administration of the breath test and the admissibility of its results do not expressly contemplate the use of outside evidence to supplement the evidence ticket. The evidence ticket here contains inaccurate information regarding the time of the test. Because the State’s outside evidence cannot be used to cure the deficiency, the evidence ticket is not the result of approved techniques for administering the test nor is it an accurate record of the test. Therefore, the trial court did not abuse its discretion in suppressing use of the evidence ticket at trial.

R.Y. v. Marion County Dept' of Child Serv's -- 49A02-0804-JV-394 -- 2/27/09 -- This is a 16-page, NFP opinion from Oct. 31, 2008.

Elizabeth Thomas v. Blackford Cty Area BZA, Oolman Dairy. -- 05A04-0711-CV-731 -- 2/27/09 - This is a NFP opinion from July 25, 2008. See ILB summary here - last summarized case. From the opinion:

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.

In addition, by a 3-2 order issued yesterday, the Court vacated its Sept. 23, 2008 grant of transfer in the case of Scottie Adams v. State of Indiana, stating, inter alia:

The Court of Appeals opinion reported as Adams v. State is no longer vacated under Appellate Rule 58(A) and is REINSTATED as Court of Appeals precedent.
The dissent, written by J. Boehm, in which J. Sullivan concurs, is 5 pages.

Posted by Marcia Oddi on February 27, 2009 03:51 PM
Posted to Indiana Transfer Lists