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Thursday, June 11, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In Carlton Davis, Jr. v. State of Indiana , a 22-page opinion, Judge Bailey concludes:

In sum, despite Detective Weaver's illegal search of Davis' property in violation of the Fourth Amendment there was enough valid untainted information in the probable cause affidavit to support the issuance of the search warrant. Also, the language of the search warrant met the particularity requirement of the Fourth Amendment. Finally, the trial court did abuse its discretion in admitting two pieces of evidence in violation of Indiana Evidence Rule 404(b). However, this was harmless error in light of the overwhelming evidence supporting Davis' dog fighting convictions.Affirmed.
Note that this decision cites:
The only Indiana case addressing the legality of a search and animal welfare ... Trimble v. State, 842 N.E.2d 798 (Ind. 2006) [see ILB summary here, re "Butchie"]. * * * Although the facts at hand are not on all fours with those in Trimble, we believe that it is a reasonable extension of the logic in Trimble that circumstances of animal cruelty may create exigent circumstances to permit a warrantless search of the curtilage. Similar to those states that have determined the threat to animal life to be a basis for exigent circumstances, Indiana's animal cruelty statute evidences a strong public policy against the mistreatment of animals[.]
In Luis Ruiz Bonilla v. State of Indiana , a 9-page opinion, Judge Vaidik writes:
Luis Ruiz Bonilla pled guilty to dealing in cocaine, and the trial court sentenced him to the advisory term of thirty years. Bonilla now appeals, arguing that his sentence is inappropriate. The State responds that Bonilla waived the right to appeal because his plea agreement contains a provision that he waived the right to appellate review of his sentence under Indiana Appellate Rule 7(B). However, because the trial court made confusing remarks at the guilty plea hearing indicating that Bonilla “may” have waived the right to appeal and then advised Bonilla of the rights to appeal and to an attorney, we conclude that Bonilla did not waive the right to appeal his sentence. Nevertheless, in light of Bonilla’s illegal entry into this country and his failure to follow the laws once here, we conclude that he has failed to prove that the advisory sentence is inappropriate.
NFP civil opinions today (3):

Lorraine Bunn, as Personal Rep. of the Estate of Robert P. Bunn; and Robert L. Bunn v. Indiana Dept. of Transportation (NFP) an 11-page, 2-1 opinion, Judge Barnes writes:

Lorraine Bunn, as Personal Representative of the Estate of Robert P. Bunn, deceased, and Robert L. Bunn (collectively, “the Estate”) appeal the grant of summary judgment in favor of the Indiana Department of Transportation (“INDOT”) upon the Estate’s negligence claims. We reverse and remand for further proceedings.

The sole issue presented is whether the trial court erroneously granted summary judgment to INDOT upon concluding that INDOT owed no duty of care to the injured parties. * * *

More recently, in Indiana Dept. of Transp. v. Howard, 879 N.E.2d 1119 (Ind. Ct. App. 2008), this Court again recognized a non-delegable duty on the part of INDOT. * * *

The Howard Court recognized that INDOT’s enabling legislation gives INDOT general responsibility for the “construction, reconstruction, improvement, maintenance, and repair of state highways,” Ind. Code § 8-23-2-4.1(4), but also recognized that “INDOT can delegate the performance of its duty to maintain and repair state highways” (citing Indiana Code §§ 8-23-9, describing the procedure for awarding state highway contracts).

Ultimately, however, “although a governmental entity can delegate its responsibility for maintaining streets to a private party, it cannot avoid liability for negligent maintenance of the streets on the basis of its delegation.” * * *

Consistent with its statutory and contractual duties, INDOT maintained a frequent presence at the Project site. In fact, two INDOT engineers were at the site when the electrocution occurred. For all the foregoing reasons, INDOT is not entitled to summary judgment premised upon a lack of a duty to Robert and Bobby. * * *

ROBB, J., concur.
DARDEN, J., dissents with separate opinion.[which begins] I respectfully dissent. Citing to Howard,the majority concludes that INDOT cannot avoid liability to independent contractors’ employees on the basis of its delegation of its responsibility to maintain and repair state highways. In so doing, the majority acknowledges that the decedent in Howard was a member of the traveling public, not an employee of an independent contractor performing road construction; however, it declined to distinguish this case from Howard on that basis.

Fivalco, Inc. v. Shambaugh & Son L.P. (NFP) - "A single issue is presented for review: whether the default judgment is void for lack of personal jurisdiction over Fivalco. * * * The United States Postal Service return of service indicated that the summons had been delivered to “2221 Winston” but the signature of the recipient was illegible. * * * A copy of Shambaugh’s summons and complaint was sent by certified mail to Fivalco; this constitutes effective service. See id. Therefore, the default judgment was not void for want of personal jurisdiction as alleged by Fivalco in its Trial Rule 60(B)(6) motion for relief from judgment. The trial court did not err in denying that motion.

M.L., Alleged to be CHINS; C.L. v. IDCS (NFP)

NFP criminal opinions today (3):

Charles Durham v. State of Indiana (NFP)

Dewayne Washington v. State of Indiana (NFP)

Chad Wood v. State of Indiana (NFP)

Posted by Marcia Oddi on June 11, 2009 12:43 PM
Posted to Ind. App.Ct. Decisions