The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

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Friday, September 11, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

In Brian B. Baldwin v. Tippecanoe Land & Cattle Company , a 6-page opinion, Judge Bailey writes:

Brian B. Baldwin (“Baldwin”), a member of the Indiana Bar appearing pro se, appeals the trial court’s entry of summary judgment in favor of Tippecanoe Land & Cattle Company (“Tippecanoe Land”). We affirm. * * *

Taken collectively, Trial Rules 8(B), 9.2(B), and 11(A) mean that an attorney’s signature on a general denial rejects the assertions in the claim, but does not constitute an oath by which the pleader denies the execution of an instrument attached to a claim.

As Tippecanoe Land attached the Note and Second Mortgage to its cross-claim, execution of both would be deemed to be established, by operation of Trial Rule 9.2(B), unless Baldwin denied under oath that they were executed. Baldwin, himself an attorney, filed a general denial. He signed it as “respectfully submitted.” App. at 55. He omitted to include a statement that his general denial was truthful and made under penalty for perjury. Thus, Baldwin failed to deny under oath the execution of the Note. We therefore conclude that execution of the Note was deemed to be established, contrary to Baldwin’s argument on appeal. The trial court did not err in entering summary judgment for Tippecanoe Land.
Affirmed.

In J.J., Alleged to be CHINS; IDCS v. B.B. and J.J., a 5-page opinion, Judge Darden writes:

The Indiana Department of Child Services (“DCS”) appeals the trial court’s order that it pay the Guardian Ad Litem (the “GAL”) fees associated with the underlying Child in Need of Services (“CHINS”) proceeding. We reverse and remand. * * *

DCS asserts that the trial court erred in ordering it to pay any fees associated with the GAL’s services pursuant to Indiana Code section 31-40-3-2. * * *

On January 1, 2009, Public Law 146-2008 went into effect, amending portions of Indiana Code 31-40. Namely, it shifted the burden of paying for child services in CHINS proceedings from the county to the State via Indiana Code section 31-40-1-2(a) * * * [ILB Note: - changes were also made by PL 182-2009(ss), SEC. 387, but may not be relevant here.]

Public Law 146-2008, however, did not address whether the payment of fees associated with services provided by GALs also would shift to the State. Rather, it left Indiana Code section 31-40-3-2 unaffected. * * *

We agree with this Court’s prior determination that “[n]othing in Indiana Code section 31-40-3-2 appears to contemplate the possibility that DCS should bear the burden of paying GAL . . . fees,” where it “unambiguously provides that the county shall pay the fees associated with services provided by GALs . . . .” In re N.S. and J.M., 908 N.E.2d 1176, 1180 (Ind. Ct. App. 2009) (emphasis added). * * *

Thus, we agree with this Court’s prior decision that, given Indiana Code section 33-24-6-4, “the General Assembly intended for the onus of financial support for GAL . . . programs to lie with the county, and not the State.” Id. at 1182.

We therefore find that Indiana Code section 31-40-3-2 requires the county, not DCS, to pay fees related to GAL services. Accordingly, we reverse the trial court’s order that DCS pay the GAL-related fees in the underlying CHINS proceeding and remand for further proceedings.

An ILB observation: The current case (In re JJ - 9/11/09), In re N.S. (6/30/09), and In re J.W.,(8/20/09) all come out of the same Hendricks County court, appear to involve the same issue re GAL fees, and all three have resulted in reversals.

In Lucian Potter v. State of Indiana , a 6-page opinion, Judge Darden concludes:

The scope of a Terry stop includes “inquiry necessary to confirm or dispel the officer's suspicions.” Hardister v. State, 849 N.E.2d 563, 570 (Ind. 2006).

Officer Dine testified that his law enforcement training and experience had taught him that erratic vehicle movements were “a telltale sign of impairment or [that] someone's ill or injured”; and that after he observed the SUV continuously weave from side to side in its lane and nearly strike a concrete median when making a turn, he “wanted to . . . check and make sure [the driver] was okay,” i.e., that the circumstances “bore further investigation.” (Tr. 12, 13). These are articulable facts that support the reasonable suspicion that criminal activity was taking place, to wit: that the driver was operating the SUV while impaired from intoxication. Such circumstances warranted a brief traffic stop to “confirm or dispel” Dine's suspicion in this regard. Hardister, 849 N.E.2d at 570.

This was a proper stop traffic stop due to the officer's reasonable suspicion of driver impairment. Therefore, the trial court did not err in refusing to suppress the resulting evidence on this basis.

NFP civil opinions today (2):

John D. Geerligs v. Susan M. Hoffman (NFP) - "John D. Geerligs appeals the trial court’s decree of dissolution. He argues that the trial court denied him due process by conducting the dissolution hearing without his presence. Geerligs specifically contends that he was unable to attend the hearing because the courtroom doors were locked. However, we do not reach the issues raised by Geerligs. Instead, we sua sponte raise the following issue: whether the trial court’s decree of dissolution is supported by sufficient evidence. We reverse and remand."

A.H. Patch, et al v. William Fluty, Jr., et al (NFP) - "Even if we were inclined to disregard the clear provisions of the statutes and decide this case entirely on the equities, the Owners have provided us no facts to tip the balance in their favor. It is not enough to say that the mechanical enforcement of the statute would divest the Owners of their property. If we were to hold that this (i.e., loss of property after the failure to receive actual notice) is enough to tip the equities in their favor and defeat the issuance of a tax deed to the County under these circumstances, then the statute's notice provisions would be rendered meaningless. We decline to so hold.

"The County complied with I.C. § 6-1.1-25-4.5 in sending notice of its lien and intent to acquire title to the subject property via tax deed. Tax sales and the issuance of a tax deed are purely statutory creations. Porter v. Bankers Trust Co. of California, N.A., 773 N.E.2d 901. “[T]herefore, parties must strictly comply with each step set forth in the statutes.” Id. at 909. The Owners acknowledge that the County did that. The Owners have identified no cognizable injustice that will result from following the statute. In this case, equity must follow the law. See Porter v. Bankers Trust Co. of California, N.A., 773 N.E.2d 901."

NFP criminal opinions today (13):

James Richard v. State of Indiana (NFP)

Cory Jerome Bland v. State of Indiana (NFP)

Keith D. Blake v. State of Indiana (NFP)

Barbara Schrock v. State of Indiana (NFP)

Maurice Williams v. State of Indiana (NFP)

Jason A. Perry v. State of Indiana (NFP)

Tarik J. Hoskins v. State of Indiana (NFP)

Stephen R. Thomas v. State of Indiana (NFP)

Dennis Peterson v. State of Indiana (NFP)

Timothy Max Bloom v. State of Indiana (NFP)

Rickey D. McKinney v. State of Indiana (NFP)