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Friday, October 23, 2009

Ind. Decisions - Court of Appeals issues 2 today (and 10 NFP)

For publication opinions today (2):

In Dewayne Jones v. The Housing Authority of the City of South Bend, IN , a 13-page opinion, Judge Riley writes:

Appellant-Defendant/Counter-Plaintiff, Dewayne Jones (Jones), appeals the trial court's judgment in favor of Appellee-Plaintiff/Counter-Defendant, The Housing Authority of the City of South Bend (HASB), finding that HASB did not violate Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, et seq., or the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., when HASB evicted Jones from his apartment. We affirm.

Jones raises two issues for review, which we restate as follows: (1) Whether HASB violated Title II of the ADA and the Rehabilitation Act of 1973 when they evicted Jones from his apartment for violating the housekeeping standards in the HASB lease; and (2) Whether Jones' due process rights were violated when HASB denied Jones a grievance hearing to respond to his eviction notice. * * *

By specific terms, the lease required Jones to “keep the Dwelling Unit and such other areas as may be assigned to the [him] in a sanitary and safe manner,” and “dispose of all ashes, garbage, rubbish and other waste from the Dwelling Unit in a sanitary and safe manner.” * * *

Jones' failure to meet his contractual duty to keep his apartment clean has disqualified him from being eligible to live at HASB; therefore, he is not otherwise qualified to live at HASB and was not evicted solely because of his disability. * * *

Jones also contends that his due process rights were violated when the HASB refused to conduct a hearing, concluding that he had filed his appeal of his eviction late by one day. * * *

Jones contends that under the Indiana Trial Rules, his grievance would have been timely filed. * * *

Therefore, it would be reasonable for Jones to count time similarly to the manner which our supreme court has provided for persons to count time in legal proceedings since there was no other guidance as to how he should calculate the time to file his grievance.

That being said, we fail to see how a remand would provide Jones any relief. “It is commonly understood that procedural due process includes notice and an opportunity to be heard.” * * * Jones has been provided full opportunity to present defenses to his eviction, first through the trial court, and now before us on appeal. Therefore, we fail to see how any remedy that we provide Jones for HASB's error would provide Jones relief, and Jones has failed to demonstrate how he was prejudiced by the procedural due process error.

Based on the foregoing, we conclude that the trial court did not error when it concluded that Jones was not evicted due to his disability and that Jones was not prejudiced by HASB's refusal to give him a hearing.

In Robert E. Lawrence II v. State of Indiana , a 9-page opinion, Judge Robb writes:
Robert Lawrence II was convicted of theft, a Class D felony, driving while suspended, a Class A misdemeanor, and found to be an habitual offender. Lawrence was ultimately sentenced to an aggregate term of three years with one year suspended for his convictions. The trial court found Lawrence’s pro se “request for appeal” was untimely and denied Lawrence’s subsequent petition seeking permission to file a belated notice of appeal. Lawrence now appeals, raising the sole issue of whether the trial court abused its discretion in denying him permission to file a belated notice of appeal. Concluding Lawrence’s notice of appeal was timely filed, we reverse the trial court. Further concluding the proper remedy is the filing of a belated appeal rather than a belated notice of appeal, we grant Lawrence permission to pursue a belated appeal. * * *

Lawrence’s notice of appeal was timely filed pursuant to the prison mailbox rule. He is hereby granted permission to pursue a belated appeal on the merits, which shall proceed in accordance with the attached order.Reversed.

NFP civil opinions today (2):

Jeffrey T. Curry v. Perfection Collision (NFP) - "In this case, Perfection Collision had Curry's truck for approximately two weeks. The delay was caused in part by the additional repairs Perfection Collision discovered after it tore the damaged area down that were supplemental to the original estimate, and the wait for State Farm to approve the supplemental repairs. This is not an unusual or blameworthy delay. Moreover, Perfection Collision satisfactorily completed the repairs to Curry's truck after State Farm approved the additional repairs. We therefore conclude that Curry's argument is not supported by the evidence.

"For all of these reasons, we conclude that the trial court's judgment in favor of Perfection Collision and against Curry on his counterclaim is supported by the evidence."

Lisa Blake v. Review Board of the Indiana Dept. of Workforce Development, et al. (NFP) - "Blake was not denied a reasonable opportunity to participate in the administrative hearing, and this court does not have the power to grant Blake a waiver of the repayment of her benefits. Affirmed."

NFP criminal opinions today (8):

State of Indiana v. William H. Nolan (NFP)

C.M.O. v. State of Indiana (NFP)

Carrie C. Stichter v. State of Indiana (NFP)

Edward D. Perry v. State of Indiana (NFP)

Joshua D. Love v. State of Indiana (NFP)

Kenneth Felder v. State of Indiana (NFP)

Steven Sandridge v. State of Indiana (NFP)

Terry Wayne Nugent v. State of Indiana (NFP)

Posted by Marcia Oddi on October 23, 2009 12:17 PM
Posted to Ind. App.Ct. Decisions