The Indiana Law Blog: Ind. Decisions - Concluding its year-end push, Court of Appeals issues 7 today (and 17 NFP)

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Thursday, December 31, 2009

Ind. Decisions - Concluding its year-end push, Court of Appeals issues 7 today (and 17 NFP)

For publication opinions today (7):

In The Guardianship of S.M. and N.M.; S.M. v. S.G. , a 7-page opinion, Judge Bailey writes:

S.M. (“Father”), an Illinois resident, appeals the trial court's order appointing S.G. (“Aunt”), an Indiana resident, as the permanent guardian of S.M., age ten, and N.M., age eight (“Boys”).

Issue. Whether the trial court had subject matter jurisdiction. * * *

The trial court lacked subject matter jurisdiction. Its orders are void ab initio. Reversed and remanded with instructions.

In Jennifer L. Mogg v. State of Indiana , a 16-page opinion, Judge Robb writes:

Jennifer Mogg pled guilty to operating a vehicle while intoxicated, a Class A misdemeanor, and her jail sentence was suspended to probation. Following an admitted violation of her probation, which included as a condition that she consume no alcoholic beverages, the trial court extended Mogg's probation and imposed a further condition that she continuously wear a Secure Continuous Remote Alcohol Monitor (“SCRAM”) bracelet. Following subsequent allegations of probation violations, the trial court revoked Mogg's probation on the basis of findings she consumed alcohol as evidenced by positive readings while on SCRAM. Mogg now appeals the revocation of her probation, raising a single issue that we expand and restate as: 1) whether the trial court abused its discretion in admitting evidence of Mogg's alcohol consumption generated by the SCRAM system; and 2) whether sufficient evidence supports the revocation of Mogg's probation. We conclude the trial court, based upon the uncontroverted expert testimony and evidence before it, did not abuse its discretion in determining the SCRAM readings were sufficiently reliable to be admissible as evidence of Mogg's alcohol consumption for purposes of a probation revocation. As a result, sufficient evidence supports the revocation of Mogg's probation, and we affirm the judgment of the trial court.

In Adoption of S.A.; M.H. & C.H. and IDCS v. C.R., a 17-page opinion, Chief Judge Baker writes:

Appellant-petitioner M.H. and C.H. and appellant Indiana Department of Child Services (DCS) (collectively, the appellants) appeal the denial of their motion to correct error after the probate court denied M.H. and C.H.’s petition to adopt S.A. and granted appellee-cross-petitioner C.R.’s petition to adopt. Specifically, the appellants argue that the adoption decree cannot stand because the findings were incomplete, the probate court did not enter any findings regarding DCS’s consent to the adoption, and C.R. failed to present sufficient evidence satisfying the requirements for interstate adoption, and that the evidence was clear and convincing that M.H. and C.H.’s petition to adopt S.A. should have been granted. Concluding that the evidence was sufficient to support the probate court’s granting of the adoption petition in favor of C.R., and finding no other error, we affirm. * * *

In this case, the evidence presented at the December 10, 2008, hearing established that C.R. is able to support S.A. financially. Moreover, S.A.’s biological siblings who live with C.R. do well in school, aspire to attend college in the Chicago area, and spend time together as a family. S.A. has also interacted with her siblings on a number of occasions.

In contrast, M.H. and C.H. have had twenty-three different foster children in their home over the past four years. Id. at 88-93, 143. They could not remember the names of many of the children, and they could not provide proof as to their financial ability to support S.A.

Although M.H. and C.H. presented evidence establishing that they were “the only family S.A. knows,” that they would continue to provide for S.A.’s needs, and that they were not “prohibited from adopting due to criminal history,” their request to set aside the adoption order in C.R.’s favor and enter judgment for them amounts to a request for us to reweigh the evidence, which we will not do. Adoption of H.N.P.G., 878 N.E.2d 900, 903 (Ind. Ct. App. 2008), trans. denied. Thus, after reviewing the evidence, we conclude that the probate court properly determined that granting the adoption in C.R.’s favor was in S.A.’s best interest.

In Allied Property & Casualty Ins. Co. v. Linda Good and Randall Good , a 21-page opinion, Judge Vaidik writes:

We conclude that Indiana trial courts possess the inherent power to sanction parties and attorneys for violating orders in limine and causing mistrials. This power is designed to protect the integrity of the judicial system and to secure compliance with the court‘s rules and orders. In order for a trial court to impose sanctions against a party or attorney, the court must find that the party engaged in egregious misconduct that causes a mistrial. We review a trial court‘s sanctioning power for an abuse of discretion. Here, the trial court did not abuse its discretion in (1) concluding that Allied Property and Casualty Insurance Company intentionally violated its order in limine when Allied‘s own employee referenced a party‘s criminal history and (2) awarding over $26,000 in attorneys‘ fees and expert witness fees to Plaintiff Linda Good and Third Party Defendant Randall Good and jury costs to the county as compensatory damages. We therefore affirm the trial court.

Newland Resources, LLC, et al. v. The Brenham Corp. - "Newland Resources, LLC (Newland) appeals from the trial court's judgment on the jury's verdict in favor of The Branham Corporation (Branham) on Branham's breach of contract claim against Newland. Broadly speaking, the following issue is presented for our review: Did the trial court err in its interpretation of the contractual provisions triggering the entitlement to and calculation of a success fee? We affirm."

Tina Condor v. RDI/Caesars Riverboat Casino, Inc., et al. - "Appellant-plaintiff Tina Conder appeals the trial court's dismissal of her complaint against appellants-defendants RDI/Caesars Riverboat Casino, Inc., and M/V Glory of Rome (collectively, Caesars). Conder argues that we should reconsider our opinion in the prior appeal in this matter and that the trial court erroneously dismissed her claim against Caesars based on her alleged status as a Sieracki seaman. Declining to reconsider our prior opinion and finding no error in the dismissal of her Sieracki claim, we affirm."

In Alan Hoover v. State of Indiana , a 19-page opinion, Judge Vaidik writes:

Alan Hoover was charged with murder, felony murder, and Class A felony robbery. Robbery was the predicate offense for the alleged felony murder. A jury acquitted Hoover of murder, deadlocked on felony murder, and convicted him of robbery. Indiana's double jeopardy statutes bar retrial for the same offense if “the former prosecution resulted in an acquittal or a conviction of the defendant (A conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.) . . . .” Ind. Code § 35-41-4-3(a). We therefore conclude that Hoover's conviction for the underlying robbery precludes retrial on the greater, mistried count of felony murder. We further hold that the jury verdicts are not inconsistent, and in making that determination we do not take into account hung counts. Further, there is sufficient evidence to sustain Hoover's robbery conviction, Hoover is unable to show prejudice from the trial court's allegedly deficient felony-murder instruction, and the trial court did not err by refusing to instruct the jury on the lesser-included offense of theft. We affirm Hoover's robbery conviction but remand with instructions to dismiss the felony-murder count with prejudice.

NFP civil opinions today (5):

The Guardianship of C.D.; C.W. v. D.M. (NFP)

Town of Cedar Lake, Indiana v. Cedar Lake Ventures I, LLC (NFP)

David Baumberger v. Review Board, and Best Buy Stores (NFP)

Nightingale Care Services, Inc. d/b/a Nightingale Home Healthcare v. Luisi Enterprises, Inc., et al. (NFP)

Term. of Parent-Child Rel. of M.T.; and K.M.T. v. Tippecanoe Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (12):

Hershell L. Sparks v. State of Indiana (NFP)

Raphael Israel Miles v. State of Indiana (NFP)

David B. Adams v. State of Indiana (NFP)

Aaron Hillard v. State of Indiana (NFP)

Michael Gray v. State of Indiana (NFP)