Saturday, December 04, 2010
Ind. Decisions - Court of Appeals issues 3 Friday (and 2 NFP)
For publication opinions today (3):
In Sheila Perdue, et al. v. Anne W. Murphy, et al. , a 21-page opinion, Judge Bailey writes:
The ACLU of Indiana (“the ACLU”) brought a class action complaint, pursuant to 42 U.S.C. § 1983, to enjoin the practice of the Indiana Family and Social Services Administration (“the FSSA”) to issue adverse action notices pertaining to Medicaid, Temporary Assistance to Needy Families (“TANF”), and Supplemental Nutrition Assistance Program (“SNAP”) (collectively, “public benefits programs”), which notices generically alleged a failure to cooperate but did not specify which verification document was missing (according to FSSA records). The complaint further alleged that, with respect to SNAP, the FSSA failed to comply with the federally-mandated “refusal to cooperate” standard, instead implementing a “failure to cooperate” standard. With regard to Sheila Perdue, it was alleged that the FSSA violated the Americans with Disabilities Act of 1990 (“the ADA”) and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., when Perdue was automatically scheduled for a telephonic interview notwithstanding her known hearing impairment and was subsequently denied benefits for “failure to cooperate.” Finally, the complaint sought costs and attorney's fees pursuant to 42 U.S.C. § 1988. * * *For background, start with this ILB entry from April 1, 2010, headed "Disputed welfare practices don't hold up in [trial] court," which includes a link to the trial court opinion.
The Recipients present the issue of whether they, as opposed to the FSSA, are entitled to summary judgment because the FSSA notification practices denied them procedural due process. On cross-appeal, the FSSA presents the issue of whether the trial court erroneously granted injunctive relief. * * *
Adverse action notices lacking specificity as to missing or allegedly missing eligibility documents do not comport with the requirement of procedural due process. Accordingly, the Recipients established their entitlement to injunctive relief and summary judgment in favor of the FSSA is reversed. The FSSA has demonstrated no substantial harm from an injunction to refrain from denying or terminating public welfare benefits in contravention of federal law.
In Marion County Auditor & McCord Investments v. Sawmill Creek, an 18-page opinion, Judge Mathias writes:
The Marion County Auditor (“the Auditor”) and McCord Investments LLC (“McCord”) appeal from the order of the Marion Circuit Court granting a motion filed by Sawmill Creek LLC (“Sawmill Creek”), to set aside a tax deed the Auditor issued to McCord. On appeal, the Auditor and McCord claim that the trial court erred in concluding that the tax deed should be set aside because the attempts to provide notice of the tax sale were constitutionally inadequate. We affirm. * * *ILB Note: Interesting language on pp. 7-8:
While the trial court and the parties seem to have focused their argument on the issue of whether the Auditor should have posted notice on the Lot, we need not consider other, possible, alternative measures the Auditor could taken beyond resending the notice by first class mail. Under [Jones v. Flowers, 547 U.S. 220 (2006),], we simply cannot agree with the Auditor and McCord that resending notice by first class mail was not required here. The Auditor's attempts to notify were therefore constitutionally inadequate.
We recognize that this entire controversy could have been avoided had Simpson shown even a modicum of responsibility himself. He could have made certain that the Lot was deeded to Sawmill Creek instead of “Saw Creek.” Had he properly ensured that his current address for the taxation of the Lot was on file with the Auditor, and if he had simply noticed that he had not been paying the taxes due on the Lot, all of the current controversy could have been avoided. The Court in Jones considered similar arguments by the Commissioner but still concluded that the Commissioner was required to do more than publish notice when notice by certified mail had been returned as unclaimed.
Conclusion. We are constrained by the holding of the U.S. Supreme Court in Jones to agree with the trial court that the owner of the Lot at issue before us was not provided constitutionally adequate notice of the tax sale. Therefore, the trial court did not err in setting aside the tax deed issued to McCord.
Because of the press of court business, it is not uncommon for trial courts to adopt a party's submitted findings verbatim. While this practice may cause courts on appeal to wonder whether the findings are the result of considered judgment by the trial court, this practice does not constitue error, in and of itself. Hardebeck v. Hardebeck, 917 N.E.2d 694, 698 (Ind. Ct. App. 2009); Prowell v. State, 741 N.E.2d 704, 708 (Ind. 2001). The critical inquiry remains whether such findings, as adopted by the court, are clearly erroneous. Prowell, 741 N.E.2d at 709.In Michael Gray v. D & G, Inc., a 10-page opinion, Judge Mathias writes:
Michael Gray (“Gray”) appeals the Hamilton Superior Court’s grant of summary judgment in favor of D&G, Inc. d/b/a The Sandstone Bar & Grill (“Sandstone”) in Gray’s negligence action against Sandstone. We reverse and remand. * * *NFP civil opinions today (1):
Gray claims that the trial court erred in granting summary judgment in favor of Sandstone, contending that the trial court improperly determined that Gray could not bring suit under the Dram Shop Act due to his voluntary intoxication. * * *
[T]he General Assembly has made the public policy decision that even those who are voluntarily intoxicated may, under certain, limited and clearly-delineated circumstances, assert a claim for damages against a person who provided them with alcoholic beverages that contributed to the intoxication.5 Were we to hold otherwise, we would effectively render subsection (c) a nullity. This we will not do. * * *
This interpretation is also consistent with the policy goal of the Act itself. “The Dram Shop Act represents a legislative judgment and the declared public policy of this state that providers of alcoholic beverages should be liable for the reasonably foreseeable consequences of knowingly serving visibly intoxicated patrons.” Nat’l R.R. Passenger Corp. v. Everton, 655 N.E.2d 360, 366 (Ind. Ct. App. 1995), trans. denied. 7.1-5-10-15.5
For all of these reasons, we conclude that our General Assembly has spoken clearly in this area and the trial court erred in concluding that Gray could not recover from Sandstone because of his voluntary intoxication. The parties do not challenge the trial court’s determination that genuine issues of material fact exist with regard to whether Sandstone had actual knowledge that Gray was visibly intoxicated and whether Gray’s alleged injuries were proximately caused by Gray’s intoxication. We therefore reverse the trial court’s entry of summary judgment in favor of Sandstone and remand the case for proceedings consistent with this opinion.
NFP criminal opinions today (1):
Posted by Marcia Oddi on December 4, 2010 08:40 AM
Posted to Ind. App.Ct. Decisions