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Thursday, December 16, 2010

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

For publication opinions today (6):

In William Hurst v. State of Indiana , an 11-page opinion, Judge Najam concludes:

In sum, an eleven-year-old child reported to her father the presence of marijuana in the home she shared with her mother and her mother's boyfriend, Hurst. The father relayed that report to IMPD. An officer was dispatched to check on the welfare of the child and met Father in front of Mother's apartment. There, the officer viewed the texted photograph that the eleven-year-old had sent to her father's phone. And a detective also viewed the photograph on the phone at the scene and confirmed that it appeared to show marijuana.

This is not a case where the affiant relied only upon the opinion of an eleven-year-old child that there was marijuana present in her home. The texted photograph viewed by the officers corroborated Thomas' report, and it is a reasonable inference that the date and time information on Thomas' cell phone indicated that the picture had been taken recently. We also agree with the trial court's observation that children are likely to report suspicious activity to their parents and that parents in turn will transmit that information to law enforcement. Thus, we conclude that the photograph corroborated the hearsay. See Ind. Code §35-33-5-2(b). As such, when viewed from a totality of the circumstances, we conclude that there was sufficient evidence before the magistrate to support a finding of probable cause and that the trial court did not err when it denied Hurst's motion to suppress evidence obtained as a result of the execution of the search warrant.

In Anne W. Murphy, et al. v. Paul Terrell, et al. , a 15-page opinion, Judge Bradford writes:
Appellants/Defendants Anne W. Murphy, in her official capacity as Secretary of the Indiana Family and Social Services Administration and Patricia Casanova, in her official capacity as the Director of the Office of Medicaid Policy and Planning of the Indiana Family and Social Services Administration (collectively referred to as “the State”) appeal the trial court's order granting summary judgment in favor of Appellee/Plaintiff Paul Terrell, on behalf of himself and a Class of those similarly situated (collectively referred to as “the Class”). Concluding that under the facts and circumstances presented in the instant matter, unsuccessful applicants for Medicaid disability benefits do not have a constitutional right to an in-person administrative hearing, we reverse and remand this matter for the entry of summary judgment in favor of the State. * * *

Upon considering the relevant federal authorities together with the facts and circumstances presented in the instant matter, we conclude that telephonic hearings afford unsuccessful applicants with the opportunity to be heard in a reasonable manner, and, as a result, unsuccessful applicants for Medicaid disability benefits do not have a constitutional right to an in-person administrative hearing.

ILB: For background on Terrell, see this April 1, 2010 ILB entry.

In St. Mary Medical Center v. Marsha Bakewell , a 4-page opinion, Judge Bradford writes:

St. Mary contends that the trial court abused its discretion in granting Bakewell's motion to correct error because Bakewell's current claim actually sounds in medical malpractice and cannot therefore proceed under a theory of premises liability. * * *

We conclude that Bakewell's allegation may proceed under a premises liability theory, even though originally also pursued as a medical malpractice claim. As previously mentioned, Bakewell's contention is that St. Mary “carelessly, negligently, and recklessly maintained the premises by failing to install appropriate handrails and mats, and in failing to provide any warning to [Bakewell] of the dangerous and hazardous nature of said area, which it knew or should have known was dangerous and likely to cause injury[.]” This is about as clear and unambiguous an allegation of premises liability as one is likely to encounter: Bakewell claims that St. Mary's negligent maintenance of its facility–not a negligent failure to provide appropriate care–was the cause of her injuries.

In Lightpoint Impressions, LLC v. Metropolitan Dev. Comm., et al. , an 11-page opinion, Judge Bradford writes:
Appellant/Petitioner Lightpoint Impressions, LLP, appeals from the trial court’s grant of summary judgment in favor of Appellee/Respondent the Metropolitan Development Commission of Marion County (“the MDC”). Lightpoint contends that the MDC lacked jurisdiction to hear its appeal from the decision of the Lawrence Board of Zoning Appeals (“the Lawrence BZA”) and that, even if the MDC did have jurisdiction, the decision by the administrator of the MDC to appeal from the decision was arbitrary and capricious as a matter of law. As an initial matter, we conclude that the MDC may hear appeals from decisions of the Lawrence BZA as a matter of law. We further conclude, however, that the record does not clearly establish that the MDC has issued a final appealable decision in this case, denying us and the trial court the power to address the merits of Lightpoint’s appeal. Even in the event that the MDC did issue a final decision, we conclude that the trial court has not, so far, employed the proper standard of review. Consequently, we affirm in part, reverse in part, and remand with instructions.
In City of Kokomo, et al. v. Florence Pogue, et al. , a 16-page opinion in an interlocutory appeal, Judge Barnes writes:
The City of Kokomo and the Kokomo Common Council (collectively “Kokomo”) appeal the trial court's denial of its motion to dismiss a remonstrance petition filed by a group of landowners whose land Kokomo wishes to annex (collectively “the Remonstrators”). We reverse.

The sole restated issue is whether the trial court properly rejected Kokomo's assertion that a substantial number of landowners who signed the remonstrance petition had waived their ability to challenge the annexation, thus bringing the total number of remonstrators below the statutory minimum required to pursue a remonstrance. * * *

It seems apparent that the legislature requires notices of annexation to be sent by certified mail in order to provide additional assurance that such notices would be delivered to the intended recipients. Kokomo used a method of mail delivery that, according to Stanahan, approximates or even exceeds such assurance. That the USPS offers alternatives to certified mail delivery, and that the legislature failed to explicitly recognize such alternative methods, does not render Kokomo's use of an alternative method fatally flawed. The Remonstrators fail to explain how use of this method caused them any harm or was such an egregious wrong that it violated their substantial rights. * * *

We now turn to the central question of whether the Remonstrators collected valid signatures from the owners of sixty-five percent of the parcels in the annexation territory. The starting point in our analysis is our supreme court's decision in Doan v. City of Fort
, 253 Ind. 131, 252 N.E.2d 415 (1969). In that case, Fort Wayne was attempting to annex land and claimed that a number of landowners had previously waived their right to remonstrate in various instruments associated with the extension of water service outside of the city's boundaries. Our supreme court concluded these waivers were invalid, holding that “the right to remonstrate does not vest before territory is sought to be annexed.” * * *

However, the Doan court expressly noted that legislation, then as now, permits the prospective waiver of remonstrance where the construction of sewage facilities is concerned. * * *

Kokomo was statutorily entitled to demand that anyone connecting to its sewer system waive their right to remonstrate against future annexation. See I.C. § 36-9-22-2(c). The language of the waivers in that regard is clear and unambiguous; that is, the signatories were clearly advised and had actual knowledge of the fact that they were waiving their right to remonstrate in exchange for connecting to the Kokomo sewer system.

Thus, the trial court erred in finding these waivers to be ineffective. Invalidation of these sixty-four signatures on the remonstrance petition, coupled with invalidation of Country's seventy-three signatures, causes the percentage of valid landowner signatures in the annexation area to fall to 64.3%. This is below the statutorily-mandated minimum percentage of landowner signatures needed to maintain a remonstrance. As such, the Remonstrators cannot proceed with their remonstrance against annexation by Kokomo.

The trial court erred in concluding that the Remonstrators obtained the required minimum number of signatures needed to maintain their action against annexation by Kokomo. We reverse the denial of Kokomo's motion to dismiss.

In R.D. v. Review Board , an 18-page, 2-1 opinion, Judge Mathias writes:
R.D. was laid off by his employer, losing his position as a machinist. Desiring to retrain by obtaining a degree in graphic arts, R.D. took advantage of the Trade Act of 1974 (“the Trade Act”), and applied to use Trade Adjustment Assistance funding established under the Trade Act to pay for retraining in a graphic arts program at the Art Institute of Indianapolis (“the Art Institute”). The Indiana Department of Workforce Development (“the Department”) is responsible to administer the funding available to Indiana residents under the Trade Act and in that capacity, the Department denied R.D.'s request based on its cost. During the administrative appeal of the Department's denial, the Department's director presented evidence that R.D. could enroll in a program at Ivy Tech at a cost of approximately $11,700, compared to the Art Institute's cost of more than $56,000. The Administrative Law Judge (“the ALJ”) hearing R.D.'s appeal found that the programs at issue were substantially similar and denied R.D.'s application to attend the Art Institute because of the cost difference. The Review Board affirmed the ALJ's denial of R.D.'s application.

R.D. appeals the Review Board's decision, arguing that the evidence established that the Ivy Tech program was not substantially similar to the Art Institute's program and was not suitable for his needs. Concluding that the Review Board erred when it denied R.D.'s application for training at the Art Institute, we reverse and remand for proceedings consistent with this opinion. * * *

NAJAM, J., concurs.
BAKER, C.J., dissents with opinion. [that concludes]When considering the purposes of the Trade Act, namely, to provide workers with training at the lowest reasonable cost that will lead to employment and result in training opportunities for the largest number of adversely affected workers, I cannot agree that R.D. has successfully demonstrated that the Review Board's decision was unreasonable in denying his application for funding to attend the Art Institute. See Quakenbush, 891 N.E.2d at 1054 (observing that our task is to determine whether the Review Board's decision is reasonable in light of its findings). In short, R.D.'s request for training at the Art Institute does not satisfy the “lowest cost” requirement of 20 C.F.R. section 617.22(a)(6). Thus, I would affirm the Review Board's decision.

NFP civil opinions today (1):

Term. of Parent-Child Rel. of K.R.; C.R. v. IDCS (NFP)

NFP criminal opinions today (5):

Joseph Prewitt v. State of Indiana (NFP)

Carlos Morales v. State of Indiana (NFP)

Byron Dixon v. State of Indiana (NFP)

Joseph Prewitt v. State of Indiana (NFP)

Terrence L. Oliver v. State of Indiana (NFP)

Posted by Marcia Oddi on December 16, 2010 12:02 PM
Posted to Ind. App.Ct. Decisions