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Wednesday, December 29, 2010

Ind. Decisions - Month-long, year-end desk-clearing continues: Court of Appeals issues 6 today (and 11 NFP)

For publication opinions today (6):

In Paternity of P.R., et al.; H.B. v. J.R. , an 11-page, MUST READ opinion, Judge Vaidik writes:

Pursuant to a 2010 amendment to Indiana Evidence Rule 201(b), a court may now take judicial notice of “records of a court of this state.” Because H.B. (“Mother”) did not request an opportunity to be heard pursuant to Rule 201(e) after the trial court in this case took judicial notice, we conclude that the court properly took judicial notice of a protective order that Mother obtained against an ex-boyfriend and then considered it in the custody modification proceedings with J.R. (“Father”). We therefore affirm the trial court. * * *

Mother raises two issues on appeal, which we reorder and restate as follows. First, she contends that the trial court erred in considering the substance of the protective order she obtained against Davis because that protective order was not admitted into evidence at the hearing. Second, she contends that the trial court erred in modifying custody of P.R. and A.R. to Father. * * *

Indiana Evidence Rule 201 governs judicial notice. Evidence Rule 201 was amended in 2009 and went into effect on January 1, 2010. Pursuant to the amendment, a court may now take judicial notice of “records of a court of this state.” Ind. Evidence Rule 201(b)(5). Before this amendment, a court could not take judicial notice of its own records in another case previously before it, even on a related subject with related parties. See, e.g., Whatley v. State, 847 N.E.2d 1007, 1009 (Ind. Ct. App. 2006).

In addition, “[a] court may take judicial notice, whether requested or not,” Evid. R. 201(c), and judicial notice may be taken at any stage of the proceeding, id. at (f). And a party does not have to be notified before a court takes judicial notice. Rule 201(e) instructs:

A party is entitled, upon timely request, to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(Emphasis added). * * *

The fact that Mother is now appealing the trial court's action does not constitute a timely request for an opportunity to be heard pursuant to Rule 201(e). Instead, she had to make that request to the trial court.

Although we conclude that the trial court properly took judicial notice of the protective order file pursuant to Evidence Rule 201, we point out that the better course of action would have been for the court to have given the parties notice and an opportunity to be heard before taking judicial notice and issuing its order. * * * [T]he danger of having a broad spectrum of information at the disposal of courts is that mistakes in input, inscription, and transmission can occur. To alleviate the danger of such errors, litigants must be given the opportunity to explain or respond to the judicially-noticed information. We understand that the Indiana Rules of Evidence allows litigants to respond to this information at any stage of the proceeding, but we believe that, where practicable, the best practice is for courts to notify the parties before taking notice of and issuing a ruling which utilizes this information.

In Anthony M. Sewell v. State of Indiana, a 4-page opinion, Judge Mathias writes:
Anthony Mark Sewell (“Sewell”) was convicted in Shelby Superior Court of Class A misdemeanor battery and Class B misdemeanor criminal mischief. Sewell appeals and argues that the State failed to present sufficient evidence to support his convictions. The State cross-appeals and argues that this appeal should be dismissed because Sewell’s notice of appeal was untimely filed. Concluding that this court lacks subject matter jurisdiction due to Sewell’s failure to timely file a notice of appeal, we dismiss. * * *

The record clearly shows that Sewell’s letter to the trial court requesting an appeal was received within the thirty-day time limit imposed by Appellate Rule 9. However, the letter did not comply with the content requirements for a notice of appeal. * * *

Moreover, although the trial court purported to grant Sewell additional time to file a notice of appeal, no provision of the appellate rules permits trial courts to expand the time limit prescribed by Appellate Rule 9. Because the trial court lacked jurisdiction to grant Sewell additional time to file his notice of appeal, the January 5, 2009 notice of appeal filed by Sewell’s appellate counsel was untimely.

In State of Indiana v. Robert J. Seidl, a 9-page opinion, Judge Najam writes:
Pursuant to Indiana Code Section 35-38-4-2(5), the State appeals the trial court's order granting Robert J. Seidl's motion to suppress the State's evidence against him. The State raises a single issue for our review, namely, whether the trial court erred when it granted Seidl's motion to suppress. * * *

In sum, the trial court's order granting Seidl's motion to suppress is contrary to law. As such, we reverse and remand for further proceedings.

Jeffrey L. Gavin v. Calcars AB, Inc., and Astra Financial, Inc. - "[W]here, as here, a claimant initiates a wage dispute after being involuntarily terminated from employment, he must bring his claim under the Wage Claims Statute.

"It is undisputed that Gavin did not submit his claims to the Department of Labor prior to filing his complaint with the trial court. Accordingly, his complaint is barred as a matter of law. See Ind. Code § 22-2-9-4. The trial court did not err when it entered summary judgment in favor of Calcars."

In State of Indiana v. Richard J. Laker, Jr. , a 6-page opinion in a case with a pro se appellee, Judge Vaidik writes:

The State charged Richard Laker with various counts of operating a motor vehicle while privileges are suspended and operating while intoxicated. The State’s charges were premised on Laker’s alleged operation of a farm tractor. The trial court dismissed all counts, finding that the operation of a farm tractor could not serve as the basis for any of the alleged offenses. We conclude that the operation of a farm tractor cannot sustain charges of operating while privileges are suspended, but it may sustain charges of operating while intoxicated. We affirm in part, reverse in part, and remand.
Brian J. Woods v. State of Indiana - "The evidence presented at trial was sufficient to sustain the trial court’s determination that Woods is an habitual offender. Woods’s conviction is therefore affirmed."

NFP civil opinions today (4):

E-Z Construction, Co., Inc. v. Sellersburg Stone Co., Inc. (NFP)

M.M., Alleged to be C.H.I.N.S.; S.H. v. I.D.C.S. (NFP)

Vilma (Struss) Papa v. Nicholas Struss (NFP)

Term. of Parent-Child Rel. of N.B.; N.B. v. I.D.C.S. (NFP)

NFP criminal opinions today (7):

J.B. v. State of Indiana (NFP)

Leslie J. Edwards v. State of Indiana (NFP)

Diven Williams v. State of Indiana (NFP)

William Roberts v. State of Indiana (NFP)

Kendall Bradbury v. State of Indiana (NFP)

Edward Weaver v. State of Indiana (NFP)

Joseph R. Fabre v. State of Indiana (NFP)

Posted by Marcia Oddi on December 29, 2010 01:18 PM
Posted to Ind. App.Ct. Decisions