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Tuesday, June 14, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Elmos Jewell v. City of Indianapolis , an opinion that requires careful reading, Judge Friedlander writes:

The pertinent facts in this case are essentially undisputed. The City alleged that Jewell violated five city ordinances concerning animals kept on his property. He and the City negotiated an agreement whereby he would admit violating one of the ordinances in exchange for the City’s agreement to drop the remaining allegations. The ordinance upon which the lone remaining allegation was based, i.e., § 531-401, prohibited neglect and mistreatment of animals in a variety of specific ways. The parties agreed that the sanction for the violation would be three-fold: Jewell (1) would pay a civil fine and costs, (2) agreed that he would not keep an animal at large in the City of Indianapolis, and (3) agreed “to be permanently enjoined from neglecting or mistreating an animal kept by him or from otherwise violating Sec. 531-401.” Appellant’s Appendix at 32. This agreement was reduced to writing and submitted to the trial court for approval. Sometime after an order was entered approving the terms of the agreement, Jewell was charged with violating § 531-728. The relevant portion of that provision places additional restrictions upon persons who have previously been found in violation of, among other provisions, § 531-401. It is at this point that the parties’ views diverge. We believe this disagreement can be reduced to a single question – did the failure to mention § 531-728 in the Agreed Judgment indicate that the City waived enforcement of that provision? We conclude that it did not. * * *

Jewell argues that the ordinances specifically cited or referred to in the Agreed Judgment are the only ones the City may enforce as to Jewell via application of the legal maxim expressio unius est exclusio alterius. This Latin phrase is a canon of construction pursuant to which the express inclusion of certain things implies the exclusion of all else. * * *

We agree that this maxim is sometimes of questionable utility in discerning intent and that context determines whether it is applicable at all. In this case, context dictates that the maxim does not apply. * * *

Considering the context in which it was created, the Agreed Judgment should be understood first and foremost as the resolution of particular allegations against Jewell relating to animals kept by him on his property in Indianapolis. Viewed in this light, the specific references to § 531-401 and to the prohibitions against allowing his animals to be at 11 large in Indianapolis and against neglecting or mistreating his animals should be understood merely as underscoring the importance of his compliance with those particular provisions that he has heretofore violated. We perceive no indication that the City intended that it be, nor should it be understood as, an agreement on the part of the City to limit its right to enforce against Jewell only those city ordinances mentioned in the Agreed Judgment.

In State of Indiana v. Robert Rhodes , an 8-page opinion, Judge Crone writes:
Robert Rhodes took a friend to pick up his vehicle, which had been towed. An employee of the towing company felt that Rhodes was belligerent and possibly drunk, so he called an officer who was working off duty across the street. When Rhodes left the towing company’s property, the officer followed Rhodes for a short distance and then initiated a traffic stop. As a result, Rhodes was charged with operating while intoxicated. Rhodes filed a motion to suppress evidence, arguing that the stop was unlawful. The State argued that the officer had two valid reasons to stop Rhodes: (1) the officer observed Rhodes make a turn without signaling far enough in advance, and (2) the call from the towing company gave the officer reasonable suspicion that Rhodes was operating while intoxicated. The trial court found that the State had not established either ground and granted the motion to suppress. We affirm.
In T.L. v. J.L. , a 23-page opinion, Chief Judge Robb writes:
T.L. (“Mother”) filed a notice of intent to relocate from Indiana to Tennessee with her two sons, ten-year-old J.B.L. and seven-year-old B.L. J.L. (“Father”) objected and filed a motion to prevent relocation of the children, which the trial court granted following an evidentiary hearing. Mother appeals and raises three issues for our review, which we consolidate and restate as whether the trial court‟s judgment is clearly erroneous. Concluding that Mother has shown good faith and legitimate reasons for proposing the relocation, but the trial court did not clearly err in finding that relocation was not in the children‟s best interests, we affirm. * * *

We conclude that Mother‟s proposed relocation of the children to Tennessee was in good faith and for legitimate reasons. However, the evidence supports the trial court‟s conclusion that relocation was not in the children‟s best interests. As a result, the trial court‟s grant of Father‟s motion to prevent relocation of the children is not clearly erroneous, and we therefore affirm the trial court‟s judgment.

NFP civil opinions today (3):

Karen Vanderbosch v. Thomas Vanderbosch (NFP)

Mark Rector Bryan v. Tammy A. Bryan (NFP)

Superior Mortgage Funding, LLC, Jeremie Sheneman, Michael Sheneman and Andrew Beam v. Gladys Zoleko and Paul Davies (NFP)

NFP criminal opinions today (5):

Richard D. Williams v. State of Indiana (NFP)

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

James D. Bailey, Jr. v. State of Indiana (NFP)

Purnell L. Moore v. State of Indiana (NFP)

Elizabeth Noll v. State of Indiana (NFP)

James D. Douglas v. State of Indiana (NFP)

David Marsee v. State of Indiana (NFP)

Posted by Marcia Oddi on June 14, 2011 01:03 PM
Posted to Ind. App.Ct. Decisions