Tuesday, July 26, 2011
Ind. Decisions - Court of Appeals issues 9 today (and 17 NFP)
For publication opinions today (9):
In Mary McCraney v. Steven Gibson, et al., a 10-page opinion, Judge Riley concludes:
McCraney urges us not to apply the two-prong test or follow the reasoning in Morehead, as she describes Morehead and cases that apply the two-prong test as being factually different from the present case. Specifically, she maintains that in Morehead, there was no “actual property defect” and that “the landowner was not given notice of a defect, nor did he give the tenants the impression he would be repairing a known defect.”Jo. W. v. Je. W. - "On October 6, 2010, Husband filed a 'Verified Motion to Establish Paternity Using the Human Deoxyrbonucleic (sic) Acid Test,' (App. at 12-14), in which he contended he should not be responsible for B.W.’s child support because he was incarcerated at the time of B.W.’s conception and birth."
We disagree and choose to apply the two-prong test, which finds that the duty of reasonable care imposed upon a landowner is measured by the landowner's control or possession of the property and the landowner's knowledge of the dangerous propensities of the dog. Here, there is no evidence in the record that the Calows knew about Ceasar's violent propensity. In fact, during the summary judgment hearing, McCraney conceded that there was no evidence of such knowledge: “If you're going to analyze this case in terms of dangerous propensities, we're not going to win the case because I'm willing to stipulate on the record that, that we have not been able to establish that even the owner of the dog had any opinion about dangerous propensities.” Because the Calows need only prove one prong of the test, we find that they were entitled to summary judgment as a matter of law.
Marc Randolph v. Edwin Buss, et al. - Construes amended educational credit time statute.
In Michael J. Lock v. State of Indiana, a 9-page, 2-1 opinion, Judge May writes:
Michael Lock appeals his conviction of Class D felony operating a motor vehicle while privileges are suspended. He contends the State failed to prove his 2009 Yamaha Zuma was a motor vehicle. We agree, and reverse his conviction.Robert Fuentes v. State of Indiana
On June 27, 2009, Lock was riding a Zuma at forty-three miles per hour. Trooper Pornteb Nathalang noticed the Zuma did not have a license plate and pulled Lock over. Trooper Nathalang discovered Lock's driving privileges were suspended and arrested him.
The State charged Lock with Class D felony operating a vehicle while suspended and cited him for two infractions: No Registration Plate on Motorcycle and No Motorcycle Endorsement. * * *
To prove Class D felony operating a vehicle while suspended, the State must prove Lock operated a motor vehicle while his driving privileges were suspended and while he had notice of the suspension. Ind. Code § 9-30-10-16. Lock argues the State did not prove he operated a motor vehicle, because his Zuma is a motorized bicycle, which, pursuant to Ind. Code § 9-13-2-105(d), is exempt from the provisions of the statutes regarding operation of a motor vehicle while privileges are suspended. We agree the State did not prove the Zuma was a motor vehicle; however, neither does the record before us permit us to hold the Zuma is a motorized bicycle. * * *
We decline the State's invitation to relieve it of its burden to prove every element of a crime it prosecutes. * * *
[W]e decline the State's invitation to speculate that a vehicle capable of travelling 43 miles per hour necessarily must have a “maximum design speed” over 25 miles per hour. We may not affirm a conviction based on mere speculation. * * * Therefore, we reverse Lock's conviction of Class D felony operating a motor vehicle while privileges are suspended.
BRADFORD, J., concurs.
BAKER, J., dissenting with separate opinion. [that begins, at p. 7 of 9] I respectfully dissent and part ways with the majority's conclusion that the evidence was insufficient to support Lock's conviction for operating a motor vehicle while privileges are suspended. I cannot agree that the State is inviting us to merely “speculate” that the Zuma, which was capable of traveling at a speed of at least forty-three miles per hour, is a motor vehicle within the meaning of the statute.
In Jay C. Gagne v. State of Indiana, a 5-page opinion, Judge Baker writes:
Appellant-defendant Jay C. Gagne appeals the jury’s determination that he made an illegal U-turn1 on Interstate 65. Specifically, Gagne argues that there is insufficient evidence to support the jury’s verdict that he committed the offense. Thus, Gagne contends that the trial court’s order directing him to pay a fine in the amount of $118.50 must be set aside. Finding the evidence sufficient, we affirm. * * *In Mat Warren, Betty Jo Ball, et al. v. E. Lee Warren, Lilly Frayer, et al., an 11-page opinion, Judge Riley writes:
We cannot agree with Gagne’s claim that the statute requires the posting of “no U-turn” signs in all circumstances.
Appellants present two issues on appeal, which we consolidate and restate as the following single issue: Whether the issue of the disinterment and re-interment of Sherman and Isabella’s remains pursuant to I.C. § 23-14-57-5 is res judicata. * * *Robin (Wren) Lechien v. Michael W. Wren - "For the foregoing reasons, we affirm the trial court’s determination that Nathan repudiated his relationship with Father, reverse the court’s modification of Father’s child support obligation from $177.00 to $69.00, and remand with instructions to enter a child support order consistent with this opinion."
Based on this side-by-side comparison between Warren I and the trial court’s judgment in the instant case, it is clear that the same issue was decided by both courts, i.e., the disinterment in Indiana of Sherman and Isabella and the re-interment of both individuals’ remains in Kentucky. Therefore, we find the issue to be res judicata and no longer available for our review. At the same time, we want to request the Warren family to cease this continuous litigation. Not only is it ripping the family apart, it drains financial resources which might be better spent elsewhere. We empathize with both sides of the Warren family whose sole intention is to fulfill the final wish of their deceased parents; however, the reality is that Sherman and Isabelle are buried beside each other in a public cemetery and are together with their deceased daughter. Let them rest in peace.
NFP civil opinions today (5):
NFP criminal opinions today (12):
Posted by Marcia Oddi on July 26, 2011 11:35 AM
Posted to Ind. App.Ct. Decisions