Friday, July 29, 2011
Ind. Decisions - Court of Appeals issues 8 today (and 17 NFP)
For publication opinions today (8):
In Derric Price v. Lake County Board of Elections and Registration, a 6-page opinion with a pro se appellant, Judge Vaidik writes:
Lake County Board of Elections and Registration ruled that Derric Price was ineligible to appear on the 2011 primary election ballot as a Democratic candidate for mayor of the City of Gary, Indiana, because he did not meet the one-year residency requirement. Price then filed a complaint in the trial court, and the court affirmed the Election Board. Price, pro se, now appeals. Finding evidence to support the Election Board's decision that Price was not a resident of Gary for one year before the November 2011 general election, we affirm. * * *U.S. Bank National Association v. Ethyl R. Seeley, et al. - "Appellant-Plaintiff U.S. Bank National Association appeals from the trial court’s entry of summary judgment in favor of Appellees-Defendants Clarence and Pamela Davidson in its suit to foreclose on certain real property owned by them. We affirm."
A trial court may examine an election board's decision to determine if it was incorrect as a matter of law. Clay v. Marrero, 774 N.E.2d 520, 521 (Ind. Ct. App. 2002). However, it may neither conduct a trial de novo nor substitute its decision for that of the board. Unless the decision is illegal, the decision must be upheld. On appeal, we are restricted by the same considerations. In essence, an abuse of discretion standard applies.
 We note that the Indiana Administrative Orders and Procedures Act (AOPA) does not apply to county election boards. See Ind. Code § 4-21.5-1-3 (“'Agency' means any officer, board, commission, department division, bureau, or committee of state government that is responsible for any stage of a proceeding under this article.” (emphasis added)); Clay, 774 N.E.2d at 521 n.3. Accordingly, we use the standard of review for decisions of other county boards, such as zoning boards. Clay, 774 N.E.2d at 521 n.3.
From David L. Stalker v. Mary C. Pierce , a 24-page opinion by Judge Riley:
Appellant-Protected Person/Cross-Appellee, David L. Stalker (Stalker), appeals the trial court’s approval of Appellee-Former Guardian/Cross-Appellant’s, Mary C. Pierce (Pierce), final accounting and the trial court’s denial of Stalker’s request for money damages. We reverse and remand for further proceedings.In Paternity of W.C.; P.S. v. W.C., a 13-page opinion, Judge Vaidik writes:
Stalker presents two issues on appeal, which we restate as follows:
(1) Whether Pierce breached her fiduciary duty as Stalker’s guardian; and
(2) Whether Pierce violated Stalker’s due process rights when she failed to notify Stalker of her unilateral decision to demolish his home and personal belongings.
On Cross-Appeal, Pierce presents one issue, which we restate as the following: Whether the law of the case doctrine bars Stalker’s instant claim.
P.S. (“Mother”) appeals the trial court's order suspending her parenting time and any other contact with her minor child. Because W.C. (“Father”) failed to present evidence justifying suspension of Mother's parenting time, we conclude that the trial court abused its discretion. We therefore reverse and remand. * * *Don Harley v. State of Indiana - finds ineffective assistance of counsel, reversed and remanded for new trial
This case throws into sharp relief the challenge of protecting a child's emotional development and physical health and well-being while also recognizing a parent's “precious privilege” of exercising parenting time with that child. We do not minimize the behavioral issues W.C. has exhibited following Mother's parenting time. However, Father simply did not present evidence justifying termination of what little parenting time Mother had left.
We therefore reverse the trial court's modification order. Reinstatement of Mother's parenting time necessarily requires the trial court to vacate the ten-year protective order. Further, although the termination of Mother's parenting time is not supported by the evidence, the record would support an order for the parenting time to be supervised by a third party and for Mother to attend parenting classes, therapy, or counseling. In these ways, Mother would be able to receive guidance in how to appropriately deal with W.C.'s special needs. On remand, we encourage the trial court to consider such orders.
Kenneth Kelly v. State of Indiana - "Kenneth Kelly, pro se, appeals the post-conviction court's denial of his petition for post-conviction relief. Kelly raises four issues, one of which we find dispositive and restate as whether the trial court erred in summarily denying Kelly‟s petition. We reverse and remand."
In A.T. v. State of Indiana , a 12-page opinion, Judge Vaidik writes:
A.T. was adjudicated a juvenile delinquent for committing an act that would be felony murder if committed by an adult, and the juvenile court ordered wardship of him to the Indiana Department of Correction pursuant to both indeterminate and determinate sentences. A.T. now appeals his determinate sentence, which requires him to remain in the care and custody of the DOC until his eighteenth birthday, arguing that the juvenile court failed to make a determination required by statute. We conclude that notwithstanding language in the determinate sentence statute, Indiana Code section 31-37-19-9, such a determination is not required. We also conclude that the juvenile court did not abuse its discretion in sentencing him to a determinate sentence. We therefore affirm the juvenile court.William T. Springer v. State of Indiana - "Under the circumstances, we conclude that Springer demonstrated at least a reasonable probability that the hypothetical reasonable defendant would have elected to go to trial if properly advised. * * * For the foregoing reasons, we reverse the post-conviction court’s denial of Springer’s petition for post-conviction relief."
NFP civil opinions today (8):
NFP criminal opinions today (9):
Posted by Marcia Oddi on July 29, 2011 11:06 AM
Posted to Ind. App.Ct. Decisions