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Monday, August 29, 2011

Ind. Decisions - Court of Appeals issues 4 today (and 13 NFP)

For publication opinions today (4):

In Ronnie Q. Henderson v. State of Indiana, an 11-page opinion, Judge Barnes writes:

The sole restated issue we address is whether the decision of the United States Supreme Court in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009), applies retroactively to Henderson's case to require suppression of evidence found in his vehicle. * * *

[W]e conclude that this case is directly controlled by a decision from the Supreme Court that was issued three days after Henderson filed his opening brief in this appeal, Davis v. United States, – U.S. –, 131 S. Ct. 2419, 2432 (2011). In Davis, the Court addressed the question of whether a defendant whose case was not final before Gant was decided could rely upon Gant and the Fourth Amendment's exclusionary rule to suppress evidence that was discovered during a search that may have violated Gant, but which was conducted before Gant was decided. The Court ruled that the defendant could not rely upon the exclusionary rule in that situation. * * *

Because Henderson cannot rely upon Gant to seek suppression of evidence that was recovered during a search that predated Gant, the post-conviction court properly denied Henderson's PCR petition. We affirm.

In Steve Reed and Lee Ann Reed v. City of Evansville and Evansville Sewer & Water Utility, a 20-page opinion, Chief Judge Robb writes:
Steve and Lee Ann Reed appeal the trial court‟s order granting summary judgment to the City of Evansville and Evansville Sewer and Water Utility (collectively, the “City”). The Reeds raise one issue, which we expand and restate as three: whether the City‟s supplemental designated evidence must be stricken, whether the Reeds provided timely notice of their tort claims, and whether the City is otherwise entitled to judgment as a matter of law. The City raises on cross-appeal the issue of whether the trial court erred in denying its motion to strike portions of the Reeds‟ brief in opposition to summary judgment and supporting affidavits. We conclude that none of the City‟s supplemental evidence need be stricken, a question of fact remains as to whether the Reeds provided timely notice of their tort claims, the City is not otherwise entitled to judgment as a matter of law on the Reeds‟ claims, and the City‟s motion to strike was properly denied. Therefore, we reverse and remand for further proceedings.
In Danny R. Kitchen, Jr. v. Rebecca Kitchen (deceased), Michael Lake and Shelly Lake , a 9-page opinion, Judge Kirsch writes:
Danny R. Kitchen, Jr. (“Danny”) appeals the trial court’s order denying his motion for relief from judgment from the trial court’s order granting visitation to Michael Lake and Shelly Lake (collectively “the Lakes”), the maternal aunt and uncle of Danny’s minor child, K.K. Danny raises the following restated issues for our review: I. Whether the trial court erroneously concluded that it had the authority to award third party visitation to persons other than a grandparent, parent, or step-parent; and II. Whether Danny’s motion for relief from judgment was untimely. We reverse and remand. * * *

Here, the trial court lacked the authority to grant visitation to the Lakes because they did not have standing to petition for visitation with K.K. Because the lack of standing cannot be cured, that portion of the June 26th order granting visitation rights to the Lakes is void. We conclude that the trial court erred by denying Danny’s motion for relief from judgment on this ground and find that it was filed within a reasonable time.

In Term. of Parent-Child Rel. of D.D., J.J., and K.J.; E.J. v. I.D.C.S., a 10-page opinion, Judge Friedlander writes:
E.J. (Mother) appeals the involuntary termination of her parental rights to her children, D.D., J.J., and K.J. In so doing, Mother claims, among other things, that the Indiana Department of Child Services failed to establish the children had been removed from her care pursuant to a dispositional decree for at least six months prior to the filing of the involuntary termination petition, as is required by Ind. Code Ann. § 31-35-2-4(b)(2)(A) (West, Westlaw through 2011 Pub. Laws approved & effective through 6/28/2011). We reverse. * * *

In reaching our decision today, this Court is keenly aware of the fact that the safety and well-being of all three children hangs in the balance, and further delay in the final resolution of the children’s respective cases is certainly regrettable. Nevertheless, CCDCS alleged, but failed to prove removal according to the mandates of Indiana Code Section I.C. § 31-35-2-4(b)(2)(A). Accordingly, the trial court’s judgment terminating Mother’s parental rights to all three children must be reversed, and this case remanded for further proceedings consistent with this opinion.

NFP civil opinions today (3):

Daniel J. Reed v Saint-Gobain Containers, Inc. (NFP)

T.L.M. v. V.M. (NFP)

Jeffrey Brooks v. Henry and Iva McNeal (NFP)

NFP criminal opinions today (10):

Lonnie T. Bonds v. State of Indiana (NFP)

James A. Falk v. State of Indiana (NFP)

Randall E. Lesh v. State of Indiana (NFP)

Charles R. Sparks v. State of Indiana (NFP)

Ricky C. Newman v. State of Indiana (NFP)

Terry L. Holmes, Jr. v. State of Indiana (NFP)

Willie Sims v. State of Indiana (NFP)

Christopher Huston v. State of Indiana (NFP)

David Newton v. State of Indiana (NFP)

Arturo A. Ortiz v. State of Indiana (NFP)

Posted by Marcia Oddi on August 29, 2011 12:49 PM
Posted to Ind. App.Ct. Decisions