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Monday, November 28, 2011

Ind. Decisions - Court of Appeals issues 3 today (and 12 NFP)

For publication opinions today (3):

In Eric Stickdorn and Lisa Stickdorn v. Elam B. Zook, Sarah F. Zook, Samuel L. Lantz and Mattie Z. Lantz, a 19-page opinion addressing significant issues of environmental law, Judge Baker writes:

Two neighboring farmers were conducting business near Cambridge City in Wayne County. The defendants built their dairy in 2003 that included a milking parlor about fifteen feet from the plaintiffs’ house. When the defendants emptied a manure pit on the farm in early 2004, the stench of rotten eggs and raw sewage permeated the plaintiffs’ home. The plaintiffs became physically ill, and a stream that crossed their property became polluted. The defendants repeatedly and continuously emptied the manure pit at various times over the next several years until April 2005, when they sold their farm. Because the plaintiffs did not file their cause of action for negligence, trespass, and nuisance until 2009, the defendants are entitled to summary judgment with regard to the negligence and personal injury claims. However, the nuisance and trespass actions survive.

Appellants-plaintiffs Eric and Lisa Stickdorn (the Stickdorns) appeal the trial court’s grant of summary judgment in favor of the appellees-defendants Samuel and Mattie Lantz (collectively, the Lantzes), regarding the counts of negligence, trespass, and nuisance, that they filed against the Lantzes. The Stickdorns argue that the trial court erred in determining that either the two-year or six-year statutes of limitations barred all of their claims.

We conclude that the trial court properly determined that the Stickdorns’ personal injury claims are barred by the two-year statute of limitations. However, we reverse the grant of summary judgment for the Lantzes’ with regard to the nuisance and trespass counts. Thus, we affirm in part, reverse in part, and remand for further proceedings with respect to the trespass and nuisance counts.

ILB: Worth watching is the Nov. 1, 2011 oral argument before the COA panel.

In Manuel Trujillo v. State of Indiana , a 12-page opinion, Judge Friedlander writes:

Trujillo contends that trial counsel rendered ineffective assistance in failing to advise him of the possibility of deportation in the event he pleaded guilty.[3] * * *

Trujillo contends his guilty pleas be should be set aside because they were not entered knowingly as a result of the failure to advise him of the adverse immigration consequences of pleading guilty. With respect to this issue, Trujillo contends Ind. Code Ann. § 35-35-1-2(a)(1) (West, Westlaw through end of 2011 1st Regular Sess.) is dispositive. This provision states: “The court shall not accept a plea of guilty or guilty but mentally ill at the time of the
crime without first determining that the defendant … understands the nature of the charge against him[.]” * * *

In support of this contention, Trujillo cites Williams v. State, 641 N.E.2d 44 (Ind. Ct. App. 1994), trans. denied. In fact, Williams dictates the opposite conclusion. * * *

Therefore, pursuant to the same rationale, we hold that the trial courts in the 1999 and 2008 cases did not violate I.C. § 35-35-1-2 in accepting Trujillo’s guilty pleas.
[3] We note that in order to reach this question, we assume for the sake of argument that Trujillo is correct that the failure to advise a defendant of the possible adverse immigration consequences of a guilty plea constitutes deficient performance. We also assume for the sake of argument, but explicitly do not decide, that the case announcing this rule, i.e., Padilla v. Kentucky, 130 S.Ct. 1473 (2010), applies retroactively to the instant case. We need not address these matters because we resolve this issue on grounds of lack of a showing of prejudice.

In Jennings Daugherty v. State of Indiana , a 10-page opinion, Judge Najam writes:
Jennings Daugherty appeals his convictions for possession of cocaine, as a Class B felony, and maintaining a common nuisance, as a Class D felony. Daugherty raises a single issue for our review, namely, whether the trial court abused its discretion when it admitted evidence seized pursuant to a search warrant. We affirm. * * *

Here, Daugherty's argument is three-fold. First, he asserts that the evidence seized from the December 2005 warrant was later suppressed and, therefore, those facts cannot serve as the basis for a subsequent warrant. Second, he contends that the two neighbors' comments to police were not corroborated and cannot establish probable cause. Third, Daugherty argues that Smith's statements regarding his relationship with Daugherty do not establish his credibility under the “statements . . . against his penal interest” doctrine because Smith had already been “caught red-handed." Daugherty's arguments are insufficient to demonstrate reversible error.

NFP civil opinions today (3):

David Rippe v. Edward C. Levy Company (NFP)

In the Matter of the Term. of the Parent-Child Rel. of Z.S.; C.S. and L.S. v. Indiana Department of Child Services (NFP)

Term. of the Parent-Child Rel. of G.B. and J.N.; E.B. (mother) and A.N. (father) v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (9):

Marsean Shines v. State of Indiana (NFP)

James C. Lewis v. State of Indiana (NFP)

Richard Edward Hughes v. State of Indiana (NFP)

Aaron Spears v. State of Indiana (NFP)

Angela Townsell v. State of Indiana (NFP)

Donald L. Pruitt v. State of Indiana (NFP)

Daniel Walton v. State of Indiana (NFP)

Brian K. Brantley v. State of Indiana (NFP)

Jasper Frazier v. State of Indiana (NFP)

Posted by Marcia Oddi on November 28, 2011 01:39 PM
Posted to Ind. App.Ct. Decisions