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Tuesday, April 17, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In Trust No. 6011, Lake County Trust Company, Trustee, Simon Beemsterboer, and Victoria J. Beemsterboer v. Heil's Haven Condominiums Homeowners Assn., an 18-page opinion, Judge Crone writes:

Simon and Victoria J. Beemsterboer reside on property owned by Trust No. 6011, Lake County Trust Company, Trustee. Victoria is the beneficiary of the Trust. The Beemsterboer Property shares a border with Heil’s Haven Condominiums. When the condominiums were developed, several agreements were executed between the Heil’s Haven Condominiums Homeowners Association and the previous owners of the Beemsterboer Property, granting various easements to each to use portions of the others’ property. The Beemsterboers attempted to develop their property in a manner that allegedly infringed on the easements originally granted to the Association. The Association filed suit against the Trust and the Beemsterboers seeking to enjoin the Beemsterboers from improving their property in a manner that infringed on the easements, and the trial court granted the requested relief.

The Beemsterboers appeal, arguing that the trial court erred in granting injunctive relief because (1) one of the agreements has terminated; (2) the improvements can be made in a manner that does not infringe upon the Association’s existing easements to use the Beemsterboer Property; and (3) the Association’s encroachment is greater than that permitted by agreement. We conclude that one agreement has terminated and that the improvements can be made in a manner that does not infringe upon the Association’s continuing easements. We further conclude that the trial court’s order deals effectively with the Association’s encroachment. Therefore, we affirm in part and reverse in part.

In Barbara (Rosario) Bessolo v. William I. Rosario , a 16-page opinion, Judge Vaidik writes:
Following dissolution of their marriage, Barbara (Rosario) Bessolo (“Mother”) and William Rosario (“Father”) were involved in disputes concerning their young daughter. In response to the many motions that followed, the trial court found that Mother failed to dismiss the protective order against Father as required by the dissolution decree, held her in contempt, and awarded compensatory damages and attorney’s fees to Father. While we conclude that these rulings were proper, we reach a contrary result regarding the ten-day suspended sentence imposed on Mother for future violations of any of the court’s orders. We affirm in part and reverse in part.
In Charles Westmoreland v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
Charles Westmoreland was a passenger in a vehicle that police stopped for a routine traffic violation. After a police officer determined that there were outstanding warrants for the driver, the officer arrested the driver while another officer removed Westmoreland from the car, handcuffed him, and patted him down for officer safety, finding a baggie of marijuana in his front pocket. Westmoreland now appeals the trial court’s denial of his motion to suppress the marijuana, arguing that the pat down was illegal because the officers did not reasonably believe that he was armed and dangerous. In light of the United States Supreme Court’s opinion in Arizona v. Johnson, 555 U.S. 323 (2009), which considered the authority of police officers to pat down vehicle passengers during a routine traffic stop, we conclude that the trial court erred in denying Westmoreland’s motion to suppress the marijuana because the officers did not reasonably believe that he was armed and dangerous. * * *

We therefore conclude that the officers did not have reasonable suspicion that Westmoreland was armed and dangerous. Because Officer Forrest performed an illegal pat down on Westmoreland, the trial court erred in denying his motion to suppress the marijuana found as a result of that pat down. And without this marijuana, there is simply no evidence to support the possession of marijuana charge against Westmoreland. We therefore reverse the trial court and remand with instructions for the court to dismiss Westmoreland’s possession of marijuana charge.

NFP civil opinions today (3):

In The Law Office of Deborah Agard v. Unemployment Insurance Appeals of the Indiana Department of Workforce Development (NFP), an 11-page opinion, Judge Mathias writes:

The Law Office of Deborah Agard (“the Law Office”) appeals the decision of a Liability Administrative Law Judge for the Unemployment Insurance Appeals division of the Indiana Department of Workforce Development, in which the LALJ found that the Law Office owed unemployment insurance tax contributions for Carlotta Wilson, an individual the Law Office paid to perform cleaning services at its office and at Kids’ Voice, a not-for-profit child advocacy center where Deborah Agard, the sole proprietor of the Law Office, serves on the board of directors. The Law Office raises one issue, which we restate as whether the LALJ’s finding that Wilson was an employee of the Law Office for the purposes of the Indiana Unemployment Compensation Act was unreasonable. We affirm.
Sterling B. Nelson v. Michelle L. Nelson (NFP)

Michael M. and Lana S. Ashley, et al. v. Jeffrey and Holly Spaw, et al. (NFP)

NFP criminal opinions today (6):

Gerald Mayberry v. State of Indiana (NFP)

Jamie E. Green v. State of Indiana (NFP)

Robbie S. McCain-Ficklin v. State of Indiana (NFP)

Charles Frederick Miller v. State of Indiana (NFP)

John Brooke v. State of Indiana (NFP)

Manuel Martinez v. State of Indiana (NFP)

Posted by Marcia Oddi on April 17, 2012 12:27 PM
Posted to Ind. App.Ct. Decisions