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Tuesday, July 03, 2012

Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

For publication opinions today (5):

In In Re: The Matter of the Paternity of S.C.: K.C. (Appellant), and C.C. (Appellee), and B.H. (Appellee-Intervenor), a 5-page, 2-1 petition for rehearing, Judge Friedlander concludes:

In granting the petition for rehearing, we reiterate the points we made in our original opinion – the Hancock County order vacating its previous paternity order was not premised upon the adequacy of service of process upon Mother of B.H.’s Fayette County petition. It was not premised upon the ultimate viability of the Fayette County paternity proceeding instituted by B.H. It was not premised upon the admissibility of the DNA tests performed upon Mother and S.C., nor upon the Fayette Circuit Court ordering that the DNA test be taken. Rather, it is enough that the record supports the Hancock Circuit Court’s finding that a paternity action was indeed filed and pending in Fayette County and that Mother knew of the action when she participated in the Hancock County action. It is enough that there was evidence to support the Hancock Circuit Court’s finding that Mother did not inform the Hancock Circuit Court of the pending Fayette County paternity proceeding. And, it is enough that there was evidence to support the finding that Mother knew there was a reasonable possibility that B.H. was S.C.’s biological father, regardless of any defects or deficiencies in B.H.’s legal efforts to establish his paternity as a matter of law.

Therefore, we grant the petition for rehearing and reaffirm our original opinion subject to the comments herein.

MATHIAS, J., concurs.
RILEY, J., dissents without separate opinion.

In Julie Winslow v. Larry D. Fifer , a 12-page opinion, Judge Baker concludes:
Mother and Father have been blessed with two daughters who excel academically. Indeed, both have received scholarships such that their college expenses are minimal. Nevertheless, although Mother has the financial means, she has chosen litigation over paying her proportionate share of these minimal expenses or even communicating with her children and Father. No one wins in such situations, and we strongly recommend that Mother consider this in the future. The judgment of the trial court is affirmed.
In James Mies and Janice Mies v. Steuben County Board of Zoning Appeals, a 23-page opinion, Judge Baker writes:
We conclude that the newly-constructed deck and stairs lost their nonconforming status under the local zoning laws but that the Board lacked the statutory authority to impose a condition on a variance which rendered their entire decision a legal nullity.
In Wells Fargo Bank, N.A., f/k/a Wachovia Commercial Mortgage, Inc. v. PNC Bank, N.A., f/k/a National City Bank of Indiana, a 10-page opinion, Judge Najam concludes:
In sum, National City and Phillips are in privity for purposes of the instant action, and the issues are the same for purposes of res judicata. Wells Fargo does not dispute that the other two elements of claim preclusion are satisfied here. The trial court did not err when it concluded that National City is entitled to summary judgment under the doctrine of res judicata.Affirmed.
In Ronald B. Hawkins v. State of Indiana , a 14-page, 201 opinion, Judge Bradford concludes:
Hawkins’s due process rights were not violated when he was tried in absentia and without counsel. Hawkins has waived for appellate review his argument that it was improper to sentence him via videoconference. The trial court did not abuse its discretion in imposing consecutive sentences. The trial court, however, erred in entering both convictions as Class C felonies. We remand with instructions to reduce one of Hawkins’s Class C felony non-support of a dependent child convictions to a Class D felony and impose the advisory sentence, to be served consecutive to the sentence for the remaining Class C felony, for an aggregate sentence of five and one-half years. See Ind. Code §§ 35-50-2-6(a); -7(a). We affirm the judgment of the trial court in part, reverse in part, and remand with instructions.

CRONE, J., concurs.
VAIDIK, J., concurs in part and dissents in part with opinion. [which begins]I respectfully dissent from the majority’s conclusion that Hawkins knowingly, intelligently, and voluntarily waived his right to counsel. Because I believe that the facts in this case are readily distinguishable from the facts in Jackson and because of the importance of an attorney for a fair proceeding, I would reverse the trial court on this issue.

NFP civil opinions today (8):

Leonard Dewitt v. Unsafe Building Department, City of Greendale, Indiana, Doug Hedrick, et al. (NFP)

Paul Roell v. American Senior Communities, LLP d/b/a East Lake Nursing & Rehabilitation Center, and Harry Scribner (NFP)

Richard B. Gonon v. Wright & Lerch, David M. Wright, Stephen J. Lerch, William C. Butler, and Stephen J. Shumlas (NFP)

Aaron Isby v. Lee Hoefling, David Gilstrap, James Basinger, Roger Randall, Jr., Kevin Ewers, Edwin Buss, and David Sloan (NFP)

Jonathan S. Gardiner v. Review Board of the Indiana Dept. of Workforce Development, and Audio Video International Limited (NFP)

Jack D. Tiller v. Review Board of the Indiana Dept. of Workforce Development, IDWD U.I. Claims Adjudication, and the Town of Walkerton (NFP)

In the Matter of the Involuntary Commitment of A.B. (NFP)

In the Matter of the Involuntary Term. of the Parent-Child Rel. of S.W.; H.L. v. The Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (11):

Stephen R. Harvey, Jr. v. State of Indiana (NFP)

Antonio Martell Twiggs v. State of Indiana (NFP)

Kevin Cortez Brown v. State of Indiana (NFP)

Darryl Shepherd v. State of Indiana (NFP)

J.R. v. State of Indiana (NFP)

Kyle E. Bowers v. State of Indiana (NFP)

Antwuan Brown v. State of Indiana (NFP)

Scott D. Wampler, Jr. v. State of Indiana (NFP)

Holly Fuhrman v. State of Indiana (NFP)

Dontay Foster v. State of Indiana (NFP)

Ronnie Smith v. State of Indiana (NFP)

Posted by Marcia Oddi on July 3, 2012 11:08 AM
Posted to Ind. App.Ct. Decisions