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Monday, July 16, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank, a 12-page opinion, Judge Kirsch writes:

M & M Investments, LLC (“M & M”) appeals the trial court’s order denying its petition for a tax deed as to property of which Monroe Bank was the mortgagee. M & M raises two issues, which we restate as:

I. Whether the trial court erred when it failed to certify Monroe Bank’s challenge to the constitutionality of Indiana Code section 6-1.1-24-3(b) to the Attorney General of Indiana (“Attorney General”), which would have allowed the Attorney General to intervene in the action; and
II. Whether Indiana Code section 6-1.1-24-3(b), which governs the notice to be given a mortgagee when real property had been scheduled to be sold at tax sale, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution when a mortgagee has a publicly recorded mortgage. * * *

[I. Certification to Attorney General of Indiana] Although the trial court failed to certify the constitutional challenge as required by Indiana Code section 34-33.1-1-1, we note that the Attorney General has appeared in this appeal as an amicus curiae and has filed a brief, arguing the merits of the case. Because the Attorney General has not requested that the case be remanded and has been given the opportunity to present evidence relating to the question of constitutionality and argument on the question of constitutionality, we will consider the merits of this appeal without remanding to the trial court in order to allow the Attorney General to intervene. However, we caution trial courts to follow the statutory procedure under Indiana Code section 34-33.1-1-1 when faced with constitutional challenges. * * *

[II. Constitutionality of Indiana Code Section 6-1.1-24-3] We therefore conclude that the Indiana pre-tax sale notice statute violates the Due Process Clause of the Fourteenth Amendment because it does not require the government to provide sufficient notice prior to the tax sale either by mail or by personal service to mortgagees who have publicly recorded mortgages, even if such notice is not requested by the mortgagees, and because it provides that, even if the government fails to mail the requested notice or the notice is undeliverable for some reason, the validity of the tax sale will not be affected. The trial court correctly denied M & M’s petition for a tax deed. Affirmed.

In Kyle L. Doolin v. State of Indiana , a 10-page opinion, Judge Kirsch writes:
Following a bench trial, Kyle L. Doolin (“Doolin”) was convicted of possession of marijuana1 as a Class A misdemeanor. He appeals and raises the following restated issue: whether the trial court abused its discretion when it admitted into evidence the results of an in-court field test of a substance alleged to be marijuana. We affirm. * * *

Here, there was substantial other evidence, besides the result of the in-court field test, that the plant material in question was marijuana. First and foremost, Deputy Petree testified without objection that Doolin had admitted to him at the jail that “the marijuana was his” and that “he wanted to take responsibility for it.” Second, the circumstances surrounding the location of the substance – in a baggie, inside a velvet bag along with a set of scales hidden in a music CD case, all inside a locked glove box – suggest that it was not intended to be discovered. See Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010) (identity of drug can be proven by circumstantial evidence), trans. denied. Third, Deputy Petree identified the green leafy substance as marijuana based on its odor and appearance.

NFP civil opinions today (1):

In Re: The Paternity of J.D. and D.D.; B.D. (Father) v. C.H. (Mother) (NFP)

NFP criminal opinions today (4):

James W. Hamilton v. State of Indiana (NFP)

Stephen Duane Rush v. State of Indiana (NFP)

Timothy Leon Jester v. State of Indiana (NFP)

Austin Brown v. State of Indiana (NFP)

Posted by Marcia Oddi on July 16, 2012 10:30 AM
Posted to Ind. App.Ct. Decisions