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Friday, October 12, 2012
Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)
For publication opinions today (2):
In Jeffrey Riggs and Mark Ashmann v. Mark S. Weinberger, M.D., Mark Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC, and Nose and Sinus Center, LLC, an 8-page opinion on rehearing, Judge Baker writes:
Ashmann and Riggs now petition for rehearing, requesting that we clarify whether we determined “that a trial court ‘may’ or ‘must’ order an involuntary psychiatric examination when confronted with the facts and circumstances of this case.” Appellants’ Petition for Rehearing p. 2. We grant rehearing for the limited purpose of clarifying our original opinion. * * *In Certain Westfield Southeast Area 1 Annexation Territory Landowners and Certain Westfield Southeast Area 2 Territory Landowners v. City of Westfield, a 13-page opinion, Judge Riley writes:
At this juncture, we clarify our holding, yet reaffirm our conclusion that the trial court properly exercised its discretion in this matter. An abuse of discretion occurs when a decision is clearly against the logic and effects of the facts and circumstances of the case. Stowers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739, 742 (Ind. Ct. App. 2006). That said, we in no way intimate that a trial court must compel an involuntary psychiatric examination anytime that a plaintiff alleges that he or she has suffered “great pain, emotional distress, and mental trauma” and that there is something “unique” about the case. Indeed there are unique facts in every case. In short, when a trial court is confronted with facts and circumstances like those before us, it may compel an involuntary psychiatric examination in accordance with Indiana Trial Rule 35. There is no requirement that it must do so.
Having granted rehearing and provided clarification of our holding, we reaffirm our original opinion in all respects.
In ordering annexation, the Remonstrators argue that the trial court erred by failing to give effect to the publication requirement. The City passed the Ordinances on September 26, 2008. Under I.C. §§ 36-4-3-7(a) and 5-3-1-2(h), the City was required to publish notice of passage by October 26, 2008. However, the City admittedly did not publish notice of passage until December 6, 2008. Seizing upon this procedural defect, Remonstrators argue that by failing to adhere to the statutory publication requirements, the Ordinances and therefore the City’s annexation is void. We disagree.NFP civil opinions today (2):
While the municipality must demonstrate compliance with the annexation statutes at the evidentiary hearing, once the provisions of I.C. §§ 36-4-3-11 to -16 are satisfied, the trial court must order annexation. Bradley v. City of New Castle, 764 N.E.2d 212, 215 (Ind. 2002). Thus, technical or procedural wrongs by the municipality during the annexation process that arise out of statutes other than I.C. §§ 36-4-3-11 through -13, require a showing by the Remonstrators that their substantive or procedural due process rights have been violated. City of Kokomo ex rel. Goodnight v. Pogue, 940 N.E.2d 833, 837 (Ind. Ct. App. 2010). A mere failure to follow applicable rules or procedures to the letter does not, without more, amount to such a violation. * * *
[W]e cannot agree that Remonstrators have shown that their ability to obtain remonstration signatures would be significantly impaired by the procedural oversight that occurred in this case. As Remonstrators assert no other basis to challenge the trial court’s approval of the annexation, we conclude that trial court did not err by ordering the annexation.
NFP criminal opinions today (5):
Posted by Marcia Oddi on October 12, 2012 12:21 PM
Posted to Ind. App.Ct. Decisions