Friday, November 16, 2012
Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)
For publication opinions today (3):
In Kohl's Indiana, L.P. and Kohl's Dept. Store, Inc. v. Dennis Owens, et al. , a 16-page opinion, Judge Vaidik writes:
Kohl’s Indiana, L.P., and Kohl’s Department Stores, Inc., (collectively “Kohl’s”) appeal the trial court’s grant of summary judgment in favor of the Evansville-Vanderburgh County Area Plan Commission (“Plan Commission”) and the Board of Commissioners of Vanderburgh County (“Board of Commissioners”) on Kohl’s equitable claims for contribution and unjust enrichment for expenses that Kohl’s incurred when its developer failed to complete construction of a new Kohl’s Department Store on the west side of Evansville. We conclude that the trial court properly entered summary judgment in favor of the Plan Commission for both claims because the Commission never accepted a common obligation to complete the project, never entered into any sort of agreement with Kohl’s concerning the project, and there is no evidence that a benefit was conferred upon the Plan Commission at the Commission’s express or implied consent. We also conclude that the trial court properly entered summary judgment in favor of the Board of Commissioners for both claims because Kohl’s and the Board entered into an agreement which required Kohl’s to complete the public-infrastructure improvements at Kohl’s expense, and when the rights of the parties are controlled by an express contract, recovery cannot be based on a theory implied in law. Finally, we conclude that the Board of Commissioners is not entitled to appellate attorney’s fees. We therefore affirm the trial court.In The Marling Family Trust v. Allstate Ins. Company , a 9-page opinion, Judge Vaidik writes:
The Marling Family Trust (“the Trust”) appeals the trial court’s grant of summary judgment in favor of Allstate Insurance Company. Upon review of the designated evidence, we conclude that the Trust acquired an equitable lien on insurance proceeds available under Thomas M. Pipes’ Allstate insurance policy. We further conclude that the Trust protected its equitable interest in the policy proceeds by giving Allstate notice of its interest before it distributed any policy proceeds. For this reason, the trial court erred in granting summary judgment for Allstate. We reverse and remand.In Marybeth Lebo v. State of Indiana, a 19-page, 2-1 opinion, Judge Bradford writes:
Having convicted former LaPorte High School junior varsity volleyball coach Robert Ashcraft of multiple sex crimes against a minor student athlete, the State of Indiana charged Marybeth Lebo, the school’s varsity volleyball coach, with failure to report child abuse or neglect. Lebo appeals the trial court’s denial of her motion to dismiss these charges, arguing they are barred by the statute of limitations and lack sufficient specificity. We conclude that failure to report is a continuing offense to which the statute of limitations does not apply and, alternatively, that Lebo’s alleged instruction that her volleyball players not discuss Ashcraft’s conduct with their parents was sufficient to invoke the concealment exception to the statute of limitations. We also conclude that the charging informations, together with testimony from the probable cause hearing, allege sufficiently specific facts from which Lebo can prepare her defense. Therefore, we affirm. * * *NFP civil opinions today (3):
ROBB, C.J., concurs.
BAKER, J., concurs in part and dissents in part with opinion. [which begins, at p. 14 of 19]I agree with the majority’s determination that the statute of limitations had not run with respect to the State’s ability to bring charges against Lebo. More particularly, I believe that Lebo’s concealment, properly alleged in the charging informations, tolled the statute of limitations as it applied to her such that the charges filed against her in September 2011 were not time-barred. I part ways only briefly on this issue to note my belief that the tolling ceased when the State had probable cause to arrest Ashcraft, because at this time the State could have discovered through due diligence whether Lebo, in her role as K.T.’s coach and as Ashcraft’s superior, had failed to make a report required under Indiana Code sections 31-33-5-1 or 31-33-5-2. Under either interpretation of when the tolling stopped, however, the charges against Lebo were brought within the two-year statute of limitations. * * *
Although we may hope that individuals make a report any time child abuse or neglect is suspected, the duty to report has not been imposed by our legislature until one has “reason to believe” that abuse or neglect has occurred. My view is that there was no evidence that such “reason to believe” existed here, and therefore, the trial court should have granted Lebo’s motion to dismiss.
NFP criminal opinions today (6):
Courts - "State chief justices and court administrators met this week in Washington, D.C., to discuss policy priorities for the upcoming year and beyond"
Terry Carter has this article at ABA Journal.com. A quote from near the end:
In Utah, the civil courts are now paperless and the entire system will be, said panelist Daniel Becker, Utah State Court Administrator. “We’re asking judges to go on the bench without files, (and with) only a computer.”More on Utah in this article in Governing by Dylan Scott headed "State Courts Go Digital as Budget Pressures Mount." A quote:
Panelist Eric Hutchings, a member of the Utah House of Representatives, says the court system became so candid and transparent with all its financial records and spending that it gained the legislature’s trust for when it makes budgetary requests.
“They shook up the courts like I’ve never seen any corporation, public or private organization anywhere shake it up,” said Hutchings, who also is a financial services professional. Court system leaders also discussed detailed guidance in a compendium developed by the National Center for State Courts for helping legislatures understand the unique budgeting problems facing courts. It is titled “Principles for Judicial Administration.”
Pressed by those fiscal realities, Utah brought its courts into the 21st century. They started by switching to digital audio, instead of professional court recorders, to document all court activity. The civil side of the system has gone completely paperless, with all filings occurring online. Payments are made through online transactions. Warrants are filed through an electronic system. The courts also established an online self-help resource, designed particularly for self-representing litigants, and set specific performance metrics to gauge how they were doing.[More] WSJ Law Blog reports this morning: "Budget Shortfall Closes 10 Los Angeles Courthouses."
Ind. Courts - "Surbeck 1st Hoosier to win Rehnquist award"
WASHINGTON – Allen County Superior Court Judge John Surbeck received a national award for judicial excellence Thursday for achievements he said were born of frustration.
In a ceremony at the U.S. Supreme Court attended by more than 250 people, Surbeck was presented the William H. Rehnquist Award by the National Center for State Courts.
The award was given to Surbeck by Supreme Court Chief Justice John Roberts. The honor is named for Roberts’ predecessor, who died in 2005.
Surbeck is the 17th recipient of the Rehnquist award and the first from Indiana.
He was saluted for starting the Allen County Re-Entry Court in 2001 and promoting the program since then. The court allows for the early release of prison inmates in exchange for closer court supervision – including random drug tests and ankle bracelets that monitor an offender’s whereabouts – than is typical in traditional parole and probation programs.
An Allen County judge since 1988, Surbeck recalled having grown “very frustrated” by the number of repeat offenders appearing in his court, and he decided his rulings and sentences in criminal cases “didn’t seem to make any difference.”
“Because as a public defender I had represented the first generation of these folks,” he said. As a judge, “I sentenced a second generation. And then 10 or 12 years in, I was sentencing the third generation for the same crimes. It was frustrating, and I didn’t know what to do. I wasn’t accomplishing what I thought I should.”
Ind. Courts - "Who placed an audio recording of a Marion County Superior Court hearing onto YouTube?"
Amos Brown III asks in the Nov. 15th Indianapolis Recorder:
What I’m hearing in the streetsOn Nov. 14th there was this post on the California-based Defend Our Freedoms Foundation, c/o Dr. Orly Taitz website, headed "Court reporter for Judge Reid legally sold the parties and attorneys the audio tape of the proceedings for $25 for each hearing."
Who placed an audio recording of a Marion County Superior Court hearing onto YouTube? Speculation focuses on one of the plaintiffs in a hearing Oct. 22 that tried to strike President Obama’s name off the Indiana election ballot.
Dr. Orly Taitz, the noted anti-Obama “birther” activist, was suing the state to get the president’s name off the ballot. A hearing in Judge S.K. Reid’s court was Taitz and her five other plaintiffs’ opportunity to make their case.
They failed. Judge Reid ruled in favor of the state. But audio of the two hour plus hearing was posted onto YouTube Nov. 1. Publicizing audio of Indiana Superior Court proceedings is a violation of judicial rules and Indiana law. Those involved could lose their law licenses or be prosecuted.
Court officials are investigating this serious breach of legal ethics by a group that seemingly doesn’t want to follow any rules of law unless it helps their goal of belittling the elected president of the United States.
There are some insane rumors going on.A reader sent the ILB both of the above ...
Nobody has done any illegal recordings in Judge Reid courtroom.
The only thing that was told by Judge Reid during the hearing that she does not allow video recording and she does not allow cameras in the courtroom. There was no video recording and no cameras in the courtroom.
After each hearing the clerk for Judge Reid legally sold to the parties and attorneys the audio tape of the hearing for $25 and she gave a receipt.
I am intending to file an appeal of judge Reid’s decision to vacate trial and to dismiss the case after witnesses testified to forgery in Obama’s birth certificate and there was no rebuttal from the Attorney General.
I forwarded an audio tape of witness testimony in Reid trial to other judges, including Judge Wingate in Mississippi. Other judges should hear what transpired there.
Nobody ever violated any orders by Judge Reid. The only order she gave, was no video and no cameras.
Somebody, a third party, uploaded on you tube an audio tape, which was legally recorded by the court itself and was legally sold by the court itself, by the court reporter Julie, to a number of people.