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Wednesday, February 20, 2013

Ind. Decisions - Court of Appeals issues 5 today (and 6 NFP)

For publication opinions today (5):

In State Farm Fire and Casualty Company v. Riddell National Bank , a 7-page opinion, Chief Judge Robb writes:

After the owners of a home went through bankruptcy, they executed a deed in lieu of foreclosure to Riddell National Bank, the mortgagee. Riddell discovered extensive damage in the home and filed a claim with State Farm Fire and Casualty Insurance Company. State Farm denied coverage, and Riddell brought suit. State Farm moved to dismiss, and the trial court denied its motion. State Farm raises one issue in this interlocutory appeal: whether the parties’ insurance policy, as limited by Indiana Code section 27-1-13-17, creates a two-year statute of limitations. Concluding the parties’ policy does not create a two-year statute of limitations, and thus the ten year statute of limitations provided in Indiana Code section 34-11-2-11 applies, we affirm.
In In Re: The Matter of: David Woodward Cook v. Beth Ann Cook , a 6-page opinion, Judge Bailey writes:
David Woodward Cook (“Cook”) appeals the denial of his motion to correct error, wherein he challenged an order for protection and requested the deletion of his name and information from the Judicial Technology and Automatic Committee (“JTAC”) website and law enforcement databases. We reverse and remand for a hearing on the merits of Cook’s motion to correct error. * * *

On June 15, 2012, Cook filed in the civil court a motion to correct error and a motion for a hearing. He requested vacation of any protective order and removal of public postings from electronic databases. * * *

Cook filed a notice of appeal on July 23, 2012. Four days later, Wife filed a motion to dismiss the petition for a protective order, pursuant to Indiana Code Section 34-26-5-12, and the civil court “terminated the Order for Protection issued on May 17, 2012.”

Because Cook alleged on appeal that electronic posting of a protective order without a hearing violated his due process rights under the Indiana Constitution, this Court ordered the Indiana Attorney General to enter an appearance and provide briefing on the matter. * * *

Cook no longer seeks an evidentiary hearing, but instead asks this Court to directly order removal of his name from the JTAC website and law enforcement databases. He provides no authority to support our issuance of such an order. Essentially, his complaint is that the Act contains no expungement provision and that this court should sua sponte correct the omission.

We are not in a position to afford Cook the immediate relief he seeks. We agree with the State that Cook was entitled to a hearing in the civil court and was, by the sequence of transfers, conflicting orders, and dismissal, denied his statutory right. However, if Cook wishes to assert that the Act is unconstitutional as applied to him because of its injury to his reputation and negative impact upon his employability, it is incumbent upon him to develop a factual record.

Therefore, we reverse the denial of Cook’s motion to correct error and remand for a hearing.

In In the Matter of: Am.K., A Child In Need of Services and A.M. v. Marion County Department of Child Services and Child Advocates, Inc. , a 14-page opinion, Judge Baker writes:
A.M. (Mother) was involuntarily committed for emergency mental health treatment, and the Indiana Department of Child Services (DCS) filed a petition alleging that each of Mother’s two children was a child in need of services (CHINS). The juvenile court determined that A.M.-K. was a CHINS, and Mother was ordered to participate in various services and to abide by the recommendations of mental health professionals, including taking all medications as prescribed.

Mother challenges the propriety of the parental participation order. More particularly, Mother claims that because the DCS failed to file a parental participation petition, the juvenile court lacked the authority to order her participation in any services or treatment. Mother also claims that the order directing her to take any medications as prescribed violates her constitutional right to decide her own mental health treatment.

We conclude that Mother was adequately notified of the DCS’s recommended plan of participation and that Mother acquiesced to the trial court’s authority to enter a parental participation order. However, we also conclude that the DCS failed to present sufficient evidence to overcome Mother’s liberty interest in deciding her own treatment when Mother objected to the order and presented evidence of her concerns. Accordingly, we affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion.

In Fredrick Allen Laux v. State of Indiana , a 29-page opinion, Judge Baker writes:
In this case, the appellant-petitioner, Fredrick Laux, challenges the denial of his petition for post-conviction relief after he was convicted of murdering his wife and receiving a sentence of life without parole (LWOP). Laux claims that his trial counsel was ineffective for failing to: 1) properly question a juror regarding bias; 2) object to alleged victim impact evidence; and 3) object to instances of prosecutorial misconduct. Laux also contends that his trial counsel did not adequately prepare for the penalty phase of the trial. Finally, Laux maintains that his appellate counsel was ineffective for failing to present these alleged errors on direct appeal.

Concluding that Laux has failed to show that he received the ineffective assistance of either trial or appellate counsel, we affirm the denial of Laux’s request for post-conviction relief.

In Ralph Pipkin v. State of Indiana , a 4-page opinion, Judge Bailey writes: "Because the trial court failed to find good cause for belatedly pursuing an interlocutory appeal from the first motion to dismiss, Pipkin’s appeal was not properly perfected. We therefore lack jurisdiction over this matter, and must dismiss his appeal."

NFP civil opinions today (2):

Kathy J. Ragla v. Review Board of the Indiana Department of Workforce Development and Wendy's of Fort Wayne, Inc. (NFP)

Bradley J. Oskey v. Review Board of the Indiana Department of Workforce Development and CL Schust Company, Inc. (NFP)

NFP criminal opinions today (4):

Efren Radillo Diaz v. State of Indiana (NFP)

Charles James Popp v. State of Indiana (NFP)

Jeannie A. Dickman v. State of Indiana (NFP)

Jason A. Mejia v. State of Indiana (NFP)

Posted by Marcia Oddi on February 20, 2013 11:43 AM
Posted to Ind. App.Ct. Decisions