Thursday, March 21, 2013
Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)
For publication opinions today (3):
In Clark County Board of Aviation Commissioners v. Dennis Dreyer and Margo Dreyer as Co-Personal Representatives of the Estate of Margaret A. Dreyer, a 12-page opinion, Judge Baker concludes:
In K.S., our Supreme Court stated that when subject matter jurisdiction and personal jurisdiction exist,In Town of Cedar Lake v. Gina Alessia, Candi Reiling, Andrew Balkema, Individually and as Members of the Town of Cedar Lake Park Board, a 19-page opinion, Judge Najam concludes:
"a court’s decision may be set aside for legal error only through direct appeal and not through collateral attack." * * *
We can only conclude that the contrary language in Universal Outdoor is misleading. To be sure if statutory procedures are not followed, the trial court may not be permitted to hear the issue of damages; however, this is not because the trial court lost jurisdiction, but rather, because legal error was committed. Indeed, as strongly suggested by the K.S. Court, practitioners and the judiciary, including ourselves, should stop using the phrase “jurisdiction over a particular case,” rather than “legal error,” which is what occurred in the instant case. The Commissioners equated jurisdiction with legal error. Accordingly, because legal error is not subject to collateral attack and the Commissioners did not object to Dreyer’s 2009 exceptions or even raise the issue on direct appeal, we cannot say the trial court erred by denying their Rule 60(B) motion. The judgment of the trial court is affirmed.
The traditional rule in the law of municipal corporations strictly circumscribed municipal power. This restriction was based on the principle that there is no inherent right to local self-government, that local governments possess no inherent powers, and, thus, that local governments must depend totally upon state legislatures for every power they exercise. Under this rule, Dillon’s Rule, a municipality could exercise only those powers specifically granted, necessarily implied, or indispensable to a municipal corporation. Before the Powers of Cities Act, this rule was firmly established in Indiana law. The Powers of Cities Act turned Dillon’s Rule upside down. The Power of Cities Act and, later, the Home Rule Act changed the legal landscape of the relationship between the State and its political subdivisions.In C.B. v. B.W. , a 14-page opinion, Judge Najam writes:
Thus, the trial court erred as a matter of law when it used Dillon’s Rule to determine the scope of the Town’s legal authority to dissolve the Park Board and the Parks Department. The proper legal inquiry is based on Indiana’s Home Rule Act. Pursuant to that Act, there is no statutory prohibition against the Town’s exercise of authority to dissolve the Park Board or the Parks Department. And any doubt as to the existence of such power is resolved in favor of its existence. I.C. § 36-1-3-3. Accordingly, the Town’s exercise of that authority by enacting the Ordinance was lawful.
Given the Town’s authority under Indiana’s Home Rule Act, we reverse the trial court’s entry of summary judgment for the Park Board Members on their claims for illegal termination, declaratory judgment on the validity of the Ordinance, and injunctive relief. On each of those claims, we remand with instructions that the trial court enter summary judgment for the Town. We affirm the trial court’s order that the law firm may not continue to represent the Park Board and its members in any matters based on a current conflict of interest.
The trial court’s entry of summary judgment for the Park Board Members is affirmed in part, reversed in part, and remanded with instructions for the court to enter summary judgment in favor of the Town on Counts I, II, and III of the First Amended Complaint.
C.B. (“Mother”) appeals the trial court’s order granting the request of B.W. (“Father”) to change the surname of C.D.B. (“the child”) in initial paternity proceedings. Mother presents a single issue for review, namely, whether the trial court abused its discretion when it granted Father’s request for the child’s surname to be changed to Father’s surname. We affirm. * * *NFP civil opinions today (0):
We conclude that, like all children, a child born out of wedlock is better served when he knows and is identified with both parents, and both parents are engaged in his upbringing. A child’s surname connects the child with the parent. Here, Mother will have physical custody of the child and, as such, the child will continue to be identified with her and will be connected with her in countless ways, large and small, on a daily basis. Father’s surname will connect the child with his non-custodial parent and is a tangible reminder to the child that the child has two parents who care for him, which is in the child’s best interests.
We conclude that the trial court’s decision is not clearly against the logic and effect of the facts and circumstances before the court or contrary to law. Mother has not shown reversible error. The evidence, taken as a whole, supports the conclusion that it is in the child’s best interests to share his father’s surname. Our opinion supports the general principle that it is in the best interests of children born out of wedlock for their fathers not only to provide financial support but also to actively and visibly identify themselves as parents and to participate in their children’s upbringing.
NFP criminal opinions today (3):
Posted by Marcia Oddi on March 21, 2013 10:34 AM
Posted to Ind. App.Ct. Decisions