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Wednesday, July 03, 2013

Ind. Decisions - Court of Appeals issues 5 today (and 19 NFP)

For publication opinions today (5):

In In Re the Marriage of: Harry L. Tillman v. R. Virginia Tillman, a 7-page opinion, Judge Mathias writes:

Harry Tillman (“Husband”), by guardian Deborah Wagner (“Wagner”), appeals the Warrick Superior Court’s dismissal of his petition for dissolution of marriage from his wife, Virginia Tillman (“Wife”). Through his guardian Wagner, Husband argues that both the trial court’s ruling and the currently controlling law in Indiana are inconsistent with Indiana’s no-fault approach to dissolution of marriage. We affirm. * * *

Neither the current Indiana statutes governing dissolution of marriage nor
governing the guardianship of incapacitated persons provide a means for the guardian of an incapacitated person to file a petition for dissolution of marriage on behalf of the incapacitated person. The facts of the present case are parallel to the facts of Quear in this regard. In this case, both Husband and Wife are incapacitated and neither are competent to consent to the filing of a dissolution petition. Since Indiana statute does not provide guardians of incapacitated persons the authority to petition for dissolution of marriage on the incapacitated person’s behalf, the trial court’s dismissal of the motion Wagner filed on Husband’s behalf was proper.

In Pier 1 Imports (U.S.), Inc., v. Acadia Merrillville Realty, L.P. and Boyd Construction Company, Inc. , a 12-page, 2-1 opinion, Judge Bradford writes:
Because Pier 1 did not have an opportunity to object to Acadia’s and Boyd’s dismissal prior to the court’s ruling on their motions for summary judgment, we conclude that Pier 1 has standing to appeal. On the merits, we conclude that summary judgment in favor of Acadia and Boyd was inappropriate: Whether Acadia discharged its duty of care merely by contracting with Boyd is a question for the jury to decide, and, because there is evidence that additional salting was necessary after Boyd salted the sidewalk, a jury could reasonably infer that Boyd failed to exercise reasonable care in performing its snow and ice removal services. The judgment of the trial court is reversed and remanded for further proceedings. * * *

RILEY, J., concurs.
BROWN, J., dissents with opinion: I respectfully dissent from the majority’s conclusion that Pier 1 did not have a practical opportunity to object to the motions for summary judgment by co-defendants Acadia and Boyd prior to those parties’ dismissal. * * *

Accordingly, based upon the holdings and language in U-Haul and Nationwide and the Indiana Supreme Court opinions upon which they rely, I would find that Pier 1 failed to preserve and thus waived its claim for appeal, and I would affirm the judgment of the trial court.

In Booker T. Prince, Jr. v. Marion County Auditor and Marion County Treasurer, an 11-page opinion, Sr. Judge Sharpnack writes:
Booker T. Prince, Jr., appeals the trial court’s denial of his motion for relief from judgment. We affirm.

Prince raises two issues, which we restate as:
I. Whether the trial court abused its discretion in determining that the application for judgment and order for sale of Prince’s property of the Marion County Auditor and Marion County Treasurer (collectively, “the officials”) substantially complied with statutory requirements.
II. Whether the trial court abused its discretion in determining that the officials’ notices to Prince regarding the tax sale process met the requirements of due process.

In Richard Hawkins v. State of Indiana , a 7-page opinion, Judge Riley writes:
Hawkins appeals his sentence following a guilty plea to dealing in cocaine, a Class A felony, Ind. Code § 35-48-4-1 and possession of cocaine, a Class A felony, I.C. § 35-48-4-6.
We affirm.

Issue. Whether Hawkins knowingly and voluntarily waived his right to appeal the appropriateness of his sentence when he entered into a plea agreement with the State. * * *

Ricci
and Bonilla are inapposite to the case at hand as the trial court did not make any contradictions or raise any ambiguities with respect to the plea agreement and the waiver language. The trial court clearly enumerated the rights Hawkins had foregone by pleading guilty and then asked Hawkins if he understood he would have the right to appeal if he went to trial, but that by entering into the plea agreement, he had waived that right. Hawkins answered affirmatively. Then, after having concluded its advisements on the right to appeal, the trial court explained that he had the right to be represented by an attorney at any stage of the proceedings. By separating the right to appeal from the right to representation, the trial court properly advised Hawkins without contradicting itself or raising any ambiguities. We conclude that Hawkins knowingly and voluntarily waived his right to appeal his sentence.

In Keion Gaddie v. State of Indiana, a 9-page opinion, Chief Judge Robb writes:
Keion Gaddie appeals his conviction, following a bench trial, of resisting law enforcement, a Class A misdemeanor. Gaddie raises the following issue for our review: whether the evidence was insufficient to sustain his conviction because he was free to disregard law enforcement in what was a consensual encounter. Concluding that Gaddie had no duty to stop when law enforcement ordered him to do so, we reverse. * * *

The United States Supreme Court has stated that “a person is ‘seized’ . . . when, by means of physical force or a show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553 (1980). To hold that Gaddie should have stopped immediately upon being ordered to do so by Officer Newlin or else face a criminal conviction would mean that a seizure took place under the Fourth Amendment. A seizure requires, at the minimum, a reasonable suspicion of criminal activity based on specific and articulable facts. See id. at 554. The Fourth Amendment is not implicated in what is termed a “consensual encounter,” see Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), trans. denied, where “the person to whom questions are put remains free to disregard the questions and walk away,” Mendenhall, 446 U.S. at 554. To agree with the rationale in Corbin would effectively render the consensual encounter nonexistent in the state of Indiana. However, “[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” Mendenhall, 446 U.S. at 553-54 (quotes and citation omitted). Thus, we hold that as long as a seizure has not taken place within the meaning of the Fourth Amendment, a person is free to disregard a police officer’s order to stop and cannot be convicted of resisting law enforcement for fleeing. * * *

Gaddie was under no duty to stop when Officer Newlin ordered him to do so. Moreover, there was no reasonable suspicion which would justify a seizure of Gaddie. Thus, his conviction for resisting law enforcement is reversed.

NFP civil opinions today (7):

Thomas R. Tokarski and Sandra W. Tokarski v. State of Indiana (NFP)

In Re: the Marriage of: William Scott Wilson v. Andrea (Wilson) Gunning (NFP)

In Re: The Paternity of S.J.E-C: Clarence Cones, III v. S.J.E-C, by next friend: Tabetha J. Emenaker, and Tabetha J. Emenaker (NFP)

Armando B. Quintero v. Maria L. Quintero (NFP)

Corrie Tomblin v. Michael A. Tomblin (NFP)

Greg Haney, as Trustee of the Revocable Trust Agreement of Jay Budman Farrar Executed October 5, 1999 v. Patricia J. Farrar, as Personal Representative of the Estate of Jay B. Farrar (NFP)

Arlisha Williams v. Review Board of the Indiana Department of Workforce Development, and UPS Ground Freights, Inc. (NFP)

NFP criminal opinions today (12):

State of Indiana v. Mark M. Hairston (NFP)

Alfred Vela v. State of Indiana (NFP)

Michael G. Chamlee v. State of Indiana (NFP)

Jasen M. Snelling v. State of Indiana (NFP)

Adam J. Smith v. State of Indiana (NFP)

Wesley Cashdollar v. State of Indiana (NFP)

Kevin Govan v. State of Indiana (NFP)

Justin Land v. State of Indiana (NFP)

William Temple v. State of Indiana (NFP)

Joseph E. Stambaugh v. State of Indiana (NFP)

Carlos A. Smith v. State of Indiana (NFP)

Anthony Edwards v. State of Indiana (NFP)

Posted by Marcia Oddi on July 3, 2013 01:36 PM
Posted to Ind. App.Ct. Decisions