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Thursday, August 22, 2013

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Dianne M. Ross, William L. Ross, Martha Jane Milhouse and Paul David Milhouse v. Bartholomew County Drainage Board and Stephen A. Hoevener, Jim Pence, Ron Speaker, Jeff Schroer, and Carl Lienhoop, a 12-page opinion, Judge Riley writes:

The Appellants raise four issues on appeal, which we consolidate and restate as the following two: (1) Whether the trial court abused its discretion when it found that an obstruction existed on Appellants’ property which impeded the drainage of a natural surface watercourse; and (2) Whether the trial court abused its discretion in calculating the attorney fees it awarded to Appellants for the Drainage Board’s violation of Indiana’s Open Door Law. * * *

Therefore, we agree with the trial court that the berm amounts to an obstruction which impedes the natural flow of the watercourse. Thus, the trial court did not commit clear error in affirming the Drainage Board’s conclusion that the removal of the obstruction would promote better drainage of County Road 650. * * *

Based on the foregoing, we conclude that the trial court properly found that an obstruction existed on Appellants’ property which impeded the drainage of a natural surface watercourse; and the trial court did not abuse its discretion in calculating the amount of attorney fees it awarded Appellants for the Drainage Board’s violation of Indiana’s Open Door Law.

In Alexander David Toradze v. Susan Blake Toradze, an 8-page opinion, Judge Riley writes:
Father raises one issue on appeal, which we restate as follows: Whether the trial court properly decided it had jurisdiction to enter an educational needs order pursuant to Ind. Code § 31-16-6-6. * * *

Based on the foregoing, we conclude that the trial court acquired jurisdiction with respect to Mother’s request for educational expenses following a dissolution of marriage based on I.C. § 31-16-6-6(a) & (c). Affirmed.

BRADFORD, J. concurs
BROWN, J. concurs in result with separate opinion [that begins] I concur in the result reached by the majority but write separately to fine tune a point and state my disagreement with the majority’s conclusion that the trial court acquired subject matter jurisdiction to decide Mother’s request to institute an order for educational needs based on the amendments to Ind. Code § 31-16-6-6.

In Roger A. Buchanan and Susan Buchanan v. HSBC Mortgage Services, Inc. , a 9-page opinion, Judge Najam writes:
Roger Buchanan and Susan Buchanan appeal the trial court’s grant of summary judgment in favor of HSBC Mortgage Services, Inc. (“HSBC”) in this foreclosure action. The Buchanans raise two issues on appeal which we restate as:
1. Whether the trial court erred when it found that HSBC is the holder of a promissory note executed by the Buchanans when they purchased their home.
2. Whether the trial court erred when it found that the mortgage is valid despite an allegedly defective acknowledgement.
We affirm.
In Jeremiah Walls v. State of Indiana, a 16-page, 2-1 opinion, Judge Brown writes:
Walls raises four issues, which we revise and restate as:
I. Whether the State presented sufficient evidence beyond a reasonable doubt to sustain his convictions for criminal trespass and intimidation;
II. Whether the trial court properly instructed the jury;
III. Whether the trial court properly limited Walls’s closing argument; and
IV. Whether the voluntary intoxication statute is unconstitutional.
We affirm. * * *

BRADFORD, J., concurs.
RILEY, J., dissents in part and concurs in part with separate opinion. {some quotes] I respectfully dissent with the majority’s decision to affirm Walls’ conviction and sentence for criminal trespass.

The majority veered off from our holding in Aberdeen Apartments v. Cary Campbell Realty Alliance, Inc. 820 N.E.2d 158, 164 (Ind. Ct. App. 2010), and instead relied upon out-of-state case law. Our court has already established case law on this issue, and though it may seem “absurd”, this court has strictly interpreted the criminal trespass statute which requires that entry on property be denied by either the owner or its agent.

NFP civil opinions today (1):

In the Matter of D.S., Child in Need of Services; R.J. v. Indiana Dept. of Child Services (NFP)

NFP criminal opinions today (6):

Terry Eldridge v. State of Indiana (NFP)

Kevin Patterson v. State of Indiana (NFP)

Isaiah Adams v. State of Indiana (NFP)

Joshua Steelman v. State of Indiana (NFP)

Clifford N. Whitmer, II v. State of Indiana (NFP)

Timothy G. Lyles v. State of Indiana (NFP)

Posted by Marcia Oddi on August 22, 2013 11:50 AM
Posted to Ind. App.Ct. Decisions