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Monday, December 23, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

[ILB: The Indiana Courts opinions site continues on and off to be frustrating to use, whether using a Chrome or Firefox browser.]

For publication opinions today (3):

In Michael W. Peters, M.D. and Deaconess Hospital, Inc. v. Cynthia S. Kendall and Michael J. Kendall , a 12-page opinion, Judge Riley writes:

Appellants-Defendants, Dr. Michael W. Peters and Deaconess Hospital, Inc., appeal the trial court’s denial of their motion for partial summary judgment in the medical malpractice suit brought by Cynthia S. and Michael J. Kendall. * * *

We find one of the cross-appeal issues is dispositive and restate it as the following: Whether the Proof of Claim filed by the Kendalls in the liquidation proceedings of Dr. Peters’ insurer constitutes a binding contract. * * *

Based on the foregoing, we conclude that the trial court appropriately denied the Medical Group’s partial summary judgment motion because the Kendalls did not release the Medical Group from liability by filing a Proof of Claim in the PHICO liquidation. Affirmed.

In Town of Newburgh v. Town of Chandler, a 12-page opinion, Sr. Judge Shepard writes:
The legislature has authorized municipalities to provide sewer service up to four miles from their corporate boundaries, and to regulate or even prohibit other entities from doing so. When two towns each assert exclusive right to provide service in a zone where their authority overlaps, how should their conflicting claims be resolved? * * *

Resolution of disputes like the one before us by a commission in the executive branch could likely produce more effective and efficient results. The creation of such mechanisms, however, is in the domain of the legislature and not the courts. The statutes as they exist authorized Newburgh’s ordinance prohibiting others from providing new sewer services to customers within four miles of its corporate boundaries.

We therefore affirm the trial court’s denial of summary judgment to Chandler, reverse its denial of summary judgment to Newburgh, and remand with instructions to enter summary judgment for Newburgh.

In Duane Jadrich v. State of Indiana, a 15-page opinion, Judge Bradford writes:
Hendricks County Sherriff’s Deputy Robert Butterfield, who was attempting to serve a protective order, knocked on the front door of a residence on State Road 267. When he received no response, Deputy Butterfield walked to the rear of the house, passing by signs indicating that visitors were only to use the front door and through the closed gate of a chain-link fence. Deputy Butterfield knocked on the back door and again received no response but, when he took two steps off of the back patio, he noticed a “grow” inside a circle of firewood and brush. Deputy Butterfield approached and observed what he believed to marijuana in the circle and called Sherriff’s Sergeant Brett Clark.

Sergeant Clark arrived with Sherriff’s Detectives Henry Sadler and Matthew Wing. Detective Sadler knocked on the front door, received no response, but noticed an open window on the front of the house. When Detective Sadler knocked on the window, an individual inside asked who it was. Appellant-Defendant Duane Jadrich and his wife opened the front door, and Detective Sadler advised Jadrich that he wanted to speak with him about the marijuana plants in the back yard. Eventually, Jadrich consented to a search of his residence, which uncovered a smoking pipe containing marijuana residue. Six plants recovered from the back yard tested positive for marijuana.

The State charged Jadrich with Class D felony marijuana possession and Class A misdemeanor paraphernalia possession. Jadrich filed a motion to suppress the evidence found at his residence. After trial on only a stipulation of facts with Appellee-Plaintiff the State of Indiana, the trial court found Jadrich guilty as charged, entered judgment of conviction for Class A misdemeanor marijuana possession and Class A misdemeanor paraphernalia possession, and sentenced Jadrich to 365 days of incarceration with 363 days suspended to probation. Jadrich contends that Deputy Butterfield conducted an unconstitutional warrantless search of his property; that his consent to the search of his home was invalid; and that police improperly sought his consent to search his home without advising him that he had the right to consult with counsel, pursuant to Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975). Concluding that Deputy Butterfield’s search violated the Fourth Amendment to the United States Constitution, we reverse and remand with instructions.

NFP civil opinions today (3):

In the Matter of the Termination of the Parent-Child Rel. of: J.S. (Minor Child), and K.G. (Father) v. The Indiana Department of Child Services (NFP)

In the Matter of the Civil Commitment of: N.F. v. Wishard Health Services, Midtown Community Mental Health Center (NFP)

Stardust Development, LLC v. Randy Cassady (NFP)

NFP criminal opinions today (3):

Djomon N. Tito v. State of Indiana (NFP)

Shamberley Jones v. State of Indiana (NFP)

Ethan Sizemore v State of Indiana (NFP)

Posted by Marcia Oddi on December 23, 2013 09:52 AM
Posted to Ind. App.Ct. Decisions