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Tuesday, February 18, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In Robert Durall v. Mark S. Weinberger, M.D., Mark Weinberger, M.D., P.C., Merrillville Center for Advanced Surgery, LLC, and Nose and Sinus Center, LLC, involving an interlocutory appeal, Sr. Judge Darden writes:

Durall challenges the trial court’s November 19, 2012 order. Although neither party presents the timeliness of this discretionary interlocutory appeal as an issue, timeliness is a jurisdictional matter which we should raise sua sponte if the parties do not. * * *

Here, the trial court’s chronological case summary does not show that Durall filed a motion, belated or otherwise, for certification of an interlocutory order. Durall’s Motion to Reconsider does not request certification of the November 19, 2012 order. The first reference in the record to an interlocutory appeal is in the transcript of the hearing on Durall’s Motion to Reconsider. Thus, Durall failed to comply with Rule 14(B).

In addition, the trial court did not comply with Rule 14(B)’s requirements for belated certification of appeals. Specifically, neither the trial court’s March 4, 2013 order nor its April 3, 2013 order states that there is good cause for belated certification of the November 19, 2012 order or sets forth the basis for such certification. Without proper certification, we have no jurisdiction to entertain an interlocutory appeal. Wise, 997 N.E.2d at 414.

CONCLUSION. For the reasons stated above, we dismiss this interlocutory appeal without prejudice to Durall’s right to appeal after the entry of a final judgment. Dismissed.

In In the Matter of the Adoption of J.L.J. and J.D.J., Minor Children; J.J. and T.H. v. D.E., a 21-page opinion, Judge Riley writes:
Father raises two issues on appeal, one of which we find dispositive and restate as the following: Whether the trial court erred in finding that Father’s consent to Guardian’s adoption of the Twins was not required based on Father’s failure to provide support.

Grandmother raises three additional issues, which we restate as the following:
(1) Whether the trial court erred in concluding that Grandmother was not entitled to receive notice that Guardian had filed petitions for guardianship;
(2) Whether the trial court erred in failing to comply with the Interstate Compact on the Placement of Children (ICPC); and
(3) Whether the trial court abused its discretion in denying Grandmother’s petitions for appointment as the Twins’ guardian and for their adoption. * * *

Based on the foregoing, we conclude that the trial court did not err in concluding that Father’s consent to the Twins’ adoption was not required. Neither did the trial court err in denying Grandmother’s petitions to adopt the Twins, nor did it abuse its discretion in denying Grandmother’s petitions to remove Guardian as guardian in exchange for her own appointment because the evidence is sufficient to establish that it is in the Twins’ best interests to be adopted by Guardian. Affirmed.

In Tanner Piotrowski v. State of Indiana, a 12-page opinion, Judge Brown writes:
In this interlocutory appeal, Tanner Piotrowski challenges the trial court’s denial of his Motion to Exclude Any Evidence or Testimony from the State Department of Toxicology. Piotrowski raises one issue, which we revise and restate as whether the court erred in denying his request to exclude evidence. We affirm. * * *

Piotrowski argues that it is clear the legislature intended to “rescind the Title 21 Department’s regulatory authority,” and that the Title 10 Department “had a mandate to promulgate toxicology regulations . . . .” Id. Piotrowski suggests that the sunset provision contained as Ind. Code § 10-20-2-7(d) established a deadline whereby the rules promulgated by the Title 21 Department would expire, and that as of July 1, 2012, because the Title 10 Department did not promulgate its own regulations, no legal regulations were in existence, and that accordingly the evidence at issue should have been excluded. * * *

Specifically, we find that Piotrowski’s suggestion that the sunset provision contained in Section 7(d) has the effect of causing rules established by the former Title 21 Department to expire and no longer be enforceable is erroneous as it is contrary to Ind. Code § 1-1-5-5. Subsection 5(b)(3) provides that the any repeal or expiration of a statute authorizing the transfer of rules does not affect the validity of the transfer of such rules occurring before the effectiveness of the repeal or the date of the expiration. Ind. Code § 1-1-5-5 is precisely on point under these circumstances and operates to continue the enforceability of the rules at issue, codified at 260 IAC 1.1. In this regard, we agree with the State’s argument that taking Piotrowski’s argument at face value, the expiration of Section 7 on July 1, 2012 would also affect the transfer of toxicology department property, obligations, and monies to the Title 10 Department from the Title 21 Department, which could not have been the legislature’s intent. * * *

After reviewing the relevant statutes, we find that the legislature intended Ind. Code § 10-20-2-7 to effectuate a transfer of control of the Department of Toxicology from the Indiana University School of Medicine to the State of Indiana. Although the legislature transferred rulemaking authority to the State, it did not specifically require the State to promulgate a new set of rules regarding breath testing and gave the State discretion to rely upon the rules previously in existence. Accordingly, we conclude that the court did not err when it denied Piotrowski’s Motion to Exclude.

In Segun Rasaki v. State of Indiana, an 8-page opinion, Judge Mathias writes:
Following a bench trial, Segun Rasaki (“Rasaki”) was convicted of Class D felony sexual battery and Class B misdemeanor battery in Marion Superior Court. On appeal, Rasaki claims that the State failed to produce evidence sufficient to support his convictions. Concluding, sua sponte, that Rasaki’s appeal is untimely, we dismiss. * * *

Accordingly, if Rasaki wished to bring a petition for post-conviction relief prior to pursuing a direct appeal, the proper course of action would have been to timely file his notice of appeal, then file a Davis/Hatton motion to suspend his direct appeal during the post-conviction process. But he did not do this. Instead, he improperly sought to extend the thirty-day deadline of Appellate Rule 9(A) by filing a motion for enlargement of time under Trial Rule 6(B), and the trial court improperly granted these motions. But as noted above, Trial Rule 6(B) applies only to time limits imposed under the Trial Rules. Under Appellate Rule 9(A), Rasaki’s notice of appeal was due not later than thirty days after the trial court’s February 15, 2013, ruling on his motion to correct error, i.e., March 18, 2013. Rasaki’s notice of appeal was not filed until July 10, 2013, well beyond this deadline. Accordingly, Rasaki forfeited his right to appeal.

This is not a mere technicality. Because Rasaki’s notice of appeal was untimely, we are without jurisdiction to hear his appeal. See Jernigan, 894 N.E.2d at 1046. We must therefore dismiss Rasaki’s appeal as untimely.

NFP civil opinions today (4):

Jonathan "Slade" Taylor and Mark A. Casey v. Eric "Rico" Elmore and Fatheadz, Inc. (NFP)

In the Matter of: R.C. v. K.P. (NFP)

In Re the Adoption of D.E.C.; B.C. v. P.L. (NFP)

In Re the Marriage of: Earika Fussner v. Clint Fussner (NFP)

NFP criminal opinions today (1):

State of Indiana v. Jeremy Ripperdan (NFP)

Posted by Marcia Oddi on February 18, 2014 10:23 AM
Posted to Ind. App.Ct. Decisions