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Thursday, February 20, 2014

Ind. Decisions - Court of Appeals issues 4 today (and 20 NFP)

For publication opinions today (4):

In Magic Circle Corporation, d/b/a Dixie Chopper, The Kelch Corporation, et al. v. Kris Schoolcraft as Personal Representative of the Wrongful Death Estate of Rickie D. Schoolcraft, Deceased, a 7-page opinion, Judge May writes:

Kris Schoolcraft brought a wrongful death action against Magic Circle, and moved to amend the complaint to add new defendants. The trial court granted the motion. On appeal, the new defendants argue the amendments were outside the limitations period. We affirm. * * *

Schoolcraft filed her motion to amend and her amended complaint during the limitations period but the trial court did not grant the motion until after the period had expired. If we were to apply the rule from A.J.’s to those facts, we “would punish plaintiff and other similarly situated plaintiffs for the court’s unavoidable delay in issuing an order granting leave to amend a complaint.” Wallace v. Sherwin Williams Co., Inc., 720 F. Supp. 158, 159 (D. Kan. 1988) (holding Wallace’s amended complaint was effectively filed when he filed his motion for leave to file an amended complaint). We accordingly decline to follow A.J.’s and we instead apply the majority rule articulated in The Children’s Store. The denial of the new defendants’ motions to dismiss or for judgment on the pleadings is therefore affirmed.

In Michael W. Stevenson v. County Commissioners of Gibson County, Indiana, Bob Townsend, Don Whitehead, Gerald Bledsoe, County Council of Gibson County, Indiana, Tony Wolfe, Jermey Overton, et al , a 9-page opinion, Judge May writes:
Michael W. Stevenson appeals a judgment for the Gibson County Commissioners and County Council (collectively, “the County”). We consolidate and restate the issues he raises as: 1. Whether Stevenson was paid the correct salary as the County Surveyor; and 2. Whether Stevenson was entitled to additional compensation for referencing corners in Gibson County. We affirm.
In Clark's Sales and Service, Inc v. John D. Smith and Ferguson Enterprises, Inc., a 23-page opinion, Judge Crone writes:
The trial court did not err when it determined Stevenson was not entitled to additional salary or to additional compensation for corners he allegedly referenced. Accordingly, we affirm the decision of the trial court. * * *

Here, Clark’s had a fair opportunity to draft a reasonable and enforceable restrictive covenant yet failed to do so. The overly broad and unenforceable covenant that Clark’s did draft is not clearly separated into divisible parts or severable in terms such that we can mechanically strike unreasonable restrictions and enforce reasonable ones. The restrictions are unreasonable as a whole. Therefore, we conclude that the blue pencil doctrine is inapplicable, as it would subject the parties to an agreement that they did not make.10 Accordingly, we agree with the trial court that Clark’s has failed to establish by a preponderance of the evidence its likelihood of success at trial. The trial court’s denial of Clark’s motion for preliminary injunction is affirmed.

In Jonathan D. Carpenter v. State of Indiana, a 9-page opinion, Judge May writes:
Jonathan D. Carpenter appeals the admission of evidence obtained from a warrantless search of his house. He argues the initial warrantless search of his house violated his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We affirm. * * *

Trimble and Davis dealt with whether the conditions of animals could constitute exigent circumstances justifying warrantless searches of areas outside of the homes. In the case before us, the investigation extended into the house only when one of the dogs, which was covered in blood, entered the home through an open door and would not come out.

Exigent circumstances permitted the police to execute a warrantless search of Carpenter’s home. On arrival at Carpenter’s home, officers observed four dogs covered in blood; three of them were attacking the fourth and acting aggressively. The three dogs ran in and out of the house via an open sliding door. One of the dogs entered the house and would not come out. Officer Miller testified he entered Carpenter’s house through the open door because “due to the staining, possible blood on this animal, I didn’t know if I had a victim or not inside the residence or other dogs who were victims inside the residence . . .” The trial court did not err when it denied Carpenter’s motion to suppress the evidence against him because the officers had reasonable suspicion to believe a violent crime might have occurred, properly executed a search of the premises for that purpose, and the search did not violate Carpenter’s Fourth Amendment rights. * * *

Based on the totality of the circumstances, we cannot say the warrantless search of Carpenter’s house violated his rights under Article 1, Section 11 of the Indiana Constitution because the officers had reasonable suspicion there was an injured person inside the house. Therefore, the trial court did not err when it denied Carpenter’s motion to suppress the evidence.

NFP civil opinions today (7):

Inner Circle Properties, LLC v. George Lease (NFP)

In the Matter of the Termination of the Parent-Child Relationship of: P.M., M.F.E., and E.T., T.T. (Mother) and B.T. (Father of E.T.) v. The Indiana Department of Child Services (NFP)

C.C. v. Review Board of the Indiana Department of Workforce Development and Wal-Mart Associates (NFP)

Stephen M. Coil v. Review Board of the Indiana Deparment of Workforce Development, International Truck & Engine Group, Talx UCExpress, Inc. (NFP)

In Re the Matter of the Termination of the Parent-Child Relationship of L.T.W.B., Minor Child, and S.A.B., Mother, and H.L.B., Father, H.L.B., Father v. The Indiana Department of Child Services (NFP)

Antonio Hughley, $3,861.00 in U.S. Currency and One (1) Buick, VIN# 4V37J7E133835 v. State of Indiana, The Consolidated City of Indianapolis/Marion County,et al. (NFP)

Charlie Hamby and Michael Zenk v. James Farmer (NFP)

NFP criminal opinions today (13):

Kevin Hoskins v. State of Indiana (NFP)

Clyde Williams, Jr. v. State of Indiana (NFP)

Andre L. Garrett v. State of Indiana (NFP)

Marcus Buba v. State of Indiana (NFP)

Juan Concepcion v. State of Indiana (NFP)

Bruce Foster v. State of Indiana (NFP)

Tanner Howard v. State of Indiana (NFP)

Bobby Vine v. State of Indiana (NFP)

David Hedgecraft v. State of Indiana (NFP)

Sarah Cartner v. State of Indiana (NFP)

Forest Lamar, Jr. v. State of Indiana (NFP)

Fabrianne Cloud v. State of Indiana (NFP)

Katie L. Miller v. State of Indiana (NFP)

Posted by Marcia Oddi on February 20, 2014 01:03 PM
Posted to Ind. App.Ct. Decisions