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Thursday, April 10, 2014

Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)

For publication opinions today (2):

In HRC Hotels, LLC v. Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and The Myers Y. Cooper Company, a 12-page opinion, Chief Judge Vaidik writes:

Myers Y. Cooper Corporation (“Myers Cooper”) requested a variance for its property to build a pet day-care facility. At the hearing, I-465 LLC, the owner of an adjacent Hilton Homewood Suites Hotel, protested due to the noise that would be caused by pets staying so close to its hotel. After the Marion County Metropolitan Development Commission Board of Zoning Appeals (“BZA”) granted the variance, HRC Hotels, LLC (“HRC Hotels”), the parent company of I-465 LLC, filed a petition for judicial review in the trial court. Myers Cooper responded, arguing that HRC Hotels lacked standing to file the petition for judicial review. After the deadline to file a review petition, HRC Hotels filed a motion to amend the petition for judicial review to substitute I-465 LLC as the real party in interest. The trial court dismissed HRC Hotels’s petition concluding that HRC Hotels lacked standing to file a petition for judicial review and therefore the trial court lacked subject-matter jurisdiction to consider HRC Hotels’s motion to substitute the real party in interest. HRC Hotels now appeals.

We conclude that the standing requirements under Indiana Code section 36-7-4-1603 are procedural rather than jurisdictional. Therefore, HRC Hotels’s alleged lack of standing when the petition was filed does not deprive the trial court of subject-matter jurisdiction. Because the trial court does have subject-matter jurisdiction to consider HRC Hotels’s motion to amend its petition for judicial review, it should substitute I-465 LLC as a real party in interest and hear the merits of the petition for judicial review. We reverse the trial court’s decision and remand for further proceedings.

In Michael Johnson v. State of Indiana, a 20-page opinion, Judge Pyle writes:
Issues: 1. Whether Johnson knowingly, voluntarily, and intelligently waived his right to a jury trial on all of his charges. 2. Whether the trial court abused its discretion in denying Johnson the right to cross-examine the victim about past sexual conduct.3. Whether the State presented sufficient evidence to prove beyond a reasonable doubt that Johnson committed Class B felony rape and Class D felony intimidation. * * *


MATHIAS, J., concurs.
BRADFORD, J., concurs in result with opinion. [which begins, at p. 20 of 20] I agree with the majority that Johnson has waived any argument he might have had concerning I.B.’s testimony about her sexual history with Johnson. I would reach that conclusion, however, on the more fundamental basis that Johnson made no offer of proof as to what I.B.’s testimony would have been.

NFP civil opinions today (1):

Richard Brown and Janet Brown v. City of Valparaiso, Indiana (NFP)

NFP criminal opinions today (5):

Monterius D. Sharp v. State of Indiana (NFP)

Dawayne J. Thomas v. State of Indiana (NFP)

John Orville Study v. State of Indiana (NFP)

Adam W. Powell v. State of Indiana (NFP)

Jamie L. Strickler v. State of Indiana (NFP)

Posted by Marcia Oddi on April 10, 2014 11:18 AM
Posted to Ind. App.Ct. Decisions