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Wednesday, June 25, 2014

Ind. Decisions - Court of Appeals issues 5 today (and 8 NFP)

For publication opinions today (5):

In White County Board of Commissioners v. Y.M.C.A. Camp Tecumseh, Inc., a 6-page opinion, Judge Friedlander writes:

Y.M.C.A. Camp Tecumseh, Inc. d/b/a Camp Tecumseh (the Camp) is located in Carroll County but on the county line, adjacent to the seventy-five-acre parcel that contains the seven acres of rezoned property in White County. On July 31, 2013, the Camp filed a petition for judicial review and stay of zoning decision against the White County Board. The Camp filed the action in the Carroll Circuit Court. * * *

A case may be commenced in any Indiana county, but if the complaint is not filed in a preferred venue, the trial court is required to transfer the case to a preferred venue upon a proper request from a party. * * *

Though the Camp is clearly concerned about the anticipated future injury to its land in Carroll County[4] as a result of the rezoning, this does not change the nature of the suit. The Camp’s cause of action is for judicial review of a White County ordinance rezoning White County land and will involve review of documents filed, proceedings held, and findings and decisions made only in White County. The Camp’s judicial review action does not relate to land in Carroll County for purposes of T.R.75(A)(2).

Because Carroll County is not a county of preferred venue, the trial court erred by denying the motion for transfer of venue to White County. On remand, the Carroll Circuit Court is directed to grant the White County Board’s motion to transfer. Judgment reversed and remanded.
[4] The Camp contends that the anticipated odor from the proposed confined feeding operation “threatens Camp Tecumseh’s existence in Carroll County.” Appellee’s Brief at 4.

In Lloyd J. Diehl v. Larry J. Clemons , a 22-page opinion, Judge Najam writes:
Lloyd J. Diehl appeals the trial court’s order granting Larry J. Clemons’ motion to correct error, following a jury trial, and ordering a new trial on the question of damages owed by Diehl to Clemons. Diehl raises three issues for our review, which we restate as the following two issues: 1. Whether the trial court complied with the requirements of Indiana Trial Rule 59(J) when it ordered a new trial on the basis that the jury verdict was inadequate; and 2. Whether the court abused its discretion when it ordered a new trial on the basis of juror misconduct. * * *

Conclusion. In sum, we agree with Diehl that the trial court’s order vacating the jury verdict as inadequate and ordering a new trial fails to comply with the strict and paramount requirements of Trial Rule 59(J). The trial court’s order fails to relate the opposing evidence on the question of Clemons’ purported damages. See T.R. 59(J). Accordingly, the trial court’s judgment on this issue is reversed and the jury verdict is reinstated. Walker, 943 N.E.2d at 352.

We also hold that the trial court abused its discretion when it ordered a new trial on the basis of juror misconduct. The evidence presented by Clemons demonstrates only the possibility of juror misconduct; it does not demonstrate that Juror Number 289 was in fact biased or prejudiced against Clemons. Accordingly, we reverse the trial court’s judgment on this issue and remand for an evidentiary hearing consistent with this opinion. On remand, “the trial court should consider recusing itself since it has already determined that the juror was . . . biased.” Dickenson v. State, 732 N.E.2d 238, 243 n.2 (Ind. Ct. App. 2000) (Vaidik, J., dissenting), trans. denied. Reversed and remanded with instructions.

In Jereme Lee Wall v. Alfred H. Plummer, III , a 5-page opinion, Judge Crone writes:
Jereme Lee Wall appeals the trial court’s denial of his petition to expunge the records of his conviction for class C felony criminal mischief. On appeal, Wall claims that the trial court erred in concluding that he could not have the records of his conviction expunged because he had violated the terms of his probation. We affirm. * * *

Wall argues that he successfully completed his sentence and term of supervised release and that the trial court was therefore required to expunge the records of his conviction. We recently addressed similar arguments regarding a similar expungement statute for misdemeanor convictions, IC 35-38-9-2, in Alvey v. State, No. 20A04-1310-MI-533, 2014 WL 2202841, slip op. at 10-11 (Ind. Ct. App. May 28, 2014). In Alvey, the court noted that although the defendant had completed his sentence in community corrections he had twice admitted to violating probation. Therefore, he did not “successfully complete[] his sentence, including any term of supervised release” as required by IC 35-38-9-2. The Alvey court opined that the intent of the General Assembly “was to allow those persons who had successfully completed their sentences without incident to petition the court after the passage of a certain amount of time … to expunge the records of their conviction.”

We think that the legislature had the same intent in drafting IC 35-38-9-4, which applies to felony convictions. In this case, Wall admitted to violating the terms of his probation, and by doing so he failed to successfully complete his sentence. Wall contends that his probation violation was a “technical” one. However, IC 35-38-9-4 does not distinguish between major and minor violations. Based on the foregoing, we conclude that the trial court properly denied Wall’s petition to expunge his conviction.

ILB: At p. 4 the court writes:
“The best evidence of legislative intent is surely the language of the statute itself.”[3] Prewitt v. State, 878 N.E.2d 184, 186 (Ind. 2007).
[3] As such, we are unpersuaded by Wall’s reliance on correspondence from a legislator that he attached to his petition.
In In re the Estate of Ruth M. Rupley, Charles A. Rupley v. Michael L. Rupley

Hugo Torres v. City of Hammond and City of Hammond Board of Public Works and Safety

NFP civil opinions today (4):

Centier Bank v. 1st Source Bank (NFP)

Frederick Cashner, Sr. and Lucille Cashner v. Western-Southern Life Assurance Company (NFP)

In the Matter of the Civil Commitment of M.S. v. Gallahue Mental Health Services (NFP)

Ronald A. Manley v. State of Indiana and Bruce Lemmon, In his official capacity as Commissioner of the Indiana Department of Correction (NFP)

NFP criminal opinions today (4):

Braunel Mackey v. State of Indiana (NFP)

Brian Earl Smith v. State of Indiana (NFP)

John A. Gall v. State of Indiana (NFP)

Gwayne Slater v. State of Indiana (NFP)

Posted by Marcia Oddi on June 25, 2014 11:10 AM
Posted to Ind. App.Ct. Decisions