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Tuesday, July 22, 2014

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

For publication opinions today (6):

In Mark Rolley v. Melissa Rolley, a 21-page opinion, Judge Pyle writes:

Issue. Whether the trial court abused its discretion in granting Mother’s petition to modify child support because the amount of Father’s child support deviated by more than twenty percent from the Child Support Guidelines. * * *

Because we are not persuaded by Father’s arguments and because the trial court followed the Child Support Guidelines in calculating Father’s modified amount of child support, we conclude that the trial court did not abuse its discretion in its support calculation. Affirmed.

In City of Gary v. Review Board of the Indiana Department of Workforce Development and Guadalupe T. Franco, a 17-page opinion, Judge Brown writes:
The City of Gary, Indiana (the “City”), appeals a decision by the Review Board of the Indiana Department of Workforce Development (the “Board”) in connection with Guadalupe Franco’s application for unemployment benefits finding that Franco had been discharged but not for just cause and was entitled to unemployment benefits. The City raises two issues, which we consolidate and restate as whether the record supports the Board’s decision. We affirm.
In James K. Melton, Perdue Foods, LLC f/k/a Perdue Farms Incorporated and FPP Business Services, Inc., et al. v. Chad Stephens, Guardian of the Person and Estate of Stacy S. Stephens and Chad Stephens, an 18-page opinion, Judge Riley concludes:
[T]he trial court correctly determined that in the case at bar, the place of the tort has extensive connection with the legal action, and thus, the doctrine of lex loci delicti retains its vitality. We hold that the trial court correctly applied the Hubbard test and concluded that Illinois substantive law governs the action.

CONCLUSION. Based on the foregoing, we conclude that the trial court properly held that Illinois substantive law is applicable to a collision which occurred in Illinois between two Indiana residents. Affirmed.

In Tender Loving Care Management, Inc., d/b/a TLC Management LLC, et al. v. Randall Sherls, as Personal Representative of the Estate of Berdie Sherls, Deceased, a 13-page opinion, Judge Mathias writes:
Tender Loving Care Management, Inc., d/b/a TLC Management, LLC, d/b/a Lincolnshire Health Care Center, Inc., d/b/a Riverview Hospital and Lincolnshire Health Care Center, Inc. (hereinafter “Lincolnshire”) appeals challenging the trial court’s judgment denying its motion to compel arbitration in a lawsuit filed by Randall Sherls, as personal representative of the Estate of Birdie Sherls (hereinafter “the Estate”). Lincolnshire challenges the trial court’s conclusion that the arbitration agreement was ambiguous because the parties bound by the agreement are not clearly named.

The Estate cross appeals and argues that the trial court erred when it concluded that the decedent’s son had the authority to waive the decedent’s right to a jury trial. The Estate also contends that the trial court erred when it determined that the agreement was not an unconscionable adhesion contract.

We affirm in part and reverse in part and remand for proceedings consistent with this opinion.

In Robert L. Dixon v. State of Indiana, a 17-page, 2-1 opinion, Judge Riley writes:
Dixon raises one issue on appeal, which we restate as: Whether Dixon’s patdown search following a traffic infraction violated his rights under the Fourth Amendment of the United States Constitution. * * *

Under the Terry doctrine, a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has stopped. Nothing in Terry can be understood to allow a generalized cursory search for weapons or indeed, any search for anything but weapons. Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979). “The narrow scope of the Terry exception does not permit a frisk for weapons on less than a reasonable belief or suspicion directed at the person to be frisked.” Id. Here, Officer Loudermilk’s actions ostensibly belie the fact that he was concerned for his safety. We reverse the trial court’s decision and remand to the trial court for further proceedings in accordance with this opinion.1

CONCLUSION. Based on the foregoing, we conclude that the trial court abused its discretion when it denied Dixon’s motion to suppress evidence located in violation of Dixon’s Fourth Amendment rights. Reversed and remanded.

ROBB, J. concurs
BRADFORD, J. dissents with separate opinion [which begins, at p. 10] Because I conclude that Officer Loudermilk had sufficient reason to believe that Dixon might have been armed and dangerous during their encounter, I believe that the officer’s pat-down of Dixon was justified by concerns for officer safety. Consequently, I would not suppress the drugs that were subsequently found on Dixon’s person, and I respectfully dissent.

In Steven R. Perry v. State of Indiana, a 7-page opinion, Judge Robb writes:
Steven R. Perry appeals the trial court’s denial of his motion for credit time for time spent on electronic monitoring as a drug court program participant. Perry frames the issue as whether Indiana jurisprudence should be modified to adopt a single analysis for awarding credit time for periods of electronic monitoring served regardless of the pretrial or post-conviction status of the defendant. This, rather, is a case of whether the trial court abused its discretion in denying credit time to a person who failed to comply with conditions for participating in a drug court program. Concluding the trial court did not abuse its discretion, we affirm.
NFP civil opinions today (1):

In the Matter of the Termination of the Parent-Child Relationship of K.T., Minor Child, and K.S., Mother, K.S. v. Indiana Department of Child Services (NFP)

NFP criminal opinions today (2):

Scott Greenier v. State of Indiana (NFP)

Jacob A. Phillips v. State of Indiana (NFP)

Posted by Marcia Oddi on July 22, 2014 12:35 PM
Posted to Ind. App.Ct. Decisions