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Wednesday, March 25, 2015

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 11 NFP memorandum decisions)

For publication opinions today (6):

In Norris Avenue Professional Building Partnership v. Coordinated Health, LLC, a 16-page opinion, Judge Najam writes:

Norris Avenue Professional Building Partnership (“Norris”) appeals the trial court’s judgment for Coordinated Health, LLC (“Coordinated Health”) on Norris’ complaint for breach of a lease agreement. Norris raises a single issue for our review, namely, whether the trial court erred when it concluded that Coordinated Health did not breach the lease agreement. We reverse and remand with instructions.
In In the Matter of the Termination of the Parent-Child Relationship of J.W., Jr., A.W., and D.D., Minor Children, T.D., Mother, and J.W., Sr., Father v. Ind. Dept. of Child Services, an 11-page opinion, Judge Najam writes:
T.D. (“Mother”), and J.W., Sr. (“Father”) (collectively, “the Parents”) appeal the trial court’s termination of their parental rights over J.W., Jr., Z.W., and D.D. (“the Children”). The Parents raise a single issue for our review: whether the statutory waiting period under Indiana Code Section 31-35-2-4(b)(2)(A)(iii) is tolled during any period in which the Indiana Department of Child Services (“DCS”) fails to provide or otherwise make services available to a parent prior to seeking the termination of that parent’s parental rights. On this question of first impression, we hold that Indiana Code Section 31-35-2-4(b)(2)(A)(iii) simply requires the DCS to demonstrate compliance with the statutory waiting period—namely, that a child has been removed from a parent for fifteen of the most recent twenty-two months immediately prior to the termination hearing. That statute does not condition the waiting period on whether the DCS provided or otherwise made available any type of services to the parent. As such, we affirm the trial court’s termination of the Parents’ parental rights.
In April Goodwin, Tiffany Randolph, and Javon Washington v. Yeakle's Sports Bar and Grill, Inc., a 13-page opinion, Judge Najam writes:
This case presents yet another opportunity for Indiana’s appellate courts to clarify the Indiana test for determining whether a duty exists in a negligence action, an issue that has created confusion at every level of our judiciary. There are two tests in Indiana. First, if a duty is well-established in our case law, and the case before the court is substantially similar to that case law, then that duty applies. If, on the other hand, the case before the court presents facts and circumstances that have not been addressed in prior decisions of Indiana’s appellate courts, then in determining whether a duty exists, we must balance the three factors articulated in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991), including the reasonable foreseeability of harm to the person injured. * * *

Here, the Bar’s sole contention in its summary judgment motion was that it did not owe a duty to protect the Appellants from Carter’s criminal acts because they were not reasonably foreseeable. But, as our supreme court has held, reasonable foreseeability does not determine duty where, as here, the duty is well-established. See Yost, 3 N.E.3d at 515; Bartolini, 799 N.E.2d at 1053; Sharp, 790 N.E.2d at 465. The Bar owed the Appellants a duty to protect them from the foreseeable criminal acts of third parties. As such, the Bar cannot satisfy its burden to affirmatively negate the duty element of the Appellants’ negligence claims. See Hughley, 15 N.E.3d at 1003. Thus, the trial court erred when it entered summary judgment in favor of the Bar, and we reverse and remand for further proceedings.

In The Peoples State Bank v. Benton Township of Monroe County, Indiana, a 20-page opinion, Judge Bailey writes:
The Peoples State Bank (“the Bank”) appeals the denial of its motion to correct error, which challenged a grant of summary judgment in favor of Benton Township of Monroe County, Indiana (“Benton Township”) upon the Bank’s collection complaint. The Bank presents a single, consolidated issue for review: whether summary judgment was improvidently granted to Benton Township as opposed to the Bank, upon the trial court’s conclusion that a loan transaction was void. We affirm. * * *

The purported contract executed by a township employee in contravention of statutory requirements is invalid. The Bank may not pursue additional equitable remedies against Benton Township, beyond the partial settlement agreement. Accordingly, the trial court properly granted summary judgment to Benton Township as opposed to the Bank.

In Larry Bell v. State of Indiana, an 11-page opinion, Judge Mathias concludes:
The trial court did not abuse its discretion by admitting into evidence Bell’s outof-
court statement that he was able to “read” people. This statement was not
hearsay because it was the statement of a party opponent, namely Bell himself.
It was relevant and not unfairly prejudicial. Nor was Bell’s statement
inadmissible character evidence. Lastly, even if we agreed with Bell that the
statement was inadmissible, any error in the admission of the statement would
have been harmless given the evidence regarding C.M.’s inability to be aware
that Bell was engaging in sexual intercourse with her. Affirmed.
In Chelsea Taylor v. State of Indiana, a 12-page opinion, Judge Bailey writes:
Chelsea Taylor (“Taylor”) appeals her conviction for Neglect of a Dependent, as a Class A felony. Taylor presents three issues for review, one of which is a challenge to the sufficiency of the evidence. Concluding that the State did not present sufficient evidence of probative value, we reverse. * * *

The inference-stacking without establishment of a predicate fact, which the prosecution invited and the State deems sufficient to withstand appeal, is not constitutionally adequate. The State failed to adduce sufficient proof to support Taylor’s conviction for Neglect of a Dependent.

NFP civil decisions today (5):

In the Matter of the Termination of the Parent Child Relationship of: A.B., Minor Child, N.S., Father v. The Indiana Department of Child Services (mem. dec.)

In the Matter of the Commitment of Z.P., Z.P. v. Memorial Hospital (mem. dec.)

In the Matter of the Trust of H. Paul Lauster, Deceased, and Mary E. Lauster, Deceased, Christopher D. Lauster v. John M. Lauster and David P. Lauster (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of: C.S. (Minor Child) and C.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

W.W. V. B.W. (mem. dec.)

NFP criminal decisions today (6):

Robert A. Ottomanelli v. State of Indiana (mem. dec.)

Adris Bailey v. State of Indiana (mem. dec.)

Todd Dayon Covington Jr. v. State of Indiana (mem. dec.)

Jonathon Hug v. State of Indiana (mem. dec.)

Luis Mandujano v. State of Indiana (mem. dec.)

Bayley Joy Smith v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 25, 2015 11:07 AM
Posted to Ind. App.Ct. Decisions