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Tuesday, June 23, 2015

Ind. Decisions - Court of Appeals issues an additional 4 opinion(s) today (and an additional 3 NFP memorandum decisions)

If you look at the COA opinion page right now, for cases dated 06/23/15, you will count 11 cases.

Earlier today, when the ILB posted its summaries, there were 4 cases posted.

But the new batch of 06/23/15 opinions has not been added to the top of the list on the COA opinion page. Rather, and inexplicably, they are intermixed with the earlier batch of 06/23/15 cases.

If you were to number them, #1 (One West Bank), #4, #5 and #6 were updated this morning. ## 2, 3, 7, 8, 9, 10, and 11 are new. (It took me some time to sort that out, BTW, it cannot be done by just glancing at the list.)

When this happens, it frequently catches most of us who rely on the COA opinion page unaware. The only way to avoid it is not to look at the list of opinions until late in the day.

Of course, as the ILB has said more than once over the years, it would be a simple thing for the COA to separate out any newer uploaded opinions from an earlier uploaded batch with the same date. This would be the preferred solution. Or, at a minimum, to send out a notice when an additional batch of cases has uploaded, as the Supreme Court has began doing in recent months when it issues opinions sporatically duing a day.

Here now are the ADDITIONAL 7 COA opinions and NFP decisions posted this afternoon:

For publication opinions today (4):

In Stanley Kahn v. Beverly (Kahn) Baker , a 27-page case, Chief Judge Vaidik writes:

Father, following divorce, was ordered to pay the remainder of his college-aged daughter’s post-secondary educational expenses—including tuition and room and board—and medical expenses. The father and daughter had a serious dispute the month before the court’s order, however, and thereafter the daughter engaged in limited contact with her father—she sent him text and e-mail messages but did not speak to him on the telephone or meet with him in person for over a year. The father stopped paying his daughter’s expenses. Mother filed a motion for rule to show cause in an effort to get the father to comply with the court order, and the father filed a petition to modify the court order, alleging change in circumstances—specifically, that he was relieved from paying his daughter’s expenses because she had repudiated him. Following a hearing, the trial court found that the daughter had not repudiated her father, found him in contempt for failing to pay the daughter’s educational and medical expenses, and awarded attorney fees to the mother. The trial court also found, however, that under the “doctrine of unclean hands” the mother was to be held liable for her daughter’s room and board.

On appeal, we consolidate the father’s issues into the following: (1) whether the trial court erred in finding that the daughter did not repudiate her father, and that he was not, therefore, relieved of his obligation to pay the expenses specified in the Agreed Entry; (2) whether the trial court erred by holding the father in contempt for failing to pay the daughter’s post-secondary educational and medical expenses; and (3) whether the trial court erred in awarding the mother attorney fees. Mother cross-appeals, presenting one issue for our review: whether the trial court erred in ordering her to pay the daughter’s room and board expenses. Ultimately, we affirm the trial court’s order on all of the issues challenged by the father, and reverse on the issue raised by the mother.

Heritage Operating, L.P. d/b/a Empire Gas v. Lois A. Mauck and Ralph Thomas, a 17-page, 2-1 opinion, Judge Riley concludes:
Based on the foregoing, we conclude that Empire Gas is not entitled to summary judgment on the Tenants’ claim of negligence because a gas company owes a common law duty of reasonable care in the distribution of its product. We further conclude that Empire Gas is entitled to summary judgment on the Tenants’ claim of strict liability because the undisputed material facts establish that Empire Gas is not a propane manufacturer. * * *

Vaidik, C. J. concurs in result without separate opinion
Baker, J. concurs in part and dissents in part with separate opinion [which begins, at p. 16] I respectfully dissent from the majority on the issue of negligence. To affirm the denial of summary judgment on this issue is, in my opinion, to elevate form over substance to an untenable degree. * * *

Here, Empire Gas did not know that the property was occupied after July 2011. Indeed, Empire Gas did not know that the plaintiffs existed. As a matter of law, I do not believe it is reasonably foreseeable that a new tenant would occupy the property without ever contacting Empire Gas to hook up the gas line. In my view, Empire Gas owed the plaintiffs no duty under these circumstances. * * *

I concur with the majority on the issue of strict liability.

In Ivan Vazquez v. State of Indiana , a 6-page opinion, Chief Judge Vaidik writes:
Ivan Vazquez began serving a forty-five-year sentence for felony drug convictions in 2005. Between 2010 and 2014, Vazquez filed three sentence-modification petitions as well as a motion to correct errors, all of which the trial court denied. Vazquez, proceeding pro se, now appeals. One of Vazquez’s claims is that the recently amended sentence-modification statute—Indiana Code section 35-38-1-17—applies to him. Although this Court previously held that Section 35-38-1-17 had no retroactive application, the legislature recently amended the statute to expressly provide for retroactivity; thus, the amended statute does apply to Vazquez. This fact aside, the amended statute does not entitle Vazquez to any relief. We find no error, and we therefore affirm.
In C.P. v. State of Indiana, an 18-page opinion, Chief Judge Vaidik writes:
Many state and federal courts have applied an exception to the Fourth Amendment’s exclusionary rule called the new-crime exception. This exception provides that notwithstanding a strong causal connection in fact between an illegal search or seizure by law enforcement and a defendant’s response, if the defendant’s response is itself a new and distinct crime, then evidence of the new crime is admissible notwithstanding the prior illegality. Because the purpose of the exclusionary rule—to deter police misconduct—is not advanced by suppressing evidence of a new crime committed by a defendant after an illegal search or seizure, we apply the new-crime exception to the Fourth Amendment’s exclusionary rule. And we also conclude that this exception applies equally to the Indiana Constitution. Accordingly, evidence that C.P. battered a police officer after being illegally seized is admissible. We therefore affirm C.P.’s adjudication as a juvenile delinquent for committing what would be Level 6 battery against a public-safety official if committed by an adult.
NFP civil decisions today (2):

Centier Bank as Trustee of Trust Number 1865 v. Wintering, LLC (mem. dec.)

Margaret Gerovac v. City of Valparaiso, Indiana, and Trinity Lutheran Church of Valparaiso (mem. dec.)

NFP criminal decisions today (1):

Shawn L. Elam v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on June 23, 2015 04:26 PM
Posted to Ind. App.Ct. Decisions