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Monday, November 30, 2015

Ind. Decisions - Court of Appeals issues 6 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (6):

In In the Matter of S.M., J.M., A.M., H.G., Children in Need of Services, A.M. (Mother) v. The Indiana Department of Child Services , an 11-page opinion, Judge Baker writes:

Far too often, our public resources and agencies are called upon to intercede to protect the most vulnerable in our society—our children. The General Assembly has established a statutory procedure for determining when children are in need of the State’s services and has specified the type of evidence required. In this case, however, the juvenile court found four children to be in need of services when the record is devoid of evidence supporting such a finding.

A.M. (Mother) appeals the juvenile court’s order declaring her four children to be Children in Need of Services (CHINS). She argues that the evidence is insufficient to support the CHINS finding. We find the evidence wholly lacking and reverse. * * *

We are well aware that DCS and the courts are overwhelmed with the growing numbers of CHINS cases statewide. All would be better served if the system focused its time, efforts, and resources on the families who really need them. This one did not. The judgment of the [Marion County] juvenile court is reversed.

In Kent W. Abernathy, Commissioner of the Indiana Bureau of Motor Vehicles and Bernard Carter, Prosecuting Attorney for Lake County v. Eric C. Gulden, Jeremy Crawford, David J. Klahn, et. al., a 19-page, 2-1 opinion, Judge Riley writes:
Appellants-Respondents ... (collectively, BMV), appeal from the consolidated trial court’s denials of the BMV’s motions to correct error, and in one case, the BMV’s motion for relief from judgment, in which the trial court upheld its grant of the (collectively, Appellees), ... petitions for judicial review of the BMV’s determinations that each of them qualified as an habitual traffic violator (HTV). We reverse.

The BMV raises one issue on appeal, which we restate as: Whether Indiana Code section 9-30-10-4(e), which requires the BMV to use the dates of the offenses rather than the dates of the judgments in determining a person’s status as an HTV, violates the ex post facto clauses of the Indiana and United States Constitutions, as applied to Appellees who committed their third HTV-qualifying offense prior to the effective date of subsection 4(e) but whose third judgment was entered after that provision became effective. * * *

Based on the foregoing, we conclude that Indiana Code section 9-30-10-4(e), which requires the BMV to use the dates of the offenses rather than the dates of the judgments in determining a person’s status as a HTV, is a procedural amendment which does not violate the ex post facto clauses of the Indiana and United States Constitutions. Reversed.

Altice, J. concurs
Brown, J. dissents with separate opinion [which begins, at p. 17] I respectfully dissent from the majority’s conclusion that the addition of subsection (e) to the habitual violators statute at Ind. Code § 9-30-10-4 was procedural in nature. The majority concludes that the amendment did not change the elements of the habitual violator offense, but rather sought only to clarify the calculation method used in the habitual violator determination. I disagree.

In Anna Wood v. D.W., Minor Child, by next friend, Rhonda Wood , a 10-page opinion, Judge Crone writes:
Anna Wood appeals the trial court’s grant of a protective order in favor of Rhonda Wood on behalf of her son, D.W. Anna contends that the trial court committed reversible error in admitting certain hearsay and opinion evidence. We agree and therefore reverse and remand with instructions to vacate the protective order against her. * * *

D.W.’s statement and Detective Harris’s opinion were the only probative evidence that Anna committed a sexual offense/domestic violence against D.W.10 Consequently, the trial court’s erroneous admission of this evidence affected Anna’s substantial rights and cannot be considered harmless.
11 Therefore, we reverse and remand with instructions to vacate the protective order against Anna.

In Pamela Marlow v. Better Bars, Inc. , a 24-page, 2-1 opinion, Judge Riley writes:
Appellant-Plaintiff, Pamela Marlow as guardian and next friend of Kenneth Marlow (Marlow), appeals the trial court’s summary judgment in favor of Appellee-Defendant, Better Bars, Inc., d/b/a Bubbaz Bar & Grill (the Bar), in Marlow’s negligence action. We reverse and remand. * * *

Based on the foregoing, we conclude that the trial court erred in granting summary judgment because there are genuine issues of material fact regarding whether the Bar had actual knowledge that Marlow was visibly intoxicated when it served him even one alcoholic beverage and whether the Bar’s conduct was the proximate cause of Marlow’s injuries. We therefore reverse the trial court’s entry of summary judgment and remand the case for further proceedings. Reversed and remanded.

Altice, J. concurs
Brown, J. dissents with separate opinion [which begins at p. 21 and which concludes] The intervening act of Marlow resisting law enforcement by running from the police and into the middle of a four-lane highway at night leads to the single conclusion that the Bar was not the proximate cause of Marlow’s injuries. The Bar was accordingly entitled to summary judgment in its favor. For this reason, I respectfully dissent from the majority’s conclusion to reverse the trial court’s grant of summary judgment in the Bar’s favor, and would affirm the trial court.

In Janet C. Turner (deceased), James R. Turner, and Jan Tee, Inc. v. Nationstar Mortgage, LLC , a 17-page opinion, Judge Barnes writes:
Janet Turner, James Turner, and Jan Tee, Inc., (collectively “the Turners”) appeal the granting of a motion to enforce the parties’ settlement agreement and judgment of foreclosure filed by Nationstar Mortgage, LLC, (“Nationstar”). * * *

The Turners have not established that the trial court erroneously denied their motion to dismiss or that the parties’ settlement agreement should not be enforced as it relates to the forfeiture. We affirm.

In Anthony Lewis v. State of Indiana, a 5-page opinion, Judge Najam writes:
Anthony Lewis was convicted of two counts of resisting law enforcement, one as a Class D felony and one as a Class A misdemeanor, and one count of operating a motor vehicle while license suspended, as a Class A misdemeanor, following a jury trial. Lewis appeals and presents a single issue for our review, namely, whether the two resisting law enforcement convictions violate double jeopardy principles. We reverse and remand with instructions. * * *

As we held in Arthur, a defendant’s fleeing by vehicle and then on foot “constitute one continuous act of resisting law enforcement[.]” 824 N.E.2d at 387. We hereby remand this case to the trial court to vacate Lewis’ conviction for Class A misdemeanor resisting law enforcement.

NFP civil decisions today (2):

In Re Support of J.D. T.F. v. J.J.D. (mem. dec.)

Janet Daugherty v. Dollar Tree Stores, Inc. (mem. dec.)

NFP criminal decisions today (12):

Michael Hunt v. State of Indiana (mem. dec.)

Luis Torres-Reynoso v. State of Indiana (mem. dec.)

Nakisha Morris v. State of Indiana (mem. dec.)

Allen Riley v. State of Indiana (mem. dec.)

Jamie R. Aldred v. State of Indiana (mem. dec.)

Brent D. Sharp v. State of Indiana (mem. dec.)

Troy Belk v. State of Indiana (mem. dec.)

Antwion Carter v. State of Indiana (mem. dec.)

Tracey A. Hardy v. State of Indiana (mem. dec.)

Christopher Lozier v. State of Indiana (mem. dec.)

Devon Sterling v. State of Indiana (mem. dec.)

Clarence White v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on November 30, 2015 01:08 PM
Posted to Ind. App.Ct. Decisions