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Tuesday, August 23, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (3):

In Kyleigh Nolan v. Clarksville Police Department and Town of Clarksville, Indiana, a 14-page opinion, Chief Judge Vaidik writes:

Nineteen-year-old Kyleigh Nolan volunteered to play the role of a hostage in a training exercise being conducted by the Clarksville Police Department. She was injured and later sued the police department and the Town of Clarksville. The trial court granted summary judgment for the defendants after finding that Nolan had failed to provide sufficient pre-suit notice of her claim pursuant to the Indiana Tort Claims Act (“ITCA”). While we agree that Nolan failed to comply with the statutory-notice requirement, we also conclude that there is a genuine issue of material fact as to whether the defendants, by virtue of their own conduct following the incident, are estopped from asserting Nolan’s noncompliance as a defense. We therefore affirm in part and reverse in part the grant of summary judgment in favor of the defendants. On remand, Nolan is entitled to present her estoppel claim to the jury at trial. * * *

We recognize that our Supreme Court previously held that an estoppel claim in the ITCA-notice context must be resolved by the trial court before trial. Powell, 393 N.E.2d at 192; see also Allen, 496 N.E.2d at 417 (relying on Powell in reversing summary judgment on plaintiff’s estoppel claim and remanding for determination by “trial judge as trier of fact”). However, we see no basis on which to treat Nolan’s estoppel claim any differently than the Supreme Court treated the fraudulent-concealment/estoppel claim made by the plaintiffs in Lyons.

Affirmed in part, reversed in part, and remanded for further proceedings.

In Tyrone Grayson v. State of Indiana, a 7-page opinion with a pro se defendant, Chief Judge Vaidik writes:
The Indiana Parole Board alleged that Tyrone Grayson violated his parole by committing a new offense. The parole board alleged that Grayson was on parole for one particular sentence when he committed the new offense. After Grayson’s parole was revoked, he filed an application for a writ of habeas corpus alleging that he was not on parole for that sentence when he committed the new offense. Realizing a mistake in the records, the Indiana Department of Correction fixed the records to show that Grayson was on parole for a different sentence when he committed the new offense. Without a new parolerevocation hearing, the State submitted to the trial court corrected records to support Grayson’s parole revocation, and the trial court—construing Grayson’s habeas application as a petition for post-conviction relief—found that Grayson was not entitled to relief.

Because parolees charged with violations of parole are within the protection of the Due Process Clause of the Fourteenth Amendment, we find that Grayson was entitled to an opportunity to be heard on the allegation that he violated parole for the correct sentence. We therefore reverse.

In Jay Lynn v. State of Indiana , a 10-page opinion, Judge Crone writes:
Jay Lynn appeals his convictions, following a jury trial, for battery and disorderly conduct, both as class B misdemeanors. He contends that the trial court committed fundamental error regarding a preliminary jury instruction and that the State did not present sufficient evidence to support his disorderly conduct conviction. Finding no fundamental error and concluding that the State presented sufficient evidence, we affirm. * * *

This evidence unquestionably supports a reasonable inference that Lynn engaged in a hostile encounter with Johnson that was both physical and verbal in nature. Thus, the evidence is sufficient to establish that Lynn engaged in fighting. His arguments on appeal are merely a request that we reweigh the evidence in his favor, and we will not. The State presented sufficient evidence to sustain Lynn’s conviction for disorderly conduct.

NFP civil decisions today (4):

In re the Paternity of A.D.: Abram M. Dwyer v. Lindsy L. (Redden) Eickhoff (mem. dec.)

Jose Menendez v. CACH, LLC (mem. dec.)

Michael Hale v. Dr. Lolit Joseph, Nurse Lesa Wolfe, and Nurse Teresa Lennings (mem. dec.)

K.S. v. D.S. (mem. dec.)

NFP criminal decisions today (2):

William McCormick v. State of Indiana (mem. dec.)

Brian K. Bell v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on August 23, 2016 12:45 PM
Posted to Ind. App.Ct. Decisions