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Thursday, December 29, 2016

Ind. Decisions - Court of Appeals issues 7 opinion(s) today (and 21 NFP memorandum decision(s))

For publication opinions today (7):

In Andrew Hunter v. State of Indiana, Department of Transportation , a 12-page opinion, Judge Crone writes:

Andrew Hunter was terminated from his employment with the Indiana Department of Transportation (“INDOT”). His administrative appeals were unsuccessful, and he filed a petition for judicial review. INDOT filed a motion to dismiss the petition as untimely, which the trial court granted.

On appeal, Hunter contends that the trial court erred in granting INDOT’s motion to dismiss, claiming that the petition was timely filed. In the alternative, he argues that the untimely filing of a petition is a procedural error, not a jurisdictional error; that INDOT failed to preserve the timeliness issue by not raising it as an affirmative defense; and that, in any event, he should be allowed to demonstrate good cause to excuse the untimely filing. We conclude that the petition was untimely filed; that the error is procedural, not jurisdictional; that the trial court could consider the timeliness issue even if INDOT failed to preserve it; and that because Hunter’s petition was untimely filed, he has waived his right to judicial review and is not entitled to demonstrate good cause to excuse the untimely filing. Therefore, we affirm.

In H.S. v. W.P. , a 9-page opinion, Judge Baker writes:
H.S. (Granddaughter) appeals the judgment of the trial court, which dismissed her guardianship petition regarding W.P. (Grandfather). The trial court found that Granddaughter’s petition was precluded by the doctrine of res judicata because a previous case filed by J.C.P.—her uncle and Grandfather’s son— under the trust code was dismissed with prejudice. The trial court also found that Granddaughter’s petition violated a local court rule. We find that there is no evidence that Granddaughter influenced J.C.P.’s decision to dismiss his own case and that, therefore, the doctrine of res judicata cannot be fairly applied to preclude her petition. Moreover, Granddaughter did not violate the local court rule. Accordingly, we reverse and remand with instructions to vacate the order dismissing her case and for further proceedings.
In Suzanne E. Esserman v. Indiana Department of Environmental Management, a 9-page opinion, Judge Najam writes:
Suzanne E. Esserman appeals the trial court’s dismissal of her complaint against the Indiana Department of Environmental Management (“IDEM”), in which Esserman alleged that IDEM had unlawfully terminated her employment, in violation of Indiana’s False Claims Act, Ind. Code §§ 5-11-5.5- 1 to -18 (2016), in retaliation for her reporting alleged misuse of State funds by certain IDEM officers. Esserman raises two issues for our review: 1. Whether the trial court erred when it concluded that sovereign immunity barred the court from having subject matter jurisdiction over Esserman’s complaint against IDEM. 2. Whether the trial court erred when it concluded that Esserman had failed to state a claim upon which relief can be granted. * * *

8. Esserman objected to approval of some claims made by applicants for dispersal of State funds from the Excess Liability Trust Fund (ELTF), which pays for various projects including the remediation of contamination caused by leaking underground storage tanks. The ELTF is funded in large measure by tax dollars generated from the State tax on gasoline sales.

9. On many occasions, Esserman found that applicants had not properly documented their claims[] and therefore the claims were not “reasonable and cost effected [sic],” as required for ELTF funds under IC § 13-23-9-2 and its implementing regulations.

10. Esserman could not legally approve claims without reviewing them, and when she actually reviewed them, she was disciplined for working too slowly, despite the fact that she found numerous instances in which the applicants should not legally have been paid for all costs invoiced. Appellant’s App. Vol. II at 8. In light of those facts, Esserman claimed that IDEM had unlawfully terminated her employment in retaliation for reporting the alleged misuse of State funds. * * *

In sum, none of the three limited circumstances in which our supreme court has recognized that common law sovereign immunity still exists applies here. See Benton, 721 N.E.2d at 227. And Esserman’s complaint states a claim upon which relief can be granted under Indiana Code Section 5-11-5.5-8. Accordingly, the trial court erred when it dismissed Esserman’s complaint pursuant to Indiana Trial Rules 12(B)(1) and 12(B)(6). We reverse the trial court’s dismissal of Esserman’s complaint and remand for further proceedings.

In William M. Starcher v. State of Indiana, a 6-page opinion, Judge Najam writes:
William M. Starcher appeals his two-year sentence after he pleaded guilty, pursuant to a written plea agreement, to maintaining a common nuisance, a Level 6 felony, and possession of a synthetic drug, as a Class A misdemeanor. Starcher raises a single issue for our review, namely, whether the trial court abused its discretion when it sentenced him. However, we agree with the State that the plain terms of Starcher’s plea agreement demonstrate that he waived his right to appellate review of his sentence. Accordingly, we grant the State’s motion to dismiss this appeal.
In Angela R. Neal v. State of Indiana, a 6-page opinion, Judge Najam writes:
Indiana Code Section 35-38-1-7.8(c) (2016) provides that, “[u]pon determining that a defendant is a credit restricted felon, a court shall advise the defendant of the consequences of this determination.” In this appeal, Angela R. Neal1 presents a question of first impression: whether the trial court’s advisement of the consequences of Neal’s status as a credit-restricted felon complied with Section 7.8(c). We conclude that the trial court’s advisement substantially complied with Section 7.8(c) and that there is no particular language that a trial court must use in order to comply with the statute. Accordingly, we affirm.
In Summer C. Snow v. State of Indiana, a 22-page, 2-1 opinion, Judge Brown writes:
Summer C. Snow appeals her convictions for battery against a public safety official as a level 5 felony and resisting law enforcement as a level 6 felony. Snow raises one issue which we revise and restate as whether the trial court abused its discretion in admitting testimony regarding a handgun. We affirm. * * *

Bradford, J., concurs.
Vaidik, C.J., dissents with separate opinion. [that begins, at p. 14] I respectfully dissent. I do so because the fact that Snow legally possessed a handgun on her own property that she did not use or brandish during her altercation with Officer Peck was not relevant to any issue in this case. And the admission of the gun, including the State’s inflammatory characterization of it as “unregistered” and “literally against the law,” was not harmless error. This case boiled down to Officer Peck’s word against Snow’s and the admission of the gun could have tipped the scales in favor of the State. I would therefore reverse and remand this case for a new trial.

In Reginald Seville Harris v. State of Indiana , a 6-page opinion, Judge Brown writes:
Reginald Seville Harris appeals his conviction for battery against a public safety official as a level 5 felony. Harris raises one issue which we revise and restate as whether the trial court abused its discretion in admitting testimony regarding a handgun. We affirm. * * *

Bradford, J., concurs.
Vaidik, C.J., dissents with separate opinion. [that begins, on p. 5 and reads in full] I respectfully dissent. For the same reasons explained in my dissent today in the case of Harris’ co-defendant, Summer Snow, I believe that the trial court abused its discretion in admitting evidence about a handgun (which belonged to Snow) that was found in Snow’s driveway after [ILB - sic] both Snow and Harris were in custody. Although the majority finds that the error is harmless in light of the other evidence of Harris’ guilt, I disagree because the issue of guilt in this joint trial boiled down to whose version of events to believe: Officer Peck’s version or Snow and Harris’ version. The gun—which Snow never used or brandished during the altercation and, in any event, which Snow legally possessed—and the State’s emphasis on the gun, including the inflammatory (and misleading) fact that it was “unregistered,” colored the jury’s perception of Snow and Harris and led the jury to believe Officer Peck’s version of events. I would therefore reverse Harris’ conviction for Level 5 felony battery against a public safety official and remand this case for a new trial.

NFP civil decisions today (8):

In the Term. of the Parent-Child Relationship of: D.W. and M.W. (Minor Children), R.W. (Father) v. Indiana Department of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of N.B. (Minor Child), and A.H. (Mother) v. Indiana Department of Child Services (mem. dec.)

In the Matter of: C.T., (Child in Need of Services), N.T. v. Indiana Department of Child Services (mem. dec.)

Vassil M. Marinov v. Fiat Chrysler Automotive (mem. dec.)

In In Re the Election of the Mayor of the City of Mitchell; Dan Terrell v. John "JD" England (mem. dec.), a 13-page opinion, Judge Mathias writes:

Dan Terrell (“Terrell”) ran against John England (“England”) and others for the mayoralty of Mitchell in Lawrence County, Indiana. England prevailed over Terrell by four votes. Terrell contested that result in Lawrence Circuit Court and lost. Twice defeated, Terrell now appeals and asks this court to order a special election. * * *

England’s motion to dismiss Terrell’s petition for failure to comply with the contest statute and the Trial Rules was properly granted. Once that order was entered, Terrell’s cause of action was extinguished, and the trial court’s alternative order had no object on which to operate. That order, as well as the findings and conclusions on which it rests, are therefore void and of no force and effect. Affirmed.

Douglas K. Hoffman, as successor trustee of the Hoffman HF Land Trust, and TDM Farms, Inc. v. Andrew G. James and Susan G. James (mem. dec.)

In Angie's List, Inc. v. Rick Myers, Maggie Leonard, and Brock Crabtree (mem. dec.), a 12-page opinion, Judge Baker concludes:

In summary, the trial court properly found that an injunction against working for HomeAdvisor would unduly burden the employees, and it properly ruled in the employees’ favor on that issue. But the evidence unambiguously shows that Leonard and Myers, at the very least, took and failed to return proprietary information. And the evidence unambiguously shows that Myers, at the very least, contacted and encouraged Angie’s List employees to leave their jobs to join HomeAdvisor. As the employees covenanted not to take company documents and not to solicit employees away from the company, the trial court should have granted Angie’s List’s request for a preliminary injunction on these matters.

The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions to enter a preliminary injunction against the defendants to act in accord with their covenants.

Brian E. Lewis v. Bray Lewis (mem. dec.)

NFP criminal decisions today (13):

Alva Oliver Funk v. State of Indiana (mem. dec.)

David A. Penfold v. State of Indiana (mem. dec.)

Ronald E. Harrod v. State of Indiana (mem. dec.)

Joshua A.B. Weathers v. State of Indiana (mem. dec.)

Carlvet Lee v. State of Indiana (mem. dec.)

Clarence Milton Carlisle, II v. State of Indiana (mem. dec.)

Kenneth Rollingcloud v. State of Indiana (mem. dec.)

Keith E. Hopkins, Jr. v. State of Indiana (mem. dec.)

Jeffrey R. Chaney v. State of Indiana (mem. dec.)

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

Larry A. Conn v. State of Indiana (mem. dec.)

Dwayne Pettis v. State of Indiana (mem. dec.)

Steven D. Parks v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 29, 2016 01:13 PM
Posted to Ind. App.Ct. Decisions