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Wednesday, December 07, 2016

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (4):

In John C. Morris v. Custom Kitchen & Baths , a 14-page opinion, Judge Robb writes:

John Morris is a licensed building contractor in Vanderburgh County, Indiana, and the sole proprietor of Custom Kitchen & Baths (“CKB”). Morris often uses his contractor’s license, skills, tools, and vehicle in volunteer community projects, particularly with the Boy Scouts of America, in which his son is a participant. In August 2012, Morris suffered an injury while constructing a 10’ x 10’ garden storage shed (“Olivet Project”) for Olivet Presbyterian Church (“Church”) in Evansville, Indiana. The Olivet Project was constructed as a volunteer Boy Scout project and Morris was not compensated for its construction. Following his injury, Morris filed claims with CKB’s worker’s compensation carrier, the Church’s insurance company, and the liability carrier for the Boy Scouts, all of whom paid money to or on behalf of Morris. In 2013, Morris filed an Application for Adjustment of Claim with the Indiana Worker’s Compensation Board (“Board”), which a Single Hearing Member denied. Morris then appealed to the full Board, which affirmed the Single Member’s decision. Morris appeals from the Board’s denial of his Application for Adjustment of Claim, raising one issue for review: whether his injury arose out of and in the course of his employment. CKB cross-appeals, seeking reimbursement of monies paid to or on behalf of Morris. Concluding Morris’ injury arose out of and in the course of his employment, and is therefore covered by Indiana’s Worker’s Compensation Act, we reverse the decision of the Board and remand for a determination of disability benefits. * * *

We conclude the facts presented inescapably lead to a decision opposite of the Board’s decision, and that Morris’ injury arose out of and in the course of his employment. Therefore, Morris’ injury is covered by the Indiana’s Worker’s Compensation Act. Accordingly, we reverse and remand for determination of the benefits he should receive.

In Don H. Gunderson, et al. v. State of Indiana, et al. , a 22-page opinion, Judge May writes:
“The shores of the Great Lakes may look serene, but they are a battleground. Members of the public enjoy using the shores for fishing, boating, birding, or simply strolling along and taking in the scenic vistas.” Kenneth K. Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1, 2 (2010). “Repeatedly, however, owners of land bordering the Great Lakes (i.e., littoral owners), armed with deeds indicating they own the shore to the water’s edge or even lower, have tried to stop members of the public from using their property above the water’s edge.” Id. (internal footnotes omitted). Today we are called on to decide one such case.

Don H. Gunderson and Bobbie J. Gunderson, as trustees of the Don H. Gunderson Living Trust (collectively, “Gunderson”), sought a declaratory judgment that their Lake Michigan property extends to the water’s edge, wherever the water’s edge is at any given moment. The State of Indiana and the Indiana Department of Natural Resources (“DNR”) (collectively, “State”), Alliance for the Great Lakes and Save the Dunes (“Alliance-Dunes”), and Long Beach Community Alliance (“LBCA”), argued the State holds in trust for the public all land up to the ordinary high water mark (“OHWM”), regardless whether that land is covered by water. * * *

We find persuasive the Michigan Supreme Court’s analysis in Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005), reh’g denied, cert. denied sub nom Goeckel v. Glass, 546 U.S. 1174 (2006). It addressed a dispute similar to that before us – i.e., whether the public trust land extends up to the ordinary high water mark or whether, as Gunderson argues, it applies only to land that is actually under water at any particular moment. * * *

Following the holding and reasoning in Glass, we conclude Gunderson’s private rights are able to co-exist with those rights of the public trust. Therefore, the land at issue below the OHWM is open to limited public use, such as gaining access to the public waterway or walking along the beach, as described in Glass. * * *

Alliance-Dunes argues the DNR is without authority to set the OHWM as it did in 312 IAC 1-1-26(2). Regulations set forth by administrative boards “must be reasonable and reasonably adapted to carry out the purpose or object for which these boards were created. Potts v. Review Bd. of Indiana Emp’t Sec. Div., 438 N.E.2d 1012, 1015 (Ind. Ct. App. 1982). “If the rules are in conflict with the state’s organic law . . . they are invalid.” Id. We hold 312 IAC 1-1-26(2) is in conflict with well-established case law regarding the state’s ability to regulate the shores of Lake Michigan.

In Lake Sand we held: “The state in its sovereign capacity is without power to convey or curtail the right of its people in the bed of Lake Michigan.” 120 N.E. at 716. As the OHWM prior to 1995 was the common law OHWM as held in Shively, 152 U.S. at 41, the DNR’s staking the OHWM at the measurements set forth in 312 IAC 1-1-26(2) most certainly conveyed or curtailed the rights of the people of Indiana in Lake Michigan. Therefore, that portion of the Indiana Administrative Code is invalid, and the OHWM remains that defined by common-law. * * *

The designated evidence indicates the boundary of Section 15 is Lake Michigan. We held above, based on Glass, Gunderson’s property rights overlap with those of the public trust. Therefore, the northern boundary of Gunderson’s property is the ordinary low water mark, subject to the public’s rights under the public trust doctrine up to the OHWM. * * *

We affirm the trial court’s findings regarding the nature and scope of the public trust as it relates to Lake Michigan. However, we reverse the trial court’s determination of the OHWM’s location.

Gunderson owns legal title up to the northern boundary of Section 15, and the State holds the land below the OHWM as defined at common law. The designated evidence consistently indicates the northern boundary of Section 15 is Lake Michigan. Therefore, we reverse the trial court’s finding northern boundary of Section 15 is unknown, and hold the northern boundary of Section 15 is the ordinary low water mark, subject to the public’s rights as part of the public trust. Affirmed in part and reversed in part.

In Reginald Webster v. State of Indiana , a 6-page opinion, Judge Crone writes:
Reginald Webster appeals his conviction for class A misdemeanor carrying a handgun without a license, following a bench trial. He raises two issues for our review, one of which we find dispositive: namely, he asserts that the trial court clearly erred in denying his Indiana Trial Rule 41(B) motion for involuntary dismissal. Finding that dismissal was warranted, we reverse his conviction. * * *

In response to Webster’s motion for involuntary dismissal, the State argued that similar to the defendant’s possession of a valid license, the location where the defendant is carrying the handgun is an exemption or exception to, rather than an element of, the offense of carrying a handgun without a license. Thus, the State maintained, and the trial court mistakenly agreed, that it was Webster’s burden to prove that 1554 East Naomi Street was his dwelling, property, or fixed place of business as opposed to the State having the burden to prove that 1554 East Naomi Street was not his dwelling, property, or fixed place of business. This was clear error. As we already stated, the location where the defendant is carrying a handgun is an essential element of the charged offense.

In Albert Burton v. State of Indiana , 5-page opinion, Judge Crone writes:
Albert Burton pled guilty to operating a motor vehicle while driving privileges are suspended as a level 6 felony under Indiana Code Section 9-30-10-16. The version of the statute in effect when Burton committed the crime provided that a person convicted of a felony under the statute “forfeits the privilege of operating a motor vehicle for life.” Ind. Code § 9-30-10-16(c). Because this provision was repealed before he was sentenced, Burton argued that it did not apply to him. The trial court disagreed but stayed entry of judgment to allow Burton to perfect an interlocutory appeal on the issue. We affirm the trial court and remand with instructions to enter judgment accordingly. * * *

The gist of Burton’s argument is that the lifetime forfeiture provision of Indiana Code Section 9-30-10-16(c) does not apply to him because it was repealed after he committed the offense and before he was sentenced. As a general rule, the law in effect when a crime was committed is controlling. Collins v. State, 911 N.E.2d 700, 708 (Ind. Ct. App. 2009), trans. denied. There are exceptions to this rule,[4] but Burton does not assert, let alone offer any cogent argument, that any of those exceptions apply here. Therefore, we affirm the trial court’s determination that the statute’s lifetime forfeiture provision applies to Burton and remand with instructions to enter judgment accordingly.
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[4] For example, “[t]he doctrine of amelioration allows a defendant to be sentenced under the more lenient provisions of a statute which is in effect at the time of sentencing rather than be sentenced under a more harsh statute in effect at the time the offense was committed.” Winbush v. State, 776 N.E.2d 1219, 1224-25 (Ind. Ct. App. 2002), trans. denied (2003). * * *

NFP civil decisions today (1):

In the Term. of the Parent-Child Relationship of: R.P., C.P. and A.A. (Minor Children), and L.B. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

NFP criminal decisions today (4):

William E. Schini v. State of Indiana (mem. dec.)

James E. Robinson v. State of Indiana (mem. dec.)

Omega R. McCullagh v. State of Indiana (mem. dec.)

William S. Smith v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 7, 2016 11:47 AM
Posted to Ind. App.Ct. Decisions