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Thursday, April 06, 2017

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

For publication opinions today (4):

In Town of Clear Lake v. Hoagland Family Limited , a 16-page opinion, Judge Baker writes:

The Town of Clear Lake (the Town) appeals the judgment of the trial court, which granted summary judgment to Hoagland Family Limited Partnership (Hoagland) and denied the Town’s motion for partial summary judgment. The trial court ruled that until the Town made its sewer system accessible through the installation of a grinder pump, it could not enforce penalties against Hoagland for failure to connect to the sewer system. Hoagland also argues that several alleged procedural errors made by the Town should preclude the Town from compelling connection to the sewer system. Finding that the Town does have the authority to compel Hoagland’s connection to its sewer system and no procedural error, we reverse and remand. * * *

In sum, because the Town is operating a functioning sanitary sewer within 300 feet of the properties, there is an “available” sewer under the meaning of Indiana Code section 36-9-23-30(a). Accordingly, the Town has the authority to compel Hoagland’s connection to the sewer system. Finally, the Town’s proposed process—having Hoagland submit an application with plans and schematics of the easiest and most convenient method of extending a lateral line to the sewer—is more economical and less burdensome than Hoagland’s proposal of forcing the Town to take property and ask questions later. Partial summary judgment should have been awarded to the Town on this issue. * * *

Because the trial court ruled in Hoagland’s favor, it never reached the issue of penalties, which will need to be determined on remand. While the issue is not squarely before us, we would be remiss if we did not make a few comments. * * *

This type of litigation tends to clog up the court system. Our courts are not flush with resources, and they are prone to getting backed up. When the system gets backed up, it produces unnecessary and unhealthy strains, which makes it more difficult for parties to obtain relief. And when these cases cannot be discharged, it is impossible for our court system to stay regular—and that means taxpayer resources down the drain. We can understand that, after such a long process, the parties are not overflowing with goodwill. But we hope that, before the case stalls and stagnates, they can put this big mess behind them.

The judgment of the trial court is reversed and remanded with instructions to award partial summary judgment to the Town and for further proceedings consistent with this opinion.

In Donald Anderson, Jr. v. State of Indiana , a 7-page opinion, Judge Baker writes:
Donald Anderson appeals his conviction for Battery by Bodily Waste, a Class B Misdemeanor. He argues that the evidence supporting his conviction is insufficient and that there is a material variance between the charging information and the evidence presented at trial. Finding no material variance and that the evidence is sufficient, we affirm. * * *

Mathias, Judge, concurring [beginning on p. 5]

I concur with the majority’s conclusion that the evidence sufficient to support Anderson’s conviction for Class B misdemeanor battery by bodily waste. However, I write separately to express my ongoing concern that Indiana’s criminal justice system continues to turn a blind eye to individuals suffering from mental illness who would be better served by commitment to a mental health treatment facility instead of incarceration in a local jail or the Department of Correction.

In Aaron D. Murray v. State of Indiana , a 10-page opinion, Judge Baker writes:
Aaron Murray appeals the sentence imposed by the trial court after Murray pleaded guilty to three counts of Level 4 Felony Child Molesting, arguing that the sentence is inappropriate in light of the nature of the offenses and his character. Finding that the sentence is not inappropriate, we affirm
In Jacob Lumbley v. State of Indiana , a 15-page opinion, Judge Brown writes:
Jacob R. Lumbley appeals his convictions and sentence for conspiracy to commit robbery as a level 5 felony, robbery as a level 5 felony, and two counts of criminal confinement as level 3 felonies, enhanced by the use of a firearm. Lumbley raises three issues which we revise and restate as: I. Whether the trial court erred by enhancing the sentences for his two criminal confinement convictions based upon his use of a firearm; II. Whether the trial court erred in ordering that the enhanced sentence for each criminal confinement conviction be served consecutive to each other; and III. Whether double jeopardy prohibits his convictions for conspiracy to commit robbery and robbery. We affirm.
NFP civil decisions today (2):

Robert E. Lehman v. Michele Lehman (mem. dec.)

Guardianship: Michelle Steege, et al. (mem. dec.)

NFP juvenile and criminal decisions today (3):

Curt Lowder v. State of Indiana (mem. dec.)

Cameron Washington v. State of Indiana (mem. dec.)

James Bates v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, April 06, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Attorney suspended in 2008 reinstated after lengthy process

In In the Matter of: Teresa Perry McKeethen, a 2-page 5-0 order filed yesterday afternoon, the Supreme Court reinstates the Petitioner to the practice of law, effective April 5, 2017.

As the ILB wrote on Feb. 14, 2014, a disciplinary order imposing "suspension without automatic reinstatement," no matter if the order sets a seemingly brief period of suspension (eg "suspended for 180 days, without automatic reinstatement"), presents a very stiff hurdle for the affected attorney wishing to return to the practice of law. See also this post from Feb. 14, 2017.

Today's order sets out the 9 steps that must be complied with before reinstatement. In this case Petitioner was suspended effective July 29, 2008:

Petitioner became eligible to seek reinstatement in April 2011, and she filed a petition for reinstatement on January 27, 2015. Following proceedings before a hearing officer, on February 10, 2017, the Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(18)(b) (2016), filed its recommendation that Petitioner be reinstated to the practice of law in Indiana.

Posted by Marcia Oddi on Thursday, April 06, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court suspends Carl Brizzi for 30 days

In In the Matter of: Carl J. Brizzi, a 2-page, 4-0 disciplinary order (J. Massa recused) file-stamped yesterday at 4:27 pm, Chief Justice Rush writes:

The hearing officer recommended that Respondent receive a 30-day suspension, and the parties have not filed briefs urging a different result. We concur with the hearing officer’s recommendation. Accordingly, for Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning May 1, 2017.
As CJ Rush notes in the order: "Respondent has prior discipline for unrelated misconduct that also involved his professional duties as Marion County Prosecutor. Matter of Brizzi, 962 N.E.2d 1240 (Ind. 2012)." Here is the prior 2012 order, which involved a public reprimand, no suspension.

Here are earlier ILB posts on Mr. Brizzi.

Posted by Marcia Oddi on Thursday, April 06, 2017
Posted to Ind. Sup.Ct. Decisions