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Thursday, August 12, 2004

Indiana Decisions - Five today from Court of Appeals

Mark Martin v. State of Indiana (8/12/04 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge

Appellant, Mark Martin, challenges the trial court’s revocation of his probation. Upon appeal, Martin presents three issues for our review, one of which we find dispositive: whether the evidence is sufficient to support the trial court’s revocation of his probation.
We reverse.
Howard County Board of Commissioners v. Kellie Lukowiak (8/12/04 IndCtApp) [Opinion on Petition for Rehearing]
Sullivan, Judge
Kellie Lukowiak brings this petition for rehearing, requesting that we clarify our opinion to specifically permit recovery “for pain and suffering and personal injuries.” We grant this petition for rehearing solely for the purpose of clarifying what damages Kellie may seek to recover. * * *

[W]e grant the Petition for Rehearing for the sole purpose of clarifying that the notice given to the Board was adequate to advise that a medical expense claim with regard to Kellie’s personal injuries was probable. The notice, however, was not adequate for purposes of permitting personal injury damages in excess of medical expenses.
ROBB, J., and HOFFMAN, Sr.J., concur.

Donnie Ray Dunaway, et al. v. Allstate Insurance Company (8/12/04 IndCtApp) [Insurance]
Najam, Judge
[The Dunaways] appeal the trial court’s entry of summary judgment in favor of Allstate Insurance Company (“Allstate”) and present the following issues for review: 1. Whether the trial court properly granted summary judgment in Allstate’s favor on the Dunaways’ breach of contract claim based on the policy’s one-year limitations clause. 2. Whether the one-year limitations clause bars the Dunaways’ claims for breach of the duty of good faith and unjust enrichment. * * *

Here, we cannot conclude as a matter of law that Allstate did nothing to cause the Dunaways to reasonably believe that Allstate would not insist upon compliance with the limitations provision. Rather, given the fact that Allstate failed to comply with certain time provisions in the policy, whether it was reasonable for the Dunaways to believe that Allstate would not require strict compliance with the one-year limitations provision is a question of fact that must be determined by the trier of fact. Consequently, whether the Dunaways’ breach of contract claim is barred by the limitations clause is an issue left for another day. We conclude that the trial court erred when it granted Allstate’s motion for summary judgment on the Dunaways’ breach of contract claim. * * *

We conclude that there is a genuine issue of material fact whether Allstate impliedly waived reliance on the one-year limitations clause. Further, even if Allstate did not waive reliance on that clause, the limitations clause does not bar the Dunaways’ tort claim for breach of the duty of good faith. However, the Dunaways have waived their arguments regarding their claim for unjust enrichment. Therefore, we affirm the trial court’s summary judgment on the unjust enrichment claim and reverse summary judgment on the breach of contract and the duty of good faith claims. We remand for further proceedings consistent with this opinion. Affirmed in part, reversed and remanded in part.
KIRSCH, C.J., and RILEY, J., concur.

Brian Chism v. State of Indiana (8/12/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
Brian Chism appeals the trial court’s finding that he violated his probation and the modification of the conditions of his probation. Chism raises three issues, which we consolidate and restate as: Whether the trial court’s findings that Chism violated his home detention by being absent from his home without permission and by failing to pay home detention fees are supported by substantial evidence; and Whether the trial court abused its discretion by modifying the conditions of Chism’s probation to allow the use of monitoring by a global positioning satellite (“GPS”) system. * * *

We recognize that the trial court may modify a probationer’s conditions of probation as a result of violations. See Ind. Code § 35-38-2-3(g). However, because the trial court did not have the statutory authority to order an “offender” to be monitored by the GPS system and because Chism did not qualify as a “violent offender,” the trial court abused its discretion by modifying Chism’s conditions of probation to include monitoring by the GPS system.
For the foregoing reasons, we affirm the trial court’s findings that Chism violated his probation, reverse the trial court’s modification of Chism’s probation to include monitoring by the GPS system, and remand for resentencing on Chism’s probation violations. Affirmed in part, reversed in part, and remanded.
DARDEN, J. and ROBB, J. concur

Julie Ann Lovell v. State of Indiana (8/12/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
Julie Lovell appeals her convictions for dealing in methamphetamine as a class B felony and possession of chemical reagents or precursors with intent to manufacture as a class D felony.Lovell raises four issues, which we partially consolidate and restate as: Whether the trial court abused its discretion by admitting evidence obtained as a result of the police search of Lovell’s garbage bags into evidence; Whether the trial court properly denied Lovell’s motion for judgment on the evidence; and Whether the evidence is sufficient to sustain Lovell’s convictions for dealing in methamphetamine as a class B felony and possession of chemical reagents or precursors with intent to manufacture as a class D felony. We affirm in part and reverse in part. * * *
DARDEN, J. and ROBB, J. concur

Posted by Marcia Oddi on August 12, 2004 04:55 PM
Posted to Indiana Decisions