« Indiana Decisions - 7th Circuit posts two | Main | Indiana Decisions - Hess v. Indiana Tested Limits of Free Speech During Wartime »

Wednesday, November 17, 2004

Indiana Decisions - Six posted today by Court of Appeals

Ann & Jeff Willis v. Christopher Westerfield (11/17/04 IndCtApp) [Torts]
[Opinion on Rehearing]
Vaidik, Judge

On rehearing, the Willises raise three issues, one of which we find dispositive; namely, whether the trial court erred by instructing the jury on the affirmative defense of failure to mitigate damages. Initially, we found no error in the trial court’s decision to instruct the jury on the failure to mitigate defense. See Willis v. Westerfield, 803 N.E.2d 1147, 1155 (Ind. Ct. App. 2004). Upon further reflection, we now reach the opposite conclusion. * * *

As to all other matters discussed in our original opinion and not herein addressed, we stand by our initial resolution of those issues.
Reversed and remanded for a new trial on the issue of damages.
SHARPNACK, J., and BAILEY, J., concur.

Tasha S. Maggert v. Frederick Call (11/17/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
Tasha Maggert appeals the trial court’s denial of his motion for summary judgment and the trial court’s grant of a motion for summary judgment filed by Frederick Call, warden of the Elkhart County Jail. Maggert raises two issues, which we consolidate and restate as whether Maggert’s right of access to the courts was violated when the jail’s law library was temporarily unavailable for his use in prosecuting a civil action. We affirm.

The relevant facts designated by the parties follow. From May 11, 2002 to November 8, 2002, Maggert was incarcerated at the Elkhart County Jail where Call was the jail warden. The Elkhart County Jail’s law library was unavailable from July 27, 2002 through October 22, 2002 due to flooding within the facility and subsequent repair work. * * *

The issue is whether Maggert’s right of access to the courts was violated when the law library was temporarily unavailable for his use in prosecuting his civil action. * * *

Maggert appears to argue that he had a constitutional right of access to the courts under the United States Constitution. See footnote The United States Supreme Court has held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498 (1977) * * * Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.

Maggert’s civil action was an action for theft of his property, not a challenge to his conviction or a civil rights action under 42 U.S.C. § 1983. Consequently, Maggert did not have a federal constitutional right of access to the law library or adequate assistance from persons trained in the law to prosecute his civil action. * * *

For the foregoing reasons, we affirm the trial court’s denial of Maggert’s motion for summary judgment and the trial court’s grant of Call’s motion for summary judgment. Affirmed.
BAILEY, J. and MAY, J. concur

Sam F. & Amber L. Oliverio v. Pam Chumley (11/17/04 IndCtApp) [TaxSale]
Najam, Judge
Sam and Amber Oliverio appeal the trial court’s denial of their appeal from the court’s order for issuance of two tax deeds to Pam Chumley. The Oliverios present a single issue for our review, namely, whether Chumley complied with the tax sale notice requirements under [IC] 6-1.1-25-4.5(e). We affirm. * * *

Here, Chumley followed the statute and sent the proper notices to the Oliverios by certified mail to the address the Pulaski County Auditor had on file. Our reading of the plain language of the statute indicates that that was the extent of Chumley’s obligation. See id. (notice to property owner sufficient if mailed by certified mail to address maintained by county auditor). The Oliverios, however, read the statute to mean that Chumley had to use “ordinary means” to locate their correct address. But that contention rests on a misreading of the statute and a failure to acknowledge a significant amendment to the statute that occurred in 2001. * * *

In sum, the trial court did not err when it denied the Oliverios’ appeal from the issuance of the tax deeds to Chumley. Affirmed.
SULLIVAN, J., and BARNES, J., concur.

Michael J. Sharp v. State of Indiana (11/17/04 IndCtApp) [Criminal Law & Procedure]
Sharpnack, Judge
Michael J. Sharp appeals the modification of his probation following the trial court’s finding that he violated conditions of his probation. Sharp raises one issue, which we restate as whether the trial court exceeded its statutory authority when it modified the term and the conditions of Sharp’s probation. We reverse and remand. * * *

Sharp was released from the Indiana Department of Correction on December 17, 2001. On July 2, 2003, the State filed a motion to revoke Sharp’s probation, and after a hearing, the trial court found that Sharp had violated several conditions of his probation. The trial court modified Sharp’s probation by extending his period of probation to six years and requiring Sharp to serve eighteen months in the Indiana Department of Correction as a term of probation.

The issue is whether the trial court exceeded its statutory authority when it modified the term and the conditions of Sharp’s probation. * * *

Assuming that the eighteen-month term of imprisonment exceeded the remaining amount of probation, the trial court erred by imposing the eighteen-month term of imprisonment as a condition of Sharp’s probation because that term exceeded the remaining amount of Sharp’s probation.

While we recognize that the trial court was attempting to fashion a modification of Sharp’s probation in an effort to punish Sharp for his probation violations and to protect society while still allowing Sharp to continue with his treatment and counseling, we are constrained to apply the unambiguous language of the statutes. Consequently, we reverse the trial court’s modification of the term and conditions of Sharp’s probation and remand to the trial court for resentencing on Sharp’s probation violations. See, e.g., Carroll v. State, 740 N.E.2d 1225, 1234 (Ind. Ct. App. 2000) (holding that the trial court exceeded its statutory authority by requiring a non-immunized clean-up statement as a condition of probation), trans. denied.

For the foregoing reasons, we reverse the trial court’s modification of the term and conditions of Sharp’s probation and remand for resentencing.
Reversed and remanded.
BAILEY, J. and MAY, J. concur

Michael R. Wiggins v. State of Indiana (11/17/04 IndCtApp) [Criminal Law & Procedure]
Mathias, Judge
Michael Wiggins (“Wiggins”) was convicted of Class C felony operating while intoxicated causing death and Class D felony operating while intoxicated causing serious bodily injury See footnote in Kosciusko Superior Court. Wiggins appeals and raises the following dispositive issue, which we restate as: Whether the trial court abused its discretion when it admitted the results of Wiggins’ urine toxicology test into evidence. Concluding that the investigating police officer did not have probable cause to believe that Wiggins was intoxicated when he ordered the test, we reverse. * * *

Upon review of Deputy Tyler’s testimony, it is clear that Wiggins had some difficulty answering Tyler’s questions following the accident while he was being treated at the scene and in the emergency room by medical personnel. But, without some objectively observed clear indication of intoxication, such as dilated pupils, telltale odor or failed field sobriety test(s), under Indiana’s Implied Consent Law, Wiggins’ difficulty in answering Deputy Tyler’s questions under these circumstances is not significant enough, by itself, to provide the probable cause required for the blood and urine tests ordered by Tyler under Duncan and Schmerber. Deputy Tyler therefore lacked the probable cause necessary to compel Wiggins to submit to a blood draw and urine test, and we conclude that the urine toxicology test results should not have been admitted into evidence at trial.

Finally, we observe that pursuant to Indiana Code section 9-30-6-6(a), a physician or other person who has obtained the results of a chemical test on a person’s blood or urine is required to deliver the results or the sample itself to a law enforcement officer who requests them as part of a criminal investigation. * * *

In this case, in its findings of fact and conclusions of law, the trial court denied Wiggins’ motion to suppress “in regard to the test results obtained by medical personnel where the tests were performed for purposes of diagnosis and treatment.” Importantly, however, there is no evidence in the record that any tests results revealing the presence of marijuana metabolites in Wiggins’ body were performed for the purpose of either diagnosis or treatment. The trial court’s finding is therefore clearly erroneous. See Hannoy, 789 N.E.2d at 981 (“Findings of fact are clearly erroneous only when the record lacks any evidence to support them.”). Furthermore, the State only argues that Deputy Tyler had probable cause to believe that Wiggins was intoxicated and does not contend that Wiggins’ urine toxicology test results were obtained during the normal course of medical treatment. * * *

In this case, the urine toxicology test was the only evidence admitted which established that Wiggins operated a motor vehicle with a controlled substance or its metabolite in his body causing the death of Terry Wilson and serious bodily injury to D.W. Accordingly, we cannot conclude that the erroneous admission of the urine toxicology test results was harmless and we must therefore reverse Wiggins’ convictions. Reversed.
BARNES, J., and CRONE, J., concur.

LTL Truck Services, LLC v. Safeguard, Inc. (11/17/04 IndCtApp) [Civil Procedure]
Najam, Judge
LTL Truck Service, LLC (“LTL”) appeals the trial court’s dismissal of one plenary action and eight small claims against Safeguard, Inc. d/b/a Maggart & Sons, Inc. and Maggart & Sons, Inc. d/b/a/ M&S Express (together “Safeguard”). LTL presents the following issues for our review:
1. Whether the trial court erred when it granted Safeguard’s motion for involuntary dismissal of LTL’s eight small claims actions.
2. Whether the trial court erred when it granted Safeguard’s motion to dismiss LTL’s plenary action under Indiana Trial Rule 12(B)(8). See footnote

We affirm. * * *
SULLIVAN, J., and BARNES, J., concur

Posted by Marcia Oddi on November 17, 2004 02:05 PM
Posted to Indiana Decisions