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Wednesday, February 21, 2007
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)
For publication opinions today (1):
Brockmann Enterprises, LLC v. City of New Haven, et al. - Judge Bailey: "[Dispositive issue] Whether the City of New Haven had authority to establish a Storm Water Service Charge without action by the Board of Directors of the City of New Haven Department of Storm Water Management. * * * On appeal, Brockmann argues that it is entitled to judgment as a matter of law because the City lacked authority to establish the Charge without action by the Board. The Defendants rely on the Home Rule Act and “the statutes generally pertaining to the control of municipally owned utilities and the statutes allowing the creation of a storm water management department” as authority for the City’s action. * * * [I]f there is a statute requiring a specific manner for exercising a power, the city must exercise the power in that manner. I.C. § 36-1-3-6(a). * * * Here, the Board was not allowed any opportunity to perform the very function for which it was created. The City did not follow the procedure prescribed by statute. Accordingly, we conclude that the provisions of Ordinance G-04-02 relating to the Charge are void, including §54.04 through §54.08. * * * Conclusion. We conclude that the City of New Haven lacked authority to establish the Storm Water Service Charge in a manner contrary to the process contained in statute. Reversed."
NFP civil opinions today (3):
Joseph M. and Sandra L. Hrstich v. City of East Chicago (NFP) - [This case involves a slow response to a public records request.] Judge Barnes: "On August 23, 2005, the Hrstichs filed Formal Complaint 05-FC-176 with Karen Davis (“Davis”), the Public Access Counselor of Indiana. The Complaint alleged a violation of APRA because the August 17, 2005 written request had resulted in neither production of the requested records or a written response. Davis requested the City’s response on or before September 7, 2005. * * * On September 20, 2005, Ruff advised Davis in writing as follows: “Enclosed are the documents for Mr. Austgen. This is the City’s complete file on the building.” (App. 39.) On September 21, 2005, Davis issued an advisory opinion that the City violated APRA by failing to timely provide a written response to the August 17, 2005 written request for documents. Davis further opined, “If the City is not providing you with records that are named in your request because it does not maintain those records it should so state.” * * * Here, the Hrstichs were promptly provided a large quantity of documents (275 pages) at a minimal cost. In the twelve-day interim, they were repeatedly advised that the City was not challenging their right to the documents and intended to provide them. Moreover, the City had sent a written response (by facsimile) to the Hrstichs’ attorney on August 24, 2005. Clearly the overall objective of APRA was satisfied and the Hrstichs did not suffer an actual denial of documents due them.3 Thus, the Hrstichs have not established that they incurred attorney fees to coerce the tender of documents. The trial court properly found that they did not establish their entitlement to judgment as a matter of law."
Short on Cash.Net of New Castle, Inc., and Kevin Short v. Department of Financial Institutions and Steve Carter, Attorney General of Indiana (NFP) - "Short and HCO were bound by the Preliminary Injunction and had notice of the hearing on contempt, but failed to timely file for a change of judge under the circumstances of this case. Furthermore, the trial court did not abuse its discretion in granting the State’s Motion for Default Judgment against SOC. And, although the Motion for Leave to Add Necessary Parties made specific allegations against the second-generation defendants, the Amended Complaint did not include these allegations. Thus, the trial court abused its discretion in granting Default Judgment against Short and HCO. Affirmed in part and reversed in part."
Peter Rottier, Edythe Rottier and Lake County Trust Company v. County of Starke, Indiana (NFP) - "Peter and Edythe Rottier and the Lake County Trust Company (“Appellants”) appeal the trial court’s judgment denying their request for attorney’s fees from Starke County. We affirm."
NFP criminal opinions today (1):
Vincent E. Cross v. State of Indiana (NFP)
Posted by Marcia Oddi on February 21, 2007 12:00 PM
Posted to Ind. App.Ct. Decisions