The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 19 NFP) [Updated]

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Wednesday, April 18, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 19 NFP) [Updated]

For publication opinions today (3):

In City of Crown Point v. Misty Woods Properties, LLC, a 21-page opinion, Judge Robb concludes:

It is clear that we are here dealing with a developmental standards variance request. The developmental standards at issue here are lot frontage and lot area size. Misty Woods has not provided any evidence or argued otherwise. Accordingly, section 36-7-4-918.5 applies, and gives the BZA the authority to approve or deny Misty Woods’ variance request. There is no genuine issue of material fact regarding the propriety of the BZA’s action with respect to Misty Woods’ variance request. The trial court should have granted the City’s motion for summary judgment with respect to Counts II and IV of Misty Woods’ complaint.

Conclusion. The trial court’s order granting Misty Woods’ motion for partial summary judgment and denying the City’s motion for summary judgment on Count I is reversed. The City is also entitled to summary judgment as a matter of law with respect to the remainder of the counts of Misty Woods’ complaint and the trial court erred in denying the City’s motion for summary judgment on these counts. The trial court’s order denying the City’s motion for summary judgment on Counts II, III, and IV is therefore reversed. Reversed.

In State of Indiana v. Universal Outdoor Inc., an 8-page opinion, Chief Judge Baker writes:

Appellant-plaintiff State of Indiana (the State) appeals the trial court’s judgment in favor of appellee-defendant Universal Outdoors, Inc. (Universal) in a condemnation action that the State filed against Universal. Specifically, the State argues that the trial court erred by finding that the State did not properly file its exceptions pursuant to Indiana Code section 32-24-1-11, which resulted in a judgment in favor of Universal. Holding that exceptions are timely if filed within twenty days of the appraisers’ report but no later than twenty days after the clerk sends notice of the appraisers’ report to the parties, we conclude that both parties’ exceptions were timely filed and, therefore, reverse the judgment of the trial court.

In Daniel Marks v. State of Indiana , a 15-page opinion, including a separate concurring opinion, Judge Crone writes:

Daniel Marks appeals his conviction for class A misdemeanor operating a vehicle while intoxicated (“OWI”) and judgments for the class C infractions of driving without a license and failing to yield the right-of-way. We affirm.

Issues. We restate Marks’s issues as follows: I. Whether the trial court committed reversible error in instructing the jury on impairment; and II. Whether the trial court committed reversible error in responding to a jury question in Marks’s absence. * * *

[Part I] Based on the foregoing, we conclude that Marks’s OWI conviction is clearly sustained by the evidence and that the instruction would not likely have impacted the jury’s verdict, i.e., that the giving of the instruction was harmless error. * * *

[Part II] The trial court merely repeated its earlier instruction to the jurors to consider the evidence as they remembered it. Having found no grounds for reversal, we affirm.

SULLIVAN, J., concurs with opinion: I concur but with respect to Part I would go a step further than does the majority holding that the instruction in question was harmless error.

Not only do I think such instruction is error and should not be given in any such case, I am unable to agree that the language used in the appellate court cases cited is appropriate in any context. To this extent, I would state a disapproval of Ackerman v. State, Pickens v. State, and Ballinger v. State.

NFP civil opinions today (6):

James Bedree v. City of Fort Wayne and Fort Wayne Police Department (NFP)

Guaranteed Muffler and Brake v. Willie J. Harris (NFP)

MacArthur Drake and Associates v. Tower Crossing Associates, et al. (NFP)

Term. of Parent-Child Rel. of M.M., Jerrell Covington v. Marion Co. Dept. of Child Services (NFP)

Michael Kelley v. Estate of Bernard P. Mullan (NFP)

Jerry & Betty Susong, Debby Keegan, Joseph South, et al v. Don & Jodean Young (NFP)

NFP criminal opinions today (13):

In the Matter of D.M.A. v. State of Indiana (NFP)

Curtis E. Camp v. State of Indiana (NFP)

Eugene Olsen, Sr. v. State of Indiana (NFP)

David William Titley v. State of Indiana (NFP)