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Thursday, April 26, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Joseph Rich v. State of Indiana , a 5-page opinion, Judge May writes:

Joseph Rich appeals his conviction of public intoxication as a Class B misdemeanor. He claims the court should have suppressed the testimony of the arresting officer. We reverse. * * *

Based on the evidence the State presented in response to Rich’s motion to suppress, we have no choice but to suppress the remainder of Deputy Gray’s testimony. Evidently, the State did not request the presence of Detective Daniel at Rich’s trial, and Detective Daniel was the only person who could explain the facts and circumstances that led to his stop of Rich. Without his testimony, we have no basis for holding an ordinarily prudent person would have believed criminal activity was afoot. Therefore, we must reverse.

CONCLUSION The trial court erred when it determined Rich’s challenge to Deputy Gray’s testimony was untimely. Because the State failed to demonstrate Detective Daniel had reasonable suspicion to justify his stop of Rich, we must suppress Deputy Gray’s testimony regarding Rich’s condition. Therefore, we reverse.

In Timothy Jones v. Indiana Bell Telephone Company , an 8-page opinion, Judge Vaidik writes:
In this negligence case, Plaintiff Timothy Jones appeals the trial court’s grant of Defendant Indiana Bell Telephone Company’s d/b/a Ameritech (“Indiana Bell”) Motion for Judgment on the Evidence following Jones’s presentation of the evidence. Concluding that Indiana Bell owed Jones a duty of reasonable care but that Jones’s evidence in this case is not sufficient to establish a breach of that duty, we affirm the trial court’s grant of Indiana Bell’s motion for judgment on the evidence. * * *

Applying the policy considerations behind Sowers to this case, we conclude that Indiana Bell owed a duty of reasonable care to its invitees, which included Jones, and that this duty did not include the duty to inspect and warn. However, to the extent that Indiana Bell learned of dangerous conditions on its poles, it had a duty to warn its invitees. The evidence in this case is that as Jones, an experienced cable installer, climbed the telephone pole on December 18, 1997, he did not detect any problems with either the telephone line or the clamp, nut, and bolt. In addition, there is no evidence that Indiana Bell knew that there was anything wrong with the pole, telephone line, or clamp, nut, and bolt prior to Jones’s fall. As such, the evidence is not sufficient to prove the element of breach. Because the evidence does not allow reasonable people to come to differing conclusions on the issue of whether Indiana Bell breached its duty of reasonable care to Jones by not inspecting the pole, telephone line, and hardware in the absence of information that there was anything wrong, the trial court properly entered judgment on the evidence in favor of Indiana Bell.

NFP civil opinions today (6):

Francis W. Splittorff v. Jerry Aigner, Pam Aigner, Beverly Childs and Warrick County (NFP) - "Because Splittorff’s challenge to the issuance of a tax deed was not timely, the trial court properly granted the County’s and the Aigners’ motions for summary judgment. We affirm."

In the Termination of the Parent-Child Relationship of A.C.; Steven Conley v. Floyd County Department of Child Services (NFP) - termination, affirmed.

In Re the Marriage of Jeffrey W. Morrow v. April B. Morrow (NFP) - "Here, both Husband and Wife received hundreds of thousands of dollars in assets in the dissolution. That said, the trial court found that from 2003 to 2005, Husband’s self-reported average gross income was nearly two and one-half times that of Wife’s well-documented average gross income. We also note that the trial court ordered Husband to pay less than one-third of Wife’s attorney’s fees. Under these circumstances, we find no abuse of discretion."

In the Matter of the Involuntary Termination of Parent-Child Relationship of M.C. and S.C.; Betty Parker and Steven Christener v. Adams County Department of Child Services (NFP) - termination, affirmed.

Rocky L. Smith v. Beverly Smith (NFP) - "Respondent-Appellant Rocky L. Smith appeals from the trial court’s issuance of a writ of assistance in favor of Petitioner-Appellee Beverly Smith. We reverse and remand with instructions. * * * The following issue is dispositive: whether the trial court erred in issuing a writ of assistance when possession was relinquished to the purchaser of property."

In the Matter of the Termination of the Parent-Child Relationship of C.V.; April Vessels and Michael Vessels v. Tippecanoe County Department of Child Services (NFP) - "The evidence demonstrates Mother and Father, although capable of complying with services, were unwilling to do so. They continue to live in unsafe housing, they continue to use illegal drugs, they continue to put their needs above C.V.’s needs, they still have sexual boundary issues, and Father still has difficulty managing his anger appropriately. In light of that evidence, termination was not based solely on mental disabilities and termination was in C.V.’s best interests. Therefore, we affirm."

NFP criminal opinions today (7):

Spencer Nunn, Jr. v. State of Indiana (NFP)

Rex A. Aschliman v. State of Indiana (NFP)

Savanah Brown v. State of Indiana (NFP)

Kaylene D. Almy v. State of Indiana (NFP)

Anthony D. Hogan v. State of Indiana (NFP)

Lee Gilliam v. State of Indiana (NFP)

Jason Michael Mall v. State of Indiana (NFP)

Posted by Marcia Oddi on April 26, 2007 12:33 PM
Posted to Ind. App.Ct. Decisions