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Friday, December 21, 2007

Ind. Decisions - Court of Appeals issues 4 today (and 5 NFP)

For publication opinions today (4):

In a much reported adoption case [see ILB entry - "State appeals twin girls' adoption by N.J. man" from Jan. 21, 2007], Adoption of Infants H., Marion Co. Div. of Indiana Dept. of Child Services v. Stephen Melinger, the COA today issued a 23-page opinion written by Judge May:

The Marion County Department of Child Services (“DCS”) appeals the adoption granted to Stephen Melinger.

DCS raises the following restated issues: 1. The court erroneously granted the adoption without a period of placement and supervision; 2. The court lacked jurisdiction over the children because they were not Indiana residents; 3. The court lacked authority to grant the adoption to a non-resident because the children were not “hard to place” pursuant to Ind. Code § 31-9-2-51; and 4. The court failed to comply with the Interstate Compact on the Placement of Children, Ind. Code ch. 31-28-4.

Melinger raises two issues on cross-appeal: 1. DCS has no standing to appeal because it did not appeal the court’s July 18, 2006 entry that ordered DCS’s “responsibility for the placement of these children is terminated effective today.” (Tr. at 281); and 2. The court erred in denying Melinger’s motion to dismiss the CHINS case.

We affirm.

In City of East Chicago, Indiana v. East Chicago Second Century, Inc., RIH Acquisitions, et al , a 38-page opinion with a partial dissent, Judge May writes:
The City of East Chicago (“East Chicago”) appeals the denial of its motion for summary judgment and the dismissal of most of its counterclaims and cross-claims against the East Chicago Community Development Foundation and the Twin City Education Foundation (collectively “the Foundations”) and East Chicago Second Century, Inc. (“Second Century”). It also asserts the trial court should not have consolidated the contract action with the review, in another branch of the same court, of an administrative action involving the same parties. We affirm in part, reverse in part and remand. * * *

CONCLUSION. East Chicago was not prejudiced by the consolidation of the civil court review of the administrative action and the summary judgment and dismissal action. East Chicago’s summary judgment motion was properly denied, and Counts I through VIII of its cross-claims and counterclaims were properly dismissed. However, the trial court should also have dismissed Count IX. We accordingly affirm in part, reverse in part, and remand.

SHARPNACK, J., concurs.
BAILEY, J., concurring in part, concurring in result in part with separate opinion. [which begins] I concur in result, but write separately in light of the majority’s conclusion that the letter agreements do not terminate until revocation of the gaming license. On all other issues, I concur.

As an initial matter I must note that, incredibly, East Chicago argues that the letter agreements are not enforceable, yet asks to receive increased payments through their enforcement.

In Andrew H. Miller v. Indiana Dept. of Workforce Development, et al, a 17-page opinion, Judge Robb writes:
Andrew Miller appeals from the decision of the Indiana Department of Workforce Development Review Board (the “Board”) affirming the decision of the Administrative Law Judge (“ALJ”), who found Miller ineligible for unemployment compensation benefits. Miller raises two issues, which we restate as whether Miller was denied due process based on inadequate notice of the issues to be decided at his hearing before the ALJ and whether the Board’s decision was unsupported by its findings. Concluding that Miller was denied due process and that the Board’s findings do not support its decision, we reverse.
Billy J. Lemond v. State of Indiana - "Billy J. Lemond appeals his convictions of and sentences for attempted murder, a Class A felony,1 and criminal recklessness, a Class D felony.2 We affirm. * * *

"Lemond raises several issues, which we restate as follows: (1) whether the failure to give instructions on lesser included offenses was fundamental error; (2) whether the jury verdicts were inconsistent; (3) whether the trial court abused its discretion by disallowing questions submitted by the jury; (4) whether counsel was ineffective; (5) whether the trial judge was biased; and (6) whether his sentence is inappropriate."

NFP civil opinions today (3):

John E. Lewchanin v. Madeleine M. Lewchanin (NFP) - "John E. Lewchanin (“John”) challenges the trial court’s interpretation of his father’s will and trust. * * * CONCLUSION. Settlor intended to permit Madeleine and her children to receive the Trust’s net income, and corpus as necessary, and to gradually distribute the corpus of the Trust to his other beneficiaries. The distribution to the beneficiaries was to begin at Settlor’s death. Separate trusts would frustrate Settlor’s intent to provide for Madeleine and her children. We accordingly affirm in part, reverse in part, and remand."

William Lee Pallett v. Indiana Parole Board (NFP) - "William Lee Pallett appeals the dismissal of his petition for writ of habeas corpus. Pallett alleges his parole was revoked after he was discharged. Finding his petition is not frivolous, we reverse and remand. * * *

"Pallett’s petition alleges the Department of Correction “turned him over” to the Monroe County Jail, thus discharging his life sentence. He further alleges, because he was discharged from the Monroe County Jail in January 2003, there was no parole to revoke in October 2003. These allegations create an arguable basis in law and fact that he is entitled to release, and there is no suggestion his petition is made to harass a person. While the documentary evidence Pallett submitted to the trial court does not entirely support his allegations, Pallett did not have a burden at this stage of the proceeding to present all possible evidence. His only burden was to show an “arguable basis” in law and fact. See I.C. § 35-58-1-2. Accordingly, he should be permitted to proceed."

Borovilos Restaurant Corporation, II v. Lutheran University Association, Inc. (NFP) - "Broadway Café raises the issue of whether the trial court abused its discretion in granting a preliminary injunction that did not enforce the entire scope of its easements for ingress, egress, and parking. * * *

The arguments and cases proffered by Broadway Café relate to a permanent injunction. That is not the situation before us. Here, a preliminary injunction was ordered to temporarily freeze all actions regarding the Kelsey parcel in order to protect both parties’ interests while the merits of the case were tried. The trial court concluded that removal of the fencing that enclosed the parking spaces east of the demolition area would adversely affect the public safety. Thus, the scope of the preliminary injunction was narrowly tailored to protect the interests of all parties involved. Broadway Café has not demonstrated that the trial court abused its discretion by narrowing the scope of the preliminary injunction in order to protect the public interest. Affirmed."

NFP criminal opinions today (2):

Marie Graham v. State of Indiana (NFP)

Brandi N. Lewis v. State of Indiana (NFP)

Posted by Marcia Oddi on December 21, 2007 01:16 PM
Posted to Ind. App.Ct. Decisions