The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 6 today (and 19 NFP)

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Thursday, April 10, 2008

Ind. Decisions - Court of Appeals issues 6 today (and 19 NFP)

For publication opinions today (6):

In James Hicks v. Gary and Judy Larson, a 12-page, 2-1 opinion concerning grandparent visitation, Judge Mathias writes:

Gary and Judy Larson filed in Gibson Circuit Court a petition for grandparent visitation. The Larsons (“Grandparents”) are the maternal grandparents of the children of James Hicks (“Father”). Father objected to Grandparents’ petition. The trial court granted Grandparents’ petition for visitation. Father appeals and argues that his due process rights were violated when the court ordered grandparent visitation over his objection, and the evidence does not support the court’s finding that visitation is in the children’s best interests. We reverse and remand for proceedings consistent with this opinion. * * *

Trial courts are to “presume that a fit parent’s decision is in the best interests of the child” in deciding whether to grant or deny a grandparent’s request for visitation. Crafton v. Gibson, 752 N.E.2d 78, 96 (Ind. Ct. App. 2001) (citing Troxel v. Granville, 530 U.S. 57, 69 (2000)). Acting under this presumption, trial courts must give special weight to a parent’s decision to deny or limit visitation. However, the presumption is rebuttable. Grandparents bear the burden of rebutting the presumption that Father’s decision to deny visitation was made in his children’s best interests. * * *

Moreover, the parties concede that Father is a fit parent, and therefore, he is entitled to a presumption that his decision to deny visitation with Grandparents was made in the children’s best interests. Because the DFC caseworker and investigating detective opined that K.H. was touched inappropriately and in a sexual manner by Grandfather, we conclude that Grandparents failed to rebut the presumption accorded to Father. For all of these reasons, we reverse the trial court’s order awarding visitation to Grandparents.

FRIEDLANDER, J., concurs.
ROBB, J., dissents with separate opinion. [which concludes] My concern with the majority’s statement is that it could give a parent almost carte blanche to deny grandparent visitation for any reason or no reason at all. The trial court, after listening to the testimony, concluded that the parent’s reasons for denying visitation were unfounded and that awarding grandparents visitation with the children was in the children’s best interests; thus, visitation in at least some form should be allowed.

Olugbala P, Suggs v. State of Indiana - "The next issue is whether the trial court committed fundamental error by admitting copies of certified court documents in the habitual offender proceedings. * * * Suggs argues that fundamental error occurred when the trial court admitted State’s Exhibits 16, 17, and 18 during the habitual offender phase of Suggs’s trial. State’s Exhibits 16, 17, and 18 are copies of certified copies of court records evidencing Suggs’s prior convictions for robbery as a class B felony and theft as a class D felony. Suggs points out that the court clerk’s seals or certifications on the documents are not the originals. Rather, copies of the certified documents were entered into evidence. * * *

"Suggs is correct that an original certification was necessary for State’s Exhibits 16, 17, and 18 to be admissible. * * *

"Despite this error, Suggs has not shown that he is entitled to relief because he has failed to demonstrate fundamental error. Suggs makes no argument that the documents are not authentic. Further, Suggs conceded during his habitual offender closing argument that he had the prior robbery and theft convictions. We conclude that the fact that the certifications were copies rather than originals did not deprive Suggs of a fair trial and did not result in fundamental error."

In City of Terre Haute, Engineers Office of the City of Terre Haute, et. al., v. Annette Parish, a 16-page, 2-1 opinion, the question is "Whether the City is immune from liability for Pairsh’s injuries pursuant to the Indiana Tort Claims Act (ITCA), Indiana Code § 34-13-3-1." Judge Riley concludes:

Pairsh dedicates the rest of her brief to discussing the elements of a negligence action. But, as our supreme court stated in Peavler, “Immunity assumes negligence but denies liability. Thus, the issues of duty, breach and causation are not before the court in deciding whether the government entity is immune.” 528 N.E.2d at 46. Because Pairsh failed to designate any evidence to contradict the City’s evidence supporting its claim of discretionary function immunity, we do not reach the elements of negligence.

CONCLUSION Based on the foregoing, we conclude that the trial court erred in denying the City’s motion for summary judgment. Therefore, we remand this cause to the trial court with instructions to enter summary judgment in favor of the City. Reversed and remanded.

KIRSCH, J., concurs.
MAY, J., dissents with [7 page] opinion. [that begins] The evidence the City designated does not establish as a matter of law that its decision not to repair the sidewalk where Pairsh fell was performance of a discretionary function that entitles the City to tort immunity. I therefore believe the denial of the City’s summary judgment motion was correct, and I must respectfully dissent.

Michael Jason Surber v. State of Indiana - "For the foregoing reasons, we affirm Surber’s conviction for child molesting as a class A felony."

In Chris and Diann Drenter v. Sue N. Duitz , a 17-page opinion, Chief Judge Baker writes:

The appellants and the appellees disagree about whether the Subdivision’s restrictive covenants permit a property owner to erect a shed on his property and, if so, the process for obtaining approval. * * *

Specifically, the Drenters argue that the trial court erroneously construed the Subdivision’s restrictive covenants to require a property owner to engage in a multi-step approval process before erecting a shed on his property. We agree with the Drenters that the trial court improperly relied on extrinsic evidence to support its finding that the restrictive covenants require a property owner to obtain the signatures of all of the Subdivision’s property owners before erecting an outbuilding. However, we conclude that the trial court properly construed the restrictive covenants to require a property owner to obtain the written approval of the Subdivision’s Developer or its assignee before erecting an outbuilding. Because the Drenters did not obtain the written approval of the Subdivision’s Developer and there is no evidence that there is an assignee, we affirm in part, reverse in part, and remand with instructions contained herein [regarding "What happens to the shed the Drenters erected on their property?"].

In H.D., John and June Doss v. BHC Meadows Hospital, Inc., a 12-page opinion, Judge Riley writes:

Appellants-Plaintiffs, H.D., John Doss (Father), and June Doss (Mother) (collectively, the Dosses), appeal the trial court’s dismissal of their claims against Appellee-Defendant, BHC Meadows Hospital Inc. d/b/a Bloomington Meadows Hospital (Meadows), for lack of subject matter jurisdiction. We reverse and remand.

The Dosses raise one issue for our review, which we restate as: Whether the Indiana Medical Malpractice Act applies to the Dosses’ claims against Meadows.

NFP civil opinions today (6):

Laura Vass v. Michael Vass (NFP) - "Laura Vass appeals the division of marital property and child support order in this dissolution action from her ex-husband, Michael Vass. We affirm."

Dean Rainey, et al v. Jerry Rainey (NFP) - "Finding that Jerry did not breach his fiduciary duty to the estate by distributing mementos of limited monetary value, that he did not engage in self-dealing, and that Jerry is not an unsuitable personal representative, we conclude that the trial court did not abuse its discretion by denying the petition for removal. We therefore affirm."

In Re S.T., Donald and Carol T v. Johnson County Department of Child Services (NFP)

Guardianship of D.D., Jeanne Dale Freeman v. Perry County Dept. of Child Services (NFP)

Term. of Parental Rights of A.B., Violet Tunstall v. Dearborn County Div. of Child Services (NFP)

Estate of Margaret Prickett v. Marilyn Prickett Womersley (NFP) - "Appellant-respondent Estate of Margaret H. Prickett (the Estate) brings this interlocutory appeal challenging the trial court’s denial of its motion for summary judgment regarding appellee-petitioner Marilyn Prickett Womersley’s claim for compensation and reimbursement “for the time that [she] spent attending to [her mother’s] needs.” The Estate contends that Womersley’s request for compensation was time-barred and that the trial court erred in denying its motion to strike certain affidavits that Womersley filed in opposition to the Estate’s motion for summary judgment. Finally, the Estate argues that summary judgment should have been granted in its favor because the designated evidence established as a matter of law that that the services Womersley provided to Prickett were gratuitous. Finding no error, we affirm the judgment of the trial court."

NFP criminal opinions today (13):

Edward P. Johnson v. State of Indiana (NFP)

Timothy Dion Hampton v. State of Indiana (NFP)

Bruce Jackson v. State of Indiana (NFP)

Anthony Richardson v. State of Indiana (NFP)

Daniel Favela v. State of Indiana (NFP)

Wai Chung v. State of Indiana (NFP)

Joshua B. Smith v. State of Indiana (NFP)

Celso Hernandez v. State of Indiana (NFP)

Terrence Chaney v. State of Indiana (NFP)

Jerry Griffin, III v. State of Indiana (NFP)

Anthony J. Akins v. State of Indiana (NFP)