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Wednesday, September 24, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 7 NFP)

Five "for publication" opinions today, including one holding constitutional an ordinance banning registered sex offenders from Plainfield's park:

In John Doe v. Town of Plainfield, Indiana , a 20-page opinion, Judge Robb writes:

The Town of Plainfield, Indiana (“Plainfield”), enacted Ordinance 16-2002 (the “Ordinance”) prohibiting individuals such as John Doe, who are listed on the Indiana sex and violent offender registry, from entering Plainfield’s parks and recreation areas. On appeal from the trial court’s grant of summary judgment in favor of Plainfield (as well as the denial of Doe’s motion for summary judgment), Doe argues the Ordinance violates Article I, Sections 1, 12, and 24, of the Indiana Constitution on its face. Concluding that the Ordinance does not violate any of these constitutional provisions on its face and that the trial court therefore properly granted summary judgment in favor of Plainfield and against Doe, we affirm. * * *

Section 18 does not violate Article I, Sections 1, 12, and 24, of the Indiana Constitution on its face. As such, the trial court properly granted summary judgment in favor of Plainfield and against Doe.

For more on this case, start with this ILB entry from March 30th.

In Kenneth Allen v. State of Indiana, a 14-page opinion on an interlocutory appeal, Judge Crone writes:

In this interlocutory appeal of the trial court’s denial of his motion to suppress evidence, Kenneth Allen raises the following dispositive issue: Whether he has standing to assert an unreasonable search and seizure claim pursuant to Article 1, Section 11 of the Indiana Constitution. We affirm. * * *

Allen cannot establish standing to bring an Article 1, Section 11 claim merely by showing that he had “control” and “possession” over the Linwood residence. * * *

Allen was a trespasser. He did not have the owners’ permission to be on the premises. Any control and possession of the Linwood residence exercised by Allen was obtained by illegal means, i.e., the alleged murder of the rightful owners. He has made no showing that he had a legitimate right to control and possess the Linwood residence. Any expectation of privacy he had is not one that society is prepared to recognize as reasonable, and therefore he did not have an objective expectation of privacy in the premises. Accordingly, we conclude that the trial court did not err in finding that Allen lacked standing to challenge the searches of the Linwood residence pursuant to Article 1, Section 11 of the Indiana Constitution. [Allen is accused of killing his mother and grandaprents and burying them in the Linwood residence of the grandparents.]

In Dwight G. Fry v. Indiana Dept. of Correction, et al., a 7-page opinion, Sr. Judge Hoffman writes:
Plaintiff-Appellant Dwight G. Fry (“Fry”) appeals from the trial court’s order entering a default judgment in favor of Defendant-Appellee Indiana Department of Correction (“DOC”). We dismiss this appeal.

Although Fry raises an issue for our review, we find the following issue to be dispositive: whether Fry’s appeal should be dismissed because he failed to comply with the Indiana Rules of Appellate Procedure. * * *

The default judgment order was entered on January 14, 2008. Fry filed his notice of appeal on February 14, 2008, thirty-one days after the order was entered. Ind. Appellate Rule 9(A) provides that appeals from final judgments must be filed within thirty days after the entry of a final judgment. The rule provides that the time period is extended if a motion to correct error has been filed. However, the motion to reconsider is not the same as a motion to correct error and does not work to extend the time period for filing the notice of appeal. Ind. Trial Rule 53.4(A); Ind. Appellate Rule 9(A)(1). If the trial court has issued a final judgment, the party must file a motion to correct errors rather than a motion to reconsider.

In Audrey Triplett v. USX Corp. , a 27-page appeal from the state workers' compensation board, Judge Crone writes:
Audrey Triplett appeals the decision of the Full Worker’s Compensation Board (“the Board”) finding that she failed to establish that she was permanently and totally disabled, that she sustained a five-percent permanent partial impairment (“PPI”) rating from an at-work accident that occurred September 20, 2001 (“the Accident”), and that she failed to prove that she sustained vertigo, or any resulting impairment from vertigo, as a result of the Accident. We affirm.
In Nick and Patricia Peterson v. Robert and Karen Ponda , an 11-page interlocutory appeal, Judge Crone writes:
Nick Peterson and Patricia Peterson (collectively, “the Petersons”) appeal from the trial court’s denial of their motion for summary judgment. We affirm. * * *

I. Assumption of Duty to Provide Safe Work Environment The Petersons’ main argument is that because the trial court determined in a prior order that Robert was an independent contractor at the time of his injury, the trial court had no option other than to grant the Petersons’ motion for summary judgment. * * *

We agree with the Pondas that the trial court’s determination that Robert was an independent contractor did not require the trial court to grant the Petersons’ motion for summary judgment. Whether the Petersons assumed a duty to provide Robert with a safe work environment calls for a different analysis than was necessary for the independent contractor determination. * * * In sum, the Petersons have failed to prove that they are entitled to judgment as a matter of law.

II. Premises Liability. The Petersons also argue that the trial court erred in failing to grant summary judgment in their favor on the Pondas’ premises liability claim. In premises liability cases, the determination of whether a duty is owed depends primarily upon whether the defendant was in control of the premises when the accident occurred. * * *

As discussed above, given the varying accounts of the events leading up to the accident, we agree with the trial court that summary judgment is likewise not appropriate on this issue. Affirmed.

NFP civil opinions today (1):

KFT Realty, LLC v. Prestwick Community Svcs. (NFP) - "In summary, Prestwick Villas was successfully annexed into the Prestwick CSA pursuant to the 1995 Final Plat approved by the Hendricks County Plan Commission and recorded in the Hendricks County Recorders Office. When KFT purchased Prestwick Villas in 2003, it did so subject to the restrictions and obligations for which the Final Plat put it fairly on notice. Such included the obligation to pay assessments to Prestwick CSA for managing and maintaining the common areas of its property. The trial court did not err in so holding."

NFP criminal opinions today (6):

Yvonne Lynn Maxwell v. State of Indiana (NFP)

Steven Chad Thomas v. State of Indiana (NFP)

Joseph Smith v. State of Indiana (NFP)

Danny K. Wheeler v. State of Indiana (NFP)

Timothy W. Allen v. State of Indiana (NFP)

Bryan S. Harper v. State of Indiana (NFP)

Posted by Marcia Oddi on September 24, 2008 12:42 PM
Posted to Ind. App.Ct. Decisions