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Tuesday, December 30, 2008

Ind. Decisions - Court of Appeals issues 5 today (and 12 NFP)

For publication opinions today (5):

In State of Indiana v. William Hunter , a 9-page opinion, Judge Darden writes:

As a reserved question of law, the State appeals the trial court's ruling to exclude evidence during a bench trial which resulted in the acquittal of William Hunter on the charge that he committed class A misdemeanor operating a vehicle while intoxicated. We affirm.

Issue: Whether the trial court erred when it excluded the report of blood test results because the State had failed to establish the requisite foundation as to the drawing of Hunter's blood. * * *

[T]he trial court found that the forensic report on the analysis of Hunter's blood was inadmissible because the State failed to establish the requisite foundation under Indiana Code section 9-30-6-6 [which provides a protocol pertaining to the collection/obtaining of bodily substance samples]. * * *

[I]n Combs v. State, 895 N.E.2d 1252, 1255 (Ind. Ct. App. 2008), the appellant argued that “the State failed to lay a proper foundation for admitting” blood test results” because it did not present evidence that the person who drew Combs's blood acted under proper protocol.” We stated that inasmuch as our Supreme Court had noted that “the foundation for admission of laboratory blood drawing and testing results, by statute, involves technical adherence to a physician's directions or to a protocol prepared by a physician,” the foundational requirement of Indiana Code section 9-30-6-6 could “not be ignored.” * * *

Here, as in Combs, the State has failed to present evidence that Nurse VanContron was “acting under the direction of or under a protocol prepared by a physician[.]” I.C. § 9-30-6-6(a). Moreover, unlike in Combs, the State failed to present any evidence that Nurse VanContron was “a person trained in obtaining bodily samples.” Id. Therefore, the inadequacy of the foundation is even more pronounced.

Nevertheless, the State argues that the statute “is inapplicable” here because Nurse VanContron drew Hunter's blood pursuant to a court-authorized warrant. However, it cites no authority for this proposition, and we find none. Further, we do not find that because a search warrant directed hospital personnel to obtain a bodily substance sample, such should not trump and/or negate the legislature's statutory requirements outlining the prescribed protocol for obtaining such samples. The State further argues that the statute is inapplicable because it merely concerns “the proper taking of the bodily substance sample, i.e., how, when and by whom,” which “should have no affect [sic] on the admissibility of the test results in a criminal proceeding” against the person whose bodily substance was taken. Again, we find no merit in such a contention. Indiana statute and common law require a specific evidentiary foundation for the admission of bodily substance sample test results. Here, the State failed to establish that foundation. Affirmed.

In Julie McCoy, Janice Buckholtz and Jessica Buckholtz v. American Family Mutual Insurance Co., a 6-page opinion, Judge May writes:
Janice Buckholtz and her daughter Jessica Buckholtz obtained a judgment against Julie McCoy, who had a homeowners policy issued by American Family Mutual Insurance Company. American Family sought a declaratory judgment that it did not have to satisfy the judgment. The trial court granted summary judgment for American Family, and we affirm. * * *

The parties agree that McCoy did not own or rent the ATV and she was not operating it at the time of the accident. The Buckholtzes argue the ATV was on loan to McCoy, because it was kept on her property and it was available for her and her children to ride whenever they wished. The ATVs were on the property because Shoemaker resided there, not because they were always on loan to McCoy. Shoemaker might have authorized McCoy to give others permission to ride the ATVs; however, it is undisputed that McCoy was not present while Jessica was riding the ATV. Shoemaker was present, and he presumably could have overridden any permission extended by McCoy. * * *

Shoemaker owned the ATVs, and he was the only one directing the use of the ATVs at the time of the accident. Shoemaker granted temporary use of the ATV to Jessica, and we agree with American Family that the ATV was on loan to Jessica rather than McCoy. Because McCoy did not own, operate, rent, or loan the ATV, the accident falls within the vehicle exclusion, and the trial court did not err by granting summary judgment for American Family.

Tina Sue Day v. State of Indiana - "Tina Sue Day appeals her seventeen-year sentence for Class B felony promoting prostitution. We find nothing inappropriate about a seventeen-year sentence for a woman who accepted cash in exchange for allowing multiple men to molest her twelve-year old daughter. We therefore affirm."

Troy R. Shaw v. State of Indiana - "The post-conviction court determined trial counsel was not ineffective for objecting to the aggravated battery instruction, nor was appellate counsel ineffective for failing to argue the trial court erred in allowing the charging information to be amended after the omnibus date. Shaw has not shown the evidence leads unerringly to a decision opposite to that reached by the post-conviction court. As a result, we may not set aside the judgment. Affirmed."

In Peg Zaremba v. Jessica and John Nevarez , an 11-page opinion, Judge Brown writes:

Peg Zaremba appeals the trial court's dismissal with prejudice of her claim against Jessica Nevarez and John Nevarez for rent and damages. Zaremba raises two issues, which we consolidate and restate as whether the trial court abused its discretion by denying Zaremba's motion to correct error concerning the trial court's dismissal with prejudice of Zaremba's complaint. We reverse and remand. * * *

Small Claims Rule 10 is specific and “[d]ismissal with prejudice is contemplated only when the plaintiff again fails to appear after the claim has been refiled.” Here, the record does not reveal that Zaremba failed to appear after the claim was refiled. Thus, Ind. Small Claims Rule 10(A) does not contemplate dismissal with prejudice under the circumstances. As previously mentioned, the Nevarezes did not file an appellee's brief, and we will not develop arguments on their behalf. With this in mind, we conclude that the trial court abused its discretion by dismissing Zaremba's claim with prejudice and denying Zaremba's motion to correct error. See Multivest, 671 N.E.2d at 201-202 (reversing and remanding for a determination on the merits after a presentation of the evidence). For the foregoing reasons, we reverse the trial court's dismissal of Zaremba's claim against the Nevarezes and remand for proceedings consistent with this opinion. NFP civil opinions today (4):

In Dwyer Instruments Inc. v. James Keller (NFP), a 6-page, 2-1 opinion, Judge Crone concludes:

Here, the trial court did not hold a hearing before it granted Dwyer’s motion to dismiss and granted the motion on the very day it was filed. Thus, Keller was not afforded an opportunity even to file a response or request a hearing to show cause why his case should not be dismissed. It was not until he filed his motion for relief that he was given his day in court and could produce evidence of a meritorious defense regarding his compliance with the discovery order. To its credit, the trial court ultimately granted Keller an opportunity to be heard and set aside its order to dismiss. We cannot say that the trial court abused its discretion in doing so. Accordingly, we affirm.

VAIDIK, J., concurs.
KIRSCH, J., dissents with opinion: I respectfully dissent. Gladstone’s admonition that “Justice delayed is justice denied” is often quoted, but too rarely followed. This case is the latest example. The facts giving rise to this case occurred in 2005. In the intervening three and a half years, very little has happened to bring the case to a just and efficient resolution. The plaintiff’s failure to respond in a timely fashion to the defendant’s discovery is the primary reason for the delay. Nothing in the documents before us justifies or explains such delay. As my colleagues note, there is no requirement that a trial court hold a hearing when it dismisses a case under trial Rule 37. I would reverse the trial court’s order setting aside its order of dismissal.

Thomas Fine v. Robert G. Harp and Delores C. Harp (NFP) - "We now grant rehearing for the limited purpose of correcting the above-quoted portion of the opinion so as to reflect that Fine originally filed his status report on July 21, 2008 and cured the filing defect on July 29, 2008. We deny the petition for rehearing in all other respects and deny the Harps’ request for attorney fees."

The Marriage of John M. Farrell v. Nicole T. Farrell (NFP) - "John Farrell appeals the modification of his child support. He challenges the court's authority to modify support, the amount of income the court assigned to him, the date from which the court modified payment of college expenses, and the order that he pay a portion of attorney fees for his ex-wife, Nicole. While the court had authority to modify the child support order, the order lacks sufficient clarity for us to determine whether the evidence supports the income assigned to John. Accordingly, we affirm in part, reverse in part, and remand. "

Saiful Sam Islam v. Brenda Colleen Meadows (NFP) - "Saiful Sam Islam (“Father”), pro se, appeals the trial court‟s order dissolving his
marriage to Brenda Meadows (“Mother”). We affirm."

NFP criminal opinions today (8):

State of Indiana v. Albert P. Villareal (NFP)

Derek E. Baker, Sr. v. State of Indiana (NFP)

Vincent E. Simon v. State of Indiana (NFP)

Ragena Dennis v. State of Indiana (NFP)

William Cornett v. State of Indiana (NFP)

Timothy Brewer v. State of Indiana (NFP)

Allen E. Vaughn, Jr. v. State of Indiana (NFP)

Joseph G. Ross v. State of Indiana (NFP)

Posted by Marcia Oddi on December 30, 2008 11:17 AM
Posted to Ind. App.Ct. Decisions