The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

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Tuesday, April 14, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Wymberley Sanitary Works v. Earl J. Batliner, Jr., et al. , a 24-page opinion, Chief Judge Baker writes:

Here, we are asked to consider the common arrangement between a utility company and a property developer in which the developer finances the extension of a sewer line to a proposed housing development. We find that such an arrangement is permissible and that the utility is entitled to exercise the power of eminent domain to effect the sewer line extension.

Appellant-petitioner Wymberley Sanitary Works (Wymberley) appeals the trial court's orders dismissing Wymberley's eminent domain complaints against the appellees- respondents (collectively, the Landowners) and granting the Landowners' motions for attorney fees in the amount of $83,042.14. Wymberley argues that the trial court should have concluded that Wymberley's proposed takings are for a public purpose, that there is a current need for the takings, that Wymberley's proposed sewer route was not arbitrary or capricious, and that attorney fees are not warranted because Wymberley did not act in bad faith. The Landowners cross-appeal, arguing that the trial court erred by denying them their attorney fees incurred in preparing and defending the fee petitions.

Finding that the trial court erred as a matter of law when it concluded that Wymberley made improper offers to purchase the requested easements, that the proposed takings are not for a public use, that there is no current need for the takings, that Wymberley acted in bad faith, and that the Landowners are entitled to a portion of their requested fees, and finding that the trial court properly denied the Landowners' some of their requested fees, we affirm in part, reverse in part, and remand with instructions to enter final judgment in Wymberley's favor.

In Fred Ferrill v. State of Indiana , a 6-page opinion, Chief Judge Baker writes:

Appellant-defendant Fred Ferrill appeals the trial court’s order modifying the conditions of his probation. Ferrill argues that the trial court did not have the authority to make a sua sponte modification. Finding that the trial court did not have such authority because Ferrill has not violated the terms of his probation, we reverse. * * *

The Jones v. State court ultimately concluded that a trial court is without authority to modify the terms of a defendant’s probation unless the defendant first violates the conditions of his probation, “[e]ven though the additional conditions arguably are reasonably related to the rehabilitation of the Defendant[.]”

Here, there has been no allegation that Ferrill has violated any term of his probation. Instead, the trial court sua sponte set the hearing and sua sponte modified Ferrill’s probationary terms. Pursuant to Jones, the trial court was without the authority to take that action.

As stated above, without an appellee’s brief from the State, Ferrill need only present a prima facie showing of error. Under this standard of review, we agree with Ferrill that the trial court erred by adding GPS monitoring as a condition of Ferrill’s probation.

The judgment of the trial court is reversed.

Jesse Pitts v. State of Indiana

Rodney S. Perry v. State of Indiana

NFP civil opinions today (2):

Shirley and Larry Jones v. Hurricane Foods, Inc. d/b/a Wendy's (NFP)

In the Matter of L.M. and H.C. v. Magee Mitchell, Matthew Copsey and Rachelle Copenhaver (NFP)

NFP criminal opinions today (7):

Stafford D. Johnson v. State of Indiana (NFP)

Shaft Jones v. State of Indiana (NFP)

Hugh Beech v. State of Indiana (NFP)

Mario L. Sims, Sr. v. State of Indiana (NFP)

John A. Caldemone v. State of Indiana (NFP)

John A. Huntzinger v. State of Indiana (NFP)