The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 8 today (and 18 NFP)

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Thursday, April 30, 2009

Ind. Decisions - Court of Appeals issues 8 today (and 18 NFP)

For publication opinions today (8):

In ACLS d/b/a Nations Transportation, and Mr. and Mrs. Bob Milutinovic v. George Bujaroski, a 5-page opinion, Judge Crone writes:

ACLS d/b/a Nations Transportation and Mr. and Mrs. Bob Milutinovic (collectively, “Nations”) appeal the determination of the Indiana Worker’s Compensation Board (“the Board”) that George Bujaroski was an employee of Nations and thus entitled to certain worker’s compensation benefits. We remand.

Nations raises three issues for our review, the dispositive issue being whether the full Board erred by purporting to affirm the decision of a single board member by a vote of less than the majority of the full Board. * * *

Therefore, pursuant to Indiana’s statutes and caselaw, it is clear that when the full Board accepted Nations’s application for review, the single Board member’s opinion was vacated. The full Board’s review was de novo. It was Bujaroski’s burden to prove to the full Board that he was entitled to compensation under the Worker’s Compensation Act. See Triplett v. USX Corp., 893 N.E.2d 1107, 1116 (Ind. Ct. App. 2008), trans. denied (2009). Bujaroski failed to carry this burden, as demonstrated by the full Board’s tie vote. Therefore, we remand to the Board for action pursuant to its options consistent with this opinion.

In Paoli Municipal Light Department, et al v. Orange County Rural Electric Membership Corp. , a 9-page opinion, Judge Riley writes:

The Town of Paoli constructed a recreational sports complex (Sports Complex) and sewage lift station entirely within REMC’s electric service territory. It has been providing electricity service to the sewage lift station for at least the last fourteen years. On November 5, 2007, REMC learned that the Town of Paoli was also constructing electric distribution facilities in REMC’s service area in order to furnish electricity service to the Sports Complex. * * *

Retail electric service is defined under the [Electricity Suppliers’ Service Area Assignments Act ] as “electric service furnished to a customer for ultimate consumption, but does not include wholesale electric service furnished by an electricity supplier to another electricity supplier for resale.” I.C. § 8-1-2.3-2(c).

Relying on the Act, the Town of Paoli now concedes that REMC has the sole and exclusive right to serve customers within its assigned service area. Nevertheless, the Town of Paoli argues that it has the right to serve the Sports Complex because it is owned by the Town and, by serving itself, it cannot be considered a customer. Maintaining that it cannot be its own customer, it necessarily follows that the electricity service the Town provides to the Sports Complex is not retail electric service as defined by the Act. Therefore, there is no violation of the Act and the Town of Paoli is free to cross the service territory boundary at will and with impunity. We find the Town’s argument to be without merit. * * *

Because the Town of Paoli did not petition the Indiana Utility Regulatory Commission to realign the utility service boundaries and allow the Town of Paoli to service its own Sports Complex pursuant to I.C. § 8-1-2.3-3, the Sports Complex is still properly located within REMC’s service territory. * * * As a result, REMC remains the exclusive supplier of electricity to the Sports Complex.

Additionally, the Town of Paoli asserts that because the Town has provided electricity for the past fourteen years to a now-defunct sewage lift station entirely located within REMC’s service area, REMC is time-barred from seeking relief. The Town of Paoli relies on Indiana Code section 8-1-2.3-4(b) which provides that an action to enjoin an electricity provider from rendering unlawful service must be brought within three years after the violation occurs. However, here, REMC does not bring an action to enjoin the Town of Paoli from rendering service to the sewage lift station; rather, it only wants to refrain the Town from extending electricity service to the Sports Complex. Therefore, we find that REMC’s action was brought in a timely manner.

Based on the foregoing, we hold that the trial court properly granted summary judgment to REMC and we remand to the trial court for determination of damages pursuant to I.C. § 8-1-2.3-4(b).

In Town of Munster Board of Zoning and Precision Homes, Inc. v. Dr. Paula Benchik Abrinko , a 9-page opinion, the issue is stated as "Whether the trial court erred in reversing the BZA’s grant of a developmental standards variance when the BZA found a practical difficulty pursuant to Indiana Code section 36-7-4-918.5." Judge Riley writes:

In sum, due to the very broad findings which solely focused on the size of the lot, the BZA’s basic findings come very close to being merely a general replication of the requirements of the ordinance at issue. See Network Towers, 770 N.E.2d at 845. We agree with the trial court that the quantum of legitimate evidence before the BZA was so proportionately meager that we cannot but conclude that the BZA’s finding does not rest on a rational basis.

CONCLUSION. Based on the foregoing, we hold that trial court properly reversed the BZA’s grant of a developmental standards variance because there was no rational basis for the BZA’s finding of practical difficulties. Affirmed.

TW General Contracting Services, Inc., Harland A. Wendorf, et al v. First Farmers Bank & Trust - Judge Crone concludes: "In sum, the Guarantors signed the Guaranties. The plain language of the Guaranties made the Guarantors responsible for unlimited, ongoing liabilities of TW. None of the Guarantors provided written revocation of their Guaranties. Therefore, when TW defaulted, the Guarantors should have expected that they would need to fulfill their promises under the Guaranties. Accordingly, summary judgment was properly granted to the Lender. "

In In the Matter of the Term. of Parent-Child Rel. of M.P., et al; L.P. v. IDCS, an 8-page opinion, Judge Barnes writes:

L.P. (“Mother”) appeals the termination of her parental rights to M.P. and A.S. We affirm.

Mother raises one issue, which we restate as whether the trial court impermissibly terminated her rights because she is mentally handicapped. * * *

Mother likens her situation to our State’s prohibition on the execution of mentally retarded criminal defendants. This association is misplaced and inapposite: our State’s criminal punishment of those with mental deficits has nothing to do with termination of parental rights. Indiana courts have repeatedly stated that termination proceedings are not designed to punish the parent, but rather to protect the best interests of the child. See A.J. v. Marion County Office of Family and Children, 881 N.E.2d 706, 717 (Ind. Ct. App. 2008), trans. denied.

Regardless of Mother’s mental deficits, she was unwilling to participate in the programs offered to her. She was also unwilling or unable to maintain suitable employment and housing, even with the help and resources of family members and programs. DCS met its burden under the termination statute.

Conclusion. There is clear and convincing evidence to support the trial court’s finding that the conditions resulting in the children’s removal from the home would not be remedied, that continuation of the parent-child relationship poses a threat to the well-being of the children, that there is an adequate plan for the care of the children, and that termination of Mother’s parental rights is in the children’s best interests. Mother’s mental deficits do not preclude this result. We affirm.

Isaiah Alvies v. State of Indiana - "Based on the foregoing, we conclude that the State presented sufficient evidence to support Alvies’ convictions and that, but for one bad aggravator, the trial court properly sentenced Alvies. Because we can say with confidence that the trial court would have imposed the same sentence even if it had not considered the improper aggravator, we need not remand for re-sentencing. Finally, Alvies’ sentence is not otherwise inappropriate. Affirmed."

In Billy Atwood v. State of Indiana , a 14-page opinion, Judge Kirsch writes:

In McCullough v. State, 900 N.E.2d 745, 746 (Ind. 2009), our Supreme Court held that “in the exercise of the appellate authority to review and revise criminal sentences, a court may decrease or increase the sentence.” In that case, the State, on cross-appeal, had sought appellate review of McCullough's sentence arguing in favor of an increase in the sentence imposed. Our Supreme Court held that while appellate authority to review and revise criminal sentences did allow for an increase in a defendant's sentence, the State could not initiate review of the sentence on appeal or cross-appeal, but was restricted to making the argument in response to a request for sentence revision initiated by the defendant. 900 N.E.2d at 750.

Here, Atwood's appellant's brief was filed prior to our Supreme Court's February 10, 2009, decision in McCullough. However, Atwood did request sentence revision in his brief. The State responded, arguing that the sentence was unduly lenient, and cited our Supreme Court's opinion in McCullough. Atwood's reply brief, filed on March 18, 2009, was limited in its discussion to the State's cross-appeal argument about Atwood's belated notice of appeal. Accordingly, we turn now to the issue of whether the holding in McCullough can be applied to Atwood's appeal. * * *

Because Atwood's brief was filed before our Supreme Court decided McCullough and because we are unable to say with confidence that Atwood would have raised an issue regarding the appropriateness of his sentence had he known that he may face an increased sentence, we decline the State's invitation to revise the sentence upward. Affirmed.

In State of Indiana v. Jessi L. Campbell, a 9-page opinion, Judge Najam writes:

The State appeals the trial court's order granting the motion of Jessi L. Campbell to suppress evidence obtained when officers stopped her vehicle in order to investigate a report of conduct meeting the definition of criminal confinement. The State presents a single issue for review, namely, whether the trial court erred when it determined that the officers did not have reasonable suspicion to stop Campbell's vehicle.

In sum, the trial court erred when it found that the law enforcement officers did not have reasonable suspicion to initiate a stop. A witness told Deputy Marshall Clark that she had seen a husband drag his wife, named Jessi, into a white Tahoe. The witness also said that the couple lived in Peru and that they drove the Tahoe in that general direction. Officers from Cass County Sheriff's Department then intercepted the Tahoe on one of the routes from the tavern to Peru. The witness's accurate prediction of the Tahoe's likely location and direction of travel lent credibility to her information. Thus, we conclude that the officers had reasonable suspicion to stop Campbell's vehicle. As such, the trial court erred when it granted Campbell's motion to suppress evidence obtained as a result of the stop. Reversed and remanded.

NFP civil opinions today (5):

Auto Owners Ins., as Subrogee of Approval Auto Credit, Inc. v. Robert H. Drake, Jr. (NFP)

Michael Francis v. Lawrence T. Newman (NFP)

Susan Kerkhoff v. Jerry Kerkhoff (NFP)

The Term. of the Parent-Child Rel. of D.J.; and Melissa J. v. Indiana Dept. of Child Svcs., Hancock Co. (NFP)

The Term. of the Parent-Child Rel. of K.M., K.M.M., K.J.M., R.V.M., and R.E.M.; and M.K.B. v. Monroe Co. Dept. of Child Svcs. (NFP)

NFP criminal opinions today (13):

Derick Smith v. State of Indiana (NFP)

Diagentry L. Lewis v. State of Indiana (NFP)

Antonio Washington v. State of Indiana (NFP)

Herbert Johnson v. State of Indiana (NFP)

Lenn Ivy v. State of Indiana (NFP)