The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

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Thursday, July 09, 2009

Ind. Decisions - Court of Appeals issues 5 today (and 11 NFP)

For publication opinions today (5):

In Cynthia Jones, et al v. Pillow Express Delivery, Inc., a 7-page opinion, Judge Robb writes:

Cynthia Jones appeals the decision of the full Worker's Compensation Board (the “Board”) affirming the decision of a hearing member, who concluded Stephen Jones, Cynthia's husband and an employee of Pillow Express Delivery, Inc. (“Pillow Express”), was not eligible for worker's compensation benefits. For our review, Cynthia raises two issues, one of which we find dispositive: whether an employee's use of prescription medication in accordance with a physician's instructions can create an intoxication defense to worker's compensation coverage under Indiana Code section 22-3-2-8. Concluding the definition of “intoxication” as used in Indiana Code section 22-3-2-8 includes intoxication by a prescription medication, we affirm. * * *

Thus, for the purposes of operating a motor vehicle, it is not a crime to simply operate a motor vehicle with a prescribed controlled substance in one's system; however, it becomes a crime when the driver becomes intoxicated by the prescribed controlled substance to the extent that it impairs his thought and actions and he loses normal control of his faculties.

Similarly here, the mere presence of a prescribed controlled substance, standing alone, is not sufficient to automatically disqualify a claimant from worker's compensation benefits. However, when the prescribed controlled substance causes an intoxicating effect, which contributes directly to the cause of the accident, the claimant is ineligible to receive compensation under the Act. Setting aside completely the issue of Stephen's marijuana use, it is undisputed that his Fentanyl use caused him to be intoxicated and that this intoxication led directly to the accident and his death. Therefore, Stephen is not entitled to worker's compensation benefits.

In William Applegate, et al v. Earl F. Colucci, et al, a 15-page opinion involving Landowners' action to enforce restrictive covenants, Judge Kirsch writes:

In Indiana, restrictive covenants are disfavored and are strictly construed with all doubts resolved in favor of the free use of property and against restrictions. Johnson, 856 N.E.2d at 772-73. We therefore conclude that, because the language in the covenants is ambiguous, Colucci.s short-term rental of its cabins does not run afoul of the covenants.

Landowners also contend that the maintenance of a real estate office to support the cabin rental activities on one of Colluci.s properties violated paragraph 1 of the covenants which provides that the parcels “shall be used only for residential purposes” and paragraph 4 which provides that “[n]o commercial business shall be carried on upon any parcel.” * * * From our review of the designated materials, we conclude that there is a material question of fact whether the maintenance of the real estate office violates paragraphs 1 and 4 of the covenants. Accordingly, we reverse that part of the trial court.s entry which grants summary judgment on the entirety of Count I of the Landowner.s Second Amended Complaint as to the issue of the real estate office and remand for further proceedings and findings regarding this issue. * * *

Further, there was no covenant language that allowed only one single-family structure per lot and that prohibited Earl from building more than one structure on each lot. If the prohibition from building more than one structure on each lot was desired, it would have been simple to add language prohibiting such conduct. Therefore, in the absence of language specifically prohibiting the building of multiple structures on one lot, we conclude that Earl.s construction of more than one structure on each of his lots did not constitute subdividing the lots and did not violate the covenants. Only if and when he attempts to further divide the lots by selling or transferring them to separate individuals, will Earl run afoul of the covenants. The trial court erred when it granted summary judgment in favor of the Landowners on this issue. * * *

[W]e conclude that the Landowners have not yet been successful in any of their claims against Colucci and are therefore not yet entitled to attorney fees. We reverse any part of the trial court.s order that is contrary to this holding.

Paternity of M.P.M.W.; A.W. v. Z.B. - "When a suspended sentence for civil contempt is conditioned upon compliance with a trial courts orders, this court has previously held that the suspended sentence is not punitive in nature because it is intended to coerce the party to abide by the trial court's orders and affords an opportunity for the party to purge itself of the contempt. * * *

"We recognize that a suspended sentence conditioned on adhering to the trial court's orders has generally been held a proper remedial contempt sanction, but believe that the two-year suspended sentence here was punitive. The majority of cases where a suspended sentence has been found to be a proper sanction for a civil contempt violation have involved shorter periods of imprisonment. Short periods of imprisonment may be coercive and remedial in nature, but the two-year sentence1 in the present case, which falls within the sentencing range for a Class C felony, went beyond coercing action of a party and became punitive. Further, Mother's sentence did not offer an opportunity for her to purge herself of the contempt. Unlike a contempt sanction conditioned on the payment of money or the accomplishment of a single task, this contempt sentence here cannot be purged. We therefore conclude that Mother's sentence was punitive in nature and vacate her two-year suspended sentence and remand to the trial court for resentencing."

In The Town of Bristol v. Stephen Cappelletti , a 4-page opinion, Judge Kirsch writes:

The Town of Bristol (“Town”) appeals from an adverse determination in an action for judicial review of the decision of the Town Board acting as the Safety Board to discharge a police officer, Stephen Cappelletti (“Cappelletti”). The Town presents many issues for our review of which we find the following issue dispositive: whether the trial court erred in its interpretation of Indiana Code section 36-5-2-9.4(a) to require that a decision of the Safety Board must be made by a majority vote of the four elected members of the Town Council.
We reverse and remand. * * *

Based upon a review of the statutory provisions above and the clear and unambiguous language of Indiana Code section 36-5-2-9.4, we conclude that it does not apply in this situation as the Safety Board is not a legislative body, and its members, although frequently the same members as the legislative body, are appointed, not elected. The decision of a majority of the members of the Safety Board who were present and voting is sufficient to take disciplinary action against Cappelletti. Having concluded that the Safety Board’s decision to terminate Cappelletti’s employment was not void ab initio, we must remand this matter to the trial court for further proceedings on Cappelletti’s complaint.

Charles Robert Farmer v. State of Indiana - "Farmer has not established reversible error in the trial court's reference to two of the State's witnesses as experts in the presence of the jury or in permitting one of the witnesses to testify with regard to the tests performed by another analyst. Similarly, Farmer has not established reversible error in the trial court's exclusion of the self-serving statements Farmer made during his police interrogation. Lastly, Farmer's convictions for burglary and robbery do not constitute double jeopardy under the actual evidence test.
Affirmed."

NFP civil opinions today (3):

Deborah Lebamoff v. Twin Eagles Neighborhood Association, Inc. (NFP)

In the Matter of A.K.; D.M.L. v. Indiana Dept. of Child Svcs. (NFP)

Koontz Lake Trust and Joan Darflinger v. John M. Knight (NFP)

NFP criminal opinions today (8):

Jerry Emerson v. State of Indiana (NFP)

Adrian D. Kirtz v. State of Indiana (NFP)

Kulwinder Singh v. State of Indiana (NFP)

William L. Bell v. State of Indiana (NFP)

Ryan Christian v. State of Indiana (NFP)

Randy M. Swisher v. State of Indiana (NFP)

Kevin Stout v. State of Indiana (NFP)