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Tuesday, July 14, 2009

Ind. Decisions - Court of Appeals issues 5 today (and 6 NFP)

For publication opinions today (5):

Jeffrey A. Peterson v. State of Indiana - "Jeffrey A. Peterson appeals the revocation of his probation. We affirm."

B.W. v. State of Indiana - "B.W. appeals the juvenile court’s order requiring him to register as a sex offender. Specifically, he argues there was not sufficient evidence to support such an order. Concluding there was clear and convincing evidence finding B.W. is likely to repeat an act that would be a sex offense if committed by an adult, we affirm."

In Board of Commissioners of Hendricks County, Indiana, and Daum LLC, et al v. Town of Plainfield, Indiana, et al, a 26-page opinion, Judge Kirsch writes:

We first address Appellants' contention that the trial court erred as a matter of law when it granted summary judgment to Plainfield Defendants on their counterclaim seeking declaratory judgment that the Town Ordinance was valid and enforceable. Specifically, they contend that Plainfield Defendants failed to state an actionable claim because Plainfield Defendants were attempting to use declaratory judgment to validate their own ordinance. * * *

We find Appellants' reasoning to be persuasive. While a municipality can file a declaratory judgment regarding its rights when the ordinance of another municipality or county affects those rights, the UDJA does not contemplate that the same municipality can sue to have its own ordinance declared valid. Plainfield Defendants did not have standing under the UDJA to file a counterclaim for declaratory judgment as to the validity of the Town Ordinance. As such, the Plainfield Defendants failed to state an actionable claim in their counterclaim for declaratory judgment that the Town Ordinance was valid. The trial court therefore erred in granting summary judgment in favor of Plainfield Defendants on a finding that the Town Ordinance was valid and enforceable.

Appellants next argue that the trial court erred, as a matter of law, when it held that Plainfield could exercise storm water jurisdiction pursuant to the Town Ordinance, and charge storm water fees for properties outside its corporate boundaries. Appellants first note that, while the parties each claim to have jurisdiction over Daum's property, the trial court failed to address the issue of whether Hendricks County and Plainfield both could validly claim such storm water jurisdiction. Appellants note the well-settled rule that two independent governments cannot “exercise the same powers within the same district, at the same time,” because there cannot be “two corporations for the same purposes with co-extensive powers of government extending over the same district.” * * *

As noted above, Daum sought declaratory judgment that the Town Ordinance violates or is inconsistent with Indiana law in four respects. Based on the above reasoning, we find one of Daum's four contentions to be dispositive and conclude that the Town Ordinance illegally charges a storm water fee on property located outside the corporate boundaries of Plainfield. We declare invalid all provisions of the Town Ordinance that authorize the imposition of storm water fees on properties located outside Plainfield's corporate boundaries and order Plainfield to return all fees paid pursuant to the Town Ordinance. * * *

Here, we find Daum's property does not fall within Plainfield's storm water jurisdiction, and Plainfield has no authority to impose a storm water fee on Daum's property. Finding, as we do, that there is no genuine issue of material fact that Daum's property is within Hendricks County's storm water jurisdiction and, therefore, is subject to storm water fees pursuant to the County Ordinance, we, therefore, remand this case to the trial court with instructions to enter summary judgment in favor of Hendricks County and against Plainfield. Reversed and remanded.

Deutsche Bank National Trust Co., et al. v. Mark Dill Plumbing Co., et al. - "With these clarifications, we affirm our original opinion denying Deutsche Bank’s request to simply remove the liens of the junior lienholders’ from Deutsche Bank’s title to the property."

In Jonathan Hoop v. State of Indiana , a 13-page opinion, Judge May writes:

Jonathon Hoop brings this interlocutory appeal from the denial of his motion to suppress. The challenged evidence was seized during the execution of a search warrant, which was issued after an officer had a drug-detecting dog sniff the front door of Hoop's residence. We conclude that under Article 1, Section 11 of the Indiana Constitution, an officer needs reasonable suspicion to conduct a dog sniff of a private residence. Even if that requirement was not met in this case, the officers relied on the warrant in good faith. Therefore, we affirm. * * *

The dog sniff did not implicate Hoop's Fourth Amendment rights. However, under Art. 1, § 11, the officers needed reasonable suspicion to conduct a dog sniff of his residence. Although the State has not argued the officers had reasonable suspicion, it has established the officers relied on the warrant in good faith. Therefore, the evidence should not be suppressed, and the trial court's ruling is affirmed.

NFP civil opinions today (2):

Calumet Township Trustee v. Calumet Township Advisory Board (NFP)

Michael Arthur v. Terryl Arthur (NFP) - "Michael Arthur appeals the order dissolving his marriage to Terryl Arthur. We remand with instructions to (1) clarify the parties’ respective responsibilities for attorney fees; and (2) to either explain why the property was divided unequally or to order an equal division of the property."

NFP criminal opinions today (4):

Dennis Mullendore v. State of Indiana (NFP)

Aaron B. Fromer v. State of Indiana (NFP)

Jacob I. Powell v. State of Indiana (NFP)

Leo H. Justice v. State of Indiana (NFP)

Posted by Marcia Oddi on July 14, 2009 01:20 PM
Posted to Ind. App.Ct. Decisions