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Wednesday, August 12, 2009
Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)
For publication opinions today (3):
In Van Prooyen Builders, Inc. v. Earl L. Lambert, Jr. and Mildred Lambert , a 4-page opinion, Judge Najam writes:
Van Prooyen Builders, Inc. (“Van Prooyen”) petitions for rehearing and claims several errors in this court's opinion in Van Prooyen Builders, Inc. v. Lambert, 907 N.E.2d 1032 (Ind. Ct. App. 2009) (“Van Prooyen I”). We grant rehearing for the limited purpose of addressing Van Prooyen's contention that the only issue addressed by the trial court and the parties on appeal was whether the Tax Provision violated public policy and, therefore, that this court's opinion should have addressed only that issue. * * *In Joshua Lewis, Nashelia Avant, and Marilyn Owens v. State of Indiana , a 16-page opinion, Judge Bradford writes:Van Prooyen's arguments that this court is required to address only the legal theory relied upon by the trial court, or that this court “may not affirm a judgment where the trial court based its decision upon an invalid theory of law,” are not well founded.[1] * * * We prefer to consider only the legal arguments advanced by the parties, but our review is not limited merely because Van Prooyen did not fully brief the Tax Provision. As the Lamberts point out, it was a dispute over the meaning of the Tax Provision that gave rise to this cause of action. Indeed, the trial court's interpretation of the Tax Provision was the threshold issue and the legal predicate for its ruling that enforcement of the provision would violate public policy. Thus, the meaning of the Tax Provision was squarely before us, whether or not Van Prooyen addressed it, and our opinion was based on the plain language of the contract and Indiana law.
Van Prooyen's additional requests for this court to remand for the presentation of further evidence, or to order rebriefing on the meaning of the Tax Provision, are denied. Our prior opinion is affirmed in all respects.
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[1] Van Prooyen cites two cases in support of this position, each of which suggests that this court cannot affirm a trial court's judgment if that judgment relies on an invalid legal theory. See In re Estate of Fanning, 263 Ind. 414, 417, 333 N.E.2d 80, 82 (1975); Data Processing Services, Inc. v. L.H. Smith Oil Corp., 493 N.E.2d 1272, 1274 (Ind. Ct. App. 1986). But both of those cases predate our Supreme Court's opinion in Mitchell and have, therefore, been impliedly overruled. See 695 N.E.2d at 923-24.
In this consolidated interlocutory appeal, Appellants-Defendants Joshua Lewis, Nashelia Avant, and Marilyn Owens challenge the trial court's denial of their petitions to transfer their cases out of Marion Superior Court 8 on the grounds that the State's refusal to waive jury trials in Court 8 violates both the federal and Indiana Constitutions. We affirm.In Marion County, Class D felony cases involving defendants with mental health problems or diagnoses are often transferred to Court 8, which is otherwise primarily a misdemeanor court. According to Matthew Gerber, Class D Felony Division Leader for the Marion County Public Defender Agency, prior to June 14, 2007, the State routinely agreed to waive its right to a jury trial in Class D felony cases in Court 8. On the afternoon of June 14, 2007, however, the trial court reportedly held a series of bench trials and acquitted multiple defendants. Thereafter, according to Gerber, the State refused to waive jury trials for Class D felony cases in Court 8, including in the Lewis, Avant, and Owens cases addressed below. The State's waiver policy in Court 8 allegedly differed from its policy in other courts including Marion Superior Courts 9, 15, 18, and 24, where, according to Gerber, it routinely waived jury trials for cases involving crimes such as residential entry and theft. * * *
The Appellants claim that the Marion County Prosecutor's Office's alleged policy to refuse to waive jury trials for Class D felonies in Court 8 deprives them of certain constitutional protections. [These are I Timeliness, II Effective Assistance of Counsel, III. Bench Trial, IV. Equal Protection, V. Privileges and Immunities. The Court discusses each in turn and finds not violations] * * *
Having rejected the Appellants' constitutional challenges, we find no error in the trial court's denial of their motions to transfer. The judgment of the trial court is affirmed.
Columbus Medical Svcs. Org., LLC v. Liberty Healthcare Corp.
NFP civil opinions today (6):
The Term. of the Parent-Child Rel. of H.P.; M.W. and R.P. v. Knox Co. Dept. of Child Svcs. (NFP)
Scott Stites, David M. Relue and Peter J. Walters v. Indiana Dept. of Natural Resources and RCI Development, LLC (NFP) - "Appellants Scott Stites, David M. Relue, and Peter J. Walters (collectively, “Appellants”) appeal the trial court's order dismissing their petition for judicial review of an agency decision by Appellee the Indiana Department of Natural Resources (“DNR”) for lack of jurisdiction. We affirm.
"On July 18, 2008, DNR issued its Notice of Final Order granting RCI Development, LLC (“RCI”) a license to construct a group pier on Crooked Lake in Steuben County. Appellants filed a petition for judicial review of DNR's order on August 18, 2008. The petition was signed by the Appellants but did not contain any verification that the petition had been signed under the penalty of perjury. * * *
"Here, it is undisputed that Appellants' petition lacked verification as required by Indiana Code Section 4-21.5-5-7(b). It is also undisputed that Appellants did not file a motion to amend their petition to include verification until October 1, 2008, nearly a month and a half after the conclusion of the statutorily allotted thirty-day period in which they could file a petition for judicial review of the DNR's order. Because Appellants' defect was left uncured when the statutory thirty-day period for filing Appellants' petition elapsed, we conclude that the trial court properly dismissed Appellants' petition for judicial review for lack of jurisdiction. See Kemp, 693 N.E.2d at 644; Hoosier Envt’l Council, 673 N.E.2d at 815-16. The judgment of the trial court is affirmed."
Lokmar Y. Abdul-Wadood v. S. Nowatzke, and WCU Trust Fund Office (NFP)
Transmontaigne Product Svcs. Inc. v. Americas Ins. Co., et al. (NFP)
State of Indiana v. Clay Crick and Jeffrey K. Watts (NFP)
NFP criminal opinions today (4):
Patsy M. Hoffman v. State of Indiana (NFP)
Steven W. Everling v. State of Indiana (NFP)
Charles E. Watkins v. State of Indiana (NFP)
B.P. v. State of Indiana (NFP)
Posted by Marcia Oddi on August 12, 2009 11:48 AM
Posted to Ind. App.Ct. Decisions