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Tuesday, September 08, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Jonta A. Powell v. State of Indiana , a 21-page opinion, Judge Brown concludes:

Based upon our review of the record, we conclude that evidence of probative value existed from which the trial court could have determined that Powell had constructive possession of the marijuana and methamphetamine discovered in the vehicle. See, e.g., Von Hauger v. State, 254 Ind. 297, 298, 258 N.E.2d 847, 848 (1970) (holding that evidence was sufficient to convict defendant for possession of marijuana where a police officer upon approaching the car had observed the defendant placing something on the floor under the seat and the officer found the marijuana in that location even though there were two persons in the vehicle and the State never established that the defendant was the owner of the automobile); Holmes v. State, 785 N.E.2d 658, 662 (Ind. Ct. App. 2003) (holding that the State presented sufficient evidence to convict the defendant based in part upon defendant s close proximity to marijuana found under the driver s seat of a vehicle). Accordingly, we conclude that the State presented evidence sufficient to support Powell's convictions for possession of marijuana and a controlled substance.

For the foregoing reasons, we affirm Powell's convictions for possession of marijuana as a class D felony and possession of a controlled substance as class D felony.

In In Re: The Estate of Harry L. Rickert, Carole Baker, Personal Representative v. Keta Taylor , a 16-page, 2-1 opinion, Judge May writes:
Carole Baker, as personal representative of the Estate of Harry Rickert, appeals the trial court’s judgment awarding ownership of certain joint accounts to Keta Taylor. She argues the trial court incorrectly presumed Taylor was entitled to funds in joint accounts that had been in Taylor and Rickert’s names. We reverse and remand. * * *

The trial court erred in concluding Taylor was presumptively entitled to survivorship rights in the challenged accounts she created and in requiring the Estate to rebut that presumption by clear and convincing evidence. Taylor’s proffered testimony was properly excluded. We accordingly reverse and remand for further proceedings consistent with this opinion. Reversed and remanded.

BAKER, C.J., concurs.
BARNES, J., dissenting with separate opinion. I respectfully dissent. At the outset, however, I wish to emphasize that I am highly sympathetic to the result reached by the majority. If we were writing on a blank slate I would agree with that result. We are not writing on a blank slate. As an intermediate appellate court, we must follow precedent set by our supreme court, even if we do not agree with it. See Horn v. Hendrickson, 824 N.E.2d 690, 694-95 (Ind. Ct. App. 2005). That said, I simply am convinced that our supreme court’s Banko decision is binding precedent we must follow. * * *

I am keenly aware that an unscrupulous caregiver, armed with a power of attorney, could finagle joint tenancy accounts in a way that results in a gross injustice. Under Banko’s interpretation of the NPTA, however, courts essentially must presume that a joint tenancy account was scrupulously created, no matter who created it and regardless of whether one person to the account was even aware of its creation. I would urge our supreme court to reconsider Banko’s breadth, or alternatively urge the General Assembly to enact legislation that would exempt situations such as the one in this case from the NPTA’s application. Unless and until that happens, however, we must apply the NPTA as Banko interpreted it. Under that interpretation, I believe we have no choice but to affirm the judgment of the trial court.

In Adoption of A.S., D.S., C.S., and J.S.; M.S. v. L.S. and V.S. , a 21-page opinion, Judge Vaidik writes:
M.L.S. appeals the probate court’s ruling denying her petition to adopt minor children A.S., D.S., C.S., and J.S. (collectively, “the Children”) and granting the petition to adopt the Children filed by cross-petitioners V.S. and L.S. The probate court judge who heard evidence and argument in the adoption case passed away before issuing a final ruling. Although the parties in such a situation are generally entitled to a new trial, M.L.S. waived her objection to the replacement judge’s authority to issue a final ruling in this case. After the biological parents and the Marion County Department of Child Services (“MCDCS”) had executed consents allowing M.L.S. to adopt the Children, one of M.L.S.’s adopted children who lived in the home was alleged to be a juvenile delinquent for committing three counts of child molesting. MCDCS removed the Children and placed them in the home of V.S. and L.S. MCDCS and the Children’s biological parents subsequently executed consents allowing V.S. and L.S. to adopt the Children. We conclude that there is no basis under the statutes governing adoption or public policy to prohibit the execution of subsequent consents. Finally, we conclude that the evidence in this case supports the adoption decree in favor of V.S. and L.S. We affirm.
NFP civil opinions today (5):

In Eric D. Smith v. John Roberts, Chief Justice of the United States Supreme Court (NFP), a 4-page opinion, Judge May writes:

On March 10, 2009, Smith filed a complaint against John Roberts in his official capacity as Chief Justice of the United States Supreme Court. His complaint alleges there is a Star of David carved into the Supreme Court building and “alleges that Roberts has acted negligently in his officials [sic] duties by allowing and continuely [sic] establishing, advocating, and advancing the Jewish religion in violation of the First Amendment to the United States Constitution of America [sic].” The complaint states Smith is bringing his claim under the Federal Tort Claims Act and the Indiana Tort Claims Act. Smith asked the court to “declare that the displayal [sic] of the six-pointed Star of David violates the Establishment Clause of the First Amendment to the United States Constitution of America [sic], and that Roberts was negligent in his duties” and to “order the removal of the six-pointed Star of David from the United States Supreme Court.” * * *

In his brief, Smith concedes he has not stated a claim on which relief can be granted under the Indiana Tort Claims Act. Smith further concedes: [I do agree with the trial court that Roberts could not be liable under the Federal Tort Claims Act, because the FTCA prohibits suing individuals.]

It is not clear what aspect of his claim Smith believes still stands after these concessions. Assuming arguendo he has stated an otherwise valid claim alleging a violation of the Establishment Clause, he cites no authority that Indiana courts can grant him relief against the Supreme Court of the United States. He argues that state courts have jurisdiction to hear cases involving federal questions, which certainly is true. See, e.g., Green v. Hendrickson Publishers, Inc., 770 N.E.2d 784, 790 (Ind. 2002). However, that does not mean Indiana courts can grant him effective relief against the Supreme Court of the United States, which is the ultimate authority on federal questions. Therefore, the trial court did not abuse its discretion by denying Smith’s motion to correct error. Affirmed.

Eric D. Smith v. Jeffrey Wrigley, Edwin G. Buss, James Wynn (NFP) - "Eric D. Smith filed a complaint under 42 U.S.C. § 1983 against Jeffrey Wrigley, the superintendent of New Castle Correctional Facility; Edwin G. Buss, the commissioner of the Department of Correction; and James Wynn, the director of classification for the Department of Correction. The trial court determined his complaint was frivolous and dismissed it. We affirm."

John C. Cole, Jr. v. Bruce Lemmon and Edwin Buss (NFP) - "John Cole Jr. brought a small claims action against Bruce Lemmon and Edwin Buss after a correctional officer dropped Cole’s television and broke it while moving Cole and his property to another facility. The trial court dismissed his complaint as frivolous. We affirm."

Morgan Manufacturing v. The Dallas Group of America, Inc. (NFP) - "Because there is no evidence regarding essential elements in the alleged oral agreement between the parties, and because the agreement is, in part, illusory, we cannot
say that the trial court abused its discretion in determining, based solely upon evidence introduced by Morgan Manufacturing, that no oral contract was formed. * * *

"Morgan Manufacturing asks us to engage in supposition, not to evaluate evidence and reasonable inferences. There is no unjust enrichment here; thus, there is no quasi contract. * * *

"Morgan Manufacturing also asserts that the Dallas Group took what it learned from the relationship and left Morgan Manufacturing in the lurch. As we discussed above, there is no evidence or inference therefrom to show that the Dallas Group violated any duty owed to Morgan Manufacturing or that the Dallas Group used Morgan Manufacturing to gain knowledge for its advantage. As the trial court undoubtedly recognized, there must be evidence from which a reasonable inference of a breach of fiduciary duty can be drawn. Mere supposition is not enough."

Schmidt Automotive, Inc. v. Cozetta Rucker (NFP) - "The trial court neither based its award upon the breach of a contract nor upon the breach of a warranty. Rather, the trial court’s damage award was based upon Schmidt’s failure to properly diagnose and repair Rucker’s vehicle. As the evidence discloses, Rucker took her vehicle to Schmidt with concerns that the engine light was on and the vehicle was jerking and missing. Schmidt replaced the engine, and Rucker continued to experience the same problems with the vehicle. Schmidt made further minor repairs, and Rucker still returned with the same concerns. Schmidt again made repairs, and Rucker continued to experience the same issues. After three unsuccessful attempts by Schmidt to diagnose and repair Rucker’s vehicle, Rucker took her vehicle to a different repair shop that replaced the fuel injectors, which solved the problem. Thus, the trial court awarded $4,485.87 to Rucker, which is the amount Rucker paid to Schmidt for the remanufactured engine because the evidence shows that the new engine did not solve the problem that Rucker requested Schmidt to diagnose and repair. Moreover, the evidence creates the inference that the engine replacement was not necessary.

"Based upon the foregoing discussion and decision, we conclude that the evidence supports the trial court’s findings and the findings support the judgment."

NFP criminal opinions today (5):

C.K. v. State of Indiana (NFP)

Joseph Fields v. State of Indiana (NFP)

Tiquila Taylor v. State of Indiana (NFP)

Morgan B. Dalton v. State of Indiana (NFP)

Bruce J. Gootee v. State of Indiana (NFP)

Posted by Marcia Oddi on September 8, 2009 12:06 PM
Posted to Ind. App.Ct. Decisions