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Thursday, February 18, 2010

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In Indiana Department of Environmental Management v. NJK Farms, Inc., a 21-page opinion, the Court reverses on the basis that NJK had not exhausted its administrative remedies. Judge Barnes writes:

In this interlocutory appeal, the Indiana Department of Environmental Management (“IDEM”) appeals the trial court's order finding it in breach of a settlement agreement with NJK Farms, Inc., (“NJK”). We reverse and remand.

IDEM raises four issues, but we find one issue dispositive: whether the trial court had subject matter jurisdiction. Consequently, we do not address the remaining issues raised in the appeal. * * *

We conclude that, under Raybestos, IDEM's entry into the Settlement Agreement and IDEM's actions following the Settlement Agreement regarding NJK's permit application were “agency actions” to which the AOPA applies. See I.C. §§ 4-21.5-5-1; 4-21.5-2-5. As such, the AOPA provides the exclusive means to review IDEM's actions, and the trial court did not have subject matter jurisdiction to consider NJK's arguments. Further, damages for the alleged breach of the Settlement Agreement under Indiana Code Section 34-13-1-1 are not allowed. As noted in Raybestos, money damages are not authorized under the AOPA. Raybestos, 897 N.E.2d at 475 (citing I.C. § 4-21.5-5-15).

We conclude that the trial court did not have subject matter jurisdiction to consider NJK's allegations that IDEM breached the Settlement Agreement. Rather, under Raybestos, those claims are subject to the AOPA and NJK must exhaust its administrative remedies as required by the AOPA. Moreover, NJK's request for damages is not cognizable under the AOPA. We reverse and remand for proceedings consistent with this opinion.

Tyrone T. Perry v. State of Indiana - "In light of Perry’s escalating criminal acts; his apparent complete disregard for the safety and property of others as evidenced by his involvement in multiple robberies and the fact that he shot both of his Indiana victims, one of whom subsequently died; and his serious criminal actions in Michigan, we cannot say that the trial court’s order that Perry’s aggregate ten-year sentence be served consecutive to his term of imprisonment previously imposed in Michigan is inappropriate."

Keith A. Parks v. State of Indiana - "Parks was not prejudiced by the trial court's replaying of witness testimony, and the State presented sufficient evidence to prove Parks was an habitual offender. Therefore, we affirm his convictions and sentence enhancement."

In Jeffrey Tharp v. State of Indiana , a 10-page opinion, Judge May writes:

Jeffrey Tharp appeals his conviction of invasion of privacy. Because the State did not prove Tharp knew he was subject to an active order of protection, we reverse his conviction. Although the point is now moot, we also note the trial court erred by delegating to the probation department its authority to set terms and conditions of Tharp’s probation.
NFP civil opinions today (1):

Term. of Parent-Child Rel. of Jo.D. and Ja.D.; Je.D. v. IDCS (NFP)

NFP criminal opinions today (8):

Torray C. Stitts v. State of Indiana (NFP)

Marvin Smith v. State of Indiana (NFP)

Sterling Saunders v. State of Indiana (NFP)

Kemper Harris v. State of Indiana (NFP)

Thomas Arnold v. State of Indiana (NFP)

David James Newton v. State of Indiana (NFP)

Ronald Thomas, Jr. v. State of Indiana (NFP)

Gary A. Davis v. State of Indiana (NFP)

Posted by Marcia Oddi on February 18, 2010 12:41 PM
Posted to Ind. App.Ct. Decisions