Old Romney Dev. Co. v. Tippecanoe County and State of Indiana (11/30/04 IndCtApp) [Real Estate; Takings]
Bailey, Judge
* * * Old Romney raises one issue on appeal, which we restate as whether the trial court erroneously granted summary judgment to Appellees because Appellees’ act of closing the intersection of U.S. 231 and County Road 300 South constituted a regulatory taking for which Old Romney is entitled to damages under the doctrine of inverse condemnation. * * *Michael Siegel v. Marjorie Williams (11/30/04 IndCtApp) [Torts; Fraud; Malpractice]Old Romney’s right of access to U.S. 231 has not been cut off or interfered with such that it has no other reasonable means of access. Indeed, Old Romney concedes that it has a circuitous access to U.S. 231, via State Road 300 South, Old Romney Road, and State Road 25. Accordingly, Old Romney can still reach its land by the public road system, although the distance will be greater and the route circuitous. Because Old Romney retains a reasonable means of accessing U.S. 231, it has failed to demonstrate that a compensable taking has occurred. Accordingly, the trial court did not err by denying Old Romney’s partial motion for summary judgment and by granting summary judgment to Appellees.
For the foregoing reasons, we affirm the trial court’s summary judgment in favor of Appellees on Old Romney’s claim for inverse condemnation. Affirmed.
SHARPNACK, J., and MAY, J., concur.
* * * On April 28, 1988, Marjorie was caring for her daughter at Wishard Memorial Hospital in Indianapolis, Indiana. Marjorie’s daughter had been diagnosed with AIDS caused by a blood transfusion in the early 1980s. In the early morning hours, Marjorie was assisting her daughter when she was stuck by a hypodermic needle hidden in her daughter’s bed. Apparently, a Wishard employee had failed to dispose of the needle after taking a blood sample. Marjorie suffered emotional trauma as a result of her fear of contracting AIDS, and sought counsel from Siegel, an attorney licensed to practice law in Indiana*, to file a negligence claim against Wishard. Siegel failed to file a notice of tort claim within 180 days of April 28, 1988, which was a statutory prerequisite for maintaining an action against Wishard.See footnote Marjorie ultimately entered into a settlement agreement with the hospital for $5,000.00.Richard E. Payton v. State of Indiana (11/30/04 IndCtApp) [Criminal Law & Procedure]The Williamses hired different counsel to pursue an attorney malpractice action against Siegel. On November 13, 1992, the second day of trial, Siegel told Marjorie’s counsel that he would settle the claim for $25,000, which was all that he had because his wife had gotten all of his money in their divorce. He also stated that if the jury awarded more than $25,000, he would declare bankruptcy. At the time Siegel made these statements, he had filed an appearance in the case and was an attorney of record before the court. Based upon Siegel’s statements, the Williamses agreed to settle their claim. The Hendricks County trial court noted the settlement, and the Williamses filed a satisfaction and release of judgment on April 14, 1993.
Approximately two years later, Scott Weathers, Marjorie’s attorney in the attorney malpractice action, encountered Siegel outside of the Marion County court building. Siegel told Weathers that he “pulled one over on [the Williamses]” because he could have paid a judgment of “three hundred, four hundred, five hundred thousand dollars, and I got out of it for twenty-five.”
On October 28, 1998, the Williamses filed a second complaint against Siegel in Marion County, alleging fraud and misrepresentation which induced the Williamses to settle the attorney malpractice claim. Siegel filed a motion to dismiss for lack of jurisdiction, arguing that the complaint was actually a Trial Rule 60 motion to set aside the prior judgment entered by the Hendricks County trial court. The trial court denied the motion. On November 24, 2003, the trial court conducted a bench trial. Mary Findling, an Indianapolis attorney with seventeen years of experience, testified that, in her opinion, the Williamses’ claim against Wishard would have been worth between $100,000 and $150,000. The trial court made special findings, and entered judgment against Siegel for $100,000, and reduced this award by $30,000 to account for the prior settlements. This appeal ensued. * * *
Based upon the foregoing, the trial court had jurisdiction over the Williamses’ fraud complaint, and the evidence supported its findings. Accordingly, we affirm the judgment of the trial court. Affirmed.
SHARPNACK, J., and MAY, J., concur.
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* Siegel’s license to practice law was subsequently suspended for intentionally deceiving a tribunal in an unrelated matter. In re Siegel, 708 N.E.2d 869 (Ind. 1999).
* * * Payton raises two issues, the first of which we restate as whether the evidence is sufficient to support his convictions for sexual battery. We do not address this issue. Rather, we address, sua sponte, whether Payton’s simultaneous convictions for sexual battery as Class D felonies, child molesting as Class C felonies, and sexual misconduct with a minor as a Class C felony violate the Indiana Constitution’s prohibition against double jeopardy. The second issue raised by Payton is whether the trial court abused its discretion when it imposed the thirty-nine-year sentence. * * *James H. Higgason, Jr. v. Chris Stogsdill, et al (11/30/04 IndCtApp) [Criminal Law & Procedure]For the foregoing reasons, we reverse Payton’s convictions for sexual battery and remand to the trial court with instructions to vacate Payton’s conviction of the lesser-included offenses of sexual battery and enter judgments of conviction and sentence only upon the greater offenses of child molesting and sexual misconduct with a minor. We also revise Payton’s aggregate sentence to twenty-five and one-half years. Reversed and remanded in part and revised in part.
DARDEN, J., concurs.
MATHIAS, J., concurs in part and dissents in part with separate opinion.
I concur with the majority’s determination that Payton’s convictions of the lesser-included offenses of sexual battery must be vacated on double jeopardy grounds. However, believing that Payton’s sentence is entirely appropriate, I respectfully dissent from the majority’s decision to modify that sentence. * * *
James H. Higgason, pro se, appeals a grant of summary judgment in favor of all the defendants in the latest of what has become a steady stream of civil rights lawsuits filed from prison by Higgason. Those defendants, namely, Chris Stogsdill, Art Davis, Dave Thomson, Michelle Shake, and Lee Hoefling (collectively referred to as the Defendants), were employees at the Wabash Valley Correctional Facility (the WVCF). Upon appeal, Higgason challenges the grant of summary judgment. We affirm. * * *James H. Higgason, Jr. v. Bruce Lemmon, et al (11/30/04 IndCtApp) [Criminal Law & Procedure]That is, in light of Higgason’s propensity toward endless litigation, we will impose a screening mechanism to forestall future frivolous lawsuits.
Therefore, in addition to affirming summary judgment in favor of the Defendants and against Higgason, we impose the following conditions upon Higgason with respect to any future lawsuits that spring directly or indirectly from the adequacy of the procedures, materials, or access to the mail room and the law library at the WVCF, and with respect to the copying of materials at the library’s expense: * * *
Judgment affirmed.
MATHIAS, J., and DARDEN, J., concur.
James H. Higgason, pro se, appeals a grant of summary judgment in favor of all the defendants in yet another civil rights lawsuit filed from prison by Higgason. Those defendants, namely, Bruce Lemmon, Ron Batchelor, Vera Barnett, Dick Brown, Jerry Snyder, Ron McCullough, William Gadberry, F. Brannick, and Teresa Stephens were employees at the Wabash Valley Correctional Facility (the WVCF), where Higgason was incarcerated in the Special Housing Unit (the SHU). Upon appeal, Higgason challenges the grant of summary judgment. We affirm. * * *James Strezovski, et al v. George R. Frazee, et al (11/30/04 IndCtApp) [Real Property; Tax Sale]In light of the issues raised in this appeal, we will once again place conditions upon the filing of future lawsuits concerning the matters alleged in the instant complaint.
Therefore, in addition to affirming summary judgment in favor of the defendants and against Higgason, we impose the following conditions upon Higgason concerning any future lawsuits that spring directly or indirectly from the matters addressed above: * * *
Judgment affirmed.
BAKER, J., and DARDEN, J., concur.
Appellants-Plaintiffs, James Strezovski and W.D. Connette (collectively, the Appellants), appeal the trial court’s order in favor of Appellees-Defendants, George R. Frazee and Elaine Frazee (Elaine) (collectively, the Frazees), denying Appellants’ Verified Petition for Order Directing Issuance of Tax Deed By the Lake County Auditor (Petition). We reverse and remand with instructions.Timothy Woolum, Sr. v. State of Indiana (11/30/04 IndCtApp) [Criminal Law & Procedure]Issue. Appellants raise two issues on appeal, which we consolidate and restate as: whether the trial court erred in denying their Petition thereby granting the Frazees time beyond the one-year redemption period pursuant to Indiana Code §§ 6-1.1-25-1; 6-1.1-25-4; and 6-1.1-25-4.6. * * *
Here, the record reveals that the trial court neglected to apply the unambiguous language of the statutes in determining whether to grant or deny the Appellant’s Petition. In particular, Indiana Code § 6-1.1-25-4.6(b) clearly mandates the trial court to enter an order issuing a tax deed within sixty-one days of the filing of the Petition if the petitioner has met all necessary conditions. The statute is silent in allowing the trial court to exercise its discretion in granting additional time before ordering the issuance of a tax deed. In the instant case, the trial court did just that: after granting the Appellants’ Petition, the trial court nevertheless allowed the Frazees extra time to redeem the property by awarding them an additional 98 days beyond the one-year limitation for redemption of property.
Consequently, based on the clear and unambiguous language of Indiana Code §§ 6-1.1-25-1; 6-1.1-25-4; and 6-1.1-25-4.6, we conclude that the trial court does not have the discretion to extend the period of redemption beyond the one-year limitation. See Montgomery, 677 N.E.2d at 574. Therefore, we find that the trial court erred in denying Appellant’s Petition.
Conclusion. Based on the foregoing, we conclude that the trial court erred in denying Appellant’s Petition, and therefore direct the trial court to issue the tax deed to the Appellants. Reversed and Remanded.
Woolum raises one issue on appeal, which we restate as follows: whether the trial court erred in denying Woolum’s Motion to Suppress evidence obtained as a result of a warrantless search of his residence which he shared with his son who was on probation. * * *In the Matter of C.T.B. and L.L.B., Mindy Hinkley v. Chapman (11/30/04 IndCtApp) [Family Law]Based on the foregoing, we find that the trial court properly denied Woolum’s motion to suppress. Affirmed.
CRONE, J., and VAIDIK, J., concur
Mindy Hinkley appeals the trial court’s order granting Erinn and Bradley Chapman’s petition for permanent guardianship over Hinkley’s son, L.B. * * *C.S. v. State of Indiana (11/30/04 IndCtApp) [Juvenile Law]Without reweighing the evidence or judging witness credibility, we conclude that the trial court could have concluded that the judgment was established by clear and convincing evidence. Therefore, the trial court did not abuse its discretion in appointing the Chapmans as guardians. The judgment is affirmed.
NAJAM, J., and BARNES, J., concur.
C.S. was adjudged a delinquent pursuant to a plea agreement. At the dispositional hearing on December 3, 2003, he was made a ward of the Department of Corrections for housing in any correctional facility for children. This order was then suspended, and he was placed upon strict probation. He first met with his probation officer five days later on December 8. At that time he gave a urine sample for a drug screen. A week later the probation officer received the results of the screen, which showed positive for cocaine metabolites. She then filed a petition to revoke probation. * * *Robert Bell v. State of Indiana (11/30/04 IndCtApp) [Criminal Law & Procedure]Because the sample was taken only five days after C.S. was placed on probation, we are left to merely speculate whether he used cocaine before or after probation was imposed. We are unable to say that the evidence favorable to the decision, and the reasonable inferences therefrom, are sufficient to establish by a preponderance of the evidence that C.S. used cocaine at some time after he was placed on probation.
It follows that the decision revoking probation must be reversed and the case remanded for such further proceedings as may be necessary. Reversed and remanded.
ROBB, J., and BAILEY, J., concur.
Robert Bell (Bell) appeals the trial court's denial of his motion to suppress. We reverse.Issue. Whether Bell's constitutional rights against unreasonable search and seizure were violated. * * *
The purpose of Indiana's Constitution, Article I, § 11, is "to protect from unreasonable police activity those areas of life that Hoosiers regard as private." Scott v. State, 775 N.E.2d 1207, 1211 (Ind. Ct. App. 2002) (citing Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995)). In general, "Hoosiers regard their automobiles as private and cannot easily abide their uninvited intrusion." Id. Therefore, "In deciding whether a warrantless search and seizure violates Article One, section eleven, we must determine whether, under the totality of the circumstances, the warrantless search" of Bell's car was unreasonable. Scott, 775 N.E.2d at 1211.
The evidence is undisputed that both Bell and Sharp were immediately removed from the vehicle, handcuffed, patted down and placed in separate police vehicles. Also, Bell's weapon was retrieved before the officers commenced the search of his vehicle. Moreover, a search of the open area of the passenger compartment and inside of the glove compartment revealed no contraband. Still, without the benefit of a search warrant, the officers then proceeded to dismantle the vehicle's glove box and searched inside the vehicle's chassis. It is at this point that we find that the officers' search exceeded the bounds of reasonableness in Indiana. Based upon the facts and circumstances of this case, we do not believe that citizens of Indiana would countenance this type of warrantless search that occurred here. As a result, we find that under the totality of the circumstances, the search was unreasonable and the motion to suppress should have been granted. See Fox v. State, 797 N.E.2d 1173, 1177 (Ind. Ct. App. 2003).
We reverse the trial court and order the drugs found in the chassis of Bell's vehicle suppressed.
BAKER, J., and FRIEDLANDER, J., concur.